THE UNIVERSITY OF ILLINOIS LIBRARY . ■ The Right Hon. Sir Nicolas Conyngham Tindal, Knt., Lord Chief Justice of the Court of Common Pleas, 1829-1846. REPORTS y OF •// STATE T RIAL S. NEW SERIES. VOLUME IV. 1839 to 1843 . PUBLISHED UNDER THE DIRECTION p. • OF Gti-eal L'HE STATE TRIALS COMMITTEE. EDITED BY JOHN E. P. WALLIS, M.A., OF THE MIDDLE TEMPLE, ESQ., BARRISTER-AT-LAW. LONDON: PRINTED FOR HER MAJESTY’S STATIONERY OFFICE, BY EYRE AND SPOTTISWOODE, PRINTERS TO THE QUEEN’S MOST EXCELLENT MAJESTY. And to be purchased, either directly or through any Bookseller, from EYRE and SPOTTISWOODE, East Harding Street, Fleet Street, E.O. ; or JOHN MENZIES & Co., 12, Hanover Street, Edinburgh, and 90, West Nile Street, Glasgow; or HODGES, FIGGIS, & Co., Limited, 104, Grafton Street, Duelin. 1892. Price Ten Shillings. ) ■ 'W- J yV THE STATE TRIALS COMMITTEE. , / • ifl O ^ v '/' ‘I 'o re o LU c A3 What, I ask, does the statute of Anne effect according to this argument? It reasons in the preamble against the Act of 1690, and it leaves the Act in force. It professes to repeal the Act of 1690, and the whole tenor of the contents of that statute of Anne does repeal that Act, and, not satisfied with repealing the Act of 1690, it sets up patronage by express de- claratory words ; and yet by a clause at the end it abrogates its own repeal, and sets up the Act which it professes to abro- gate ; that is the argument. It says there shall be no longer any rights enjoyed such as are given by the Act of 1690, and then it sets up those rights in full force. It says that the patron’s right shall be restored, and then it destroys that alto- gether. It says, “revive patronage,” and then, the better to revive patronage, it utterly extinguishes it. It says, we are not satisfied with abrogating the right of the heritors and kirk sessions, and with restoring the right of the patron ; but we tell you in affirmative words as well that he has the full right ; that he has not lost that right by the statute we have repealed ; and then, to the astonishment of the reader and of the patron, I should appre- hend, who finds himself so dealt with, to the astonishment of all, it proceeds to tell the patron, “You are just where you were before we began our work, for with one hand we set up your right, and with another we pull it down ; with the right hand we make 'the show of giving you back your right, and with the left we take it away for ever . ” No w that i s the argument upon which this extraordinary construction of the Act of 1711 is based. That your Lordships may see I am not giving an incorrect description of it, I remind you of these words : — <£ Whereas the presenting of ministers did of right belong to the patrons ; and whereas the Act of 1690 took it from them, and gave it to the heritors and elders ; and whereas this Act has proved inconvenient ; and whereas it is necessary that it should be repealed, it is hereby repealed, and the right of all and every patron is restored, settled, and confirmed : provided, nevertheless, that such qualified persons as shall be presented shall be admitted in such manner as the persons or ministers presented before the making of this Act ought to have been ad- mitted.”^) the inevitable conclusion is that, though the right of presentation was transferred eo nomine from the heritors and elders to the old patrons, they, too, were now to propose their presentee to the whole congregation to be approven or disapproven ; and that in case of disapproval the whole matter was to be ordered and concluded by the determination of the presbytery.” — Opinion of Lord Jeffrey, llobertson’s Eeport, vol. 2, p. 386. (a) See the full text of the statute, above, p. 4. No doubt this proviso has some mean- ing. Every word in every statute must have a meaning given to it, and who can doubt what the meaning is here ? All the ordinary forms and modes of proceeding shall be followed, which are understood to be a presentment by the patron to the presbytery moderating in the call of the presentee— the Presbytery receiving ob- jections, and considering them as to quali- fication, and admitting, modo solito, the person so by them found qualified who has by the patron been so presented. That is what the proviso plainly means. Whether it was necessary or not is another question, for though a statute never is supposed to use words without a meaning,, it is always allowed the privilege of using words not absolutely necessary. But to say that it means that the candidate shall be inducted exactly as if this Act of 1 690 never had been repealed is to attri- bute to the Legislature not only great infirmity of purpose, but the grossest blundering that can possibly be imagined, for it would leave the law precisely where it stood before the repeal of the Act, the abrogation of which is the sole object of the Legislature; it would leave in the last section by way of proviso that which it repealed in the first section by way of positive enactment. Moreover, to prove that this is the construction set up for the appellants is easy, for let me observe that unless it has the very effect which I as- cribe to it, nothing whatever is gained by it for the argument it is used to aid. Unless the force and effect of those words at the end, “ in such manner,” &c., is to revive the former practice under the Act of 1690, and undo all the former words have done, they have no force and effect at all ; they do not help the argument at all. Those words either revive and con- tinue the Act of 1690, or they work no- thing. Therefore, I say, in the next place, which is decisive of the present question, suppose you make the appel- lants a present of their construction;, suppose you say that this is the force and effect of the final words ; suppose you say that the proviso does revive the Act of 1690, which the enactment had just re- pealed; suppose you say that it brings back things to the state in which they were during the twenty-one years which elapsed from the year 1680, just see how little way you get in your present contention.. This is the reason why I have been en- treating your Lordships to attend minutely to what that Act of 1690 really did ; for, as it was a repealed Act. it was not worth commenting upon or worth recollecting at all for its own sake ; but it was because the consideration of its substance clenches the argument against the construction put 37] Presbytery of Auchterarder against Kinnoull , 1839, [38 upon the statute of 1711 that I began my argument by fixing that in your Lord- ships’ minds. The argument is that the last words of the Act of 171 1 revived the state of things in respect of presentment and induction, and placed the present- ment and induction upon precisely the footing upon which they were immediately before the passing of the Act. Now what is meant by “ before the passing of this Act ” ? It cannot, ac- cording to this argument, be before the year 1690, because everybody admits that then the old rights of patronage were in force, and that the former statute ex- pressly orders the Presbytery to admit every qualified person presented by the patron. Then the argument I am grap- pling with must needs refer to the state of things during the twenty-one years that elapsed between 1690 and 1711 ; it must mean this or nothing ; it must mean to set up the presentment of the patron to the Presbytery, the sustentation by the Pres- bytery of that presentment, the dissent of the congregation without reasons against the presentee signified to the Presbytery, and the Presbytery holding themselves bound by that dissent, and, therefore, and for no other reason, rejecting the patron’s presentee. That is the argument. But is that the state of things during the last twenty-one years by the Act of 1690 ? It is as utterly different as any one thing can be different from any other, for the Act of 1690 does not prescribe any presentment by the patron to the Presbytery. It pre- scribes a presentment by the heritors and kirk sessions to the congregation. The Act of 1690 does not prescribe a dissent or assent by the congregation without reasons. It prescribes a statement by the congregation of reasons for or against the presentee. The Act of 1690 does not pre- scribe an absolute binding of the Presby- tery by the assent or dissent of the people. It prescribes a cognoscing by the Presby- tery, and an adjudication by the Presbytery upon cognoscing ; that is to say, upon examining those reasons. Consequently, two things more completely different than the state of matters as it existed between 1690 and 1711, and that which is now contended for by the Presbytery against Mr. Young as to the relative position of the parties under the proviso, cannot pos- sibly be imagined. My Lords, I hold this to be quite con- clusive. I hold this to be demonstrative, that there is no foundation whatever for this construction sought to be put upon the Act of 1711. It is equally clear that this argument might be admitted without benefit to the appellants, or damage to the respondents, to its full force. I think it very absurd ; I think it is grossly inde- corous towards the Legislature ; I think it is mocking the Legislature to suppose that they did so great an absurdity as to say that they meant to repeal an Act, and yet to keep that Act in force. But still I will admit, for argument’s sake, that the construction is both decorous and well grounded ; that the Act of 1711 left the matter of presentment and induction pre- cisely upon the footing upon which it stood immediately before 1711. The ap- pellants cannot require a larger concession than this. Then what follows ? Not the advancement of their argument by one hair’s breadth, for what men didbefore 1711 and after 1690 is not what the appellants have done— is not what they pretend to do — is not what they contend for the right of doing. Therefore, it appears to me per- fectly evident that this construction of the Act of Anne is wholly groundless ; that the Act of Queen Anne repealed the Act of 1690, restored the right of patronage, and left that right of patronage precisely as it stood before the Act of 1690. But it is said to be a very strained and fanciful construction to import into the Act of Queen Anne those words, “ as matters- stood before 1690.” My Lords, I am not importing those words or any others ; but the meaning of the statute of Anne, so plain that he who runs may read, is to abrogate the Act of 1690, and, therefore, to leave things as they stood before 1690. The Act of Anne says, “ Let the statute of 1690 be entirely out of the field ; let it bo abolished altogether.” Then it equally says, for this is implied, “ Let matters be as they were before that repealed Act passed.” When you repeal an Act in one year which was passed twenty years be- fore, of necessity and by the abrogation you restore things to the state in which they were twenty-one years before. If there comes at the end of an Act of Parliament a clause about which some doubt is sought to be raised, are not you to adopt one or other construction of that clause, accord- ing as it makes out or does not make out, according as it helps or frustrates the plain and obvious meaning of the whole statute itself? That is an ordinary and simple principle of construction, not only of all Acts of Parliament, but of all in- struments, all wills, all deeds, and all writings whatever. Far from being fanci- ful, it is the plain rule of common sense. Far from being strained, it is the only natural course. These, therefore, are the grounds upon which I have come to the conclusion that the judgment must be affirmed. I wish I could have stated them more shortly. If I had had time to digest my judgment, and, as I usually do, to reduce it into writing, I should have spared your time ; B 2 39 ] Presbytery of Auchterarder against Kinnoull, 1839 . [40 but it was a choice of evils, because I must either give my judgment at greater length and less comprehension than I could have wished, or I must delay giving it, and that was on all accounts to be avoided if possible. Now, my Lords, although these views satisfy my own mind, yet, in consideration of the importance of the question and by way of confirming the view I have taken of the construction of the statute, I think it may be advantageous that we should just look at the subject in different lights, that we should see it from various points of view, for the purpose of observing whether this consideration of it, in those various lights, and seen from different quarters may not aid the decision to which by other means we have arrived. First, it is admitted on all hands that neither the General A ssembly nor any consistorial court has any vocation to adjudicate on merely civil rights. That is granted on all hands. It is allowed by every reasoner on these subjects, that if a question arises whether A. has the patronage of a certain parish or G., this is for the courts civil and not for the courts spiritual. It is admitted fully and without any hesitation whatever, that the ecclesiastical courts are confined to spiritual matters, and that the temporal courts have exclusive juris- diction over civil matters; consequently, it is certain that if this was a proceeding or if the grounds whereupon it is sought to be rested were arguments that affected the rights of the patron, the claim of the Presbytery could not be sustained, nor could the General Assembly which passed the Act of 1834 deal with those civil rights. Now let us see whether the Assembly has dealt with those rights ; let us see whether that is not the effect of the Act of 1834 passed by the General Assembly, acted upon by the Presbytery, maintained in argument as the title of the appellants — for though I have not mentioned that Act of Assembly, yet I have argued all along with reference to it in considering the argument of the Presbytery ; and if I ■have defeated that argument I have de- feated the right of the General Assembly, subject to an observation as to the question of jurisdiction hereafter to be made. Now, it being admitted that the Assembly has no jurisdiction to judge of civil rights, I apprehend that we shall have the same admission that if the church court has no power as a judicature to interfere with the civil rights of patrons in any one case, still less can it have any power as a legislature by one sweeping provision to abrogate all those rights in all cases. But let us see whether the Assembly does not interfere directly and almost avowedly with the rights of patrons by the Act, of 1834. What say they to this ? The patron has a right to present ; we sustain that right, but the people have a right to dissent and to reject the presentee. Now, what is the people’s dissent ? It is saying, without a reason assigned, that they do not like this man ; it is saying that they prefer another ; it is saying that they prefer any other; it is saying they will not have him. What does that mean P Under what general expression would you convey the different meanings which all these particular and detailed forms of expression comprehend ? I should think choice-elec- tion. Refusal to choose, refusal to elect, is at least one-half of choice and one-half of election, because election consists in selection and in choice, affirmatively ; it consists, negative^, in rejection of all others, in refusing to choose all others but its object. If I select A., I reject JB., G., D., &c. If I reject A. I exercise a negative power of choice ; I exercise the right of choosing some other person than A., or of saying to the patron Z. he shall not choose A., that is quite certain. I may cover it over by whatever circumlo- cution I please ; I may say that he is not acceptable to me. A person being ac- ceptable to me is the reason why I choose him : a person not being acceptable to me is the reason why I reject him : but because I say he is not acceptable, I do not deny that I exercise choice ; I exercise the negative choice of saying either I prefer another to him and that is one reason, or I prefer every other to him and that is another reason. Does not this interfere with a man’s right of choice? It is taking half of it away from him. It is saying you, the patron, have the right of choice, “but upon one condition, namely, that you choose the person that I, the con- gregation, wish.” It is saying “I admit 1 have no right whatever to choice ; the whole choice is vested in you, the patron, but upon this one condition, that you choose the person that I would have chosen if I had been to begin^’ That is the meaning of it. You shall choose who- ever you please ; that is the meaning of choice: whoever you please to choose is the ma£ ; that is the meaning of choosing : “ well,” say the congregation, the Presby- tery, and the General Assembly, “ whoever you choose shall be the man upon this only trifling consideration, that you must choose no other person except the men we choose.” Who is the chooser there ? I think the second person is the chooser 3 ather than the first. If I were to choose, if I may so speak, between the position of the patron and the position of the congrega- tion, I should much rather be the congre- gation than the patron as regards the choice of A. or the choice of B., because 41] Presbytery of Auchterarder against Kmnoull, 1830. [42 the patron may choose A., B., G., and go on to the end of time, and the congregation will always reject him till he happen to hit upon X., the particular person they choose. Now this illustrates the nonsense of saying that the kirk courts do not inter- fere with the rights of the patron. My Lords, I cannot help casting my eye back to the former times of the Scottish Church, and endeavouring to figure to myself the contempt, the scorn, the indignation, with which such a man as my most venerable relation who once led that General As- sembly, one of the greatest men that Scot- land ever produced, one of the greatest historians, and one of the greatest states- men, one of the most accomplished orators which any age of this or any other country has ever seen — what would Dr. Robertson have said to such pretensions so couched and so covered p(a) When he led for so many years the General Assembly, when he took that well-known part on the question of patronage which was supposed to have settled it for ever, that very part which the Presbytery and the General Assembly of our day have not taken and in the face of which they have done all these things, it is not difficult to conceive what reception his manly, practical under- standing would have given to the doc- trine of 1834 : “ We do not interfere with the rights of patrons — they may choose whom they please— but we tell both — both patron and people — that if anybody is chosen by the former whom the latter dislikes, the choice shall go for nothing.” His manly ' and practical understanding, aye, and the honest nature of his venerable colleague, Dr. Er shine, who differed from him, toto caelo, upon the question of church patronage (though their difference never threw any. shade across the intercourse of the two friends in private life), how would his honest mind have received the subter- fuge upon which the distinction of the present day is sought to be raised — the paltry subterfuge that the rights of the patron are reserved, but the veto of the parish let in? Aye, or another light of the Church, a man of as honest a nature, as sound and sagacious an understanding as ever flourished in any sphere, a great leader of the General Assembly, though not of Dr. Robertson’s party (I mean my venerable friend the late Sir Harry Mon - creiff)(b) what would he have now said ? I (а) In 1751 Robertson took part in intruding his brother-in-law, Syme, Lord Brougham’s grandfather, on the Church of Alloa, against the wishes of the congregation . — Buchanan’s Ten Years’ Conflict; Walpole’s History of England (1891), vol. 5, 296. (б) As to Erskine and Sir Harry Moncreiff see Buchanan, Ten Years’ Conflict, 204, 205. doubt whether any man could have dared to use such arguments as have been in- vented at the present time, if he had been living : I doubt whether those subtleties would ever have been ventilated in his presence ; but, I know, if they had, how swiftly they would have been blown away out of the General Assembly, and out of whatever kirk court, be it presbytery, or synod, or consistory, or council, had ever suffered them to flutter about within the dark walls of the aisles of their sanctuaries for the fraction of a second of time. For if there ever was a man who despised such subtleties and sophistries it was that man. If ever there was a man who knew and practised the true rule of honest morals, as well as sound judgment and good policy, it was that man. I mean the rule of never trying to do indirectly what you dare not do openly, and manfully, and avowedly ; and never to seek to escape from, or to shelter yourself from the na- tural and just consequences of your own proceedings by mysterious generalities, and vague phrases, and shadowy distinc- tions, which, as they never for a moment do deceive yourself who practise them, never can, in such cases, deceive anyone else. Then, my Lords, it is said (to make it still more absurd) that the congregation have a right to say, we do not choose this man — we prefer another to him — we pre- fer any other to him — we like him less than any other man that can be mentioned, and, therefore, we will not have him ; and this decision of the congregation is to bind the Presbytery. But, observe, all the while the congregation themselves are not bound by it ; for a few moments after they have said that they prefer any other man to A., you present B. to them, who is another man than A., and they may refuse him as they did A. You may present twenty people after A., but they are not bound to take any of them. That is exactly the state of the argument. The patron says, I choose A., he has a right to say so — the Presbytery sustains his right, the General Assembly sustains his right — he is not called upon to say why he prefers A., if he chooses A., and A. is a qualified person ; the choice is in him to select a qualified person. Oh, but, say they, the people shall be called in ; and the people say, we do not choose A., and without giving any reason. Now, I say, no two things are so impossible to exist together in the same world, as the absolute right to choose, on the part of one person, without a reason, and the absolute right to refuse, on the part of another person, without a reason ; unless you mean to say that they have a joint choice ; and that has been said for the first time in the 43] history of the Scottish Church, and in the history of the Scottish courts, and the his- tory of Scottish jurisprudence, ecclesias- tical and civil, by the act of the Assembly of 1834, and by the Presbytery acting upon that act of the Assembly in this instance. But then, it is said, that they would not exercise this veto, as it is called (or right of dissent as it is translated, by way of making it more fatal to the argument which rests upon it), capriciously; they would do it conscientiously, and they would not refuse a man without reasons. My Lords, I do not much understand, and do not at all approve of a confidence sought to be reposed in persons whom you vest with the power of acting without a reason, and do not call to give any reason at all, and yet are to confide in their always acting correctly, always exercising it con- scientiously. But the patron is also to exercise his choice conscientiously. The law does not assume, it does noL protect him in the capricious, or wanton, exercise of what is a kind of public trust. It is a right of private property, but it is to a certain degree a trust for the benefit of fhe Church. And I am sure that if a patron, either in Scotland or England, were to present a party to the bishop here, or to the Presbytery there, whatever his motive might be, if it were a bad one he would be slow to avow it. He would not say, I presented this man because he is a pot- companion, or because he is the nephew or the brother of a mistress, or a complying husband. Those are all bad motives ; he would not avow them, if he acted on them ; they might influence him, but he would not say so. Hor will the people avow that they refuse a man because he is too strict in his doctrine, which makes him the better pastor; because he is a man of a high moral sense of duty, and will not overlook scandalous crimes in his parishioners ; because he is one who will preach the word faithfully, and be instant for righteousness in season, out of season, as his duty to his Master prescribes, and as his Master and his Apostles have en- joined. Ho congregation will say, be- cause that is a man likely to preach against notorious enormities practised by us, the parishioners, and refuse us access to the sacraments of the Church if we are of impure life ; because he will catechise us, and insist upon our attention to our spiritual concerns in the performance of his ministry, we do not like him. Ho congregation will openly avow such mo- tives ; but they may be motives which influence them all the while, and this act of the General Assembly allows the fullest scope to such motives, because it does not require any reason whatever to be given ; and the reason, if it were given, is not [44 required to be cognosced and judged upon by the Presbytery. Consequently they place things upon a very different footing from the Act of 1690. The Act of 1690 had some sense, it had some consistency, it made some provision for the righb go- vernment and right filling of the church ; for it said, if any man has any reason to propound against the presentee, let him state that reason to the Presbytery, and let the Presbytery judge of the sufficiency thereof, or of the truth of the facts upon which it is grounded. But not so the Act of 1834. It says, whoever is presented shall undergo the ordeal, not of examina- tion by the Presbytery, but of gossip among the people ; and if the people choose to say they will not have him, though the reasons at the bottom of their refusal may be the very things, in all the world, that make him the fittest minister for the parish, he shall be rejected simply and finally ; and rejected only because the people say, we will not have him. That is the Act of 1834, and therein lies its material difference even from the repealed Act of 1690, which our ancestors one hundred and twenty years ago thought so unfit, so inconvenient, and so mischievous that they utterly and absolutely repealed it. Dolosus versatur in generalibus is a maxim of the civil law adopted by all our courts, frequently referred to by the judges, no- where more frequently than in the Scotch courts, and one which I have oftentimes heard cited, both in the General Assembly and in the civil courts. When a guare im- pedit was once brought in England — where the right of the patron is precisely the same as in Scotland (for he must present a qualified person, and the bishop is to judge of his qualification for the sacred office, that is to say, his literature, his life, and conver- sation, and his orthodoxy, which comes within literature, and may, according to the Calvinistic creed, come both within literature and life, in Scotland). I am alluding to Specot’s case, (a) a leading authority here as to the limit of the bishop’s power — when Specot was pre- sented by the patron, and refused by the Ordinary, it was held not to be sufficient for the bishop to return, generally, that he was non idoneus ; but if he had an- swered, “ Minus sujjiciens in literatura,” that, it was held, would be sufficient ; and as the court has no organs to say whether he is or not, the bishop shall decide it, because literature is matter of clerical qualification and clerical cogni- zance. It' is remarkable that the judges assign for a reason why the general return (a) 5 Co. 58. See Bishop of Exeter v. Mar- shall, L.R. 3 H.L. 17 ; and Hey wood v. Bishop of Manchester, 12 Q.B.D. 404. Presbytery of Auchterarder against Kinnoull , 1839. 45] Presbytery of Auchterarder against Kinnoull, 1839. [46 non idoneus will not do : “ Quod dolosus versatur in universalibus .” If they will not allow the bishop or the Presbytery merely to say non idoneus, without speci- fying in what ; much less will they allow it to be said, “We will not have you;” they must say why ; and then the judges add, ‘ * For if it were otherwise the patron’s right might be prejudiced so that, hold- ing the patron’s rights might be pre- judiced by a general answer, they require a specification. This I throw out in answer to what may seem an objection, though it was not much relied upon at the bar, to the course of my present argument. It may be said, if the Presbytery had only said “We re- fuse him,” without saying why, nobody would have touched their decision. In the first place, my Lords, I do not deny that, if such had been the return of the Presbytery, just as the bishop’s return was to the quare impedit in Specot's case, it would have made our proceedings a good deal more difficult. The case for the respondent would then have rested upon different grounds ; it would not have been the same case, and would not have been "tangible by the same arguments by which this case is touched. But I say, in the next place, that a general refusal without assigning any reason, would not be legal and valid on the part of the Presbytery, any more than the bishop’s refusal was valid, who, in Specot’s case, merely said non idoneus. He must point out some non idoneitas to the Court, of the rele- vancy of which we, and not he, are en- titled to judge; some qualification, or want of qualification, of which he has exclusive cognizance. But I am not called upon to dispose of that point, because it is not before us. The Presbytery have not sheltered themselves under a general refusal. They have come so far to particulars that they have said, We refuse him, though a regularly presented person, though a perfectly qualified person, and “we reject him because the majority of heads of families in the parish dissent without giving any reason, and we are bound by their dissent ” : that is their return, and that is a totally different case from the one now put. I understand the act of the General Assembly to specify a majority of male heads of families. Is it not so, Mr. Attorney ? Attorney General : Yes, my Lord, those are the terms. Lord Bkougham : I think the Lord President refers to that in his plain, distinct, and highly judicial view of the ease. “The male heads of families,” what is the meaning of that ? Who are the male heads of families ? The men are to decide, it seems. Shall nothing be said of women in the matter of salvation, and in the administration of the church to which they belong ? — We are living under the Christian and not under the Mahomedan law. But it is “the male heads of families.” Now suppose there are three or four single women, pious women, in communion with the church, and three or four widows ; these may con- stitute a majority of the whole communi- cants. Are they to have no interference, never to be consulted at all ? Oh, no, the General Assembly says, they must take whoever the males of the parish choose to impose upon them for their edification. But “ heads of families ;” why not lodgers ? Why not a respectable and well-informed journeyman? Why not a respectable scholar, more learned than all the parish together ? Is he to have no voice quoad sacra, though, perhaps, a communicant more regular at the altar than anyone? No, “the male heads of families,” says the General Assembly, “ the male heads of families.” Now all this exclusion of females and of lodgers may be right, or it may be wrong ; but it is not self- evident which; it is not of necessity right, and it does not follow from the nature of church discipline, — it does not follow as a necessary consequence from the nature of the case at all. It ‘is an arbitrary, it is a gratuitous, it may be a capricious selection of a judicature by the General Assembly, and that leads me to my next observation. If the General Assembly has a power to impose the will of this kind of majority upon the whole parish, has it not equally the power to make a totally different arrangement altogether ? Can any one earthly reason be propounded which justifies the present criterion adopted by the Assembly, the majority of heads of families in communion with the church, which would not just as well, and for exactly the same reasons, and precisely on the same grounds, have justified a totally different scheme of induction altogether ? Suppose it had been enacted thus : provided that he shall be acceptable to the majority of the Synod ; that is a very important body : or provided he shall be acceptable to, and chosen by, or not rejected by a commissioner whom the Assembly shall appoint for that purpose to superintend, as they have done in former times. Because I read to your Lordships out of the Book of Discipline, and I read to you out of an Act, that at one time the superintendence and control was given to commissioners appointed by the kirk to regulate the presentment and induction of ministers. They might have done that. Or I will tell you what they might have done, and for aught I know it i^ the next 47] Presbytery of Auchterarder against Kinnoull , 1839. [48 thing they will do, if you allow them to do what is now attempted. They might have said: provided he be agreeable to the Presbytery of the bounds ; who could object to that? It is impossible they should do that. My Lords, it is so far from being impossible that they have done it already. There was an Act in 1576 made by the General Assembly, by which it was provided that none seek preferment without the advice of the Presbytery : that was for a season the law of the kirk ; the Assembly may now revive it, and the Legislature may make that law now which out of the kirk courts was the law before; but has the General Assembly any right to do so? Has the church judicature, the General Assembly, — which by the common law of the land, and by statutory enactment is limited to ecclesiastical concerns, — a right to do that ? For the statutory enactment of the year 1592 is revived in all par- ticulars by the Act of 1690, c. 5, except as to patronage, and that is disposed of by the subsequent Act of 1690, c. 23, which is repealed by the 10th of Queen Anne, but the other is not repealed. The Act of 1592 is to all intents and purposes revi ved ; and among other intents and purposes, to that of defining, chalking out, and limit- ing the bounds, and the functions, of the ecclesiastical jurisdiction. By all these rules, by the common law, by the parlia- mentary constitution of the country, by statutory enactment, by the Act of 1592, by the Act of 1711, it is the province of the General Assembly and the inferior church courts to take cognisance of church matters, and to make regulations touching ecclesiastical concerns, and ecclesiastical concerns alone*, and they are excluded, they are barred and shut out from any cognizance of civil patrimonial rights ; and not only of civil patrimonial rights directly, but of those things which in- directly affect civil patrimonial rights. They cannot do per nefas what they cannot do per fas. They cannot do in- directly what they cannot do directly. They have a right to make rules as to qualification, and they have a right to make rules as to who shall judge, and how they shall judge, upon qualification ; be- cause qualification is admitted, upon all hands, to be a matter of ecclesiastical cognisance. But they have no right to make a rule as to who shall be chosen, and how he shall be chosen, when the patron presents him. They have no right to transfer from the patron, either the whole or the half, and in this case they have trans- ferred by far the larger half of the choice and selection of the presentee. But one thing is perfectly clear, that no grounds in reason which the General Assembly can advance for its right to make the Act of 1834, giving a veto to the congregation, can be conceived to exist which could not give them precisely as complete a power, and as undeniable a right, to give a veto to the Presbytery of the bounds, that is to say, to repeal the Act of Anne, and to revive the Act, long since repealed, of 1576, which alone, and for the first time, assumed the choice to the Presbytery. It is not unfit that I should advert to one topic which certainly, at first, did seem to impose some difficulty upon those who maintained the judgment of the court below. There is a great difference, it was said, between the location or ad- mission of a minister in Scotland, and the admission of a clerk by the Ordinary in England ; inasmuch as, in England, the person having the advowson presents his clerk, a person already ordained, to the bishop; whereas, in Scotland, the pre- sentee is ordained, and inducted unico contextu by the Presbytery, — that Pres- bytery being beyond all doubt the only judge of ordination, with which the municipal court has no right whatever to interfere. Ordination, it was said, is then mixed up with the induction, and cannot be severed from it. But, in' the first place, we must look to the case before us : the severance here, at least, is com- plete. The Presbytery does not refuse to ordain — nothing of the kind. Those persons do not say he is not qualified, there is no objection whatever to ordain- ing him; but they say, “ Though we have no objection to ordain him, we do not choose to induct him into the parish of Auchterarder, because the people dis- sent from receiving him ; and this is our only reason.” I think that is a sufficient answer to this objection, and I believe I threw it out in the course of the argu- ment. But there is another answer. If a person, being a probationer, is brought before the Presbytery for induction into a benefice, he is then ordained as well as inducted, that being the first benefice to which he is appointed. But, whatever argument, and whatever law applies to the case of the first benefice, in respect of the present controversy, must be equally applicable to the second benefice, that is, to the case of transportation, as it is called, from one benefice to another. How, in this case of transportation to a second benefice, the argument is sifted entirely from the difficulty with which it is sought to be mixed up as to the first benefice, because the first benefice is accompanied with ordination, and the second benefice is accompanied with no ordination at all : the presentee is already e clero Domini , — already ordained, — and, 49] Presbytery of Auchterarder against Kinnoidl, 1839. [50 therefore, the only question in the second instance, that can arise is with respect to inducting him into the parish of A., whereas formerly he was settled in the parish of B. Consequently, in this in- stance, the Presbytery can never say, we refuse to ordain him (which is of eccle- siastical not of civil cognisance) ; because he has already been ordained: and the only question is. Shall he be inducted into the parish of B. having been already settled in the parish of A. ? and that question is only of civil cognisance. No man is absurd enough to contend that the congregation should be consulted only in cases of transportation, and not of original settlement. Nothing so wild has ever been urged as the proposition that the Assembly has the power to make this Act as to second settlements, though not as to first inductions. The two cases stand on the self-same grounds, and the same argu- ments apply to both. I think those two answers, either of them, but certainly both together, are sufficient to repel the objection which I have now been con- sidering. Another argument was used which I cannot altogether pass over, as many of the learned judges go very mainly upon it. It was said, Is a call of no avail ? Does it mean nothing ? Have all the people of Scot- land, all the lawyers, and all the divines of the Church courts been hallucinating for so many years, when they have held a call to be necessary as part of the induc- tion, and that the moderating in a call is the proper function of the Presbytery ? I by no means say that a call is nothing ; but I only say it is not everything. I deny that it is decisive ; I refuse it the virtue which others ascribe to it. In the first place, it is admitted, on all hands, that nothing can well be conceived more obscure, and involved in more doubt, than the whole history of calls in Scotland. At one time there was a call most effec- tually, namely, during the interval be- tween 1690 and the year 1711, because during that period the kirk, session and the heritors presented to the congrega- tion, and if the congregation did not call the presentee, no further step could take place ; only it is to be observed that was a call of a very peculiar nature, and wholly different from the one now contended for ; the power to refuse or give a call was of a very limited kind, for the people could not refuse giving the call unless they assigned reasons, and the Presbytery were to judge of those reasons. But was there ever any period in the history of Scotland in which it was held, either practically or by law, that the congregation was, by a majority of voices, to call a person, and that, if it did not by such majority call him, nothing could be done in his favour? I know very well that there are two authorities in favour of it. The First Book of Discipline in 1560, and the Second Book of Discipline in 1578 ; for the first says the people have the power of electing; it says in so many words, “ It pertaineth to the people to select their pastors ; and the second says that that “ has always been the prac- tice of the kirk till antichrist intruded into it.” But that is not the law now : it was not the fact at any time. I have shown your Lordships that it is a very gross mis-statement of the historical fact ; and, that it never was the law of the Church is clearly admitted by the very fact of the General Assembly having had to invent this new mode of proceeding, namely, to call upon the majority of the male heads of families in communion with the Church to accept or reject him. The majority being substituted for the former practice of any two or three persons is most material, and shows a complete change, from a mere formality to a sub- stantial choice. But whatever was at any one time the force or validity of the call, the statute of Anne does away with it altogether, unless in a modified way and to the very limited extent, that of somewhat more, and not much more, than a mere ceremony ; to which extent only it has been limited ever since that time. The best proof of this is, first of all, this Act of 1834, making for the first time a majority ne- cessary, and pointing out of whom that majority shall consist : and, in the second place, the avowed fact on all hands, that the call might have been made by one, two, or three people in a parish of two thousand ; and that, if the Presbytery chose to moderate in that call, it was just as valid a proceeding as if it had been made by the majority, or by the whole parish. Now does not that give one a very great misgiving as to the substantial meaning of the call, as to whether it really means anything or nothing? It can be got rid of by almost any form. I suppose that the mere presentment may be a call. There is no law which points out who shall give the call ; why may not the patron, in respect of his advowson, be held to belong to the parish, even if he be not an heritor or an inhabitant ? Why may not the patron’s connexion with the parish in respect of that advowson be held to be sufficient for the purpose of giving a call? I know there is no au- thority against me. I know there is no answer to these questions by any dicta of judges, or any authorities of text writers. But what authority is there in favour of a call ? No doubt there is the Act of 51 ] Presbytery of Auckterarder against Kmnouil, 1839 . [52 Assembly, 1782, to which reference is made by Lord Moncreijf ( a ) ; and there is 'the decision of that venerable body in 1790, highly disapproving of the settlement of •a presentee who had no call.(&) For aught 1 know this may be a great informality : but observe, they did not rescind the set- tlement on that account. But if he had got in without a presentation, if he had got in without a presbytery inducting him, or if he had never been ordained, would they have allowed him to continue ? No such thing, they would have ousted him from the church, and they would have had another man appointed accord- ing to the laws and formalities of the church. When it is said, that the call is •a very substantial ceremony, and that it is proved to exist in right, and in law, and to be necessary, by the Stirlingshire case, in 1790, I think you only prove the reverse by the quotation of that case, inasmuch as it was one where there had been no presence of a call in any manner of way, where the presentee never had a call from any single person in the parish, and there was no moderation in the call by the Presbytery ; nevertheless, he was held to be validly inducted, and to have a good right to a settlement, even by those who were censuring the illegality, saying all the while, “ Fieri non debuit, factum valet.” In other words, a form had been omitted which ought to have been observed, but the omission was immaterial. Thus a call is shown to be as immaterial a part of a valid settlement, as it is immaterial to a valid marriage by banns that the parties shall have resided in the parish before proclamation. That is a directory, not an imperative part, under Lord Hardwiche’ s Marriage Act. It is a very material di- rection; it goes to the main purpose of the statute ; yet it is not a necessary con- dition precedent ; the marriage is valid without it. My Lords, this throws great light on the subject, and mainly strengthens, in- stead of negativing, my argument ; for it shows that a call is held by the church court itself to be rather a matter of con' venience and a useful form, — if you will, an important form, — than of the very es- sence or substance. What, then, is the call ? It is a remnant of the old, obsolete, and repealed right of election. Whether it comes from the period which elapsed from the Revolution to the 10th of Anne , while the Act of 1690 was in force, or whether it comes from some mistake of the authority of the two Books of Disci- pline in the sixteenth century, I need not stop to inquire ; the nature of the thing (а) Robertson’s Report, vol. 2, p. 339. (б) lb. vol. 1, p. 375. Above, pp. 506, clearly enough appears from the way it has been dealt with. This shows to de- monstration that it has not been held a condition precedent of a valid induction, but that the induction may be valid with- out that condition being fulfilled. Nothing can more clearly indicate its being a mere ceremony or form. I suppose it is conve- nient and useful that there should be a presentation, in form, of the person to the congregation as well as the Presbytery. The Presbytery are to judge of his quali- fications, without appeal, except to the church court, but the congregation is to be brought acquainted with the future pastor : and as the Presbytery are to judge of his life and conversation, as well as his literature, it is convenient and useful that the people should have an oppor- tunity of coming forward with any objec- tions which they may have to him on these important particulars : but that right is wholly different from veto, or dis- sent, or refusal without any cause shown. Now I will take an analogous instance. Mr. Attorney General very properly alluded to the coronation. It is a decent and con- venient solemnity to present the sovereign to the people, and the people are supposed to take part in the choice ; a part, how- ever, so immaterial that, if they were all with one voice to reject, the coronation would be just as good, would go on exactly in the same way, and the rejection or re- calcitration of the assembled people would have no more weight than the recalcitra- tion of the champion’s horse in West- minster Hall during the festival attending the great solemnity. It is an obsolete right, which has not within the time of known history ever been exercised by any people. But I will state another instance which is very analogous : the publication of banns. Now, both in Scotland and in England, a regular marriage requires the publication of banns. In Scotland a mar- riage may take place by mere words of consent without any church ceremony whatever, and it is supposed that in Eng- land the same was so before the Marriage Act. (a) But a regular marriage can only be made by publication of banns, and who- ever in Scotland does it without, is liable to church censure. Now, when the banns are published in England, the object is to ascertain by this publicity that there is no lawful impediment, such as consanguinity within the limited degrees, or prior mar- riage, or refusal of consent by parents or guardians. I have taken pains to inquire both from bishops and priests what would be the consequence in their practice if, upon publication, a person were to inter- (a) But see Beg. v. Millis, 10 Cl. & F. 534. 53] Presbytery of Auchterarder against Kinnoull, 1839. [54 pose and forbid the banns, or afterwards forbid the marriage, which may be done at the altar when the marriage is about to be solemnized. The answer they have all given is, I should suspend the solemnity till I made inquiry. But suppose the person forbidden should say, I give no reason, but I only forbid the banns ; or suppose he gave another reason, that he was the rival of the husband, or that she was a rival of the lady, a very good reason for the party not wishing the marriage to take place, but no legal objection to the marriage ; the answer is, that he would not be attended to at all. The marriage would go on just as well as if the dead silence prevailed through the church which generally attends those interesting solem- nities. Thus, then, it is a very convenient thing that banns should be published, because it gives publicity to the intended contract. It gives parties an opportunity of coming forward. If there has been a prior marriage it gives the husband an opportunity of saying, do not commit bigamy. If there is consanguinity it gives the party an opportunity of saying, do not allow incest. If there is an infant about to be married it gives the parent or guardian an opportunity of saying that his consent has not been given. But, though the law requires that the parents’ or guardians’ consent shall be necessary where the marriage is by licence, there is no such necessity where it is by banns(a) ; and it is a very great inconsistency in the law, for though the Legislature meant no doubt to prevent marriage without con- sent, yet if the banns are published, and the priest chooses to marry in spite of the parents and the guardians, their refusal or opposition signifies nothing, and the marriage is just as valid as if they had consented. Then I am for the publication of banns. It would not be a regular mar- riage without it. It would not be a valid marriage in England without it, unless by licence, which is excepted by law. It would not in Scotland be a marriage free from church censure without it. And therefore I am for it, and therefore we are all for it ; and therefore we think it is an useful and a convenient part of the ceremony, because it gives opportunities for objections being made by giving publi- city to the intended contract ; but then the consent or silence is not a necessary part of the marriage. Nay, the banns call on persons to object, and yet if they do object the marriage may proceed just (a) 4 Geo. 4. c. 76. s. 8, provides that where the parents and guardians declare their dissent at the time of the publication of the banns, such publication shall be absolutely void. as if they had held their peace. Further- more, the last publication tells all the world that if they do not then object they must for ever after hold their peace ; and yet a person present and saying not a word may come forward the day after, and set aside the marriage by proving a lawful impediment. Precisely so it is with respect to the call. I have attended to its history as well as I could, but I cannot find — and I see that some of the learned judges who have given great at- tention to the subject have come to the same conclusion — I cannot find that, either before or after the statute of Anne , unless between 1690 and 1711, the call has been held to be a necessary part of the induction, or a condition precedent to a valid settlement. At all events, I am perfectly certain that if such force and effect is given to the call as to make it an essential part of the proceeding, and much more if the General Assembly, acting upon this supposition, can carry into effect any assumed intention of the law so as to make a specific provision against an induction ever taking place without the consent of the majority of the male heads of families, then the statute of Anne is abrogated, and the rights of patrons are utterly extin- guished. It only now remains that I should say something respecting the question of juris- diction. But I have no doubt whatever upon that. It is asked, “ How can the Court of Session interfere in a matter of ecclesiastical cognisance ? ” Prove to me your minor, that this is a matter of eccle- siastical cognisance, by which I mean of exclusive consistorial cognizance. Prove to me that this is a question of qualifica- tion, like the question of sufficiens or minus sufliciens in literatura, and then I say that the Court of Session will be ex- cluded.; just as the Court of King’s Bench was in Specot’s case, upon a quare impedit , by which the Court did not deem itself to be excluded (and the Common Bench agreed with them) where the return to the quare impedit by the bishop was non idoneus . They would not have been excluded even if the bishop had said schismaticus invete- ratus , much less if he had said merely nolo inducere, as the Presbytery has here done. But we have here no such question as one of qualification. We have a ques- tion of election, and nothing else ; a veto, a dissent set up by the ecclesiastical court, and which, if they had done it in England, would have been a ground of prohibition as an interference with the jurisdiction of the municipal courts in matters temporal ; and therefore this argument fails alto- gether. But it is said, the Court of Session may give the civil rights, the right of stipend. 55] Presbytery of Auchterciraer against Kinnoull, 1839. [56 and can do nothing more. Yet it is ad- mitted all the while that the Court has no power to give those civil rights, to bestow the temporalities of the church on the pastor, unless he is inducted ; so that the non -induction is as complete a bar to the civil court giving him the temporalities as if the civil court had been told, you shall not adjudicate upon the matter at all. Then it is said, that you have no means of carrying into effect the decree of the Court of Session, albeit supported by the authority of the House of Lords, which is a decision of Parliament in its judicial character upon the subject. In other words, although you say the Presbytery have acted wrong — although you say that their reason for rejecting is of no avail whatever — although you say the law is contrary to what they have supposed it to be — and although you say, deciding upon the petitory part as well as the declaratory part of the summons (which, however, you are not called upon to do), let the Pres- bytery induct immediately, for it has no grounds for refusing ; still it is affirmed that the Presbytery may persist in re- fusing, and must prevail. My Lords, it is indecent to suppose any such case. You might as well suppose that Doctors’ Commons would refuse to attend to a prohibition from the Court of King’s Bench, you might as well suppose that the Court of Session, when you remit a cause with orders to alter the judgment, would refuse to alter it. Conflict of laws and of courts is by no means unknown here. We have, unfortunately, upon the question of marriage, had a conflict divid- ing the courts of the two countries for upwards of twenty-five years, in which the Court of Session has held one law, and in which your Lordships and all our English judges have unanimously held another law. (a) The Court of Session in Scotland has held, and still holds, two persons to be married, whom your Lordships hold not to be married. But have the judges of that court ever yet, when a case, which had been adjudicated by them according to their view of the law, came up to you, and you reversed according to your oppo- site view of the law, has the Court of Session ever then continued the conflict, which would then have become not a con- flict of law but a conflict of persons — a conflict of courts— a conflict in which the weaker would assuredly have gone to the wall ? The Court of Session never thought for one instant of refusing to obey your orders upon this matter, whereupon they (a) Lolley’s case, Russ. & Ry. 237, and see cases collected in Westlake’s Private International Law (3rd edit.) at p. 86. entertained an opinion conflicting with your own. For this reason alone, and it is enough, I have no doubt whatever that the Presbytery, when your judgment is given declaring their law to be wrong, declaring the patron’s right to have been valid, will, even upon the declaratory part of the judgment, do that which is right. And then may come this question, What is the Court of Session to do upon the petitory part of the summons, supposing that shall be insisted upon ? Enough is it for me to-day to observe that this is not now before us. But suppose it were, I should have no fear whatever in dealing with it. I should at once make an order upon the Presbytery to admit, if duly qualified, and to disregard the dissent of the congregation. And, my Lords, why do I say so, and with such confidence? Because I look to the cases, and as these are all to the same effect, there is only one with which I shall trouble your Lord- ships. Hone of them bears upon the main question now before us, but all effectually answer the inquiry collaterally instituted, How are the court’s orders to be enforced ? They are all cases of conflicting rights of advowson ; they are all cases where there was no question whatever between the Presbytery and the courts, and the only question was as to the right of A. to be presented. They are all cases, therefore, which fall without the scope of the main argument here before us, and throw no light upon that. But upon this collateral question they do throw a light ; and I refer to the case which a most learned judge, Lord Gillies , has justly called a too well- known case, for it was attended with un- pleasant circumstances, the case of Lord JDundas v. The Zetland Presbytery , (a) in the year 1795. How, what was the conclusion of the libel there ? “ That it should be found and declared that the pursuer had a right to the patronage that he exercised his right as patron within the time prescribed by law ; ‘‘and that the presentation to Mr. Kicolson is valid and effectual, and was offered to the moderator of the Presbytery in due time.” The conflict was this, that the Presbytery had chosen one, and they ought to have chosen the other. The court was called upon to declare, “ that the Presbytery should be decerned and ordained, by decree aforesaid, to give due obedience to the said presentation, and to pro- ceed in the settlement of the said Nicolson,” who was the conflicting, or, as they call him, the competing presentee ; and (a) Mor. Diet. 9972. 57} Presbytery of Auchterarder against Kinnoull, 1839. [58 ** until the final end and conclusion, or until the said Nicolson shall be settled in the said church and parish of Unst, it ought and should be found and declared, by decree aforesaid, that the pursuer, and the other heritors, liferenters, and others liable in stipend to the minister serving the cure of the said parish, are entitled to withhold and retain the said stipend,” and so forth. They then settled Nicolson, whose name. Lord Gillies says, appears as the minister next year, instead of Gray, the competing one, whom they had before erroneously admitted and settled. Now, observe, that the cause of this dispute was totally different from the present. It was because Nicolson was the proper man in competition with Gray. But that is perfectly immaterial to the present argument touching the jurisdiction of the Court of Session. Whatever was the cause of dispute, the Presbytery had acted wrong. The Presbytery had refused to admit Nicolson; they had admitted Gray. What does the Court of Session say ? Admit our man Nicolson, and oust your man Gray. Why was it not said in that case, as has been said here: This is nonsense ; this is incompetent ; you have mistaken your way, and the Court of Session has no power ; because when the Court of Session declares that Nicolson has the right, the Presbytery will continue to keep in Gray, and then what can you do ? And so would arise, in that case of Zetland, every one of the arguments with which an attempt has been made to scare your Lordships from putting a proper construction upon the Act of Parliament, and from doing your duty in this appeal, namely, can you have letters of horning against a whole Presbytery? Can you proceed against a whole body of clergy- men ? Can you bring an action of dam- ages against a whole body of men ? That is the argument with which we have been harassed and threatened at the bar, if we here affirm the judgment of the court below ? Why was not that argument used in the case I have just mentioned, to scare the court below ? It is good for nothing ; but it would have been not more worthless there than it is here. And if the Court of Session had the power of saying there, “ Take Nicolson and oust Gray” have we not just the same power here of telling the Presbytery, “You have mistaken the law” (a perfectly innocent mistake, to which all men are liable); “retrace your steps, and take the person presented by the patron, if he is qualified according to the ecclesiastical rules ?” Therefore I hold that this argument on the jurisdiction is utterly absurd and untenable, and proves no impediment in our course towards a right conclusion. These are the grounds upon which I hold that it is expedient and just, and therefore necessary, for your Lordships to affirm the judgment of the court below. I find that I have gone to a much greater length in point of time into this case than was at all desirable ; but when I consider the great interest which it has excited, and, moreover, when I observe that I look upon it as so much more clear than many have considered it who have dealt with it below, I do not regret that I have pursued this course. My Lords, no person would lament more deeply than myself if the judgment which I am now about to move should give offence to that most venerable body the General Assembly, as representing the Church of Scotland. I have the most profound veneration for that establish- ment, and it is hereditary in me, as well as personal. I am myself sprung from some of the most venerable and most learned members of that establishment, sprung directly from them, as well as knit to them by col lateral connexion. (a) I cannot be indifferent to its welfare, or deaf to its claims, or in the slightest degree prepared to treat it with any other than the most affectionate reverence. My Lords, I am not the only person engaged in this discussion before your Lordships’ House who is connected with the Church of Scotland, and who is im- bued, I know, with these just feelings towards it. The learned Attorney General is himself descended from a most venerable pastor of that establishment, and I know (because nothing could more clearly indi- cate it than the whole course of his argu- ment, and all the observations which fell from him), that he is most scrupulously and delicately averse to anything which could betoken the slightest want of respect for it ; as much so as I am myself. I say this the rather because I have been not a little astonished in my correspondence with Scotland, to find that something which fell from him had been so grossly misrepresented and misunderstood, as to make it fit that I should authoritatively, and as a witness present during the whole argument, contradict it, as utterly un- founded in point of fact. Nothing could be more perfectly respectful and affection- ate towards that body than the whole of the argument on the Attorney General's part throughout. My Lords, I join with him in the deepest sorrow that anything in this House should pass, to which he has contributed by his argument, and to which I am contributing more effectually by my judgment, with the tendency of perpetuating the discord now prevailing in Scotland. That it (a) See above, 4(a). 59] Presbytery of Auchteraroter against Kinnoull, 1839. [60 should ever have begun all must sincerely deplore ; but that it should continue is a matter of still greater affliction to every friend of his country. I have declared my inviolable respect for the kirk and the General Assembly. But any want of respect that I could show towards them, any irreverence, any mockery of them, any slander that I could bring against them, any attempt to revile them or to hold them up to hatred and to scorn would be a mere jest compared to the attempts that are made by some who take an opposite view of the case, and who, without meaning, God knows, any more than I do, any, the least, disrespect, think they are taking the best means for estab- lishing their privilege by holding out indi- cations that the Assembly will pursue its own course — that the Assembly will dis- regard the authority of the law — that an assembly of Christian ministers will be parties to the fomenting of discords — that the last thing the ministers of peace are mindful to promote is the peace of the Church of Christ committed to their care — and that the only thing they now think of is the victory of them, the churchmen, the pastors of Christ's flock, over the judges, over the supreme judges of the land, and over the law of the land itself ; a victory to be won by setting up acts of their own, which they have no title to pass, against Acts of King, Lords, and Commons, the statute law of the realm. My Lords, I defend the Assembly against the arguments and the threats of their advocates. I protest on the part of the Assembly, as a body of Christian men, of whom the bulk are Christian ministers, against the imputations thus thrown out against them by this course of defending them. I say that my hopes of them, my confident expectations of what will be their conduct, are wholly the reverse of those prospects thus held out — that it was an injudicious line of argument on their be- half ; an argument which I am morally certain would be repudiated and spurned by the Assembly itself. My Lords, that Assembly will do its duty, will show its veneration for the established authority of the law, will rest satisfied with having entered its protest, and indicated upon its records its own opinions ; but will, with its inferior judicature, the Presbytery, render a willing and respectful obedience to the law of the land as pronounced by the Court of Session, and as affirmed by your Lordships. With these views, my Lords, and upon these grounds, I have humbly to move your Lordships, that the interlocutor appealed from be affirmed. Lord Cottenham, L.C. : My Lords, it is impossible for me to conclude to-day the observations which I think it my duty to present to your Lordships in this case ; and therefore, with your Lordships’ con- currence, I shall propose to this House to adjourn the further consideration of this case till half-past two to-morrow. Lord Brougham : My Lords, I entirely agree with my noble and learned friend. I know that my noble and learned friend means to enter into this case at large ; and therefore I entirely agree with him that it will be most satisfactory to postpone it until to-morrow. Adjourned. Lord Cottenham, L.C. : My Lords, it was stated to your Lordships yesterday, by my noble and learned friend, that the opinion we had formed upon this case had been arrived at by us without any com- munication with each other. My Lords, that statement requires no confirmation from me ; I only refer to it for the pur- pose of explaining the grounds upon which I propose to follow a course in this case, which I should be induced to abstain from in any other. When I asked my noble and learned friend, within a few days, what opinion he had formed upon this case, 1 certainly was not without a very confident expectation of the answer I should receive, not from anything which had passed between us, but because in examining the case myself, it appeared to me difficult, if not impossible, to suppose that my noble and learned friend could have come to any conclusion other than that at which I had myself arrived. My Lords, in this case, as in all others of importance, I have thought it the better course to reduce to writing the opinion I have formed, and the reasons upon which it was founded : a course which I am well aware that my noble and learned friend approves, inasmuch as, I believe, no judge before his time delivered so many written judgments : a course which is productive of the greatest benefit, and which, I am happy to say, has been pretty generally adopted in all the courts of Westminster Hall. My Lords, following this course, I have, after considering all the documents upon the subject, and all the authorities referred to, committed to writing the opinion I have formed, with the reasons - upon which it is founded. My Lords, that; was accomplished long before I had any communication with my noble and learned friend upon the subject. How, in listening to what fell from my noble and learned friend yesterday, I found that very many of the grounds upon which the opinion which I have formed would rest, have been anticipated by what was stated yesterday. Under ordinary 61] Presbytery of Auchterarcler against Kinnoidl, 1839. [62 circumstances, I should have thought that a very sufficient reason for abstaining from a repetition of that which had been so much more ably expressed by my noble and learned friend. But, in this case, I consider it to be rather a ground for exactly the opposite course of proceeding, because it cannot but be satifactory to those who take an interest in this matter and who, of course, will anxiously consider all that falls from your Lordships upon this ques- tion, to see what have been the workings of the minds which have been applied to it without any communication with each other ; and if there should be found to be a similarity of reasoning, and a community of view of particular parts of this case, operating upon the minds of my noble and learned friend and of myself, no doubt it will have some effect in leading those who may consider the judgment of your Lord- ships, to be satisfied, at least, that there probably is some foundation for those con- clusions, to which we have both arrived separately and apart from each other. It has seldom happened that your Lord- ships have been called upon to adjudicate upon a case of more importance than that now under your consideration. It affects the manner in which ministers are to be appointed to a very large proportion of all the parochial benefices in Scotland ; and believing as I do that the interests and well-being of the people, now and here- after, depend much upon the due execution of the most important duties of parish priests, I feel deeply the responsibility which attaches to all those who are called upon to decide upon the manner of their appointment ; for although no opinion as to policy ought to influence our judgment, which ought to be founded upon grounds of law only, yet the importance of the judgment to be pronounced, and the evil consequences of any error, impose upon us all the sacred duty of exercising every means within our reach of coming to a safe and satisfactory conclusion. With these feelings I have addressed myself to the consideration of this case. It actually divides itself into two ques- tions : First, whether the proceedings of the Presbytery of Auchterarder, founded upon the act of the General Assembly of the 31st of May 1834, were legal, or an inva- sion of the rights of the pursuer ? And, secondly, whether the interlocutor of the Court of Session appealed from was within its jurisdiction, and such as, under the circumstances of the case, ought to have been pronounced ? In considering the first of these ques- tions, much of the difficulty which has been felt would, I think, be removed if any precise meaning could be affixed to certain terms which have been necessarily introduced into the argument on either side. Both parties agree that the right of presenting the minister belongs to the lay patron, and that the right of judging and of deciding upon his qualification for the office belongs to the church ; for such, indeed, is the substance of the legislative enactments upon the subject. Both these rights must be exercised in the settlement of the minister ; but the boundary between these rights, what belongs to the one and what to the other, is the real question in dispute. The pursuers allege that the right of presentation entitles the presentee to be admitted into the benefice, unless the church shall upon examination and trial of the presentee find him not qualified. The defenders on the other side con- tend that to the church belongs the right of deciding upon the whole matter of admission, including every consideration which may affect the propriety or impro- priety of the presentee’s becoming minister of the parish. What is the extent of the patron’s right to present, and what the jurisdiction of the church in judging the qualifications of the presentee, that is the real question ; as the Acts, upon the true construction of which the whole contest ought to rest, reserve the right to the one and the juris- diction to the other, which being so, it necessarily follows that that only can be a true construction of the Acts, and a proper definition of those terms, which preserves this right and this jurisdiction. The- boundary between the two must be so fixed that the one must not be permitted to encroach upon, still less to destroy the other. If it were safe to refer to the law and practice of England in ascertaining the meaning of those terms, whatever doubt may exist would be speedily solved. It is the undoubted right of the patron here to present, and to insist upon the admission to the benefice of any qualified person ; and the jurisdiction of the bishop is con- fined to deciding upon the qualification, or rather disqualification, of the presentee. But I have felt desirous of avoiding, as far as possible, any reference to the law and practice of this country, and to discuss and decide upon the law, and practice, and authorities of Scotland alone, even as to the meaning of the terms used ; and I think that there is not only in the statutes themselves, but in authorities of an earlier date, conclusive proof of the sense in which these terms were understood from the earliest periods, and of the meaning which ought to be attributed to them in putting a construction upon the statutes. That the right of patronage as it existed 63] Presbytery of Auchterarder against Kinnoull, 1839. [64 before the Reformation, though, no doubt, subject to the jurisdiction of the church as to the qualification of the presentee, was not subject to any limit or restriction from the people or congregation has not been disputed. In 1565 the General Assembly, in a message to the Queen, expressed their opinions as to the meaning of those terms, patronage of the patron, and trial and examination by the church. They say, “ Our mind is, not that Her Majesty, or any other patron, should he deprived of their just patronages ; hut we mean, whensoever Her Majesty or any other patron do present any person to a benefice, that the person presented should be tried and examined by the judgment of learned men of the Church, such as are the present superintendents ; and as the presentation unto the benefice appertains unto the patron, so the collation by law and reason belongs unto the church, and the church should not be defrauded of the collation no more than the patrons of their presentation ; for otherwise, if it be lawful to the patrons to present w r hom they please without trial or examination, what can abide in the Church of God but mere ignorance ? Balfour , who writes in 1566, says : — ** Ane laique patron of ony kirk or benefice vaikand sould present thairto ane qualifyit und habil persoun of sufficient literature, honest in life, and of gude maneris.”(«) At this time, then, all the church asked as against the patron was a right to judge of the qualification of the presentee, that is, of his literature, good life, and man- ners. When, therefore, the Act of 1567, c. 7, ordained that the examination and admis- sion of ministers should be in the power of the kirk then publicly professed within the realm “ the presentation of lay pa- tronage always reserved to the just and ancient patrons ” and directed that the patron should present one qualified person within six months, otherwise that the kirk should have power to dispose the same to one qualified person for the time, it is clear that the presentation, so secured to the lay patron, was to be subject only to the trial and examination of the church as to the qualification of the presentee, that is, as to his literature, life, and manners ; and that the appeal given by that Act to the patron, against the refusal of the superintendent to receive and admit the presentee, applied only to what had been before the subject of trial and examina- tion, that is, his qualification as to litera- ture, life, and manners. If such was the extent of the right of patronage, and such the limit of the juris- diction of the church, in the trial and examination of the presentee under the statute of 1567, c. 7, there will not be much difficulty in tracing these rights and duties through the subsequent statutes. By the statute of 1592, c. 116, it is or- dained — “ that all presentations to benefices be di- rected to the particular Presbyteries, with full power to give collation thereupon, and to put order to all matters, and causes ecclesiastical within their bounds, according to the discipline of the kirk, provided the aforesaid Presbyteries be bound and astricted to receive and admit quhatsumever qualified minister presented be His Majesty or laick patrons.” By another statute of the same year, 1592, c. 117, it is ordained that, upon deprivation of a minister, the patron shall present another qualified to the kirk within six months, and that, if he fail to do so, the right of presentation shall devolve to the Presbytery, to the effect that they may dispose of the same, and give collation to such qualified person as they shall think expedient ; provided that in case the Pres- bytery refuse to admit any qualified minister presented to them by the patron, it shall be lawful for the patron to retain the whole fruits of the benefice in his own hands. There is no allusion in any of these statutes to any authority intervening in the settlement of a minister between the presentation by the patron and the admis- sion by the Presbytery of a qualified per- son, which qualifications were clearly personal, and of which, indeed, the church was to judge, but “was bound and astricted to receive and admit any person presented who should be qualified.” There is no allusion, in any of these statutes, to any election by the parishioners or to any reference to them for approval or disapproval. The early Reformers had struggled for some such power, and in the First Book of Discipline, composed in 1560, and therefore before the Act of 1567, and in the Second Book of Discipline, composed in 1578, and therefore before the two last Acts, it is expressly claimed ; but the Legislature decided against it, and secured to the patron the right of present- ing the minister, and to the church the power of rejecting him, but only upon the ground of his not being qualified. Such were the terms and conditions upon which the Presbyterian church government was established, and received the sanction of the Legislature ; but it appears that these terms and conditions were unwillingly submitted to ; for, so early after these Acts (of 1592) as the year 1596, the Assembly enacted, and attempted to establish, that none should seek presentation to benefices without advice of the Presbytery, and that, if any should do contrary, they (a) Page 501. 65] Presbytery of Auchterarder against Kinnoull, 1839. [66 should be repelled. And this was approved and re-enacted by the Assembly in 1638. When, therefore, the Legislature, not- withstanding this feeling and these attempts on the part of the church, de- clared that the Presbyteries were bound and astricted to receive and admit what- soever qualified person was presented by the lay patrons, there can be no doubt of the object of the enactment, or of the construction to be put upon the terms used. The Act of 1690, c. 23, which for a time destroyed patronage, recognized the effi- cacy with which it had been exercised, and recites that the power of presenting ministers to vacant churches, of late exercised by patrons, had been greatly abused, and annuls and makes void the said power theretofore exercised by any patron of presenting ministers to any vacant kirk ; and, to the effect the calling and entering ministers, in all time coming may be orderly and regularly performed, it enacts that the heritors and elders shall propose a person to tbe congregation, to be approved or disapproved by them ; if they disapprove they are to give their reasons, to the effect the affair may be cognosced by the Presbytery, at whose judgment, and by whose determination, the calling and entry of the minister is to be ordered and concluded. And it enacts that, if application be not made by the elders and heritors to the Presbytery for the call and choice of a minister within six months, the Presbytery may proceed to provide the sxid parish, and plant a minister tanquam jure devoluto ; and it provides a certain compensation to the patron for the right of presentation thereby taken away. The Act 10 Anne, c. 12, 1711, is intituled, “An Act to restore the patrons to their ancient rights of presenting ministers to the churches vacant.” It recites that, by the ancient laws and constitution of Scotland, the pre- senting of ministers to vacant churches did of right belong to the patrons, until, by the Act of 1690, the presentation was taken from the patrons, and given to the heritors and elders ; and that that way of calling ministers had proved inconvenient, and had occasioned great heats amongst those who by that Act were authorised to call ministers, and had been a great hardship upon the patrons. It then repeals the Act of 1690, so far as it relates to the presentation of ministers by heritors and others therein mentioned, and enacts, that in all time coming the right of all and every patron and patrons to the presentation of ministers to churches and benefices be o 67432. restored and confirmed to them, any Act or statute to the contrary notwithstanding ; and that it should bo lawful for any person who had the right of patronage of any church, to present a qualified minister, and that the Presbytery shall, and is hereby obliged to receive and admit such qualified person, as the person or minister presented before the making of that Act, ought to have been admitted. Such are the legislative provisions upon the subject in contest in this cause. The right claimed by the pursuers, and the power, or duty, claimed by the defenders to belong to them, must be regulated by the enactments now in force, so far as such enactments support such rights,, or regulate such powers and duties. Other authorities and other regulations may be resorted to as operative in matters not included in these enactments, but can be of no effect as to any matters within them. What, then, is the true con- struction of such of these enactments as are now in force, resorting to the history of the times only for the purpose of explaining the expressions used in those statutes P In my opinion clearly this, that the patron’s right to present was absolute, but to be exercised only in favour of a qualified person, of which the Presbytery were to judge. If such was the right of the patrons under their statutable title, and such the power and duty of the Presbytery, it is only neces- sary to inquire whether the Act of 1834 has, or has not, interfered with their right? And, whether the Presbytery in the course they have pursued have, or have not, assumed a power beyond that which is given to them by the statutes. In making this inquiry, it must be assumed that the Presbytery were armed with all the authority which the General Assembly could give to them. But if the General Assembly had no power to pass the Act of 1834, or to authorize the Presbytery to follow its directions, the Presbytery can derive no protection from it. The question, therefore, is one as to the validity and efficacy of the Act of 1834, but which properly arises between the patron and the Presbytery. There appears, therefore, to be no ground for the objection raised, that the contest is with the General Assembly, who are not represented in this cause. What, then, was the act of the Pres- bytery of which the patron complains? It appears from their proceedings as printed, that the presentation was duly made, and the form — being, as I under- stand, the usual and old accustomed form — is not immaterial. The patron nominates and presents the minister to be minister of the parish, grants to him the glebe and C 67] Presbytery of Auchterarder against Kinnoull, 1839. [68 stipend, requires the Presbytery to take trial of his qualification, literature, life, and conversation ; and having found him fit and qualified for the function of the ministry of the said church, to admit and receive him thereto, and give him his act of ordination and admission. This form of presentation appears to me correctly to describe the rights of the patron, and the duties of the Presbytery, as prescribed by the statutes. This presentation, with all the usual papers, being laid before the Presbytery, they in so far sustained the presentation as to find themselves prepared to appoiut a day for moderating in a call to the presentee ; and, accordingly, they ap- pointed a day for that purpose. On the day appointed, a call was produced, and signed in the usual manner. The Pres- bytery then gave opportunity for the male heads of families, whose names stood on the roll, to give in special objections, or dissents, to the admission of the presentee. No special objections were given in, but it appears that a majority of the heads of families whose names appear on the roll dissented. It was then moved, that the presentee’s call, being signed only by three persons, was insufficient; upon which a counter motion was made, that the Presbytery refuse to act in terms of the motion, it being incompetent in that stage of the business; which last motion was carried — not an unimportant circumstance, with reference to the argument that, in reject- ing the presentee, the Presbytery were only adjucating upon the sufficiency of the call. At a subsequent meeting of the Pres- bytery, it was moved and seconded, that in conformity with the sentence of the General Assembly of 1835, and the inte- rim act of the General Assembly of 1834, the Presbytery do now reject the presen- tee ; which the Presbytery agreed to be determined in terms thereof. It appears, therefore, that there never was any adjudication upon the cal], but that the Presbytery rejected the presentee, because a majority of heads of families, whose names appeared upon the roll, dissented. It is also clear that such rejection was not in consequence of any adjudication of the Presbytery upon the qualification of the presentee. Such ad- judication can only be made upon the trial ; but, according to the form adopted, the call must be sustained before the trials are proceeded with, and, by the Article VIII. of the Act of 1834, the Presbytery was to proceed to the trials, only in the case of the dissents not being a majority of the persons on the roll. Now, if it was the right of the patron, under the statutes, to present a qualified person ; and if the Presbytery was obliged to receive and admit such qualified per- son, which are the words of the statute of Anne, what possible right could the Presbytery have to reject a person duly presented, without any trial of his qualification, because a majority of the heads of families dissented ? There is no such restriction upon the right of patronage and presentation in the statute, but, on the contrary, the right is un- fettered and unlimited, except as to the person presented being qualified. Looking, therefore, to the statutes as giving, or rather, as securing and defining the rights, of the patron, it does not appear to me to be a matter of doubt that the Pres- bytery, in rejecting the presentee, has acted in opposition to the provision of those statutes, and in violation of the rights of the patron, which those statutes intended to secure. If the question had been as to the construction of those statutes simply, it does not appear to me to be possible that any serious doubt could have been enter- tained ; and it may therefore be thought that I have unnecessarily occupied so much time in considering this part of the subject. I have been induced to do so from a conviction that a due under- standing of the construction of these statutes must lead to an easy solution of the several collateral questions which have been fully discussed in the several stages of this cause, and which have given rise to the difficulties which have been thought to belong to the question between the parties. In considering these collateral questions, I have, there- fore assumed, that according to the true construction of the statutes there is there- by reserved to the patron the right of pre- senting a qualified person, and to the Pres- bytery the right of trying his qualifica- tions, and the power of rejecting him if found not to be qualified. If such be the construction of the statutes, of what purpose can it be to consider the supposed legislative power of the General Assembly ? For it cannot be contended that there can exist in the General Assembly any legislative power to repeal, control, or interfere with en- actments of the Legislature : so that even if the subject-matter was found to be within the general legislative power of the General Assembly, it would be powerless as to such subject-matter, so far as it is regulated by statute. It would, therefore, be beyond the powers . of the General Assembly to interfere with the right of the patron, as secured by statute, by adding to the powers of the Presbytery. G9] Presbytery of Auchterarder against Kinnoull 1839. [70 But this legislative power claimed for the General Assembly is confined to ecclesiastical matters; and it is insisted that the matter to which the Act of 1834 applies is ecclesiastical. Now, although it is clear that, if it were so, the legis- lative power of the General Assembly would be controlled by the statute, it is worth considering whether the mat- ter in question can be treated as eccle- siastical. It is clear that there is nothing ecclesiastical in the right of presentation — that is a purely civil right. The adjudication upon the qualification of the presentee may be a matter eccle- siastical : but it is the right of pre- sentation, and not the power of ad- judication, which is affected by the Act of 1834, — not the power of adjudication, because that is to be exercised upon the examination and trials which, according to the proceedings of the Presbytery in this case following the directions of the Act of 1834, have never been entered upon, — but certainly the right of pre- sentation, because if that right consists in selecting the minister, and calling upon the Presbytery to admit him if found, qualified, and for that purpose to examine and try him, it is a direct interference with that right to say, we will not examine and try the minister presented, and though qualified, we will not admit him if any other person or persons, be they who they may, object to him. Is it no in- fringement of a right, to give to others a veto upon the exercise of it ? As an argument in favour of the proposition, that what the Presbytery has done is matter exclusively of ecclesiastical cognisance, it has been contended, that the ordination of a minister is part of the proceedings for settling him in the parish, and that the civil courts can therefore have no jurisdiction over any part of such proceedings. It is true that the ordination in general takes place upon the settle- ment of the minister ; but it seems quite clear that the two are altogether distinct. The ordaining may, and often does, take place without any preferment, as when a minister is ordained for the purpose of becoming a missionary. So a minister may be, and often is, settled in a parish without ordination, as when having been ordained and settled in one parish he is transferred to and settled in another. Indeed, the offices of ordaining the minister and of settling him in the parish are performed by different authorities. The first, by members of the church only ; the latter, by the Presbytery at large. But how can the interlocutor complained of interfere with the office of ordination ? That takes place after the presentee has been put upon his trials,, and found qualified, and no valid objection made. The discretion and duty confided to those who are to confer orders remain unaffected by the taking the presentee upon trials, which is all that the interlocutor declares that the Presbytery ought to have done. But this consideration opens another objection to the Act of 1834, as it enables the majority dissenting to interfere, as well with the province of the church in ordaining the minister as with the right of the patron to present him. That the Act of 1834 does in its operation interfere with the right of presentation is obvious ; but it is contended that it does so indir ectly only, and merely through the exercise of the ecclesiastical power of adjudication upon the qualifications, of which it is said, that being acceptable to the parishioners is one, and that being objectionable to a majority of the heads of families is a disqualification. I have already observed that the Presbytery is deprived of this argument by the proceedings adopted. That body rejected the presentee before the time arrived for adjudication upon his qualifica- tions. But if it be clear, as it certainly is,, that the qualifications referred to in the statutes are personal qualifications, “ lite- rature, life, and manners,” there can be no ground for contending that the dissent, of the majority of the heads of families is a disqualification within the meaning of the statutes. It cannot be so in substance,, and it has not been so treated in form. How can the dissent of any person be a disqualification of the presentee, more than the want of a previous consent of the Presbytery, as attempted in 1596 ? If the Presbyteries have the powers of imposing this obstruction to the exercise of the right of presentation, it is clear that there can be no limit but their own will to the obstruction which may be afterwards added. It can exist only at their discretion. They will have the power of appropriating it to themselves, or of giving it to others, in defiance of the statutable title of the patron. Another ground upon which the Act of 1834 has been justified, and which is re- cited in it as the foundation oi it, is, that it is a fundamental law of the Cburch of Scotland, that no person shall be intruded in any congregation contrary to the will of the people, and that the Act is only an arrangement to carry that principle into effect. Whether this is, or ever was, a. law of the Church of Scotland is perfectly immaterial, if the statutes contain enact- ments and confer rights inconsistent with any such principle or with the execution of any such law. The absolute right of patronage, subject only to the rejection of the presentee by the adjudication of the c 2 71 ] Presbytery for want of qualification,, which is secured by the statute, is inconsistent with the exercise of any volition by the inhabitants, however expressed. The Second Book of Discipline, c. 12, p. 9, says “ that the liberty of election, so that none be intruded upon any congregation by the Prince, or any inferior person, without the assent of the people, cannot stand with patronage and presentation.” Therefore the Beformers of those days sought to destroy patronage, but the Legislature rejected the proposition, and confirmed the law of patronage. And now it is contended that the power of re- jection does not interfere with the civil rights of patronage and presentation. But how stands the evidence as to this being a fundamental law of the Church of Scot- land P It certainly is unfortunate for the argument in support of this supposed law, that the seventeenth article of the Act of 1834 is directly at variance with it, as it gives to the Presbytery, acting jure de- voluto, the power of appointing a minister without any reference to the wishes of the congregation. I am now inquiring what evidence there is of the principle of non- intrusion having been the law of the church. That it never was the law of the land sufficiently appears from the statutes I have referred to. In the message of the General Assembly to the Queen, in 1565, there is no allusion to any such principle. The First Book of Discipline proposed that, if upon open audience the ministers be found unob- jectionable in doctrine, life, and utterance, the congregation are unreasonable if they reject him, and that they should be com- pelled by the censure of the church to receive him ; and this is not a violent in- trusion. In 1649, when the church enjoyed the patronage, they did not give to the con- gregation the right of dissenting, but only of stating objections, of which the Presbytery were to judge, which was the principle of the Act of 1690, c. 23. No doubt many attempts have been made to destroy patronage and to introduce the principle of election in various forms. The attempts have failed; so far as the principle of non-intrusion is inconsistent with the rights of patronage secured by statute, it could not be the law of the church ; and, in the instances referred to, the principle has rather been to admit the congregation to state objections than to give them an arbitrary power of rejection. Connected with this supposed law of non-intrusion is another of the arguments in favour of the Act of 1834, that it is a regulation of the call, and that, as the call is a matter ecclesiastical, the church alone had the power to regulate it. To this the . [72 first and obvious answer is that, whether the provisions of the Act of 1834 be or be not connected with the call, and whether the call be or be not part of the ecclesias- tical function of admission, the General Assembly had no right to make, and the Presbytery therefore had no right to fol- low, any regulations inconsistent with the right of the patron as secured by the sta* tutes. But it appears to me that there is no ground for connecting these regula- tions with the call, and that the call itself, whatever may be its origin or meaning, cannot be so used as to interfere with the right of patronage. The call is, in form, merely an invitation and request by the inhabitants subscribing it to the presentee to take upon himself the spiritual charge of the parish, promising to him all due respect, encouragement, and obedience. It is a request not to decline the office to which he has been presented. It implies no power or authority on those who sub- scribe it. It does not profess to be the act of the inhabitants at large, or even of a majority of them. The Act of 1834 does not treat the regu- lation prescribed for enforcing the veto as part of the call, although it directs such regulation to be put in force at the time of moderating in the call. If the majority disapprove, the presentee is to be rejected, but without reference to the call. And so the Presbytery have acted, and their acts have been approved by the Assembly ; for it not only appears that the presentee was rejected without any adjudication upon the call, but after it had been finally ascer- tained that a majority dissented — upon a motion being made that the call was not good and sufficient — they refused to act in the terms of the motion, as being in- competent in that stage of the business, and "their next act was to reject the pre- sentee upon the ground of the dissents, without any reference to the call. And this is not only admitted to be so by the defenders, but is one of the arguments urged against the jurisdiction of the Court of Session, the call being, as it is said, a matter ecclesiastical, and there having been no adjudication upon the call. Under these circumstances there seems to be no ground for justifying what has taken place under the Act of 1834 as a proceeding in moderating in the call. But, if this were otherwise, can it be maintained that the call can be used in such a manner as to prejudice a right se- cured by Act of Parliament ; and, above all, that it can be so altered from a form, in that respect innocuous, as to produce that effect? Whether the call be considered matter ecclesiastical or not, it must be subject to the control of Parliament, and must be accommodated to the provisions Presbytery of Auchterarder against Kinnoull, 1839 . 73 ] Presbytery of Auchterarder against Kinnovll , 1839 . [74 of its enactments. If it existed before the Act of 1711 in a form to interfere with patronage, it was so far restricted by that Act. Considering, however, the arguments which have been urged in this case upon the subject of the call, it seems necessary to inquire, in some degree, as to its appa- rent origin and nature. The term seems first to occur at periods when the early Reformers were struggling for the election of ministers. The Acts of 1567 and 1592 negatived this claim, but the struggle continued, and at different times subsequently it was attended with success, and in the Act of 1690, by which patronage was for a time destroyed, the expression, “ calling and entering ” minis- ters, is used, the calling being apparently put in opposition to presenting ; and in the Act of 1711, by which patronage was restored, there is no longer any mention of “ calling,” but the patron’s right to present, and the Presbytery’s duty to re ceive and admit a qualified person so pre- sented, are the only acts referred to as incident to filling the vacant churches. The Act of 1649 uses the term “ call ” in the same sense as the Act of 1690. It de- clares the title of a minister valid who, upon the suit and calling of the congre- gation, after due examination of his litera- ture and conversation, shall be admitted by the Presbytery, though he has no pre- sentation. If, then, the call was what the Re- formers were desirous of substituting for patronage, when the latter was finally established by the Act of 1711, the cail could only be continued as a form ; and if before that time it was only to be sub- stituted for the civil right of patronage, why was not the substituted right to be of the same character as the original P Why, if the patronage was a civil right, was the call to be a matter ecclesiastical P Both were the exercise of the right of selecting the individual, and bringing him to the church for examination and admission. Till the person selected was so presented or called and brought to the church, the ecclesiastical jurisdiction does not appear to have commenced. It is true that many instances have been pro- duced of questions as to the validity of the call having been brought before the Assembly from the decisions of the Pres- bytery, and if in any of those cases the result had been that the patron had been deprived of the benefit of his right of pre- sentation by a final judgment of the As- sembly that the call was insufficient, it would, no doubt, operate as a case in which the individual patron had acquiesced in the jurisdiction of the Assembly ; but if no such case can be produced, and if, on the contrary, the result of the appeal to the Assembly was either a settlement by arrangement or a decision in favour of the patron against the prior proceedings of the Presbytery, of which the case of Dunfermline, in 1752, (a) is a remarkable instance, then the fact of no case upon this point having been brought before the civil tribunals is fully explained. It appears, indeed, that for many years after the Act of 1711 the difficulties thrown in the way of the patrons were such that their rights were but sparingly enforced. But it is admitted that in all the latter times the decisions of the Assembly have been in favour of the patrons, holding any call to be sufficient, and thereby treating it as a mere form. It is impossible too highly to praise the good sense of those distinguished members of the church, who, seeing that the law was against them, avoided giving offence to their less discreet brethren by preserving the form of the call, but at the same time so dealt with it as not to let it interfere with the right of the patron, and thereby avoided a collision in which it was certain that the church must have been defeated. I cannot, therefore, consider the pro- ceedings which have been produced from the records of the Assembly respecting calls as of any weight upon the present question. They cannot be of any weight, except when they show acquiescence in the jurisdiction by the patrons, for as acts ascribing a jurisdiction to the As- sembly itself, they can only be classed with such proceedings as the Assembly adopted in 1596 and 1638 and 1736. They attempted to establish rules as to patronage in direct opposition to the provisions of existing statutes. And, looking to the proceedings of the As- sembly itself down to the year 1834, they exhibit, indeed, in the earlier times a struggle against the right of the patrons as defined by statute, but afterwards a gradual acquiescence in those rights and submission to the law. The Second Book of Discipline had de- clared the obvious truth, that patronage and election could not stand together. An effectual call is equally inconsistent with patronage ; and the church, therefore, most properly treated any call as sufficient, (b) I do not, however, think it necessary to express any opinion upon the origin cv the effect of the call, except so far as the use made of it may interfere with the rights of the patron as secured by statute. With such rights, the call, in its original form, could not have been permitted to interfere ; no new regulations, inconsis- (а) See Buchanan’s Ten Years’ Conflict, p. J 83, et seq. (б) See above, p. 6. ’75] Presbytery of Auchterarder against Kinnoull , 1839. [76 'tent with those rights, can be legal, they can give no authority from being clothed with the name of a call, from which, in form and in substance, they entirely differ. It has been suggested by the highest •authority, that the Act of 1711, in enact- ing that the Presbyteries shall receive and admit the persons presented by the lay patrons in the same manner as the persons or ministers presented before the making of this Act ought to have been admitted, intended to have preserved the form prescribed by the Act of 1690, c. 23, for the purpose of enabling the congrega- tion to state objections to the presentee for the consideration of the Presbytery, and subject to being overruled by them. (a) If that should be the right construction of the words in the statute of Anne, it would not affect the present question. That part ■of the provisions of the Act of 1690 would be consistent with what has often been ■contended for as a proper course, and what, in form at least, prevails upon or- dination in England and in Scotland. It would in effect only add to the facilities of the Presbytery in judging of the qualifi- cations upon the trials ; but it has no Tesemblance to the provisions of the Act •of 1834, which, instead of giving an op- portunity to the inhabitants to state ob- jections which the Presbytery may dis- regard, enables a majority by dissenting, without any reasons stated, to deprive the Presbytery of the power of adjudicating upon the qualifications of the presentee. It is therefore unnecessary to express any opinion upon this point ; but to guard against misapprehension, I will only say that there appear to me to be difficulties to overcome before this construction of the statute of 1711 can be adopted, of which I have not been able to find any solution. It is sufficient for the present •purpose to observe, that if that be the true construction of the Act of 1711, the Act of 1834 would be equally an invasion of the right of the patron. I cannot there- fore hesitate to declare my decided opinion, that the proceedings of the Presbytery 'founded upon the act of the Assembly of 1834 amount to an illegal interference with the right of the patron as secured by •statute ; and that a wrong has thereby been sustained by the pursuer. The next subject for consideration is the remedy for this wrong ; and before I apply myself to the consideration of the objections which have been made to the proceedings of the Court of Session for this purpose, I must make some observa- tions upon an argument of a more general nature, urged on behalf of the defenders, which, if well founded, would in effect (a) See Lord Jeffrey’s Opinion, above, p. 34(a). give to the General Assembly, a legisla- tive power uncontrollable even by Parlia- ment ; and would exhibit a case, I will not say of wrong, as that would be a con- tradiction in terms, but of a serious de- privation of valuable civil private rights, without the possibility of redress. It is argued, that, although the right of presentation belongs to the patron, yet that everything connected with the admis- sion of the minister after the presentation, is, by law, subject to the jurisdiction and direction of the Church ; that the General Assembly has legislative power to make what regulation it thinks fit upon that subject ; and that no complaint can be made of anything done by the Presbytery, relative to the admission of ministers, but to the superior ecclesiastical courts ; that is, ultimately, to the Assembly. The re- sult would necessarily be, that the As- sembly, in its legislative capacity, might make laws destructive of the right of patronage ; and, having sole jurisdiction over the execution of its own laws by the inferior jurisdictions, no means would exist of questioning the legality of its enactments. This is but a mode of de- scribing pure despotism. If any such power had existed in the Church, the struggle against patronage, continued through so many years, could not have been unsuccessful. Whatever Parliament might have enacted, the General Assem- bly bad only to enact laws of its own inconsistent with the enactments of Par- liament, and itself to have enforced the execution of them. It could not have failed to effectuate what it attempted in 1596 and 1638, by accepting the presenta- tion but enacting at the same time that the Presbytery should not proceed to admit the presentee unless he had pre- viously received the consent of the Pres- bytery. From a rejection by the Presby- tery upon this ground, there would, ac- cording to the argument, be no appeal or means of redress, but by application to the General Assembly, who, supporting the act of the Presbytery in the execution of their own enactment, would at once transfer the right of patronage from the lay patron to the Presbytery. However extravagant this proposition may appear to be, it is necessarily in- cluded in the argument for the defenders. If the Presbytery may refuse, not to re- ceive, but to act upon, a presentation, be- cause a majority of heads of families dis- sent, why may they not do so because a majority do not assent at a meeting held for that purpose — which is election ; or because a majority of the Presbytery do not assent, which is, in fact, the usurpa- tion attempted in 1596 and 1638 ? In all these cases the violation and destruction 77] Presbytery of Auchterarder against Kinnovdl, 1839. [78 of private civil rights would be effectual, because the only remedy, according to the argument, would be by application to the authors of the wrong. Nothing can be further from my wishes than to treat lightly the opinions which have been ex- pressed by any of the very learned and able judges who dissented from the judg- ment of the Court of Session, but it is impossible to do justice to the case with- out following out these opinions to what appear to me to be very inevitable results. Those who contend that there is no remedy for the wrong which has been committed in any existing law, suggest that redress can be obtained only by ap- plication to Parliament. But if the right be already established by statute, and if the wrong consist in a violation of the right so resting upon the authority of Parliament, it is not easy to conceive in what manner Parliament may be able hereafter, with more success, to secure the objects of its enactments : certainly not without a mare direct and important interference with the powers, legislative and judicial, claimed by the Assembly, than the judgment of the Court of Session can be supposed to effect. It is said, however, that the legislative power claimed for the Assembly has, itself, the authority of Parliament as its founda- tion ; because the statute of 1567, cap. 7, after giving to the patron, who presents a person qualified — to his understanding — to the superintendent of the kirk, an appeal to the superintendent of the province, and from him to the General Assembly, if the person presented be not received and admitted, declares that the cause, having been decided by the Court of Assembly, shall take end as they decern and declare. That which is the subject-matter of appeal, is to take end by the decision of the gene- ral assembly. VYhat that subject-matter is appears from the earlier parts of the statute — namely, the examination of the person presented as qualified according to the understanding of the patron, As to his qualification and his subsequent ad- mission, a duty is to be performed after taking the presentee upon his trials, which can have no reference to a rejection of him — not for want of any qualification, but by the dissent of an authority inter- posed to the prejudice of the patronage, which it was the object of that Act to protect. It is not disputed, that, as to matter of qualification, which is submitted to the decision of the Church, the judg- ment of the assembly upon appeal is final. It has also been suggested, that the provisions in the Act of 1592, that the Presbytery are to “ put order to all matters and causes ecclesiasti- cal, according to the discipline of the kirk,” amounts to a direct committal of all eccle- siastical affairs, and, amongst those, every- thing connected with the admission and collation of ministers, to the exclusive jurisdiction of the church courts. But in this suggestion the proviso which imme- diately follows is overlooked, which pro- vides that, “ the aforesaid Presbytery be bound and astricted to receive and admit whatsoever qualified minister presented by his Majesty or laick patrons by which it is clear that the presentation was not a matter ecclesiastical, as to which the Presbytery were to put order, but that they were to be bound to receive and admit a qualified person presented to them, whatever order they might put to any matters or causes ecclesiastical. This Act, so far from authorising the Presby- tery to make regulations interfering with the right of patronage, prohibits them from so doing. It was urged that many acts of the Church have been acquiesced in in regu- lating the qualifications of ministers as to education, knowledge, and other matters ; and this is true. But all these concern the personal qualifications of the presentee, to be judged of by the Presbytery upon the trials, leaving the right of presenting a qualified person untouched. The statutes give to the patron the right of presen- tation, and to the Church the power and duty of adjudicating upon the qualification of the presentee. The act of 1834 intro- duces a new authority which destroys both. The dissenting majority defeats the presentation of the patron, and pre- vents the adjudication of the Presbytery. If, then, the civil right of presentation has been invaded by the proceedings of the Presbytery, founded upon the act of 1834 ; and if the statutes have not deprived the civil courts of the ordinary power of giving redress for invasion of civil rights, it will require strong authority to show that the Court of Session has not juris- diction to take cognisance of this complaint which is this : that, the patron having by’ law and statute a right to present a quali- fied person to the Presbytery, who are by statute bound to receive and admit him, unless found upon examination by them not to be qualified, the Presbytery have refused to receive and admit him, without any examination or adjudication as to his qualifications ; that is, they have refused, without any justifiable reason, to give effect to the presentation. Now I understand it to be admitted, that, if the Presbytery were simply to refuse to receive or to act upon a pre- sentation, or if they were proceeding to present themselves, jure devoluto, before 79] Presbytery of Auchterarder against Kinnoull , 1839. [80 the proper time had arrived, the Court of Session would have jurisdiction to inter- fere. In all these cases there is the same injury inflicted by the same act, namely, the refusal to give effect to the presenta- tion, and the cases only differ as to the grounds of the refusal ; but as the grounds of refusal are in all assumed to be un- tenable, it seems extraordinary that there should be jurisdiction in some of the cases, and not in all. It is extraordinary, certainly, when the long-protracted struggles are considered between the patron and the Church, that so few cases are to be found in which the interposition of the Court of Session has been applied for ; but such cases as have been produced appear to me very decisive upon the question of jurisdiction. In the Auchiermuchty case,( and postpone showing its grounds of objection, until the whole panel has been gone through. The time for challenging a juror is before the officer of the Court gives him the book to swear him. If he takes the book of his own accord, the right of challenge is not thereby prejudiced. (u) Afterwards Lord Wensleydale. (ft) But see Reg. v. Gallagher, 15 Cox C.C. 291, as to one or more persons levying war with dynamite. [88 87 ] Trial of John Frost, 3839 . 4. High Treason — Evidence — Acts of others charged hy way of Conspiracy. On an indictment for high treason there are two cases in which the acts and declarations of some of the alleged parties to the conspiracy are evidence against others : 1st, a con- spiracy having been proved, to prove the overt acts stated in the indictment ; 2nd, by way of foundation, to prove the existence of the conspiracy with a view to showing after- wards that the prisoner adopted and became a party to it. One of the overt acts being that the prisoner led an armed force against the town of New- port, evidence of the presence of such a force in the neighbourhood the night before, held provisionally admissible, before showing that the prisoner was connected with it. Evidence of the orders given to the mob, and of the statements made to them regarding the purpose of the march, held admissible, without showing they were made in the presence of the prisoner. 5. “Names, Profession , and Place of Abode of Witnesses” under 7 Anne, c. 21. s. 11. See rulings at pp. 172, 227, 253, 298, 306. 6. Alphabetical Jury Panel — Selection of the Jury by Ballot permissible. See p. 110. 7. Evidence in Reply — Right of Comment on. See pp. 386, 387. 8. Assistant Counsel not recognised in Treason Cases. See p. 105. Opening of the Special Commission at Monmouth. . December 10, 1839. On the 19 th day of November 1839, there issued a special commission of oyer and ter- miner under the Great Seal of the United Kingdom of Great Britain and Ireland, to inquire of certain high treasons and misprisions of treason, committed within the county of Monmouth ; and a special commission of gaol delivery as to all per- sons who were or should be in custody for such offences on or before the 11th day of December following. On the 10th day of December, at ten o’clock, the special commissions were opened in the Crown Court at Monmouth. Pbesent : — The Bight Honourable Lord Chief Justice Tindal, the Bight Honour- able Mr. Baron Paeke, the Honourable Air. Justice Williams. The Court then adjourned to one o’clock, when the Sheriff (Colthurst Bateman, Esq.) delivered in the panel, which was called over. The grand jury having been sworn, the Lord Chief Justice charged them as fol- lows : — My Lord, and gentlemen of the grand jury, Her Majesty having been pleased that we should be assembled this day, under commissions issued, not for the holding of an ordinary assize and gaol delivery, but on a special and extraordi- nary occasion , it has become my duty to lay before you the nature and description of the offences to which those commissions extend, the class and character of the cases which will probably be brought un- der your investigation, and the law which will apply to such cases respectively. Gentlemen, with the very limited means of knowledge which I possess on the sub- ject, it could not be expected, neither would it be proper, that I should attempt, with any minuteness of description, to enter into the history of that transaction which has formed the occasion of our being convened together at the present time. Indeed, it is so desirable that you should approach the performance of your duty without any prepossession in your minds as to the facts which may be proved oefore you, that I shall purposely abstain from saying more than that it is matter of public notoriety, that disturbances have recently taken place within this county, of such description and character, and of such magnitude and extent, as to render it highly probable that, amongst other charges, indictments for high treason will be preferred against some of the parties who are supposed to have taken a share in those proceedings. The commission of oyer and terminer, one of the commissions under which we sit, is in itself general and unlimited in its terms and extent. It comprehends within it all treasons, misprisions of trea- son, all felonies and misdemeanors what- ever. But as the only criminal charges that are proposed to be brought before you are those which originate from or are connected with the disturbances above referred to, with respect to which, as I have already observed, there can be little doubt that presentments for high treason will be brought forward, my duty will be, in the first place, to offer you such re- marks upon the law of high treason as may assist you in the performance of the important functions you may be called upon to execute. 89 ] Gentlemen, the crime of high treason, in its own direct consequences, is calculated to produce the most malignant effects upon the community at large ; its direct and immediate tendency is the putting down the authority of the law, the' shaking and subverting the foundation of all govern- ment, the loosening and dissolving the bands and cement by which society is held together, the general confusion of property, the involving a whole people in bloodshed and mutual destruction ; and, accordingly, the crime of high treason has always been regarded by the law of this country as the offence of all others of the deepest dye, and as calling for the severest measure of punishment. But in the very same proportion as it is dangerous to the community, and fearful to the offender from the weight of punishment which is attached to it, has it been thought neces- sary by the wisdom of our ancestors to define and limit this law within certain express boundaries, in order that, on the one hand, no guilty person might escape the punishment due to his transgression by an affected ignorance of the law ; and, on the other, that no innocent man might be entangled or brought unawares within the reach of its severity by reason of the law’s uncertainty ; and accordingly in the Parliament of the 25th year of King Ed- ward 3. an Act (a) was passed, intituled, “ A Declaration which Offences shall be adjudged Treason and upon this ancient statute, expounded, and in some degree enlarged, by a statute ( b ) passed in the 36th year of King George 3. stands the law of treason at the present day, so far at least as relates to any of the cases which can by possibility be made the subject of your inquiry. The statute of Edward 3. declares it to be treason — “ when a man doth compass or imagine the death of our Lord the King/’ (within which designation a Queen reg- nant is included), — ic or if a man do levy war against our Lord the King in his realm, and thereof be proveably attainted of open deed by the people of their condition.” The statute afterwards declares : — “ It is to be understood that in the cases above rehearsed, that ought to be judged trea- son which extends to our Lord the King and His Royal Majesty.” By the more recent statute of George 3., (а) 25 Edw. 3. stat. 5. c. 2. (б) 36 Geo. 3. c. 7. [90 temporary only at first, but afterwards made perpetual, (a) it is enacted — “ That if any person shall, witthin the realm or without, compass, imagine, invent, devise or intend death or destruction, or any bodily harm tending to death or destruction, maim or wounding, imprisonment or restraint of the per- son of the King, or to deprive or depose him from the style, honour, or kingly name of the imperial Crown of this realm, or to levy war against his Majesty within this realm, in order by force or constraint to compel him to change his measures or counsels, or in order to put any force or constraint upon, or to intimidate or overawe both Houses or either House of Par- liament, .... and such compassings, imagina- tions, inventions, devices, or intentions, or any of them, shall express, utter or declare, by pub- lishing any printing or writing, or by any overt act or deed, .... every person convicted in the manner therein mentioned shall be deemed, declared and adjudged to be a traitor.” Gentlemen, it cannot have escaped your observation, that in the statute of Edward , the substantive offence of treason thereby declared, consists in affecting the life of the King ; and in the later statute, the substantive offence of the several treasons thereby created, consists in the compas- sing, intending, devising, and imagining the perpetration of the several acts therein specified, not in the commission of the acts themselves. But inasmuch as the wicked imaginations of men’s hearts are known only to the Supreme Being, until they are evidenced to man by outward act, so the former statute has required, that before anyone should become subject to the penalties of treason, he shall be thereof proveably attainted “ of open deed.” And again by the later statute it is enacted, that before anyone falls within its penalties, he shall express, utter or declare such his compassings, imaginations and intentions, by publishing some printing or writing, “or by some overt act or deed.” Gentlemen, these overt acts, therefore, so required by the statute, are the means by which the par- ticular treason has been attempted to be carried into effect ; they are the instances in which the guilty party has endeavoured to complete the treasonable design ; they are the indicia, . or proof of the treason, not the treason itself. It is obvious, there- fore, that these overt acts will be found to vary in each particular case. Where the object of the treason has not been actually perpetrated, combinations and conspiracies to carry it into effect, meetings to pro- (a) 36 Geo. 3. c. 7. and 57 Geo. 3. c. 6. s. 2 ; but see now 11 & 12 Viet. c. 12., Treason Felony Act, by which the provisions of both Acts are repealed except as to offences against the person of the sovereign. Trial of John Frost , 1839 . 91 ] Trial of John Frost, 1839 . [92 pose, to plan, to mature, or to accelerate its completion, the inciting and procuring others to join such combinations, the knowingly making, procuring, or furnish- ing arms and ammunition, money or other necessaries to insurgents, for the purpose of accomplishing their treasonable de- signs, the administering illegal oaths to bind men to aid each other in such trea- sonable designs ; all these, and many others of the same stamp and character, might be suggested as instances of overt acts of the particular class of compassing or devising to which they apply, within the meaning of both the statutes. And, gentlemen, as the proof of some overt act or acts is absolutely necessary to support the charge of treason, whatever it maybe, so must the proof be confined to those specific overt acts which are charged in the indictment, and no other, in order to give the party accused the opportunity of knowing the real charge which is made against him, and to enable him the better to prepare for his defence, for the overt act is the charge to which the prisoner must apply his defence. And still further with respect to these overt acts, it is to be observed, that in favour of the party ac- cused, a statute (a) was passed in the reign of King William 3., which enacts, that no person shall be indicted or tried for high treason, whereby any corruption of blood ensues, — “ but by or upon the oaths of two lawful wit- nesses, either both of them to the same overt act, or one of them to one, and one of them to another overt act of the same treason.” And various other advantages and privi- leges have been granted by the Legisla- ture from time to time in favour of per- sons accused of high treason, which do not belong to persons charged with other offences. Having thus endeavoured to explain to you the nature and property of these overt acts which must be alleged in the indict- ment, and by what evidence they must be supported, I proceed to call your attention to the different heads or classes of treason which may be laid in the indictment against the accused. It is not impro- bable that one charge of treason laid in the indictment may be the compassing and imagining the death of our Lady the Queen, and various overt acts may be stated in support of it ; and perhaps, amongst the rest, the levying war against the Queen in her realm, which has been held by many decided cases to be an overt act of that species of treason, as well as a substantive treason in itself. But as there can be no reason to suppose that any di- rect or immediate intention of injuring the sacred person of the Queen can by possibility be surmised to have existed on this occasion, it will be unnecessary, as it appears to me, to occupy you with any observations on this head of treason. I will proceed, therefore, at once to the only branch of treason which can apply to the circumstances of the present case, that of levying war against the Queen in her realm, which, as before observed, is a direct and substantive branch of treason under the earlier statute, and the bare compassing and intending of which, for the purposes and with the objects men- tioned in the later statute, is made treason by that statute. And, in considering the limits and boundaries of this branch of treason, we are not left without lights to guide our steps, so clearly has the law been laid down by decisions of courts of law in more ancient times, and the ex- positions of those text- writers on the sub- ject who have been held in the greatest veneration, both by their contemporaries and by posterity, amongst whom I shall only refer to the names of Lord Chief Justice Sale and Sir Michael Foster. I shall proceed, therefore, to call your more particular attention to some instances in which the law has been declared and settled upon this head of treason, the better to enable you to apply the evidence which you shall hear to the several in- dictments ; and for this purpose I cannot do better than avail myself, for the most part, of the very words of Sir Michael Foster upon the same subject. It has then been laid down by undoubted autho- rity, that if a large number of persons as- sembled together, whether armed with military weapons or not, endeavour, by dint of numbers or superior strength, to effect any object or matter purely of a private nature, as, for example, to prose- cute some private quarrel, or to take re- venge for some private injury, to destroy some particular enclosure, or to remove some particular nuisance, or generally to accomplish some end in which the par- ticular parties assembled together had, or supposed they had, any private interest, such acts of violence and aggression, how- ever the authors of them may be punish- able as for a high misdemeanor, do not amount to a levying of war within the statute of Edward 3. But every insur- rection which, in judgment of law, is in- tended against the person of the King, whether to dethrone or imprison him, or to oblige him to alter his measures or government, or to remove evil counsellors from about him, all such risings amount to a levying of war within the statute. So, “ insurrections to throw down all enclosures, to alter the established law or change religion, to (a) 7 & 8 Will. 3. c. 5. s. 2. 03] enhance the price of all labour, or to open all prisons ; all risings in order to effect these inno- vations of a public and general concern by an armed force are in construction of law high treason within the clause of levying war ; for though not levelled at the person of the King, they are against His Royal Majesty ; and besides, they have a direct tendency to dissolve all the bonds of society, and to destroy all property and all government too, by numbers and an armed force. Insurrections, likewise, for re- dressing national grievances, or for the refor- mation of real or imaginary evils of a public nature, and in which the insurgents have no special interest ; risings to effect these ends by force and numbers are, by construction of law, within the clause of levying war, for they are levelled at the King's crown and royal dig- nity.”^ And accordingly it was held, (5) in the time of Queen Anne, that a large body of men tumultuously rising and assembled together, with the avowed purpose of putting down all the meeting-houses of Protestant Dissenters, and proceeding to pull down seveial, until prevented by force, brought the parties who were guilty of that act within the branch of the sta- tute of levying war against the Queen. And in a more recent case,(c) where a riotous multitude, headed by Lord George Gordon, and acting in concert with the declared design of pulling down or de- stroying all chapels belonging to those of the Roman Catholic persuasion, pro- ceeded to put that design in force ; there was no doubt but that the facts, if proved against the parties accused, would have amounted to the offence of high treason, in levying war against the King. Gentlemen, an assembly of men, armed and arrayed in a warlike manner with any treasonable purpose, is a levying of war, although no blow be struck ; and the en- listing and drilling and marching bodies of men are sufficient overt acts of that treason, without coming to a battle or action. And, if this be the case, the actual conflict between such a body and the Queen’s forces must, beyond all doubt, amount to a levying of war against the Queen, under the statute of Edward, and to the offence of compassing or devising to levy war within the statute of George 3., provided the design and object and in- tention of the parties be such as is speci- fied in that Act ; and, as has already been adverted to, it is quite unnecessary to constitute the guilt of treason that the tumultuous multitude should appear to be accompanied with the pomp and pageantry of war, or with military array. Insur- (a) Fost. 210. (ft) 15 St. Tr. 522. (c) 21 St. Tr. 485. [94r rection and rebellion are more humble in their first infancy, but all such external marks of jjomp will not fail to be added with the first gleam of success. In case, therefore, any indictment for high treason should be founded on the levying of war, or the compassing or intending to levy war against the Queen, you will, in the first place, direct your attention to the evi- dence, which shows the object and motive of the rising, whether it was to effect some general and public end, in which the whole community are concerned equally with the insurgents, such as the introduction of any great change or inno- vation in the government or the laws of the land, by dint of numbers or violence, or whether it was confined to the effecting of any private or local or particular ob- ject ; and it will be convenient that you should, in the next place, advert to the overt acts alleged on the face of the in- dictment, and then determine for your- selves whether they or any of them are proved by two witnesses, in the manner before adverted to, one of such overt acts being of necessity to be proved to have taken place in this county, in order to give you jurisdiction. Gentlemen, it may be proper to inform you, that in the case of treason the law knows no distinction between principal and accessory ; all who partake in the treason incur the same guilt, and are liable to the same punishment ; the trea- sonable design once established by the proper evidence, the man who instigated, incited, procured, or persuaded others to commit the act, though not present in person at the commission of it, is equally a traitor, to all intents and purposes, as the man by whose hand the act of treason is committed. He who leads the armed multitude towards the point of attack, and then retires before the blow is struck ; he who remains at home, planning and directing the proceedings, but leaving the actual execution of such plans to more daring hands ; he who, after treason has been committed, knowingly harbours or conceals the traitor from the punish- ment due to him, all these are equally guilty in the eye of the law of the crime of high treason. Gentlemen, I am not aware that any case will be brought before you where the charge will be that of misprision of treason ; if such, however, should be the case, it will be unnecessary to say more upon that species of offence than that it presupposes a treason to have been actually committed by others, and that the person charged with the offence, knowing both the traitors and the treason, but without either him- self consenting or being a party to the treason, has refused or neglected to make Trial of John Frost , 1839. 95 ] Trial of John Frost, 1839 . [96 a full and fair disclosure of such his knowledge within convenient time to a magistrate, or someone in authority. It is sufficient to describe the offence without entering into any further discussion. Gentlemen, it is very possible that bills of indictment may be brought before you charging acts of violence committed by some of the individuals who formed a part of the assembled multitude as felony only, not as treason, for he who shoots or at- tempts to shoot or wound another, is, as you well know, under certain circum- stances, guilty of felony, notwithstanding the very same act, when considered with reference to other circumstances, may amount to the crime of high treason. Again, bills of indictment may be pre- ferred against some who participated in the unlawful meeting, but to a less degree, charging them only with the offence of riotously and seditiously assem- bling themselves together. But with re- spect to such charges, to gentlemen con- versant as you are with the laws relating to offences of that nature, I hold it to be unnecessary to offer a single observation. Gentlemen, I fear I have already tres- passed too long upon your attention ; but the importance of the subject which I have felt incumbent on me to discuss, with reference to the just performance of the duties on which you are about to enter, and the rare occurrence (for which we cannot be too thankful) of any occasion which calls for such discussion, must plead my excuse. I cannot, however, conclude my observations without expres- sing the sincere regret and pity which I feel, not alone, I am sure, but in common with yourselves and with all other men of sound principles, on the occasion of the recent disastrous occurrences. I would add, also, my most earnest hope that it may be found in the result that the great majority of those who may have been in- volved in the guilt of these transactions have been misled by the arts of wicked and designing men, and have sinned thus through ignorance and blindness rather than from premeditated guilt ; and I can suggest no remedy which can be ap- plied successfully to counteract a state of of mind and feeling so unhealthy and diseased, and infecting so large a portion of the community, except the diffusion amongst them of the benefits of religious instruction, and of a sound religious edu- cation amongst the rising generation, so that as the younger part of the com- munity advance to manhood they may feel the conviction of the wholesome truth, that they are bound to yield obe- dience to the laws of their country, not from the terror only which the law in- spires, but from a much higher and more binding motive, the fear of the Almighty, and from the thorough belief that “ the powers which be are ordained of God.” Gentlemen, in conclusion I entreat you that in approaching this investigation you will dismiss from your minds all which you may have heard upon the subject before you entered this court; and that in the performance of your important office, whilst you will rejoice when the weight of evidence is so light that you can consistently with your duty at once dismiss the party accused to his liberty and his home, you will at the same time watch over yourselves with jealousy, that you weigh the evidence brought before you. with a firm, steady, and uncompro- mising mind, looking to the performance of your duty and to nothing beside, and utterly regardless of all consequences which may follow from the performance of it. Gentlemen, my learned brethren and myself will be at hand whilst you are engaged in the performance of your arduous labours, and ready at all times to render you any assistance in case any doubt or difficulty as to the law should occur. On the following day(a) the grand jury returned a true bill for ' high treason against John Frost, Charles Walters, John Lovell, Richard Benfield, John Rees, George Turner (otherwise called George Cole), Zephaniah Williams, Edmund Ed- munds, Jenkin Morgan, Solomon Britan, William Jones, James Aust, one other J ohn Rees, and David Jones . All but the last two were set to the bar. Tindal, C. J. : Prisoners, you have been called into Court at this time for the pur- pose of being informed that the grand jury have found a true bill against each of you for high treason. You will have copies of the indictments and a copy of the panel from which the jury will be taken, delivered to you in due time ; the Court wishes to know if you have any counsel or wish to have anyone assigned to you as counsel, and whether you have any attornies; but, if you are not now prepared to answer, you will only have to express your wish between this time and the time of your trial, which will not take place until the 31st of this month, and it shall be attended to. Wightman : My Lords, I am instructed by the Crown to apply to the sheriff to furnish a copy of the panel. Owen (an attorney) : My Lord, I appear for one or two of the prisoners, and I wish to make an application to have the money (a) The report of this day’s proceedings is taken from 9 C. & P. 131. 97] which was taken from them returned to them. I appear for Zephaniah Williams. Tindal, 0. J. (addressing Williams ) : Do you wish to have this gentleman as your attorney ? Williams: I do, my Lord; 10Z. was taken from me. Tindal, C.J. : Before we can grant your application, Mr. Owen , we must know if the money forms any part of the proof. Wightman : My Lords, on behalf of the Crown we have no objection to give up the money. Tindal, C.J. : Then let it be so. Owen; May I presume to ask, my Lord, if we may not apply to have counsel as- signed at a future period between this and the trial ? Tindal, C.J. : Certainly, upon your making application to Mr. Bellamy, tne clerk of the Crown. Bellamy : You can make the application by yourself or by your agent in town. Owen : I now beg, my Lords, to make application that copies of the depositions may be furnished to the prisoners. Tindal, C. J. : The depositions having been returned to the officers of the Court, you may have them on the terms men- tioned in the Act. (a) Owen: My Lord, Mr. Geach defends some of the prisoners ; may I make appli- cation also on his behalf? Tindal, C. J. : No ; but the prisoners may apply themselves. Waters : I beg leave, my Lord, to apply for the depositions in my case. Tindal, C.J. : Certainly. Owen: I am instructed, my Lord, on the part of Mr. Frost to make application that I may be, together with Mr. Geach, assigned as his solicitor. Tindal, C.J. : Are you partners ? Owen : No, my Lord. Tindal, C.J. : What gentleman do you wish to have, Mr. Frost ? Frost : I want the two, my Lord. Tindal, C.J. : But the Act only gives a power to have one attorney. If there were a partnership it might be otherwise, but without that we have no authority to allow two persons to act as attorneys for one prisoner ; any person that you may choose to employ will have free access to you at all reasonable times. (6) Frost : My Lord, a number of papers (а) 6 & 7 Will. 4. c. 114. s. 3. (б) 7 & 8 Will. 3. c. 3. s. 1, provides that prisoners shall have “ a true copy of the indict- ment delivered to them whereby to enable them to advise with counsel thereupon to plead and make their defence, his or their attorney or at- torneys or agent or agents requiring the same.” This appears to be the only reference to the prisoner’s attorney in the Act. o 67432. [98 were taken from my house which, I under- stand, are to be used against me. I there- fore apply either for the originals or copies of these papers. Tindal, C.J. : We have no authority to grant that. Adjourned to December 31. On December 12, Maule, the Treasury Solicitor, delivered to each of the prisoners a copy of the caption and indictment, and a copy of the list of jurors returned by the sheriff. On December 17 he further delivered to each of the defendants a list of the wit- nesses to be examined at the trial. On December 26, at the request of the prisoner Frost, {a) Sir Frederick Pollock and Kelly were assigned as his counsel. Monmouth. Tuesday, December 31, 1839. present : The Bight Hon. Lord Chief Justice Tindal. The Bight Hon. Mr. Baron Parke. The Bight Hon. Mr. Justice Williams. Counsel for the Crown : The Attorney General (Sir John Campbell) ,(b) the Solicitor General (Sir Thomas Wilde), (c) Serjeant Ludlow, Serjeant Talfourd,{d ) Wight- man, (e) Talbot. Solicitor : George Maule, Solicitor for the Affairs of Her Majesty’s Treasury. Counsel for the prisoner : Sir Frederick Pollock, (f) Kelly. (g) Assistant counsel : Thomas. Solicitor : W. F. Geach. The prisoners were set to the bar. The indictment found under the Special Commission was delivered into Court, with the usual caption. Indictment for High Treason. Monmouthshire \(First count ) The jurors for to wit J our Sovereign Lady the Queen upon their oath present that John Frost late of Newport in the county of Monmouth draper Charles Walters late of the same place labourer John Lovell late of the same place (а) For Frost, see Dictionary of National Biography, “ Forty Years’ Recollections,” by- Thomas Frost, pp. 96-117. Feargus O’Connor advanced 1,000 gs. for the expenses of the de- fence, which were defrayed by a subscription among the Chartists. See O’Connor’s speech, below, p. 1128. (б) Afterwards Lord Campbell, L.C. (c) „ „ Truro, L.C. (rf) Afterwards a Justice of the Common Pleas. (e) Afterwards a Justice of the Queen’s Bench. (/) Afterwards Lord Chief Baron. ( 9 ) » » » D Trial of John Frost, 1839. 99 ] labourer Richard Benfield late of the same place labourer John Rees late of the same place la- bourer George Turner late of the same place labourer otherwise called George Cole Zephaniah Williams late of the same place labourer Ed- mund Edmunds late of the same place labourer Jenkin Morgan late of the same place labourer Solomon Britan late of the same plaje labourer William Jones late of the same place labourer James Aust late of the same place labourer one other John Rees late of the same place labourer and David Jones late of the same place labourer being subjects of our said Lady the Queen as false traitors against our said Lady the Queen heretofore to wit on the fourth day of November in the year of our Lord one thousand eight hun- dred and thirty-nine with force and arms to wit at Newport in the county of Monmouth together with a great multitude of false traitors whose names are to the said jurors unknown to the number of two thousand and more arrayed and armed in a warlike manner that is to say with guns pistols pikes swords daggers clubs blud- geons and other weapons of offence being then and there unlawfully maliciously and traitorously assembled and gathered together against our said Lady the Queen wickedly maliciously and trai- torously did levy and make war against our said Lady the Queen within this realm and being so assembled together arrayed and armed against our said Lady the Queen as aforesaid did then and there with great force and violence parade and march in an hostile and warlike manner in and through divers towns villages places aud public highways in the county aforesaid to wit at Newport aforesaid in the county aforesaid and did then and there maliciously and traitorously on the said fourth day of November in the year aforesaid with force and arms at Newport afore- said in the county aforesaid together with a very great number to wit two thousand and more of the subjects of our said Lady the Queen whose names are to the said jurors unknown then and there assembled with divers offensive weapons to wit guns pistols pikes swords bludgeons sticks and staves parade and march with great noise and violence and in an hostile and warlike man- ner in through and along divers public highways towns villages aud places in the county afore- said to wit at Newport aforesaid in the county aforesaid and did then and there attack and beset the houses and habitations of divers liege subjects of our said Lady the Queen and did then and there force and oblige divers liege subjects of our said Lady the Queen inhabiting and dwell- ing in such houses and habitations and others of Her Majesty’s liege subjects then and there being to march along with and join them the said John Frost Charles Walters John Lovell Richard Benfield John Rees George Turner otherwise called George Cole Zephaniah Wil- liams Edmund Edmunds Jenkin Morgan, Solo- mon Britan William Jones James Aust John Rees and David Jones and the said other per- sons so assembled as aforesaid and did then and there by force and violence seize and take divers large quantities of arms to wit one hundred guns and one hundred pistols and other offensive weapons of and from divers liege subjects of our said Lady the Queen and against their will [100 with intent by and with the said last-mentioned arms further to arm themselves and other false traitors in order to attack fight with kill and destroy the soldiers troops and forces of our said Lady the Queen and other her liege and faithful subjects and to raise make and levy insurrection rebellion and war against our said Lady the Queen within this realm and thereby to subvert and destroy the Constitution and Government of this realm as by law established and to alter and change the laws of this realm by force to wit at Newport aforesaid in the county aforesaid and did then and there maliciously and traitorously as such false traitors as last aforesaid on the said fourth day of November in the year afore- said with force and arms at Newport aforesaid in the county of Monmouth aforesaid together with a great multitude of false traitors whose names are to the said jurors unknown to the number of two thousand and more armed and arrayed in warlike manner that is to say with guns pis- tols pikes swords clubs bludgeons and other offensive weapons in an hostile manner and war- like array march into and enter the town of Newport in the county aforesaid and did then and there make a forcible violent and warlike attack upon a certain dwelling-house there situate in a certain part of the said town in which said dwelling-house divers of the magistrates and justices of the peace of our said Lady the Queen and divers of the soldiers and constables of our said Lady the Queen weredhen and there assem- bled and then and there with great force and violence and in a warlike manner attempted and endeavoured to break and enter and did then and there break and enter the said dwelling- house whilst the said magistrates and justices of the peace and the said soldiers and constables were therein as aforesaid and then and there with great force and violence and in a warlike manner attacked aud with the said guns and pis- tols then and there loaded with gunpowder and bullets fired upon the said magistrates and jus- tices of the peace and the said soldiers and con- stables so being in the said dwelling-house as aforesaid and then and there wounded and beat divers of the said magistrates and justices of the peace and the said soldiers and constables to wit at Newport aforesaid in the county aforesaid and did then and there maliciously and traitor- ously attempt and endeavour by force and arms and in a warlike manner to subvert and destroy the Government and Constitution of this realm as by law established in contempt of our said Lady the Queen and her laws to the evil example of all others contrary to the duty of the alle- giance of them the said John Frost Charles Walters John Lovell Richard Benfield John Rees George Turner otherwise called George Cole Zephaniah Williams Edmund Edmunds, Jenkin Morgan Solomon Britan William Jones James Aust John Rees and David Jones against the form of the statute in such case made and provided and against the peace of our said Lady the Queen her crown and dignity.(a) The second count was for levying war generally. It charged that the defendants — (a) Cf. indictment in Brandreth’s case, 32 St. Tr. 758. Trial of John Frost, 1839 . 101 ] Trial of John Frost, 1839 . [102 as false traitors against our said Lady the Queen heretofore to wit on the fourth day of November in the year aforesaid with force and arms to wit at Newport aforesaid in the county aforesaid toge- ther with a great multitude of false traitors whose names are to the said jurors unknown to the number of two thousand and more arrayed and armed in a warlike manner that is to say with guns pistols pikes swords daggers clubs blud- geons and other weapons of offence being then and there unlawfully maliciously and traitorously assembled and gathered together so armed and arrayed as aforesaid against our said Lady the Queen wickedly maliciously and traitorously did levy and make war against our said Lady the Queen within her realm that is to say at New- port aforesaid in the count}' aforesaid in con- tempt of our said Lady the Queen and her laws to the evil example of all others contrary to the duty of the allegiance of them the said John Frost Charles Walters John Lovell Richard Benfield John Rees George Turner otherwise called George Cole Zephaniah Williams Edmund Edmunds Jenkin Morgan Solomon Britan Wil- liam Jones James Aust John Rees and David Jones against the form of the statute in such case made and provided and against the peace of our said Lady the Queen her crown and dignity. ( Third count ) And the jurors aforesaid upon their oath aforesaid further present that the said John Frost Charles Walters John Lovell Richard Benfield John Rees George Turner ■otherwise called George Cole Zephaniah Wil- liams Edmund Edmunds Jenkin Morgan Solo- mon Britan William Jones James Aust John Rees and David Jones being subjects of our said Lady the Queen as false traitors against our said Lady the Queen heretofore to wit on the said fourth day of November in the year aforesaid and on divers other days and times as well before as after with force and arms to wit at Newport aforesaid in the county aforesaid maliciously and traitorously amongst themselves and together with divers other false traitors whose names are to the said jurors unknown 4id compass imagine invent devise and intend to deprive and depose our said Lady the Queen of and from the style honour and kingly name of the imperial crown of this realm and the said compassing imagination invention device and in- tention did then and there express utter and de- clare by divers overt acts and deeds herein-after mentioned that is to say ( First overt act ) In order to fulfil perfect and bring to effect their most evil and wicked treason and treasonable compassing imagination invention device and intention aforesaid they the said John Frost Charles Walters John Lovell Richard Benfield John Rees George Turner otherwise called George Cole Zephaniah Williams Edmund Ed- munds Jenkin Morgan Solomon Britan William Jones James Aust John Rees and David Jones as such false traitors as last aforesaid on the said fourth day of November in the year afore- said and on divers other days and times as well before as after with force and arms to wit at Newport aforesaid in the county aforesaid ma- liciously and traitorously did assemble meet conspire and consult among themselves and to- gether with divers other false traitors whose names are to the said jurors unknown to devise arrange and mature plans and means to subvert and destroy the Constitution and Government of this realm as by law established and to alter and change the laws of this realm by force ( Second overt act ) And further to fulfil perfect and bring into effect their most evil and wicked treason and treasonable compassing imagination invention device and intention aforesaid they the said John Frost Charles Walters John Lovell Richard Benfield John Rees George Turner otherwise called George Cole Zephaniah Wil- liams Edmund Edmunds Jenkin Morgan Solo- mon Britan William Jones James Aust John Rees and David Jones as such false traitors as last aforesaid on the said fourth day of Novem- ber in the year aforesaid and on divers other days and times as well before as after with force and arms at Newport aforesaid maliciously and traitorously did assemble meet conspire and con- sult amongst themselves and together with divers other false traitors whose names are to the jurors unknown to seize and take possession bv force of the town of Newport in the county aforesaid and of the post office there and to stop and cut off all communication between Newport aforesaid and the other parts of this kingdom by means of Her Majest}'’s mails or by the post or otherwise ( Third overt act ) And fur- ther to fulfil perfect and bring to effect their most evil and wicked treason and treasonable compassing imagination invention device and intention aforesaid they the said John Frost Charles Walters John Lovell Richard Benfield John Rees George Turner otherwise called George Cole Zephaniah Williams Edmund Ed- munds Jenkin Morgan Solomon Britan William Jones James Aust John Rees and David Jones as such false traitors as last aforesaid on the said fourth day of November in the year afore- said and on divers other days and times as well before as after with force and arms to wit at Newport aforesaid in the county aforesaid mali- ciously and traitorously did assemble meet con- spire consult and agree among themselves and together with divers over false traitors whose names are to the said jurors unknown to attack and fight with the soldiers of our said Lady the Queen then and there being at Newport afore- said in the county aforesaid and to attack assault and obstruct the magistrates and justices of the peace of our said Lady the Queen then and there being at Newport aforesaid and to stir up raise make and levy insurrection rebellion and war against our said Lady the Queen within this realm and to subvert and destroy the Constitu- tion and Government of this realm as by law- established and to alter and change the laws of this realm by force ( Fourth overt act ) And further to fulfil perfect and bring to effect their most evil and wicked treason and treasonable compassing imagination invention device and intention aforesaid they the said John Frost Charles Walters John Lovell Richard Benfield John Rees George Turner otherwise called George Cole Zephaniah Williams Edmund Ed- munds Jenkin Morgan Solomon Britan William Jones James Aust John Rees and David Jones as such false traitors as last aforesaid on the D 2 103 ] Trial of John Frost , 1839 . [104 said fourth day of November in the year afore- said and on divers other days and times as well before as after with force and arms at Newport aforesaid in the county aforesaid maliciously and traitorously did purchase procure provide and have divers large quantities of arms to wit swords pikes guns and pistols and divers large quantities of ammunition to wit gunpowder leaden bullets and slugs with intent therewith to arm and array themselves and divers other false traitors in order to attack fight with kill and destroy the soldiers troops and forces of our said Lady the Queen and other her liege and faithful subjects and to raise make and levy insurrection rebellion and war against our said Lady the Queen within this realm and to subvert and destroy the Constitution and Government of this realm as by law established and to alter and change the laws of this realm by force ( Fifth overt act ) And further to fulfil perfect and bring into effect their most evil and wicked treason and treasonable compassing imagination invention device and intention aforesaid they the said John Frost Charles Walters John Lovell Richard Benfield John Rees George Turner otherwise called George Cole Zephaniah Williams Edmund Edmunds Jenkin Morgan Solomon Britan William Jones James Aust John Rees and David Jones as such false traitors as last aforesaid on the said fourth day of November in the year aforesaid with force and arms at Newport aforesaid in the county aforesaid maliciously aud traitorously together with a very great number to wit two thousand and more of the subjects of our said Lady the Queen whose names are to the said jurors un- known then and there assembled with divers offensive weapons to wit guns pistols pikes swords bludgeons sticks and staves did parade and march with great noise and violence and in an hostile and warlike manner in through and along divers public highways towns villages and places in the county aforesaid to wit at Newport aforesaid in the county aforesaid and did then and there attack and beset the houses and habi- tations of divers liege subjects of our said Lady the Queen and did then and there force and oblige divers liege subjects of our said Lady the Queen inhabiting and dwelling in such houses and habitations and others of Her Majesty’s liege subjects then and there being to march along with and join them the said John Frost Charles Walters John Lovell Richard Benfield John Rees George Turner otherwise called George Cole Zephaniah Williams Edmund Ed- munds Jenkin Morgan Solomon Britan William Jones James Aust John Rees and David JoDes and the said other persons so assembled as aforesaid and did then and there by force and violence seize and take divers large quantities of arms to wit one hundred guns and one hundred pistols and other offensive weapons of and from divers liege subjects of our said Lady the Queen and against their will with intent by and with the said last-mentioned arms further to arm themselves and other false traitors in order to attack fight with kill and destroy the soldiers troops and forces of our said Lady the Queen and other her liege and faithful subjects and to raise make and levy insurrection rebellion and war against our said Lady the Queen within this realm and thereby to subvert and destroy the Constitution and Government of this realm as by law established and to alter and change the laws of this realm by force to wit at Newport aforesaid in the county aforesaid ( Sixth overt act ) And further to fulfil perfect and bring to effect their most evil and wicked treason and treasonable compassing imagination invention device and intention aforesaid they the said John Frost Charles Walters John Lovell Richard Benfield John Rees George Turner otherwise called George Cole Zephaniah Williams Ed- mund Edmunds Jenkin Morgan Solomon Britan William Jones James Aust John Rees and David Jones as such false traitors as last afore- said on the said fourth day of November in the year aforesaid with force and arms at Newport aforesaid in the county of Monmouth aforesaid together with a great multitude of false traitors whose names are to the said jurors unknown to the number of two thousand and more armed and arrayed in warlike manner that is to say with guns pistols pikes swords clubs bludgeons and other offensive weapons maliciously and traitorously did in an hostile manner and war- like array march into and enter the town of Newport in the county aforesaid and then and there make a forcible and violent attack upon a certain dwelling-house there situate in a certain part of the said town in which said dwelling- house divers of the magistrates and justices of the peace of our said Lady the Queen and divers of the soldiers and constables of our said Lady the Queen were then and there assembled and then and there with great force and violence attempted and endeavoured to break and enter and did then and there break and enter the said dwelling-house whilst the said magistrate and justices of the peace and the said soldiers and constables were therein as aforesaid and then and there with great force and violence attacked and with the said guns and pistols then and there loaded with gunpowder and bullets fired upon the said magistrates and justices of the peace and the said soldiers and constables so being in the said dwelling-house as aforesaid and then and there wounded and beat divers of the said magistrates and justices of the peace and the said soldiers and constables to wit at Newport aforesaid in the county aforesaid (Seventh ovei't act) And further to fulfil perfect and bring to effect their most evil and wicked treason and treasonable conspiracy imagination invention device and intention aforesaid they the said John Frost Charles Waiters John Lovell Richard Benfield John Rees George Turner otherwise called George Cole Zephaniah Williams Edmund Edmunds Jenkin Morgan Solomon Britan William Jones James Aust John Rees and David Jones as such false traitors as last aforesaid on the said fourth day of November in the year aforesaid with force and arms to wit at Newport aforesaid in the county aforesaid together with a great number of false traitors whose names are to the jurors unknown to the number of two thousand and more armed and arrayed in a warlike manner that is to say with guns pistols pikes swords clubs bludgeons and other weapons of offence maliciously and traito- 105] Trial of John Frost, 1839. [106 rously did ordain prepare levy and make public war against our said Lady the Queen within this realm in contempt of our said Lady the Queen and her laws to the evil example of all others contrary to the duty of the allegiance of them the said John Frost Charles Walters John Lovell Richard Benfield John Rees George Turner otherwise called George Cole Zephaniah Williams Edmund Edmunds Jenkin Morgan Solomon Britan William Jones James Aust John Rees and David Jones against the form of the statute in such case made and provided and against the peace of our said Lady the Queen her crown and dignity. The fourth count was for levying war against the Queen to compel her to change her measures. It charged that the de- fendants — on the said fourth day of November in the year aforesaid and on divers other days and times as well before as after with force and arms at New- port aforesaid in the county aforesaid maliciously and traitorously amongst themselves and together with divers other false traitors whose names are to the said jurors unknown did compass imagine invent devise and intend to levy war against our said Lady the Queen within this realm in order by force and constraint to compel her to change her measures and counsels and the said last- mentioned compassing imagination invention device and intention did then and there express utter and declare by divers overt acts and deeds herein-after mentioned. The overt acts were the same as in the last count. The prisoners, John Frost, Charles Wal- ters, John Lovell, Bichard Benfielcl , John Bees, George Turner , otherwise called George Cole, Zephaniah Williams, Ed- mund Edmunds, Jenkin Morgan, Solomon Britan, William Jones, James Aust , being put to the bar and arraigned upon this indictment, severally pleaded Not Guilty. The counsel for the prisoner John Frost having stated that they intended on his behalf to sever in the challenges, and the other prisoners having, in answer to a question from the Court, severally ex- pressed the same intention, the Attorney General stated that he should proceed first with the trial of John Frost. (All the prisoners, with the exception of John Frost, were removed from the bar.) Thomas : I am also assistant counsel for Mr. Frost. Tindal, C. J. : The Court can take no notice of that, (a) The jury panel was called over, and those jurymen who were present answered to their names. Sir Frederick Bollock applied to the court, that in consideration of the pro- (a) By 7 & 8 Will. 3. c. 3. s. 1, the judge is required to assign “ so many counsel not ex- ceeding two ” as the prisoner shall demand. bable length of the trial, and in considera- tion also of the prisoner having been recently unwell, he might be allowed the indulgence of a seat ; the application was granted by the Court. The Clerk of Assize proceeded to call those jurors who had answered to their names upon the first calling over of the panel ; and the name of George Adams , of Portskewitt, tailor, was called. Sir F. Bollock: Will your Lordships, before that juryman is called, permit me to suggest, that the order in which the panel is presented is apparently alphabeti- cal, and I presume has been arranged by some person in that order industriously. Perhaps your Lordships will think that there is no impropriety" in my asking that the jury may be indifferently drawn from those who do appear, by means of a ballot, as is provided expressly in all similar cases. If, my Lord, it had appeared that the names of these jurymen were presented, as in many other instances they are, with- out reference to any order, so that no objection could be offered to them, I cer- tainly, my Lord, should not have made the application, but at present my humble ap- plication is, that your Lordships will direct that their names shall be drawn by ballot, and not drawn and called as they stand upon the list. Kelly followed : Your Lordships will ob- serve, that the prisoner has no control whatever over the preparing of these lists of the jury from the body of the county. The sherifl, or whoever prepares these lists and summons the jury, might very easily make a selection of persons whose names begin with some of the earliest letters of the alphabet, persons known to entertain particular opinions. Now, my Lord, it is of the greatest importance that the adminis- tration of justice, and every part of it, should be entirely above suspicion. It is quite obvious, as the number of challenges to which the prisoner is confined is limited by law, that those challenges would pro- bably be exhausted before the first three or four letters are gone through. The effect, therefore, in cases of this nature, will be substantially to cause every case of this description to be tried by persons whose names begin with some of the earlier letters of the alphabet ; and as that would give the individual who has the original preparing of the list the power to select so many persons whose names begin with the earliest letters of the alphabet, as to defeat the prisoner’s challenge, it would certainly give a means of doing the great- est and gravest injustice, the mere possi- bility of which leaves the proceeding open to some suspicion. My Lords, I do hope that, as this is a matter entirely in your discretion, as it 107] Trial of John Frost, 1839. [108 must be immaterial to the Law Officers of the Crown whether the whole of the names of the jurors now present are put into a box, and then drawn out one after another by chance, or, whether they are drawn out alphabetically, I hope they will not object to the course we propose. If, how- ever, they should do so, I submit bo your Lordships that it is a matter entirely in your discretion ; and I do venture to sub- mit very humbly to your Lordships, that you will take that course which will place the administration of justice, entirely be- yond the possibility of the remotest sus- picion. Attorney General : My Lords, I shall be very far from questioning the authority of your Lordships to direct the jury to be selected in any manner that in your judg- ment may appear most conducive to the ends of justice ; and if you should be of opinion that in this case, for the first time, the jury ought to be selected by ballot, I will most respectfully acquiesce. It seems to me to be a matter of most perfect indifference, and whatever your Lordships’ judgment may be, I shall re- ceive it with entire satisfaction. But at the same time, my Lords, it is my duty to point out to your Lordships that from the 7th of William 3. down to the present trial, I believe that this form of proceed- iug never has been adopted; the course has always been to begin with the name standing first at the top of the list, and to proceed, subject to challenges by the pri- soner and by the Crown, till a proper jury was impannelled. My Lords, these proceedings have been conducted before great and constitutional judges ; they have been conducted in cases where the prisoners were defended by ad- vocates of the first eminence, name, and talents, and the rule has come down to your Lordships, such as I venture to sub- mit to you. Now, the ground upon which it is said that there ought to be now this novel mode of proceeding in cases of high trea- son is this, that this jury list is alphabeti- cally arranged. My Lord, I must say that, in my mind, that is the very reason why in this case there is less necessity for proceeding by ballot than in the usual case. I never saw this jury list till I entered the walls of this Court, nor was I aware that it had been arranged alpha- betically, till my learned friend, Sir F. Pollock, pointed out that circumstance, which is undoubtedly true. It is not strictly alphabetical, but that is the prin- ciple upon which the names appear to have been arranged. But I own, my Lord, it appears to me that that can be no reason at all for departing from the usual course, because this shows that instead of there being any selection on the part of the sheriff, he really has submitted to a mode of arranging the names, which is casual. My Lord, it must be supposed that the sheriff has done his duty; there is no- challenge to the array, and it must be supposed that this list is impartially re- turned ; and therefore the question is, is there now, by reason of there being an alphabetical arrangement, to be a de- parture from the usual practice ? If your Lordships should think that it will in the slightest degree promote, not only a fair and impartial administration of justice, but an administration of justice above all suspicion ; if you should think that any suspicion might attach to this trial if we were to proceed in the usual manner ; I concur with the counsel for the prisoner, and pray that there may be a departure from the common rule. But unless there be some well-considered reason for that departure, departing from it in this in- stance may lead to inconvenience which we cannot at present forsee ; we should then be travelling out of the common course, and we know not what deviations may afterwards be proposed. Sir F. Pollock : Will your Lordship per- mit me to state, that as far as my memory serves me, and I have looked over some of the former panels, I find none of the panels that I have looked at returned alphabetically. I am not prepared to say that that has never been so, because my impression is (and I feel myself bound to state to your Lordship accurately that which I profess to state), that on one occa- sion, but I think upon one only of the many reports of High Treason that I have before me, was there a list returned alpha- betically. Tindal, 0. J. : What occasion was that p Sir F. Pollock : I am not able to state from memory "when that was. Solicitor General: It is Brandreth’s,(a} if it is any. Sir F. Pollock: I believe my learned friend is right. Tindal, 0. J. : The Derby case ? Sir F. Pollock : It was, my Lord ; that was in October 1817. Williams, J. : The persons called upon are given in the book, and their name3 do not appear to follow alphabetically. Sir F. Pollock : Then my learned friend is wrong in that instance ; but in all the instances that I have looked at now since this application has been made to your Lordships, from the persons objected to and those sworn as jurors, it is quite plain that the panel was not arranged alpha- betically. I presume, therefore, it was- arranged according to some casual order. (a) 32 St. Tr. 755. 109 ] Trial ofJohn Frost, 1839 . [110 the under-sheriff returning the jury to the Court probably by lot, or in some other way, and not putting them into any re- gular form. In Hardy's case, (a) in Horne Tooke’s cas e,(&) and in several others the panel does nob appear to have been alpha- betical. In Crossfield's case,(c) for in- stance, the first juryman sworn is Hilton Bay, the next is John Anderson, and the third challenged, John Vincent Gandolfi ; still, my Lord, when I profess to state anything upon a matter of this import- ance, I feel bound to admit all that I am aware of Parke, B. ; I rather think, Sir Frederick Pollock, it is the course at the Old Bailey always to return to the different sessions the list alphabetically arranged. Sir F . Pollock : I do not know, my Lord, wbat the practice is there, but allow me to point this out : we have here a list of three hundred and eighteen jurors returned ; by going through the panel, 1 perceive that the number struck out is between seventy and eighty. There are, therefore, left two hundred and thirty or two hundred and forty, and your Lord- ships must perceive that the prisoner, with his thirty -five challenges without cause, and a very small number of challenges with cause, and with the twelve who may be sworn, could hardly dispose of more than fifty or sixty of the panel ; the consequence of which would infallibly be, that the court could hardly get through more than a cer- tain very small portion of the alphabet ; certainly not so much as half. Now, my Lord, is this to be the course ? Is tbe sheriff to return the lists alphabetically P the consequence of which is, that every gentleman in the county bound to serve upon juries, whose initial stands low in the alphabet, may be quite satisfied that he will not be required to serve ; or is it to be, that sometimes the sheriff is to begin with the letter A, and sometimes with the letter B, and sometimes with the letter 0, so as to cast upon those whose names begin with the later letters of the alphabet a share of the burden? The freeholders of the county whose names begin with the early letters of the alphabet have a right to say, “The whole burden is not to be cast upon us ; let those whose names begin with the later letters be called upon to perform this very painful and onerous duty.” My humble applica- tion to your Lordships is, that you will direct the jury to be drawn by ballot. And I understand, that preparations have been made with a view to give effect to such a direction of your Lordships, if you should be pleased, in the view you take of the subject, to make such an order. Among the cases that my learned friends have looked at since I have been addressing your Lordships, I am told that they cannot find any instance where a jury has been returned alphabetically ; the consequence is, that there has been upon this occasion an artificial and not a natural arrangement. I seek to disturb that, and that the jury who shall try the prisoner may be selected indifferently, and without any reference to the views and caprice of any one ; and I trust that your Lordships will think, that in that way alone can full and satis- factory confidence be given to a proceed- ing so important and so momentous as the present. ( Their Lordships consulted together for a few minutes.) Tindal, C.J. : If this application had been opposed on the part of the Crown, I, as one sitting here, should not have conceded to the objection; because I think, so far from being a real objection on the part of the prisoner, it is an ad- vantage to him that the names are arranged as they now stand. The sheriff, in ordinary cases, has a right, taking the lists of freeholders that are returned to him from the different parishes fairly and impartially, to put the names down in any order that he thinks fit; and the usual and ordinary course in criminal courts is, that the names of the jurors are called as they stand in that list. Surely, then, it is anything but a disadvantage to the pri- soner, that instead of the names occurring in the list, and being called as the sheriff has put them down, and which rests with himself, he has arranged them in a manner that you can hardly upon any calculation of chances say, that the men who are placed upon the different lists, their names beginning with different letters of the alphabet, are men selected for any parti- cular purpose ; but, at the same time, as there is no opposition made by the At- torney General, I think it would be better to allow, for this time, the names to be called by ballot. (a) The jurors who had answered to their names were again called over. On Edward Davies, of Tintern Parva, farmer, being called Attorney General: I challenge him on the part of the Crown. Sir F. Pollock: I am quite sure that your Lordships will not be surprised at my objection to peremptory challenges on the part of the Crown. My Lord, I am quite aware of the history of this question ; but inasmuch as the court is now called upon, for the first time, to put a judicial con- (а) 24 St. Tr. 199. (б) 25 St. Tr. 1. (c) 26 St. Tr. 1. (a) See ManseVa case, Dears. & B. C.C. 375. ni2 111] Trial of John Frost, 1839. struction upon a new Act of Parliament, (a) I should be wanting certainly, I think, in respect even to your Lordships, but un- doubtedly in what I owe to the prisoner at the bar, if I did not call your Lordship’s attention, and I mean to do so very shortly, to the position in which this question has stood on former occasions. My Lord, the present statute is not the statute of Ed- ward 1. The privilege of peremptory challenges given to the prisoner, but denied to the Crown, was formerly by the statute 33rd of Edward 1. c. 4., which, 1 believe, has been re-enacted word for word, with the exception of one syllable — in substance I must admit that it has been re-enacted — by the 6th of George 4. c. 50. s. 29. The words of that statute are these : — “ And be it farther enacted, That in all inquests to be taken before any of the courts herein-before mentioned, wherein the King is a party, howsoever it be, notwithstanding it be alleged by them that sue for the King, that the jurors of those inquests, or some of them, be not indifferent for the King, yet such inquests shall not remain untaken for that cause; but if they that sue for the King will challenge any of those jurors, they shall assign of their challenge a cause certain, and the truth of the same challenge shall be inquired of according to the custom of the court, and it shall be proceeded to the taking of the same inquisitions, as it shall be found if the challenges be true or not after the discretion of the court.” I am aware that for a long series of years it has been considered to be the practice, (61 and therefore to some extent the law, that the Crown might postpone the cause to be assigned, until the panel is gone through. The effect of this upon a panel like the present must, I think, alarm every person who supposes there is any safety in the statute of Edward, or any benefit to the subject in the continuation of the enactments of that statute by the Act commonly called *• Peel’s Jury Act.” At a time when a smaller number of juries were wont to be on occasions like the present, when the panel might not exceed five or six com- plete juries, the postponement of the cause to be assigned by the Crown might have very little influence. My Lords, this is no questioh connected with anything but the profession of which I have the honour to be a member in common with your Lordships ; and I beg to say. that from tbe earliest time that I have ever considered the question, I have (а) 6 Geo. 4. c. 50. (б) So stated iu Stafford, I*.C. lib. 3, c. 7, fo. 162, 163. See also JR v. Parry , 6 C. & P. 836 ; ManseVs case (ubi sup.') ; 4 Bla. Com. 353 ; 2 Hawk. P.C. c. 4-3, s. 3. had but one opinion upon it ; and 1 feel it to be my imperative duty, at the first moment that an opportunity presents it- self, to call the attention of the court to the monstrous injustice that may be per- petrated if this statute, recently passed, is to receive the same construction that the statute received in times of old. Look, my Lords, at the present panel; there are to be drawn from the box two hundred and forty names, at least as many as that. The challenges for cause, coupled with the thirty-five peremptory challenges to which the prisoner is re- stricted by the law, can hardly be expected to exceed the number of fifty, and de- ducting those fifty from the two hundred and forty names in that box, there will remain one hundred and ninety jurors, and the Crown will have a right, by postpon- ing its challenge for cause, to select pre- cisely the twelve individuals out of the one hundred and ninety, that it may be thought most convenient (by whatever name the proceeding is to be called, I presume I may call it convenient) for the administration of justice to select. The Law Officers of the Crown will have a right out of that one hundred and ninety, actually to select the identical twelve that they may choose to fix upon. If that does not present the means of packing a jury, I own, my Lord, I do not know what does. If the Crown should at once take the one hundred and ninety names and say, “ The prisoner’s challenges are exhausted ” — (he may challenge indeed for cause, if any cause can be shown) — “ and we will have the trial by the twelve individuals that we fix upon out of the one hundred and ninety that would be a monstrous in- justice, but there is no escaping that con- clusion ; the prisoner has no means, none whatever, of escaping it; and assuming that this may be done (and the law of England for this purpose knows no dis- tinction between w T hat may be done, and what on any occasion a person shall choose actually to do), I say that this does really amount not only to a practical repeal of the statute, but it is giving to the Crown the power of packing a jury, and trying the cause by any twelve persons out of the one hundred and ninety that they think fit. This appeared so monstrous to one learned judge that he considered that it was in the discretion of the Court to inter- fere with it if the Court thought right to do so; and accordingly at the trial of Horne Toohe,(a) in the year 1794, I find the following expression used by Lord Chief Justice Eyre, in page 25; it occurred while the panel was being called over for (a) 25 St. Tr. 2. 113] the purpose of forming a jury. Mr. Toohe, I observe, himself took that objection ; he says : — “That the Crown shall give their cause of challenge before an infirm juryman shall be taken.” They had gone through the panel then, and it was objected that the Crown ought to assign its cause, and that the prisoner ought not to be put to make his challenge until the Crown had challenged for cause. Lord Chief Justice Eyre says this : — “ Your counsel advised you very properly not to resist the challenges for the Crown in the course in which those challenges have been taken. As far as our legal history affords us any information upon the subject, the course is a clear one. The Crown has no peremptory challenge ; but the course is, that the Crown may challenge as the names are called over, and is not bound to show the cause of the challenge until the panel is gone through. That is the course of proceeding which is now so established that we must take it to be the law of the land. At the same time, I feel that the circumstance, which is become absolutely necessary, of making the panels vastly more numerous than they were in ancient times, might give to the Crown an improper advantage, arising out of that rule. And wherever we shall see that improper advantage attempted to be taken, it will be for the serious consideration of that Court whether they will not put it into some course to prevent that advantage being taken. I do not perceive at present that there is any complaint that an ill-use has been made of this power in this in- stance. How many have been challenged on the part of the Crown? Shelton, Clerk of the Arraigns : Seven. Eyre, C.J. : It does not appear to me at pre- sent that an improper advantage has been taken. Tooke : Seven is a majority of my jury. Eyre, C.J. : It does not appear to me at present that an improper advantage has been taken by the Crown, therefore we must see what the rule is. The rule is, that when the panel is gone through, if there be not a sufficient number left to serve upon the jury, the Crown is to show the cause of its challenge. The panel is gone through now, as I take it ; we reserved two or thiee eases of persons who had desired to be excused ; their excuse was of a kind which hardly called upon us, in strict justice, to dispense Avith their service; at the same time, if there Avere enough upon the panel to serve, the Court were inclined to listen to that excuse. The question now is, Avhether they are to be called upon to serve before the Crown shall be put to assign the causes of its challenges.” With the utmost deference to your Lordships, I conceive that this practice crept in at a time when there was a de- ference paid to the Crown upon points of this description, which the law and the principles of the Constitution did not war- rant, and which the mode of trial by juries, as settled by this Act of Parlia- [114 ment, was actually intended to prevent. My Lord, I humbly submit that this is a mode practically of evading, if not abso- lutely of repealing, the effect of that wholesome statute of Edward 1., now re- enacted in the 29th section of reel's Act. I am far from being disposed to go over the various matters which, in the history of our law, must be present to your Lord- ships’ minds, where the Crcwn has had an advantage time after time given to it, though it is difficult to know why. Your Lordships kuow how, at various times successively, the subject has at last been placed upon an equal footing in point of right in various respects ; the means of getting witnesses ; the swearing of those witnesses ; the allowing them to be called ; in all which matters the Crown had at one time an advantage by the practice of the Court — a most unjust and intolerable practice, founded upon no law. I forbear to remind your Lordships of these matters, because they have now passed by ; but they arose at a period when it seems to have been thought that, because the name of the Sovereign appeared upon the record, the Sovereign had some personal or public interest in anything but the justice of the case. Your Lordships know that the very foundation of the practice of counsel not being allowed to appear on behalf of a pri- soner was this : that by the allegiance which a man owes to the Crown, it was thought he ought not to appear and plead the cause of any person against that Crown, as if the Crown had an interest in the guilt of the accused, and had not the deepest interest in making out that the party was innocent. As I stated to your Lordships in the outset, I propose to make no long argu- ment upon this point ; but I should forget that those opinions and those views which one at least of the gentlemen round the table knows I have long entertained on this subject, if I did not, in the shortest, but, at the same time, in the clearest way, as this Act of Parliament, passed only in the year 1825, is for the first time to receive a judicial construction, call upon your Lord- ships to say that the ancient practice was founded in a species of courtesy and de- ference to the name of the Sovereign, which it is no part of the prerogative to’ demand, which it is no part of sound loyalty to yield ; that it has been con- tinued from time to time from a deference which is not a constitutional deference^ for, in all respects, it is of importance for the Crown to prove the innocence of the subject of the Crown that may be accused. I submit to your Lordships, therefore, that the ancient practice that did prevail was founded upon no constitutional law, but is in fact, and would be, if it were Trial of John Frost, 1839. 115] Trial of John Frost, ] 839. [116 carried out as it might be, a practical repeal of the Act of Parliament that has been considered to be the law of the land ever since the 33rd year of the reign of Ed- ward 1. ; and I submit, therefore, that your Lordships ought now to put that construc- tion upon it, which in my humble judg- ment ought to have been put upon it from the beginning, that the Crown cannot challenge and say that they have a cause that they will produce by-and-by. I know of no ground upon which, either in prin- ciple or upon the words of the statute, they can contend for that ; I am aware that a practice has crept up — I conceive that practice not to be well-founded, or one of the judges of the land would not have thought that he had a right to con- trol it ; and I trust, therefore, that your Lordships will call upon the Crown to dis- close what is the cause of challenge against the juryman now in Court. [Kelly followed.] My Lords, I can hardly believe that in a court of justice at the present time, now when the point is brought forward, and made plain and intelligible to those who hear it discussed, I can hardly conceive that the Officers of the Crown will stand up and defend so monstrous and unjust a claim. It is in vain to say, when we look back to the history of the statute book, ' and the State trials, that we are not to argue against the exercise of power from its possible abuse. We have seen that power in high treason cases abused to the shedding of innocent blood to an extent that it is frightful even to contemplate. I hope, therefore, that your Lordships will look to the terms of the statute, and see whether there is anything in the Act of Parliament, the 33rd of Edward 1 ., or in any other Act of Parliament that my learned friend can refer to, which gives to the Crown the right substantially of chal- lenging peremptorily any number that they think fit, and deferring to assign cause until any number of jurymen that they may choose to fix upon shall have passed under review, and then at the end of the panel exercising the right of chal- lenging for cause. My Lords, unless some such right can be found in the statute, unless there be some such direct authority, not simply calling upon you not to exer- cise a discretion, but imposing it upon you as an act of duty to sanction this claim, I feel persuaded that your Lord- ships will not give way to it ; and I feel that the observations of Lord Chief Justice Eyre, to which my learned friend Sir F. Pollock has adverted, are perfectly decisive upon this question ; they are decisive to show that it is, after all, merely a discretion to be exercised by the Court in a matter of practice, and that it is not a rule of law to which your Lord- ships as judges are bound to submit. My Lords, I know that your Lordships will pardon me if I have used any expres- sion too strong ; it is because I feel that this is a constitutional point of the highest importance ; it is of importance now and in all time to come; but it will be more especially of importance, if we should ever see the time, when the power exercised by my learned friend should be placed in other hands, where the intention to exe- cute justice may not exist ; and it is under these circumstances that I submit to your Lordships that the Crown ought not to be permitted to make this peremptory chal- lenge, which I contend it is in substance, but that your Lordships will call upon the Crown to state the matter of their chal- lenge, and then, in the words of the statute, proceed to try whether it be true or not, after your discretion. There is one point more, which my learned friend has desired I should suggest to your Lordships. I observed, and it no doubt has been observed by your Lord- ships and the officers of the Court, that my learned friend did not challenge till after the book was put into the hands of the juror; that, I submit, is too late. Solicitor General : The book was placed in his hands for him to be sworn upon the voir dire. Sir F. Pollock: Ho, he had laid down the book after having been sworn upon the voir dire. ■ Kelly : With reference to the matter of fact, I dare say your Lordships will be able to dispose of that ; I do not state of my own knowledge the fact, for I will not undertake to say I noticed that part of the proceeding"; but what I am informed is the fact is this, the gentleman having been called, having taken oath, and having stated his qualification upon the voir dire, had laid down the book, and had again taken up the book at the instance of the officer of the Court in order to be sworn as a jury- man. If that be the fact, that is another ground upon which in this particular case the Crown cannot challenge the juryman; and, therefore, whatever may be your Lordships’ decision upon the main point, I submit that your decision in the present case must be, that the Crown has no right to challenge, and I find that laid down in the case of Christopher Layer. {a) In that case it is stated, that — * “ upon a person of the name of Thomas Howlet being about to be sworn as a juryman, the prisoner challenged him. “ Pengelly : I do not know this method of proceeding ; if the prisoner makes any chal- lenge, it must be before he comes to the book to (a) 25 St. Tr. 135. 117 ] be sworn ; but when he comes to lay his hand upon the book he is too late to challenge then. “ Prisoner : Whenever I make a full stop, and do not say I challenge, you do. “ Attorney General : My Lord, the prisoner is to declare whether he challenges or not ; afterwards the King’s counsel are to declare whether they challenge for the King, and the juryman is not to put his hand on the book till then. “ Lokd Chief Justice: He ought not to put his hand on the book till he is allowed a juryman, that if the King or the prisoner chal- lenge him they may do it before he lay his hand on the book.” Tindal, C. J. : This is a subordinate point. Wliat does the officer say ? Did the juror take the book by direction of the officer ? Sir F. Polloclc : The officer says he did. Mallion (the crier) : Certainly, he had the book in his hand. Tindal, C.J. : For what purpose ; which time ? Mallion : The second time. Attorney General: My Lord, there had been no opportunity for the Crown to challenge, and, according to the autho- rity quoted by my learned friend, the juryman is not to take the book into his hand till he is allowed to take the book ; how the fact was I have not the least knowledge ; but if by accident he had laid his hand upon the book without the au- thority of the Court, that could operate nothing ; that could not operate against the prisoner, and it could not operate against the Crown. Tindal, C.J. : Did the officer put the book into his hand, or tell him to take the book ? Mr. Bellamy, did you tell the gentleman to take the book ? Bellamy : No, my Lord, I had not either given him the book, or directed him to take the book. Tindal, C.J. : It must be the act of the Court, not the voluntary taking of the book by the juror. Sir F. Bolloclc : I take it that the officer of the Court is not Mr. Bellamy but your Lordship's officer. Tindal, C.J. : Mr. Bellamy is the officer of the Court. Sir F. Pollock : The officer states that he had the book the second time in his hand'. Tindal, C. J. : The question is this, had the book been delivered to him, or had he taken it of his own accord ? Mallion: I understood Mr. Bellamy to say that the juryman was to be sworn ; the juryman had the book put into his hand, and I was about to administer the oath when I was stopped. Attoy'rtey General : Mr. Bellamy has said that he gave no such order. Bellamy : I have no recollection of having said any such thing. [118 Tindal, C.J. : The language of the sta- tute is, that if you make any challenge of a juror you must doit “as he comes to the book to be sworu, and before he is sworn.” Attorney General: “ Before he is sworn ; ” that is the language of the statute. Williams, J. : In the case at Derby the oath had commenced, and there it was held to be too late. Tindal, C.J. : There it was the prisoner’s challenge. Attorney General: I will read to your Lordship what was laid down by Lord Chief Justice Abbott. In this case his Lordship says : — “ The Court is now called upon to lay down a general rule. I have no doubt that if from in- advertence, or any other cause, the prisoner or his counsel should have omitted to make the challenge at the proper moment, the strictness of the rule -which confines him to make his challenge before the officer begins to administer ths oath would not be insisted upon by the Attorney General, or, if insisted upon by him, would not be allowed by the Court.”(a) The time pointed out by Lord Chief Justice Abbott is before the officer is called upon to administer the oath. Then Lord Chief Baron Richards says the challenge- should be made before the oath is begun to be administered. Tindal, C.J. : What is the meaning of " beginning ” to administer the oath ? Is it the words spoken, or is it the juror taking the book into his hand coupled with the direction to him to take the book ? Attorney General : It is laid down here : — “ If neither side says anything, the officer proceeds to administer the oath, after which, as it appears to me, neither side have a right to interrupt him, for the oath is one and entire.” That is, when he has once begun to ad- minister it, it is against decorum and propriety and good sense to interrupt him. But suppose the witness has laid his hand upon the book, where is the objection in point of decorum to interposing at that moment before the officer has begun the solemn ceremony of administering the oath ? I desired the officer to stop that the oath might not be administered, the moment that I had an opportunity. It is not pretended that there was any begin- ning to administer the oath ; I presume, therefore, that I may proceed if it be at all necessary to Tindal, C.J. : We do not so much wish to hear you upon the other, but upon this point, as to whether you are in time or not. ( a ) Brandreth’s case, 32 St. Tr. 775. Trial of John Frost, 1809 . 119] Attorney General : Then, my Lord, the facts stand thus : that the challenge was made before the oath was begun to be ad- ministered. The officer of your Lordship, who is the organ of the Court for this pur- pose, Mr. Bellamy, says that he' had given no instructions whatever to the officer to administer the oath, nor could it regu- larly be done until such instructions were given. Your Lordship may recollect that in the Derby csb^e the same question arose, and it was laid down that the proper practice was first to look to the prisoner’s counsel and then to look to the counsel for the Crown, and that each should have an opportunity of making his challenge. Now, can it be said that any such form was gone through upon this occasion? The object of looking to the prisoner’s counsel is to know whether the prisoner challenges. Sir Frederick Bollock exer- cised his option not to challenge. Then, was there any opportunity afforded for the Crown to do so ; and did the Crown waive the opportunity of making the challenge ? I humbly submit that upon all the facts and circumstances of the case there clearly was no such oppor- tunity ; therefore nothing has been done which can be considered as a “beginning to administer the oath ” ; and if we have the power which has been exercised by the Crown ever since the reign of Fdward 1., of making its challenges without, in the first instance, assigning a reason, I apprehend that upon this occasion we have a clear right to exercise the privilege. Solicitor General: My Lord, I would just say a word upon this. My attention was alive to what was passing at the moment. My learned friend the Attorney General was communicating with those who instruct him, but I certainly had my eye upon the juryman at the moment, and no appeal had been made at all to us as to the challenge. The under-sheriff, who was near, will be able to say whether my observation is correct. My impres- sion is that the juryman had the book in his hand to be sworn upon the voir dire as to his qualification, and that he either retained the book immediately in his band, or that he had his hand upon it up to the moment when the Attorney General said that he challenged. The under sheriff, who was by, may be enabled to inform your Lordships upon that; but this I feel myself authorised to say, that no appeal whatever was made by look, by gesture, or by voice to the Attorney Gene- ral, to know whether he challenged or not. Now Mr. Bellamy had certainly done that in every previous instance. I need hardly state the accuracy with which he attends to his business, and that it was no part of his duty to direct the juryman tD be sworn [120 till he knew whether a challenge was in- tended to be made or not. My Lords, I cannot resist saying how much more prisoners are interested than the Crown that the rule should be liberally applied, rather than with the strictness and rigour that is now proposed ; for I believe that in almost every case where a question has arisen whether the challenge was made in time, it has generally been that the default has been on the part of the prisoner. This is not merely a ques- tion whether the Crown ought or ought not to make this challenge ; your Lord- ships are now laying down a general rule by which every prisoner who may here- after be subject to so serious a charge as the present will be controlled and limited in his time of making the challenge. Sir F. Pollock : My learned friend the Solicitor General appears to be desirous of creating alarm in the minds of those who may be intrusted with the defence of prisoners, as if he had said, “Now, do not be too strict with us for fear we should be as strict with you.” My Lords, I must take that peril when it comes, and endeavour to guard against it by increased vigilance on my part ; but I cannot consent to forego this objection, and above all, when the Crown is seeking here to put in a peremptory challenge which it has no right to do. What tlie Crown ought to say is not, “ I challenge,” and then stop, but, “ I challenge for cause, but I will not show what my causa is till by-and-by.” Now, the facts I apprehend to have been these. It is painful, certainly, to be obliged to state anything with reference to one’s own personal knowledge, and I would rather that anyone else had to state an impression upon the subject than myself ; but this is my view of it. The juror had taken the book, and been sworn upon the voir dire ; he had laid down the book and had answered the questions. I had de- clined on the part of the prisoner to challenge him, and he took up the book again after there had been an undoubted time for challenge. What passed between the officer and the Attorney General it is impossible for me to tell. I have some difficulty in knowing whether Mr. Bellamy is looking at me, from imperfection of vision ; whether he was looking at the Attorney Genet'al afterwards, I cannot say ; but this I am persuaded of, that there was an interval of time ; and when the man had his hand upon the book and the oath was about to be administered, a suggestion came from behind. s Solicitor General : You are mistaken ; I knew well what was to be done, and had my eye upon it all the time. There was no suggestion from behind. Trial of John Frost , 1839. 121 ] Trial of John Frost , 1839 . [122 Attorney General : There was no new suggestion upon the subject. Sir F. Pollock: The fact conies to this, that the officer whose business it is to administer the oath had called upon the party to take the book. That act done by the officer of the Court, in the presence of Mr. Bellamy and of the whole Court, is the same thing as if the Court had in the most solemn manner said to the officer, “ Administer the oath.” That had passed which, according to the ordinary practice and course of proceeding here to-day, is considered sufficient. The juror had the book in his hand, and not till he had the book in his hand, and the officer was about to administer the oath, did the Attorney General interpose with the challenge. Under these circumstances, I must pro- test against a practice being adopted now different from what has obtained upon former occasions. With respect to the Derby case, that decides nothing but this, that the moment the oath is begun to be administered you are too late ; that it is one entire thing, as was decided upon a much less important occasion, like the striking of a clock, when the clock strikes twelve, the moment the first stroke has been heard the time is up, the rest is merely to explain what it means ; so as to the oath, the moment the man takes the book in his hand he has begun to be sworn. The direction as to challenges is to that effect, and in the very case that was cited by my learned friend, of Christopher Layer, the Lord Chief Justice says : — “ He ought not to put his hand upon the book till he is allowed a juryman, that if the King or the prisoner challenge him, they may do it before he lay his hand on the book.” (a) When he has laid his hand upon the book, it is too late then to challenge. There may have been some haste on the part of the officer ; there may have been some desire to wait for a moment on the part of the Crown ; but the act is done ; the man had his hand upon the book ; and I say the Derby case says no more than that. It is very true that in the Derby case it was a fortiori, because the oath had actually begun, though it was not actually completed ; but that was a case where the challenge on the part of the prisoner was refused, because the juror had his hand upon the book ; I say the same law ought to exist with respect to the Crown ; and if, in point of fact, according to the state- ment of the officer, his hand was upon the hook, it is now too late to challenge that individual. Tindal, C. J. : This is a mere question of fact, upon which we ourselves, not having made any distinct observation, are not qualified to decide between you. I must, therefore, call upon the officer to say whether he had authorised the party to take the book, or had directed him in any manner to put his hand upon it. Mr. Bellamy, what was the fact ? Bellamy : 1 have no recollection of having even looked at the Attorney Gene- ral, for his assent or dissent, nor have I any recollection whatever of having said, “ Take the book ” ; and I believe I am confirmed by my son, who sits by my side. Tindal, C.J. : Upon this latter question, then, I think the fact is not made out sufficiently to justify us in considering that we ought to interfere. The words of the rule which are usually addressed to a prisoner in every criminal case, are, that if he means to challenge any of the jurors, he must challenge them as they come to the book to be sworn, and before they are sworn, evidently supposing that the two acts are simultaneous, that there is no interval of time between the one and the other. What we are now called upon to say is, that if a juryman of his own accord and voluntarily takes the book into his hand, not being directed by the Court, nor sanctioned by the Court, that is to take away the right of challenge, either on the one side or the other. It appears to me that that would not be a reasonable con- clusion to arrive at. If the rule is that you may make your challenge as he comes to the book to be sworn, and before he is sworn, I can readily understand that the moment the oath is delivered by the officer, or begun to be delivered by the officer, it is too late for either party to challenge ; but if that were left to depend upon so uncertain an act as this, not an act of the Court, but of the juryman him- self laying his hand upon the book, I think that would take away, both from the prisoner and from the Crown that right which the law has given them of chal- lenging the jurors ; and, therefore, I think the latter objection, with reference to the point of fact, ought not to prevail. (a) As to the former objection, which is a question of law, we really are called upon, after a construction has been put upon this Act of Parliament, from the very period when it was passed, in the 33rd of Edward 1 ., down to the present time, to put a construction different from that which prevailed at the time the statute was enacted, and different from that which all our predecessors have put. Where would be the certainty of the law of Eng- land ; what safety would there be for prisoners as well as for the public execu- (a) 16 St. Tr. 135. (a) See Beg. v. Giorgetti, 4 F. & F. 546. 123] Trial of John Frost, 1839. [124 tion of justice, if judges, acting according to their own discretion, neglecting those rules of interpretation which wise men before them hare laid down, and which have been sanctioned by time, were to do that for the first time which we are now called upon to do, namely, to put a con- struction different from that which has been put by all who have gone before them ? It appears, however, to me, that, upon the language of the clause itself, it is by no means an unfair or improper con- clusion to say that the Crown is not to be called upon to make its challenge until the panel has been gone through ; for these are the words of the statute, which is re-enacted by the Act of 6th George 4. It says : — “ That in all inquests to be taken before any of the courts herein-before mentioned, wherein the King is a party, howsoever it be, notwith- standing it be alleged by them that sue for the King that the jurors of those inquests, or some of them, be not indifferent for the King, yet such inquests shall not remain untaken for that cause.” The inference attempted to be drawn from that is, that you shall not allow the inquest to go by and hang over the man’s head until cause be shown. But who is to say that the challenge in the first instance will prevent the inquest from being taken at the time, unless the panel is gone through and exhausted ? And as to the words at the end, which Mr. Kelly has relied upon, that they shall proceed with the inquisition, “ as it shall be found if the challenges be true or not after the discretion of the court,” all that is meant by that is, that the judg- ment upon the challenge shall be “ after the discretion of the court,” that the court are bound, in deciding upon it, to use just judgment and discretion ; but not at all that they shall call, or have the power to call, contrary to the interpretation which has been put upon this Act, upon the Crown to show its cause of challenge in the first instance and before the panel has been gone through. If there is any in- convenience in this course of practice, the Legislature must apply a remedy ; we are not called upon to make the law, but to administer it as we find it established. {a) Pauke, B. : I am of the same opinion as the Lord Chief Justice upon both these points. With respect to the first question, I take it that the rule is, that either the prisoner or the Crown must challenge the juror before the oath is administered. The delivery of the book by the officer of the Court to the juror is the form of (a) See Reg. v. Geach, 9 C. & P. 500 ; and Mansel v. Reg. Dears. & B. C.C. 375. beginning the taking of the oath ; but in this case I am by no means satisfied that the Crown did not take the objection before the book was delivered into the hands of the juror for the purpose of taking the oath. It may be that he put his hand upon the book ; but unless that was sanctioned by the officer of the Court it was an unauthorised act on the part of the juror, and it can have no effect upon the right of either party to challenge. But in order to prevent any dispute upon such a question in future, it would be much better that the clerk of assize should ask each party whether they challenge or not, in order that there may be no dispute hereafter whether the challenge comes too late. With respect to the other question, j think it is much too late now to argue such a point. The clause in the recent Act of Parliament is an exact copy of the statute of Edward 1., and that clause has received judicial consideration over and over again, prior to the passing of this statute. It must be taken that when the Legislature inserts in an Act of Parlia- ment a clause in the same terms as in a former Act, they mean it to be understood as those who have administered justice in this country have always understood the similar clause in a prior Act, and this certainly has been the judicial construc- tion put upon this Act in numerous cases, and it would be utterly impossible to question it now. Mr. Kelly says that it is matter of practice only ; but this is not strictly speaking a matter of practice. It is a matter which has been regularly adopted, and could not be adopted by the judges, except upon their view of the con- struction of the statute of Edward 1. I will not travel over the ground which has been gone over by the Lord Chief Justice as to the statute itself ; but I will only observe that the words appear to me clearly to show that the practice which has prevailed upon this subject was the true meaning of the statute. However, it is certainly now too late to take any such obiection. With respect to the observa- ton reported to have been made by Chief Justice Eyre, that the Court had no power to prevent any improper advantage being taken, except by limiting the number of jurors who are summoned upon these trials, that is a question which must always depend upon the circumstances of the case. Such number of jurymen ought to be summoned as will insure ^ due administration of justice. There is no imputation in this case upon the sheriff, or those who act for the sheriff, for having summoned too large a number. If any evil be found to arise from the present practice, it is for the Legislature to pre- 125] Trial of Joihn Frost , 1839, [12 G vent that evil by adopting some means which may secure to the prisoner the full benefit of his number of challenges. Williams, J. : 1 am of the same opinion upon both of these points. The difficulty which we felt at first upon the point of fact arose upon that which was stated to us to have been the fact in this case, namely, that the book had been put into the hands of the juryman for the purpose of being sworn ; but I agree with my learned brothers that we are bound to take the report of what was the state of the fact from the authorised officer of the Court, and from his statement I am by no means satisfied, but the contrary, that the book was ever put into the hands of the juryman for the purpose of his being sworn. If it had, I confess I should have found great difficulty in getting out of the authority of the decision at Derby, (a) be- cause I cannot well distinguish between the case of the book being put into his hands for the purpose of his being sworn, and the case of two or three words being uttered, the oath being in itself incom- plete ; for the argument there was, that the juror cannot be said to be sworn until the whole oath is administered, and that consequently any interposition up to the final period would be in time ; but the judges without any hesitation decided against that point. In this case it seenas to me that the fact of the juryman having the book in his hand in order to be sworn, is, according to the report of the officer of the Court, not established at all. I en- tirely agree with my learned brothers upon the other point; I must say that with all respect to the learned Chief Jus- tice who uttered that expression which has been quoted Attorney General : He never said so. Williams, J. : We will hope not. If Chief Justice Eyre did say so, all I can say is, that it does not seem to me in conformity with the Act of Parliament, or with the state of the law ; for we have nothing to do with any discretion, except that discretion be authorised by and founded upon precedents and rules of law. When, therefore, the learned counsel for the prisoner, Sir Frederick Pollock and Mr. Kelly, say that they admit that this has been the practice from the early period of which mention has been made, I cannot but consider that to be a binding decision upon those that came after, and that it must be followed by judges who desire to act, not upon their own unauthorised opinion, but upon the wisdom of those that have preceded them. Attorney General: With regard to what is supposed to have been said by Lord Chief Justice Eyre, will your Lordships allow me to say, that in O'Coigley's case, (a,) which was a Special Commission in 1798, the same objection was taken by Mr. Scott which has been now taken by Sir Frederick Pollock, and was overruled unanimously by the Court without the Attorney General being heard. Upon that occasion Mr. Jus- tice Puller said : — “It was not said by the Chief Justice in Mr. Horne Tooke's case, that the Attorney General was or could be controlled by the Court in his number of challenges.” Indeed, looking at the language in that report, it appears that Chief Justice Eyre having laid down the law very distinctly, as your Lordship has done, goes on to say, that if there should appear to be any abuse, the Court would endeavour to find a remedy. Sir F. Pollock : Mr. Justice Puller was not there, and his authority does not seem of much weight. The challenge was allowed. Tindal, C.J. : Call the next. The Jury. John Daniel. Thomas Davis. Richard Lewis. Edward Brittle. James Hollings. Thomas Jones. Edward Reese. Edward Smith. Christopher John, (b) William Williams. John Richards. John Capel Smith. Attorney General : I do not know what course your Lordships think most con- venient to be adopted at this hour of the evening. Tindal, C.J. : We could hardly expect you to open the case at this hour of the evening. But we think it would be better that the jury should hear the charge read now. Attorney General : Whatever course your Lordship thinks most convenient, of course it is our duty to comply with. The jury were charged with the prisoner in the usual form. Tindal, C.J. : Gentlemen of the jury, I am extremely sorry that the purposes of public justice require that you should be kept separate and distinct from your families and your friends until this trial is over ; but all due pains have been taken to render your abode, whilst you are kept here, as comfortable as possible. The sheriff has taken every possible pains in his power. (a) 32 St. Tr. 770. (а) 26 St. Tr. 1231. (б) See below. 127] Sir F. Pollock : Before the Court breaks up to-night, I am instructed to request, on the part of Mr. Frost’s solicitor, that he may have access to him either to night after the Court has broken up, cr to- morrow morning before the Court meets. Tindal, C. J. : Certainly. Attorney General: I suppose an order for that purpose is always made as a matter of course. Bellamy : An order has been made. Kelly: Our application is, that during the time of the adjournment of the Court, his solicitor or counsel may have access to him. Attorney General : At all reasonable times. Bellamy : Mr. Geach has the usual order, both for admitting counsel and for having access himself to the prisoner at all reason- able times according to the Act of Parlia- ment. I gave them both to Mr. Geach. Sir F. Pollock: The time is already gone by, my Lord; the prisoner will be locked up at four o’clock. Tindal, C.J. : By all means let the counsel or attorney have access to him at any time that is reasonable. Sir F. Pollock : Does your Lordship think it may be till nine or ten o’clock ? Gaoler : The debtors are locked up at nine o’clock every night. Attorney General: There can be no ob- jection to access being given till ten o’clock. Tindal, C. J. : I do not think ten o’clock an unreasonable hour ; let them have access till ten o’clock. Bellamy : At what hour in the morning could access conveniently be given ? Gaoler : Not much before nine. Kelly : My Lord, this is not a question of convenience ; it is extremely probable, if this trial be long protracted, that very lengthened communications might take place between the prisoner and his attor- ney or his counsel. Tindal, 0. J. : There must be some limit to it, for the safety and security of other persons. Attorney General : There can be no danger if the solicitor and counsel for Mr. Frost should enter the gaol at seven o’clock in the morning. Gaoler: The bell is not rung till half- past seven in the morning. Kelly: Till ten at night, and after seven in the morning, if your Lordship pleases. Tindal, C.J. : Yes, any time after seven. Wednesday, January 1, 1840. The prisoner John Frost was set to the bar, and the indictment opened by Talbot. Sir F. Pollock: My Lords, I presume that my learned friend the Attorney Gene - [128 ral is now about to open the facts of the case, and therefore, with your Lordship’s permission, and perhaps I ought also to say with the permission of the learned Attorney General , I feel myself bound, at the earliest moment (and this is the first opportunity that I have had), to take an objection which must occur the moment that my learned friend puts a witness into the box,' and which, if, as I am thoroughly persuaded Attorney General: My Lord, I really must interpose here. This is quite irregu- lar — Sir F. Pollock : My learned friend, I understood, would permit me, at least, to state so much Attorney General: I said that which I would again say, in courtesy to my learned friend, and which I should say in the discharge of my public duty, that any objection he has a right to make, he will make without my permission. Sir F. Pollock: If, after my learned friend has heard my objection, he is de- sirous of making his statement, be it so. Attorney General : I object to any motion being now made on the part of the counsel for the prisoner. Sir F. Pollock : I am not going to make any motion ; I am going to state this, and it must come out sooner or later, and surely it had better come out now Tindal, C.J. : Is it that the witnesses should be out of Court ? Sir F. Pollock : No, it is not that ; it is that we have never had a list of the wit- nesses, pursuant to the statute, and there- fore that no one witness can be called. My learned friend cannot desire to make a statement that must be painful to him- self, and painful to everybody here, per- haps even prejudicial to the Crown, and prejudicial to the prisoner. If I am right in the fact, surely this is the time to make the objection, and not to permit my learned friend to make statements which, in my judgment, he cannot be permitted to prove. I say that my learned friend is in no condition to show that we have ever had a list of the witnesses, pursuant to the Act of Parliament, and consequently, my learned friend is in no condition to offer a single witness. My Lord, if that be so . Tindal, C. J. : If there^ is any objection to the list of the witnesses, or to the list of the jury, you should have taken that objec- tion before arraignment. Sir F. Pollock : That is not the point, my Lord ; we have never had a list at all, pursuant to the statute Attorney General : Sir Frederick Pollock , allow me to interpose. My Lords, I am entirely in the hands of your Lordships. I will most readily consent to any course Trial of John Frost, 1839. 129 ] Trial of John Frost , 1839 . [130 that your Lordships may think most con- venient ; but really this case must be con- ducted like all other cases : the solemnity of a court of justice must bo observed ; there must be some regularity, and I humbly apprehend that I am now, on the part of the Crown, to state, under your Lordships’ sanction, the facts. Tindal, C. J. : If you wish the witnesses to be removed from hearing the opening, that may be done ; that is the only motion I ever heard at this stage of the pro- ceeding. Sir F. Pollock: That is not my objec- tion, my Lord. ‘I make it now to prevent a waste of time ; to prevent a painful state- ment that I say never can be proved — not a, syllable of it. If my learned friend is aware, as I think he must be, that this objection must be argued the moment he has concluded his statement, surely he cannot desire, on the part of the Crown as against the prisoner, to be giving a state- ment that is incapable of being proved. I say, my Lord, we have not had a list of the witnesses, in pursuance of the statute. Tindal, C. J. : Do you agree to that fact, Mr. Attorney General ? Attorney General : On the contrary, my Lord, if the fact is put in issue, I am pre- pared to prove that the list of witnesses was delivered — that it was delivered at the request of the prisoner — that it was delivered according to the statute. Sir F. Pollock : This point must arise sooner or later ; surely it would be better to dispose of it before my learned friend makes his statement. It is out of deference and respect to your Lordships that I now urge this objection ; it is from no desire myself, personally, not to hear my learned friend. There are many persons who would desire to hear him, in order that they may know what the case of the Crown may be in other instances. I have no desire to take that advantage, and as the point must be argued sooner or later, it appeared to me that, as the moment the first wit- ness is put into the box this point must arise, surely it would be better to dispose of it now. Tindal, C.J : We cannot interpose now, unless the Attorney General consents. Speech for the Crown. Attorney General: May it please your Lordships, gentlemen of the jury, In the discharge of my official duty, I have the honour to attend you to conduct this im- portant prosecution ; and I hope you will believe that my only object is that the facts of the case may be fairly laid before you ; that truth may be fully investigated ; that innocence may be vindicated, if inno- cence exists; and that you should only o 67432. pronounce a verdict of guilty upon clear and convincing evidence. Gentlemen, it is highly important that parties accused should be zealously and ably defended ; but it is also of importance that the law should be vindicated, that the peace of society should be pveserved, and that, where crimes have been committed, the criminal should be brought to punish- ment. Gentlemen, I think that no one will deny the necessity of the solemn inquiry in which we are engaged. There has re- cently been in this county an armed in- surrection ; the law has been set at de- fiance : there has been an attempt to take forcible possession of the town of Newport ; there has been a conflict between the in- surgents and the Queen’s troops ; there has been bloodshed ; the loss of many lives. The intelligence of these outrages has caused alarm and dismay throughout the kingdom. Gentlemen, various persons charged with having been concerned in these outrages were committed on a charge of the highest crime known to the law. Not only on ac- count of the importance of the occasion, but from the forms of law that are required where such a charge is brought forward, it became necessary that Her Majesty should issue a special commission into this county for the trial of the accused. Gentle- men, a bill of indictment for high treason has been found by the grand jury of this county against certain persons, and, amongst others, against John Frost , the prisoner at the bar. But, gentlemen, he is still presumed to be innocent: all that that indictment says is, that it is fit that he should be put upon his trial ; and, un- less there is strong, clear, and convincing evidence to prove the guilt imputed to him, it will be your duty to say that he is not guilty. Gentlemen, I need hardly caution you to dismiss from your recollection all that you may have read or heard upon this sub- ject. You are to be guided entirely by the evidence, and you will proceed as if you had never heard of the case until the in- dictment was read over to you by the officer of the Court. Gentlemen, I would further use the liberty to say that you are not to act upon my statement, either as to the law or the facts. The law you will receive from the venerable judges who preside here ; the facts you will hear from the witnesses ; and you will be guided entirely by the evidence they give, and by the credit that you think their testimon}’ may be en- titled to. Gentlemen, a most important charge is given to you, to consider of the guilt cr innocence of the prisoner. No men can have higher functions to discharge: the E 131] Trial of John Fropt, 1839. [132 life and the reputation of the accused are in your hands. You will likewise allow me to remind you that there are in your hands the public safety and the public jus- tice of the country. Gentlemen, this indictment against John Frost consists of four counts. There are two for levying war against Her Majesty in her realm ; the third is for compassing to depose the Queen from her royal state and dignity ; and the fourth is for com- passing to levy war against the Queen with intent to compel her to change her measures. Gentlemen, I believe, accord- ing to the instructions I have received, that there will be evidence which will bring home the charge against the prisoner at the bar upon each of these four counts ; but it is probable that your attention may be chiefly directed to the first two counts of the indictment, for levying war against the Queen in her realm. Gentlemen, these two counts are framed upon an ancient Act of Parliament passed in the 25th jyear of the reign of Edward 3., a statute which has been considered the safeguard of the- liberties of England ; another Magna Charta; a statute which, if properly enforced, is likewise to be con- sidered a safeguard of the public peace and tranquillity. It is a statute, gentle- men, that is neither to be strained, nor is it to be evaded and frittered away. There had been, in the reign of Edward 3. ; complaints that the law of treason was vague and unknown ; and to rescue the country from that miserable servitude this statute was passed. It is intituled, “ A declaration which offences shall be ad- judged treason,” and it thus begins : — “ Item, whereas divers opinions have been before this time in what case treason shall be laid and in what not ; the King, at the request of the Lords and of the Commons, hath made a declaration in the manner as hereafter followeth, that is to say ” — How these things that follow are de- clared to be treason : — “ when a man doth compass or imagine the death of our Lord the King . ... or if a man do levy war against our Lord the King in his realm , or be adherent to the King’s enemies in bis realm, giving to them aid and comfort in the realm or elsewhere, and thereof be probably attainted of open deed by the people of their condition.” It is, therefore, hereby declared to be a substantive treason to levy war against the King in his realm. That is to be proved by acts that are done, and it must be proved clearly and satisfactorily. But then, gentlemen, it is not every nreach of the public peace, even with an armed force, that amounts to the crime of treason. It must be for some public ob- ject, and upon some premeditated plan ; and this is guarded by the statute itself, for the statute goes on with a proviso or enactment in these words : — “ And if per case any man of this realm ride armed covertly or secretly with men of arms against any other to slay him. or rob him, or take him or retain him till he, hath made fine or ransom for to have his deliverance, it is not the mind of the King nor his Council that in such case it shall be judged treason ; but shall be judged felony or trespass according to the laws of the land of old time used, and according as the case requireth.”(a> Therefore, gentlemen, you have the line drawn by the statute itself ; for it is not to be held treason to ride armed, to slay a, person, or to rob him, or. to take him or to retain him. till he hath made fine or ran- som. Wherever there is private revenge only to be gratified, or a private grievance to be redressed, or a private object to be attained, although force may be used, and although this may be an offence against the law, it does not amount to the crime of treason. But where you have an armed force setting the law at defiance for a general object, gentlemen, that is an of- fence comprehended by this Act of Parlia- ment. Levying war against the King does not mean merely heading a force by a pre- tender to the Crown, according to the in- stances that we have in the wars of York and Lancaster, or as in the rebellions in the year 1715 or 1745, but it is where there is an armed force seeking to supersede the law and to gain some public object. Gentlemen, that, of course, is not to rest upon my authority. I will state to you upon this subject the authority of one of the most eminent, most learned, and most constitutional judges that ever adorned the English bench — 1 mean Sir Michael Foster. Gentlemen, he has defined the offences that this statute comprehends, and after pointing out that it is not to apply to private cases, he goes on thus ; I will read the whole of the passage,(6) that it may be fairly before you : — “ The case of the Earls of Gloucester and. Hereford, and many other cases cited by Hale, some before the Statute of Treasons and others after it, — those assemblies, though attended, many of them, with bloodshed, and with the ordinary apparatus of Avar, were not holden to be treasonable assemblies. For they were not, in construction of laAV, raised against the King, or His Royal Majesty, but for purposes of a pri- vate personal nature. Upon the same principle, and within the reason and equity of the statute, risings to maintain a private claim of right, or to destroy particular inclosures, or to remove nuisances which affected, or were thought to affect, in point of interest, the parties assembled. (a) 25 Edw. 3. c. 3. s. 2. (6; Fost. 210, 211. 13 5] for these purposes, or to break prisons in order to release particular persons, without any other circumstance of aggravation, have not been holden to amount to levying war within the statute. And upon the same principle and within the same equity of the statute, I think it was very rightly holden by five of the judges, that a rising of the weavers in and about London to destroy all engine-looms — machines which ena- bled those of the trade who made use of them to undersell those who had them not — did not amount to levying war within the statute; though great outrages were committed on that occasion, not only in London but in the adjacent counties, and the magistrates and peace officers were re- sisted and affronted. For those judges con- sidered the whole affair merely as a private quarrel between men of the same trade, about the use of a particular engine, which those con- cerned in the rising thought detrimental to them. Five of the judges, indeed, were of a different opinion. But the Attorney General thought proper to proceed against the defendants as for a riot only.” These are the various instances in which he says the statute does not apply. “ But every insurrection which in judgment of law is intended against the person of the King, be it to dethrone or imprison him, or to oblige him to alter his measures of government, or to remove evil counsellors from about him — these risings all amount to levying war within the statute whether attended with the pomp and circumstances of open war or not. And every conspiracy to levy war for these purposes, though not treason within the clause of levying war, is yet an overt act within the other clause of compassing the King’s death. For these pur- poses cannot be effected by numbers and open force without manifest danger to his person.” Then follows, gentlemen, this passage, which will require your particular atten- tion : — “Insurrections in order to throw down all inclosures, to alter the established law, or change religion, to enhance the price of all labour, or to open all prisons ; all risings in order to affect these innovations of a public and general concern by an armed force are, in con- struction of law, high treason, within the clause of levying war. For though they are not levelled at the person of the King they are against His Royal Majesty ; and, besides, they have a direct tendency to dissolve all bonds of society, and to destroy all property and all government too, by numbers and an armed force. Insurrections, likewise, for redressing- national grievances, or for the expulsion of foreigners in general, or indeed of any single nation living here under the protection of the King, or for the reformation of real or imaginary evils of a public nature, and in which the in- surgents have no special interest, — risings to effect these ends by force and numbers are, by construction of law, within the clause of levying war. For they are levelled at the King’s Crown and royal dignity.” [134 Gentlemen, it will not be said, I hope, in this case, that we are resorting to con- constructive treasons or interpretative treasons ; we seek to bring our case with- in the specific offence defined by the Act of Parliament, as that Act of Parliament has ever been understood from the tim that it was passed in the reign of Ed- ward 3. Gentlemen, if arnled insurrec- tions were not considered as treason, and to be punished with the greatest severity of the law, what safety could there be for society ? There are many temptations of ambition, of revenge, of wrong-headed zeal, which may lead individuals to at- tempt to bring about a revolution in the Government, and to change the existing state of affairs. If such attempts could be made at the mere peril of the punishment inflicted on misdemeanors there is great reason to fear that they would not be rare, although they lead to confusion, blood- shed, and a general dissolution of society. Gentlemen, there is another passage in Sir Michael Foster's Law of Treason which follows soon after, and which may be very material for your consideration in this case ; at section 10 of the same chapter he says this : — “ Attacking the King’s forces in opposition to his authority upon a march, or in quarters, is levying war against the King ; but if upon a sudden quarrel, from some affront given or taken, the neighbourhood should rise and drive the forces out of their quarters that would be a great misdemeanour, and if death should ensue it may be felony in the assailants but it will not be treason, because there was no intention against the King’s person or government.” You have it here laid down that attack- ing the King’s forces in opposition to his authority upon a march, or in quarters, is levying war against the King. If it should be upon some sudden affray, upon provocation given, or without premedita- tion, it may be a great riot, but it does not amount to levying war ; but where it is an attack upon the King’s troops, by premeditation and design, that is a sub- stantive offence within the Act of Parlia- ment. Gentlemen, I may briefly allude to the law as it is connected with the other two counts of the indictment. They are framed upon an Act of Parliament that was passed in the 36th year of the reign of his late Majesty King George 3. (a) with the view of expounding and defining more accurately in some respects the Act of Edward 3. Gentlemen, the 7th chapter of the 36th of George 3. enacts — “ that if any person or persons shall, within the realm or without, compass, imagine, invent, devise, or intend death or destruction, or any Trial of John Frost , 1839. (a) See above, p. 90 (a). E 2 135] bodily harm tending to death or destruction, maim or wounding, imprisonment or restraint of the person of the same our Sovereign Lord the King, his heirs and successors, or to deprive or depose him or them from the style, honour, or kingly name of the imperial crown of this realm, or of any other of His Majesty’s do- minions or countries ; or to levy war against His Majesty, his heirs and successors, within this realm, in order by force or constraint to compel him or them to change his or their measures or counsels, or in order to put any force or constraint upon, or to intimidate or overawe both Houses or either House of Parliament ; or to move or stir any foreigner or stranger with force to invade this realm, or any other His Majesty’s dominions or countries under the obeisance of His Majesty, his heirs and suc- cessors ; and such compassings, imaginations, inventions, devices or intentions, or any of them shall express, utter or declare, by publish- ing any printing or writing, or by any overt act or deed, being legally convicted thereof upon the oaths ot two lawful and credible witnesses, upon trial, or otherwise convicted or attainted by due course of law, then every such person and persons so as aforesaid offending shall be deemed, declared and adjudged to be a traitor.” Gentlemen, the third count of this indictment charges the prisoner with having compassed to dethrone the Queen from her royal state and dignity ; and if it shall appear in evidence before you that there was an armed insurrection, that the object of that was of a public nature, that it was to supersede the authority of the Crown, then I humbly apprehend that ihis count of the indictment would like- wise be supported. Gentlemen, the last count of the in- dictment charges the prisoner with having compassed to levy war with a view to compel Her Majesty to change her measures. Again, gentlemen, that is to be proved by overt acts ; but if it shall appear, as I have just stated to you, that there was this plan, and that this plan was carried into effect until it was actually subdued by superior force, then, gentlemen, that was a clear levying of war against the Queen within her realm, and there can be no doubt that that was a compassing to levy war within the mean- ing of the Act of Parliament. Gentlemen, before I conclude these observations upon the law of the subject, which of course I make with humble deference, under the direction that you will receive from my Lords the Judges, I will refer you to the latest authority which is to be found, and there can be none higher upon this subject. From the time that Sir Michael Foster wrote down to the time that the judges have as- sembled under this commission I believe that the authority of Sir Michael Foster , which I have read to you, has been uni- [136 formally recognised. Gentlemen, what I am now going to read is part of the charge of that great judge. Lord Tenterden, in expounding the law in the case of Arthur Thistlewood. He here takes a view both of the old statute of Edward 3. and of the modern statute of the 36th of George 3. In charging the grand jury at the opening of the commission as to the evidence that was to be received, and how the charge was to be established, he uses these words : — “ Before the passing of the late statute it had been settled by several cases actually adjudged, and by the opinions of the text writers on this branch of the law, that all attempts to depose the King from his royal state and title, to re- strain his person, or to levy war against him, and all conspiracies, consultations, and agree- ments for the accomplishment of these objects, were overt acts of compassing and imagining the death of the King. By this statute the compassing or intending to commit these acts — that is, to depose His Majesty, to restrain his person, or to levy war against him for the purposes that I have mentioned — is made a substantive treason, and thereby the law is rendered more clear and plain, both to those who are bound to obey it and to those who are engaged in the administration of it. It may be proper for me to add that it has been established in the h'ke manner that the pomp and circum- stances of military array, such as usually attend regular warfare, are by no means necessary to constitute an actual levying of war, within the true meaning of the ancient statute. Insurrec- tions and risings for the purpose of effecting by force and numbers — however ill-arranged, provided, or organised — any innovation of a public nature, or redress of supposed public grievances in which the parties had no special or particular interest or concern, have been deemed instances of the actual levying of war and consequently to compass or imagine such an insurrection in order, by force and numbers, to compel His Majesty to alter his measures or counsels, will be to compass or imagine the levying of war against His Majesty for that purpose within the just meaning of the modern statute. Rebellion at its first commencement is rarely found in military discipline or array, although a little^success may soon enable it to assume them.” (a) Then I find that very learned judge lays down the same principles as Sir Michael Foster , and says that — “ insurrections and risings for the purpose of effecting by force and numbers — however ill- arranged, provided, or organised — any innova- tion of a public nature, or redress of supposed public grievances, in which the parties had no special or particular interest or concern, have been deemed instances of the actual levying of war.” Tr ial of John Frost , 1839. (a) 33 St. Tr. 684. 137 ] Trial of John Frost, 1839 . [138 Hare been deemed instances, of course with his approbation, and as he conceives, according to the law of the land. Gentlemen, I really am not aware that any difficult or doubtful point of law respecting the interpretation of either statute can possibly arise in this case. I will therefore proceed to give you a short outline of the facts which, as I under- stand, will be clearly proved before you in evidence. Gentlemen, for that purpose I must remind you of the geographical situation of the county in which the dis- turbances took place. You are probably well acquainted with what is called the Hill district in the county of Monmouth'a) ; that is of a triangular form ; the triangle having for its apex Risca, a place about five miles from Newport ; the base is at the distance of from fifteen to twenty miles as you ascend the country ; on the west side you have Nantyglo and the Beaufort iron works ; on the east side you have Blaen- avon and the hills in that neighbourhood, Blorenge being the highest. Gentlemen, that country is intersected by deep glens, watered by mountain streams. Of these the most considerable are the Rumney on the west, and the Sirhowy, which flows nearly parallel to it. Then comes the Ebbw. High up the country there are the Ebbw Fauch and the Ebbw Yaur, and they join and flow down towards New- port. Near Pontypool there is the Afon, which rises at the foot of the Yarteg mountain. Gentlemeu, in that country, as you are aware, there are rich mines of coai and iron. These of late years have been worked to a very great extent ; and those mountains and valleys which fifty years ago were almost uninhabited, having only a few shepherds’ huts scattered up and down, are now the seat of a dense popula- tion, estimated, I think, at above 40,000, who are employed in working the mines and in supplying the wants of the work- men. Gentlemen, I am afraid that this population which has suddenly sprung up is, in many instances, not of the most peaceable description. I am afraid, gentlemen, that ignorance prevails there to an extent very much to be deplored, and that many of the persons who live in this district are subject to be practised upon by designing men. It would appear that this population has been organised by the establishment of affiliated societies, so that upon any occasion a command might be issued and circulated among the population, and speedily obeyed. Gentlemen, it will appear that the pri- soner John Frost, who had been for many years a linen-draper in the town of New- port, had very extensive influence in this part of the country — I mean in the hill district, in Monmouthshire. Newport, you are well aware, is the place from which the coal and the iron obtained in those mines is exported ; it is a consider- able town, and very great importance must be attached to it. It is the highway from South Wales to Bristol, to Glouces- ter, to Birmingham, and to the north of England. Gentlemen, it will appear before you, that in the week before Sunday, the 3rd of November, a plan was laid for a general rising of the population of this district, to take place on the night of that Sunday.(a) There were various consultations held, at which Mr. Frost was present. These were held chiefly at a place called Blackwood, which is between the Rumney and the Sirhowy. There is a public-house there, called the “ Coach and Horses,” where there was a lodge or society of Chartists, and at which meetings were held, and where it is quite clear that this design was ma- tured. There was particularly a meeting on the Friday before the Sunday ; that would be the 1st of November. At that meeting deputies attended ; there was a a return of the armed force that could be mustered ; and it will appear that the scheme was laid which was afterwards to be carried into effect. What was that scheme ? Gentlemen, it will appear that orders were to be issued that the men should assemble armed on the evening of Sunday, the 3rd of November. There were to be three principal divisions : one was to be under John Frost himself, at that time stationed at Blackwood ; another was to be under Zephaniah Williams, who lived higher up the country ; he kept a beer- shop, at a place called Coal brook Yale, which is on the river Ebbw, near Nant- yglo ; he was to collect the men on the hills up the country, and to bring them (a) As to Chartist plans for a general insur- rection, and the measures taken to meet them, see Sir W. Napier’s Life of his brother, Sir C. J. Napier, who was commanding the Northern Dis- trict at this time, vol. 2, pp. 1-126 ; also Gam- mage’s History of the Chartist Movement, p. 174, &c . ; Somerville’s Autobiography of a Working Man, p. 422 ; Frost’s Forty Years’ Re- collections, pp. 96-117; also article by the late David Urquhart in the “ Diplomatic Review,” July 1873, p. 209, in which the writer claims to have averted a general Chartist rising through- out the kingdom by persuading the leaders in London that they were the victims of a Russian intrigue ; Lovett’s Life and Struggles, p. 238 ; and Mr. E. C, K. Gonner’s article on the Early History of Chartism in the “ English His- torical Review,” October 1889, p. 642. For other abortive attempts see the trials of the Bradford and Sheffield Chartists, Appendix A. (a) See map below. 139] Trial of John Frost, 1839. [140 down towards Newport. The third divi- sion was to be under the control of a person of the name of William Jones, a watchmaker, at Pontypool. He was to collect the men more to the north and the east, and to bring them down to the low country. These three divisions were all to meet somewhere about BiSca or the “ Kefn,” about five miles from Newport. The plan was that they should be at that place by about midnight, and being as- sembled there, they were to march on to Newport, which they were to reach at about two in the morning, at a time when it was expected that there could be no preparation to receive them, when the in- habitants were buried in sleep, entirely disarmed, and even without the suspicion of danger. Arriving at Newport, they were to attack the troops that were there ; they were to get possession of the town, to break down the bridge which is there erected across the river Usk; Newport, as you are aware, being at the mouth of that river : they were to stop the mail ; and this was to be a signal by which the suc- cess of the scheme was to be announced ; the mail bag from Newport not arriving at Birmingham in an hour and a half, it would be known by those who were in concert with them, as it was said, in that town, that this scheme had succeeded. There was to be a general rising through Lancashire and throughout the kingdom, and Charter law universally and instantly established, (a) Gentlemen, there never was the re- motest chance of this scheme being ac- complished ; but, gentlemen, if it had not been that, providentially, the night be- tween the Sunday and the Monday was one of the darkest and m ost tempestuous known for many years, it is difficult to conjecture the degree of mischief that might have been effected, before the in- surrection could have been suppressed, and peace and tranquillity restored. Gentlemen, John Frost, the prisoner, remaining at Blackwood, the men that were to be under his command did assem- ble, and march considerably earlier than the other divisions. He crossed over from Blackwood to Newbridge, which is in the Ebbw Yale ; he came down by Abercarn to Bisca and the “Welch Oak”; and there he was early in the night ; but from the difficulties that the other two divisions had to encounter, which were to come from the other parts of the country, they did not arrive till long after the expected hour. Zephaniah Williams, who was to bring the men from Nantyglo, did not (a) JSo evidence offered on this part of the case, which was withdrawn, but see authorities cited above. arrive, I believe, till after daylight. Wil- liam Jones, who was to bring the men from the neighbourhood of Pontypool, was likewise too late. There was one detach- ment or division of his force under a person of the name of Britan, which, I believe, did arrive in time, but William Jones, with the main body that were to come from that part of the country, was long after the appointed time. John Frost, the prisoner, having come down to the neighbourhood of Bisca and the “ Kefn,” remained there till shortly be- fore daylight, and then he thought it necessary to muster the forces that were then collected, and to march on upon Newport. Gentlemen, there were col- lected at that time, according to the best computation that can be made, about 5,000 men ; many of them were armed with guns and pistols, many with spears or pikes, many with an instrument called a mandril, which, as I understand, is made of iron, and used for picking coals in the mines, resembling a pickaxe in shape, a very dangerous and deadly weapon if used as a weapon of offence. Others had scythes fixed upon poles, and those who could not get arms were provided with sticks and bludgeons. Gentlemen, Mr. Frost took the command, and marched on towards Newport. They marched in military order, -five, I think, abreast. The word of command was given from time to time by Frost, and they came down from the “ Kefn ” by Pye Corner to Tredegar Park, which is the seat of Sir Charles Morgan, and through which a high road and a tramroad pass. By the time they got to Tredegar Park day had dawned. They marched on by the “ Waterloo ” public-house till they came to the Court- y-Bella machine, which is about half a mile from the town of Newport, a weigh- ing machine by the roadside ; and in- quiries were then made by Frost with respect to the state of affairs in Newport. Gentlenlen, I will now mention to you what had been going forward in Newport during the night. It was on the Sunday that intelligence was brought to Newport of these movements in the hill country. Fortunately, gentlemen, the then mayor of Newport was Mr. Phillips, now Sir Thomas Phillips, who behaved upon this occasion in a constant, firm, and intelli- gent manner, for which his country must ever be deeply indebted to him. Special constables had been sworn in, and were stationed at the most important points. There are three principal inns at Newport — there is the “Westgate,” the “ King’s Head,” and the “Parrot.” These were considered the principal stations, and at those places the special constables were first stationed. The “Westgate” Inn is 141] Trial of John Frost, 1839. , [142 in the market place, and was considered the most important station of all. Gen- tlemen, the mayor went to the “West- gate ” with other magistrates, and he sat up during the whole night, sending out patrols for information, and making the best preparations that he could to preserve the peace and defend the town. When day had dawned, intelligence was brought that the insurgents were ad- vancing, and were in the neighbourhood of Newport. He had sent out a person, whom I will call before you as a witness, of the name of Walker, to gain information ; that person had been shot at, and returned dangerously wounded ; the object of those who assailed him being to intercept all communication between Newport and the upper country, from which the insurgents were descending. Gentlemen, the mayor then sent for military assistance. There were in the neighbourhood only one company of soldiers, under the command of Captain Stack ; they were stationed in the work- house, which had been converted into a temporary barrack, and is upon the out- skirts of the town. Captain Stack sent thirty men to the assistance of the mayor, under the command of Lieutenant Gray and two sergeants. I believe the barracks are about half a mile from the “West- gate ” Inn. Lieutenant Gray brought his men to the “ Westgate” Inn, and in a little time they were stationed in a room in that inn, which it will be material that I should describe to you. (a) Gentlemen, that inn is in Westgate Street, fronting the north. On the east side there is a room with a bow window looking towards the street ; in that room the military were stationed. There is a corresponding room on the western side of the “ Westgate 55 Inn, where the magistrates had been assembled. Between those two rooms there is a cor- ridor or passage, which you will find was peculiarly the scene of bloodshed. The special constables remained before the door of the inn, where they had been placed. The military had not loaded their guns, and it will be a fact most material for your consideration in this case, that they did not even load their guns until they had been fired upon. Gentlemen, this being the state of things in Newport, as the insurgents were approaching, Frost at the head of the body, and giving the word of command, they reached the weighing machine at Court-y-Bella, and there Frost inquired respecting the military. He was told by two boys whom he met near the turnpike, that a number of the military had been sent towards the “ Westgate ” Inn. Upon (a) See plan below. that, gentlemen, the insurgents divided; part of them turned to the left and went up a hill to St. Woollos Church ; part kept on to the right, and went down into the town of Newport, through Commercial Street ; this last division afterwards came up and joined the others who had gone up by St. Woollos Church or the Friars. The column then proceeded down Stowe Hill, which leads to the “ Westgate” Inn, where Frost had been told that the military were. Gentlemen, he still walked at their head ; he passed a place called the Catholic chapel, which is close by the “Westgate ” Inn, at the back of the “ Westgate ” Inn. The insurgents there tried to gain ad- mission into the “ YVestgate ” Inn by a car- riage entrance, whichleads into the court- yard, behind the premises that I have been describing to you ; that entrance is from Westgate Street; they failed in doing so. They then wheeled round in front of the “Westgate” Inn, Mr. Frost being still with them. The constables, I told you, were before the door — the in- surgents asked them to surrender. Some- one said, “ No, never.” Upon which the word of command, “ Fire!” was given by whom, you will hear from the witnesses. Immediately, gentlemen, the firing did begin upon the bow window of the room in which the military were stationed, and the insurgents then attempted to break in at the front door, by the porch, into the interior of the house. They made use of their pikes for the purpose of forcing the door; they succeeded; they got into the hall; they got into the passage leading from the magistrates’ room to the room where the military were stationed. Gentlemen, it was now time for Lieu- tenant Gray to do what became him as an officer of Her Majesty, and as a subject of this country, who wished to preserve the lives of his fellow subjects, and to prevent universal confusion from taking place. Orders were given to the military to load ; they loaded. I have mentioned to you that this room in which they were stationed had a bow window, that is to say, it had a projecting window, not cir- cular, but with three sides. The window shutters were shut; the glass had been broken by the shots that had been dis- charged ; but while the window shutters were shut the soldiers could not make use of their guns and fire upon the in- surgents in front. Gentlemen, Lieutenant Gray, who upon this occasion acted cer- tainly in a manner above all praise, for the moderation, the firmness, the energy, and the intelligence that he displayed, went to open the shutters of one part of the window, the mayor of another, and Sergeant Daily of the third. As the mayor was opening the shutters he received two 143 ] Trial of John Frost, 1839 . [144 wounds, one about the shoulder, and an- other in the hip. Sergeant Daily was severely wounded in the head by slugs that were poured in ; and a gun that he held in his hand had the lock knocked off by a ball from the insurgents. The sol- diers were ordered to fire. Gentlemen, at this time the insurgents had gained ad- mission into the house; they were in the passage leading to the room in which the military were assembled, and if the order to fire had not then been given, there seems no reason to doubt that in a few minutes the military must all have been massacred. The order was given ; it was speedily and effectually obeyed. The in- surgents in the passage were fired upon, and several fell. The shutters being re- moved, the men directed their pieces from the window ; they then had a complete command of the space on which the in- surgents had been drawn up. They fired into the street, and several were there wounded and fell. There was a speedy dispersion — they all fled in every direc- tion. Mr. Frost was not seen after the time when the firing first began. Zeplia- niah Williams was about ten minutes too late. He did arrive at last with the Nan- tyglo men — a band, I believe, nearly as numerous as those that were led on by Mr. Frost in person. William Jones, from Pontypool, did not get nearer than the neighbourhood of Malpas ; he was pro- ceeding down a lane to meet the other party, when he heard of the disaster that had taken place to his associates in New- port, and he likewise fled, and his men dispersed. I should have mentioned to you, gentlemen, that all these three par- ties, as they came down, scoured the country, and pressed into their service various persons who were unwilling to attend them, but who were compelled by them to march, and at the same time they seized all the arms and ammunition they could find. Frost himself was observed, after the action, as I may call it, was over, retreating up Commercial Street; he was afterwards seen in : Tredegar Park, about two miles from Newport, making his escape into a wood, and he was appre- hended in the town of Newport on the Monday evening, at the house of a person of the name of Partridge, with loaded pistols and ammunition upon him. Gentlemen, it will be for you to say, if these facts are proved, whether there can be any reasonable doubt in your minds of the guilt of the prisoner at the bar. How are these facts to be proved ? Gentlemen, with regard io the main circumstances of the case, no doubt can possibly be enter- tained. I shall prove the facts by wit- nesses above all exception, wholly uncon- nected with these disturbances, who were trying to establish peace and to restore tranquillity. Gentlemen, with regard to particular declarations made by Mr. Frost, which for the present I avoid detailing to you, those most undoubtedly will much depend upon the evidence of persons who were more' or less concerned with him in that insurrection. My learned friend will no doubt make comments upon their testi- mony, as he will be fully justified in doing, and he will call them accomplices. Gentle- men, whether they were there voluntarily, or by compulsion, there can be no doubt that their evidence is to be received with suspicion ; it is to be weighed with cau- tion ; but if you do sift their evidence, and if you do see no reason to question their veracity, then, gentlemen, you will not hesitate to believe the evidence they give. Such evidence in such a case must be laid before a jury. It is quite clear that treasonable consultations never will be held in public. How, then, are they to be proved ? It must be either by the em- ployment of spies and informers, whose evidence has always been condemned, and very often disbelieved, or it must be by the evidence of those who were actually, to a certain degree, associated in the enterprise. Gentlemen, in this case I propose to call before you no spy or in- former, for none such were employed ; but I do propose to call before you several who were concerned, more or less, in this insurrection, and who, I submit to you, may be safely trusted, if their evidence shall be consistent, and if they shall be corroborated in the main facts to which they speak ; and upon that evidence, gentlemen, if you shajl believe it, as it humbly seems to me, little doubt can exist in your minds with regard to the guilt of the prisoner. Gentlemen, it gives me the most sincere satisfaction to find that he is defended by gentlemen of the first eminence and the first talents at the bar of England. Every- thing that zeal, everything that learning, everything that eloquence can accomplish, will be brought forward in his cause. So that the result of this trial, whatever it may be, must be satisfactory to the public justice of the country. I own, gentlemen, that it seems to me that my learned friends, upon the proof of these facts, must have a very difficult task to perform. I think they will hardly deny the law of high treason, as it is laid down by Mr. Justice Foster and by Lord Tenterden. Well, then, gentlemen, here there was, according to the evidence that will be laid before you, an armed insurrection, very formidable in numbers, with a public pur- pose. There was actually a conflict with* the Queen’s troops — not accidental, not 1451 Trial of John Frost, 1830. [146 on any sudden affray, but with premedita- tion and design. Will my learned friends then say that there was some private ob- ject which the prisoner sought to obtain ? Gentlemen, what that was I am wholly at a loss to conjecture. I hear nothing of any private revenge ; I hear nothing of any private grievance ; this was not a meeting for discussion ; itwss not a meet- ing for petitioning the Queen or either House of Parliament ; it was not al meet- ing arising out of any dispute between masters and servants in the coal trade or in the iron trade ; it was not any sudden outbreak from want of employment, or from want of food; for I believe, if in- quiry is made, it will turn out that the coal and iron trade have seldom been more prosperous ; that employment was easily obtained ; that wages were high ; and that those who were engaged in this insurrec- tion had no pretended private grievance that they wished to redress. Then, gentle- men. what is the conclusion to be drawn ? That the witnesses whom I call before you speak the truth — that there was this public object, by armed force to change the law and constitution of the country. Gentlemen, unless the offence is clearly and satisfactorily made out, no question but that it will be your duty to acquit the prisoner, and you will have satisfaction in doing so. But if the case should be clearly and satisfactorily established, you will act a manly part, you will not shrink from your duty, whatever may be the con- sequences. Gentlemen, it imports us all, in whatever situation of life we may be, that the law should be respected and obeyed. Whether landed proprietors, or farmers, or merchants, or tradesmen, or labourers, whatever our position in any situation of life, high or humble, it equally imports us all that such efforts should be effectually suppressed ; it equally imports us all, for the sake of example, that punish- ment should follow crime. Gentlemen, I have given you a short outline of the facts that are to be laid before you. I have omitted many circum- stances that you will find come out during the trial. I have avoided the statement to you of particular expressions, which you will hear much better from the wit- nesses, whom I will now proceed to call before you. Gentlemen, an intimation has been given on the part of the counsel for the prisoner, that the proper forms of the law have not been observed. If that should turn out to be the case, by all means let the prisoner have the benefit of the irre- gularity. But I believe it will turn out that the forms of law have been most strictly pursued, and that any deviation from the usual course has proceeded from a desire that those who are accused should have the most ample opportunity for pre- paring their defence and for vindicating their innocence. Gentlemen, in cases of high treason, the law has more particu- larly guarded those against whom the accusation is brought. It has given the means of knowing, at least ten days before their trial, what the nature of the charge is, and the witnesses by whom it is to be supported, and the jury by whom the pri- sioner is to be tried. It will turn out, gentlemen, in this case, that Mr. Frost has had a considerably longer time than the law prescribes, full information as to the nature of the charge, the witnesses to be adduced against him, and the jurymen to be summoned on his trial. I believe that no form has been omitted, and that no technical objection can interpose to pre- vent the justice of the country from pro- ceeding. Gentlemen, after the witnesses for the Crown shall have been called and examined, and you shall have listened with all attention to the arguments and observations that may be urged on the part of the prisoner, and to any evidence he may adduce, then your important duty must be performed, to give a verdict of guilty or not guilty ; and I do not doubt for one moment that your verdict will be just towards the prisoner, and satisfactory to the public justice of the country. Evidence fob, the Cbown. Samuel Simmons called. Sir F. Pollock : Now, my Lord, I object that we have had no list of witnesses, in which the name of Samuel Simmons ap- pears, delivered in pursuance of the Act of Parliament ; and I call upon my learned friend, therefore, to show that a list has been delivered, in pursuance of the Act, containing the name of the witness now proposed to be examined. Attorney General: We will do that. Sir F. Pollock: I beg to assure your Lordships that I meant no discourtesy to my learned friend, and no disrespect to the Court, when I interposed before. If my learned friend thought it more con- venient to the administration of justice that he should make his statement, I as- sure your Lordships I was quite content to hear it. Attorney General : My Lord, I must prove this without prejudice to my in- sisting that the objection cannot now be made. If my learned friend says that there has been no list served in which the name of Samuel Simmons appears, cer- tainly it becomes me to show that such a list was served ; but, my Lord, I protest against the competency of my learned friend, if I show that a list containing 147 ] Trial of John Frost, 1839 . [148 this name has been served upon the pri- soner, now to make the objection to the whole list, that that list was not properly- served. Sir F. Pollock : My learned friend may make what protest he pleases. I cannot prevent him from protesting. Tour Lord- ship will dispose of the point when you have heard the evidence. George Maule. — Examined by the Solicitor General. You are the solictor for the affairs of Her Majesty’s Treasury, having the con- duct of this prosecution ? — I am. Did you at any time deliver to the prisoner Frost a copy of the indictment in this case ? — I did. When did you deliver that copy of the indictment ? — I delivered a copy of the in- dictment, with a list of the jury, to Mr. Frost on the 12th of last month, in the afternoon. On the 12th of December ? — On the 12th of December. Had any application been made to you for a copy of the indictment previously to that delivery ? — There had. By whom ? — By Mr. Owen. Who is Mr. Owen ? — The bill was found on the 11th of December. Mr. Owen at- tended in Court and appeared for some of the prisoners(a) ; I do not recollect exactly for what number ; but I understood that he was concerned for several of them, and that Mr. Geach being away, he and Mr. Geach would probably be concerned for the whole. What passed between you and the pri- soner when you delivered him a copy of the indictment ? Sir F. Pollock : How, my Lord, I cer- tainly must object to this. I do not mean to make any lengthened argument upon it, but to suggest to the Court, that a person who is committed under so serious a charge as that of high treason, can give no consent, can make no compromise, can assent to nothing, can direct no course of proceeding, which would deprive him of the full benefit which the law allows to him. Your Lordship knows it has been held that the prisoner can give no consent to the discharge of the jury, or to any other course of proceeding ; the law must take its course. A man who is in that state of peril in respect of his life, and under so grave a charge, can give no con- sent, and do no act in any degree to pre- judice his full and entire right, ds the law has conferred it upon him. IKelly followed.] Tindal, C. J. : I do not see how we can refuse to hear what the prisoner said at the time. The question is, whether this document was delivered to him or not, and we cannot avoid hearing from the witness what was done, and what was said at the time. Solicitor General : Will you state what passed between you and Mr. Frost at the time you delivered to him a copy of the indictment? — I stated to Mr. Frost that I furnished to him a copy of the indictment that had been found against him, also a list of the jury which had been delivered by the sheriff to me for his trial ; and that I would in a day or two, or as soon as I could get it ready, deliver to him a list of the witnesses for his trial. That, I be- lieve, is all that passed. Did you afterwards, and when, deliver any list of the witnesses — On the Tuesday following, the 17th, having then com- pleted the list of witnesses, I attended again, and I delivered a list of the wit- nesses, a verbatim copy of the list which I hold in my hand, and I told him that it was a list of the witnesses. That, I be- lieve, is all that passed then. Was anyone present besides yourself upon either of the occasions when you de- livered the papers you have referred to ? Yes, Mr. Thomas Jones Phillips, a solicitor, at ’.Newport, Mr. Raven, the chief clerk in my office, and Mr. Fvans, a solicitor. They were all three present. Upon both occasions ? — On both occa- sions. Had any application been made to you for a copy of the indictment before you so delivered it ?^— There had. Mr. Owen waited upon me in the evening Sir F. Pollock: I cannot see that Mr. Owen has anything to do with the matter ; we object to anything about Mr. Owen. Solicitor General : Were you present at any time when the prisoner made any application to the Court in which Mr. Owen’s name was mentioned? — I under- stood so. I was in Court at the time when Mr. Owen appeared, and I under- stood then Kelly : You had better not state what you understood. If you can say positively that Mr. Frost said anything, that we can hear. Solicitor General: Will you state any- thing that passed within your recollec- tion ? Sir F. Pollock : The appointment of Mr. Owen as counsel or solicitor to the pri- soner must have been by some act of the Court, which I presume some officer of the Court must have a minute of. Tindal, C. J. : Does the Act require an attorney to be assigned (a) ? Solicitor General ; I am only asking (a) Above, p. 96. (a) See above, p. 97 (6). 149] Trial of John Frost , 1839. [150 what application was made in Court by the prisoner. Will you state what appli- cation was made, if any, by Mr. Frost to the Court upon the subject of Mr. Owen ? — I believe an application was made Sir F. Pollock : If you have any recol- lection of what passed, state it ; not what you believe. Solicitor General • Do not interrupt, Sir Frederick. Sir F. Pollock : Then I must object to the witness saying, I believe so and so. Solicitor General: Everybody states what they believe. Sir F. Pollock : I beg your pardon, many people state what they do not be- lieve. Solicitor General: Will you state what application was made by Mr. Frost upon the subject of Mr. Owen? — As far as I recollect, Mr. Frost applied to the Court for copies of the depositions, and that Mr. Owen might have them ; and that as Mr. Geach was absent Mr. Owen might act for him. What fell from the Court on the subject of that application P — The Court said, that upon application to the proper officer, with whom the depositions were deposited, such copies would be given. Was any application afterwards made to you by that same Mr. Owen for a copy of the indictment ? — There was. When ? — On the evening of that day. Sir F. Pollock: My Lord, I must pro- test against Mr. Owen having any autho- rity to take any step in the case merely because he was desired, in the absence of Mr. Geach, to apply for a copy of the de- positions. However, I think it will be better first to get out all that my learned friends think it necessary to prove, and to take the objection afterwards. Solicitor General : You will not be pre- judiced, of course. Sir F. Pollock : I mention it now that I may not be prejudiced. Solicitor General: How soon after that application on the part of Mr. Owen did you deliver the copy of the indictment and the list of the jury ? — The next day. I will thank you to recollect as nearly as you can the terms or the substance of the application made by Mr. Frost re- specting Mr. Geach or Mr. Owen ? Tindal, C.J. : Was it to Mr. Owen that you gave the copy of the indictment P — No ; I delivered a copy of the indictment to the prisoner himself. Solicitor General : Mr. Owen applied to you for it, and you delivered it to the prisoner P — I delivered it to the prisoner the next day in consequence. Tindal, C.J. : That is the delivery you spoke of before ? — It is. Solicitor General : I was asking you to state, to the best of your recollection, what was the application made by Mr. Frost in Court upon the subject of Mr. Geach or Mr. Owen ? — I have stated all that I re- collect. Cross-examined by Sir F. Pollock. Have you any recollection that Mr. Frost was told that the Court could not appoint him two attorneys ; and that if he intended Mr. Geach to be his attorney he could not have Mr. Owen? — I think the Court observed, in the first place, that they could not assign any attorney at all ; that the Act did not require the Court to assign any attorney; that all they could do would be to make an order for access to such attorney as Mr. Frost should ap- point. The Court, I recollect, stated that he could not have two attorneys ; that they believed in cases where there was a partnership that they might make an order to each of the partners to be admitted, but that they did not know any instance in which two attorneys were assigned. Did not the Court ask whether Mr. Owen was a partner of Mr. Geach ? — Yes. Did not you deliver a copy of the indict- ment, with a list of the jurors, to all the prisoners on that same day ? — I did to every one. To how many P — To twelve. That is the number arraigned ? — The number that were then in prison. Had any of the other prisoners besides Mr. Frost made any application about Mr. Owen ? — Yes, some of the others. How many ? — I really cannot charge my memory ; it was rather a confused statement to the Court; I think it was made by Zephaniah Williams and Jones, and one or two others ; but they were not any of them prepared to state finally whom they would have, but only, as I collected it, that Mr. Owen in the meanwhile was to act for them all. Whom did you collect that from P — I recollected that from what passed in Court. Was there any application made to appoint Mr. Owen ? — Certainly not. I understand you to say, that on Thurs- day the 12th you delivered a copy of the indictment, with a list of the jury, to every one of the prisoners then in cus- tody ? — I did ; and I stated to each of them what I stated to Mr. Frost, that I would deliver the list of the witnesses as soon as it was ready. Then on the following Tuesday, which if I mistake not would be the 17th, you delivered a list of the witnesses to every one of the persons in custody ? — I did, observing the same form, in the presence of the same witnesses. 1511 Trial of John Frost , 1839. [152 It being in tbe presence of the same witnesses, three in number P — Yes. You yourself delivered them, and you delivered them in the presence of three witnesses ? — Yes. I believe that is the copy that you delivered ( a list of witnesses being shown to the witness )? — That is what I delivered, if it remains as it was when I delivered it. That is the paper ? — It is. Did you not afterwards deliver a further list of witnesses P — Ho, I did not ; I left Monmouth an hour or two after. Did you ever direct any further list to be delivered? — Ho, I did not; I had agents in the country. Can you tell me whose initials those are, “ W. S. G. ? ” — I do not know. Then you know nothing of the subse- quent delivery of any further list of wit- nesses ? — I cannot say that I do not know it, because I received letters from my agent.. Did you give any directions for it to be done P — I did not give any prior directions, because I was not aware that it would be necessary. Do you not know from your agent that a further list was delivered ?— I do. Attorney Gen&i'al : What he knows from his agent is not evidence ; really we must proceed with some regularity. Solicitor General : Is the name of Samuel Simmons in that list which you delivered on the 17th ? — It is. Solicitor General : That is the witness, my Lord, that I propose to call. Sir F. Pollock: I will, just for the sake of accuracy, see that it is so : — “ Samuel Simmons, of the parish of St. Woollos, in the borough of Newport, in the county of Monmouth.” Perhaps your Lordships will permit me not to separate the two objections that may arise in this matter, of which the far more important and weighty one is the one that I shall immediately address to your Lordships ; though, upon looking at "the name, I perceive that a minor and subordinate one occurs with respect to the description of this party. He appears to be described as “of the parish of St. Woollos, in the borough of Newport.” Newport is a township in that parish, in point of fact, whereas this is represented to be the parish of St. Woollos, in the borough of Newport, as if the borough of Newport were the larger place. My Lords, it is now my duty to submit, on behalf of the prisoner, that one of the most important provisions of these sta- tutes, which constitute what my learned friend has not incorrectly called the charter of the subject upon questions of 1 trial for high treason, has not been duly complied with in the present instance ; and, my Lords, I trust you will believe that I had no other motive in interposing at the outset than to prevent a statement being made which I felt confident never could be proved, and which, if it should so turn out, I thought perhaps my learned friend in the exercise of his discretion, would, for the sake of the Crown, the public, the prisoner, and other parties interested, have forborne to make ; and I do assure your Lordships, that respect for you sitting there, and for my learned friend discharging the high duties that belong to his office, were the considera- tions alone that induced me to interpose ; but distinctly stating, at the same time that I did so interpose, that if my learned friend was desirous to make his statement, he had a perfect right to do so, and that the objeccion that now presents itself would only arise upon his placing a wit- ness in the box for the purpose of being sworn to prove the charge against the prisoner. My Lords, this objection I am sure you will forgive me for arguing with with all the length and importance that may be necessary, in order to bring before you every authority that bears upon the subject ; and, if in the discharge of this duty, I may have occasion to request your Lordships’ indulgence, I hope that I may be permitted to say, on my own behalf, that I stand undoubtedly in a novel situa- tion to me ; one not, my Lords, I will admit, of embarrassment, but one of deep and intense interest. My Lords, the facts which are now before you, I believe, are shortly these : that the commission under which your Lordships are now sitting was opened on the 10th of December ; the bill was found against the prisoner on the 11th, and on the 12th of December copies of the indict- ment and lists of the juiy were delivered, not to Mr. Frost alone, but to every one of the prisoners then in custody, among others, to Mr. Frost, whose case alone is at present under your Lordships’ con- sideration. My Lords, that was on Thurs- day, the 12th of December, and on the following Tuesday, the 17th of December, and not till then, a list of the witnesses was delivered, by whom the charge stated in the indictment, a copy of which had been delivered on the preceding Thursday, was to be sustained. I had, my Lords, certainly hoped that Mr. Maule would have been able to state to your Lordships some further matter with respect to the delivery of the list, which is matter almost of notoriety ; and, though not very important, I aver it appeared to me of some importance, showing that the act that has been done 153 ] Trial of John Frost, 1839 . [154 never was contemplated to be done, as in obedience to the wish of any person who was acting or was supposed to be acting as attorney for the prisoner, but was done under a notion that it was sufficient if the list of the witnesses were delivered ten days before the trial ; forgetting (as your Lordships will find several of the text books do) that it not only must be ten days before the trial, but that it must be at the same time with the copy of the indictment and the list of the jury. And, my Lords, I do look forward when I shall have stated the law and the universal practice on every occasion, as to which I have had the means of informing myself, I do look forward to a termination to this proceeding, at least, which I trust no' one will have reason to regret, but which, on the contrary, with reference to many parts of this case, the circumstances, the time and many other matters that press upon one’s attention, must rather be con- sidered favourable, and one of those interpositions not to be regretted, but to be looked upon as a circumstance occur- ring in favour of the prisoner that all persons have reason to rejoice in. My Lords, this question turns chiefly upon the statute of Anne, and I must read to your Lordships the very words of the Act of Parliament, which, for the first time, gave to the prisoner a right to have a list of the witnesses and a list of the jury, together with the in- dictment ; for, by the statute of William, he was entitled to a copy of the indict- ment five days before the trial, and a copy of the panel of the jury two days before the trial ; but he was not entitled to a list of the witnesses at all : — “ And be it further enacted, by the authority aforesaid, that from and after the decease of the person who pretended to be Prince of Wales during the life of the late King James, and since pretends to be King of Great Britain, and at the end of the term of three years after the immediate succession to the Crown, upon the demise of her present Majesty, shall take effect, as the same is and stands limited ; when any person is indicted for high treason, or misprision of treason, a list of the witnesses that shall be produced on the trial, for proving the said in- dictment, and of the jury, mentioning the names, profession and place of abode of the said wit- nesses and jurors, be also given at the same time that the copy of the indictment is delivered to the party indicted.” (a) Your Lordships see this is the first and chief and most important provision, that whereas before, a copy of the indictment was to be delivered five days, a list of the jury two days, and a list of the witnesses not at all ; now it is enacted, that when any person is indicted, a list of the witnesses which shall be produced on the trial, and of the jury, mentioning the names, pro- fession and place of abode of the said witnesses and jurors, shall be also served at the same time that a copy of the indictment is delivered to the party in- dicted. Then, my Lord, comes this : after establishing that they are to be served together and at the same time, be that time what it may, it proceeds to state when : — “ And that copies of all indictments for the offences aforesaid with such lists, shall be delivered to the party indicted ten days before the trial, and in presence of two or more credible witnesses ; any law or statute to the contrary notwithstanding.” So that, my Lords, the copy of (he indictment having been previously re- quired at the same time to be accompanied by these two lists, it goes on to say, that copies of all indictments, with such lists, shall be delivered ten days previous to the trial. [Sir Frederick Pollock addressed the Court at great length in support of the objections. Kelly followed on the same side. The Attorney General was arguing that the objection was bad in itself, and was taken out of time, when he was stopped by the Court. (a)] Tindal, C. J. : We have a sufficient de- gree of doubt upon this point to reserve it as a point for further consideration. We are not prepared to say that the objec- tion which has been made by the learned counsel on the part of the prisoner is valid ; but it involves a question upon which no direct decision has taken place, and which calls for very serious conside- ration. It is the more important, as the same objection may apply itself, under existing circumstances, to several other cases in which indictments for the same offence have been found, and the other prisoners arraigned. We propose to take a course on the present occasion which will prevent the possibility of an OTer hasty decision operating, on the one hand, to the prejudice or disadvantage of the prisoner, and, on the other, from causing a failure of public justice. We shall allow the trial to proceed, and shall take the opinion of Her Majesty’s judges on the validity of the objection, supposing such proceeding should eventually become necessary by the verdict of the jury. (a) The argument is here omitted, being iden- tical with that before the fifteen judges, below, p. 46 1 (a) 7 Anne, c. ‘21. s. 11. 155] Trial of John Frost } 1839. [156 Attorney General : That course, my Lord, will be perfectly satisfactory, as far as l am concerned. Tindal, C. J. : To-morrow morning we will proceed, after this intimation, with the evidence. Thursday, January 2, 1840. Sir F. Pollock : Will your Lordship permit me to mention, in the presence of the Attorney General, your Lordships re- served the point which was argued last night for further consideration. I pre- sume, my Lord, the effect of that would be to place Mr. Frost in precisely the same situation as if it had been decided in his favour. Attorney General • It must be, my Lord, the same as in all other cases. Tindal, C.J. : It is a very common course to take at assizes, when a point arises which suggests a difficulty to the judges. Sir F. Pollock : Your Lordships cannot suppose that I am making any objection to that course. I am merely asking this, and the Attorney General himself being here, makes it a matter very easy to be arranged, that in the event of your Lord- ships being of opinion that the objection ought to have prevailed at the trial, Mr. Frost may be placed in the same situation as if it had prevailed. Tindal, 0. J. : No doubt about that ; he will be in the same situation as if we had decided it at the time. If, upon cou side- ration and consultation with the judges, we think the objection ought to have prevailed, it will be as if it had prevailed at the moment. Sir F. Pollock : And the verdict will be accordingly. Tindal, C.J. : No .(a) Attorney General: Mr .'Frost, my Lord, will be in the same situation as all the rest of Her Majesty’s subjects under simi- lar circumstances. This case does not differ from any other case. Ludlow : There is nothing new in this case, Sir Frederick Pollock. Sir F. Pollock : My learned friend Mr. Serjeant Ludlow says there is nothing new in this case; I dare say there is not. But why that observation should be addressed to me, and not to the Court, I cannot understand. I have difficulties enough to struggle with in performing this overwhelming duty, as far as my own feelings are concerned, without having to meet such observations as those ; and I would request my learned friend not to suppose I come uninstructed in points of (a) See letter of Tindal, C. J., to the Home Secretary, below, p. 479 n. law ; I am aware of that which he states. My attention was first called, in profes- sional life, to the case of a person named Walsh , convicted of defrauding another party. It was decided that he ought to have been acquitted ; and yet he remained under attainder for the rest of his life. Tindal, C.J. : I do not know anything about that case ; I have explained the position in which the prisoner will stand if this point should be decided by the judges in his favour. It will be precisely the same as if we had now so decided it. Sir F. Pollock: If that is understood, my Lord, I have no further observation to make. Attorney General : It is understood that the state of things will be precisely the same in this case as in all other cases, where the learned judges reserve a point for the consideration of their learned brethren assembled at Westminster. There is no special course to be adopted here. Parke, B. : Not at all. If there is a conviction, and the judges are of opinion that the objection is well founded, a par- don will be issued at the recommendation of the Secretary of State as a matter of course. Sir F. Pollock : With all deference, my Lord, that is not placing the subject in the same situation. Parke, B. : That is the only course that could be pursued; because you can find no instance, in a criminal case, of a judge reserving a point for the consideration of all the judges, in the same way as a judge does at nisi prius. Sir F. Pollock: I thought, my Lord, that in this case the presence of the Attorney General representing the Crown might make a difference. I am aware that cannot be done at the assizes ; but with all deference to the Court and my learned friend Mr. Serjeant Ludlow, it did appear to me that the presence of the Attorney General here, representing the Crown, and consenting that the verdict should be entered for the defendant if this point were decided in his favour, would make a difference. Attorney General: My Lord, in this case the law must take its course. At present your Lordship overrules the objec- tion, subject to the consideration that it may undergo by your Lordships, assisted by your learned brethren at Westminster. Williams, J. : With precisely the same consequences that follow in other cases of the same kind. Attorney General : Exactly, my Lord, in other cases of the same kind ; I cannot consent, filling the situation that I do, to deviate from the established practice that has existed in England for centuries. Sir F. Pollock: Then I can only say 157 ] Trial of John that it is high time that that practice was altered by a competent authority. I am very much surprised that a different prac- tice has not prevailed, by the Attorney General consenting. Attorney General : My Lord, there should surely be an end to these interlocutory observations. I wish, to treat my learned friend with the courtesy and respect to which he is entitled, and I hope I have done so, and shall continue to do so ; but I must deprecate these irregular obser- vations. Parke, B. : Certainly. Samuel Simmons sworn on the voir dire. Sir F. Pollock: My Lord, there was another objection to the witness. Solicitor General : Yes. I am now about to examine him on the voir dire. (To the witness.) Where do you live ? — Newport. Kelly: It must be understood that we are allowed to question him on the voir dire. Attorney General : Of course. Tindal, C. J. : Is there some objection made to the description p Attorney General : I understood so. Parke, B. : It is not to be understood that that objection is to be deferred for further consideration. Attorney General : By no means, my Lord. Solicitor General (to the witness) : In what parish do you live ? — In the parish of St. Woollos. Do you know the borough of Newport ? — Yes. Is the parish of St. Woollos in the borough of Newport ? — Yes. Cross-examined by Sir F. Pollock on the voir dire. £1 live just below the “Salutation” Inn. It is in the borough of Newport, and stands on a piece of waste ground off Cardiff Street. My house is near a place that used to be called Mountjoy ; it is on a tram-road, by which coals and iron go down from the hills to Newport. The road never had any name to it. I never had any letters directed to me ; nor had anyone near that I know of; not my family. I cannot say exactly how far the parish extends — miles round the town.] £The further cross-examination of the witness on the voir dire was deferred, to allow of a copy of the Boundary Act(a-) being sent for.] Examined by the Solicitor General. Do you remember Monday morning, the 4th of November ? — Yes. (a) 2 & 3 Will. 4. c. 64. Frost, 1839 . [158 Do you know Mr. Frost , the prisoner at tho bar? — Yes. Did you see him on that Monday morn- ing, the 4th of November P — Yes. Where did you see him? — I saw him first by the machine. Do you mean by the weighing machine? — Yes, at Court-y-bella. How far is that machine from the “ Westgate” Inn ? — Nearly a mile. Was he alone, or were any persons with him ? — A great many persons were with him. Had those persons, or any of them, any- thing in their hands P — Yes. What had they? — A great many with guns. Any other weapons or instruments? — Yes, "a great many with scythes, spits, pikes, and mandrils, and all those kind of things ; pieces of iron on large long sticks. What sort of spits do you mean? — Boasting spits. Did you hear Mr. Frost say anything that morning ? — I heard him say nothing that morning, not as we walked up the hill up by the turnpike. In what direction were Mr. Frost and the persons going when you saw them going by the machine ? — Mr. Frost was in the front. Towards what place were they going? Do you know the “ Westgate ” Inn ? — Yes. Were they going in that direction? — Yes ; the people came up Stowe Hill, in the direction to the “ Westgate ” Inn. At what time was this ? — I think it was about nine o’clock, or a little past. In the morning, or night? — In the morning ; it might be past nine. Very well; that is as near as you can tell. Do you know whether they went to the “ Westgate ” Inn ? — Yes. Did you hear Mr. Frost say anything that morning ? — Yes. What was it you heard him say ? — They made a stop when they came to the top of Stowe Hill, by the turnpike ; they made a halt. Is the turnpike nearer to the “ West- gate” Inn than the machine ? — Yes. What was it you heard said by Mr. Frost at the turnpike ? — I heard him say, “ Let us go towards the town, and show ourselves to the town.” After that was said, which way did they go ? — Down the hill. Was that towards the “ Westgate ” ? — Yes. Did they go to the “Westgate ” ? — Yes. Parke, B. : Stop a moment. He said something about the word “ halt.” Solicitor General : “ There was first the word * halt 3 given, and then they stopped.” 159] Tindal, C. J. : Did he say by whom ? Solicitor General : I was going to ask. (To the witness .) Did yon hear by whom the word “halt ’’was given'?— No, I did not. Did yon go in the same direction with Mr. Frost , and those people ? — Yes, I did. Yon say they went to the “ Westgate ” ; what part of the “ Westgate ” did they go to ?— They went round to the “ Westgate ” gates. Is that picture like the “ Westgate ” Inn ( showing a drawing to the witness) ? — Yes. Do you know it ? — Yes. Just point to the part which you say they went to. Have your Lordships one of them ? Parke, B. : No, nor the plan of the town. (It was handed up to their Lord- ships. ) Solicitor General : Which way did they ccme towards the “Westgate” Inn? — Down the hill. Is the hill in this part ? — Do you know enough of this picture to tell me whether the hill comes down here (pointing it out) ? — Yes, it does. Solicitor General : If your Lordship will be good enough to look at this — he says they came down the hill, which is on this side of the inn (pointing it out). Parke, B. : The west side ? Solicitor General: The west side, my Lord. (To the witness.) You say that the road comiBg down to the right-hand side of the “ Westgate” Inn, as you now look at it, is called Stowe Hill? --Yes. And that is the way those persons came ? — They came down Stowe Hill. When they came down Stowe Hill, which way did they turn ?— They turned round on the right. Would that be in front of the inn ? — In front of the inn. And when they turned round, what part of the inn did they go to?— They went round towards the yard. Is the yard on the other side of the inn from Stowe Hill ? — Yes. Has the house two bow windows, or two bows?- -Yes. Does the' yard turn up by the side of one of those bows ? — Yes. Does the yard turn up by the bow farthest from Stowe Hill ?— The farthest from Stowe Hill. Are there any gate3 to that yard ? — Yes. Were those gates open or shut when those people proceeded towards them ? — They were shut. When the people went towards those gates, did you see Mr. Frost ?— I did. Where was he ?— He was on the paving, by the anchor shop, close by. [160 Whereabouts is the anchor shop ; is that beyond the yard, or on this side ? — Adjoin- ing the yard. Did you see whether the people at- tempted to go into the yard ? — They did. Could they get in ? — No. Did you hear Mr. Frost say anything on their attempting to get in ? — I did. Tindal, C. J. : The anchor shop forms the other side of the yard ? Solicitor General : I believe it does, my Lord. (To theivitness.) Is the anchor shop the other side of the yard, the bow window being on one side and the anchor shop on the other? — Yes. You say, on the men attempting to go in, and not being able to do so, Mr. Frost said something ; what did he say ? — He said, “ Turn round, and show your ap- pearance to the front.” How near were you to Mr. Frost when he used that expression ? — I was close by. Upon that expression being used, in what direction did the people move? — They turned round to the “ Westgate.” Did you see the door of the “ Westgate ” ? —I did. What part of the “ Westgate ” did they go to ? — To the front. Did they go near the door ? — Yes. In what manner ? — They went in at the door ; they rushed in at the door. Was the door open or shut when they went up to it ? — The door was open. They rushed in at the door? — Yes. What was the next thing you heard or saw ? — Firing. From what quarter did the firing pro- ceed ? — It began by the door. Can you tell me whether the firing began from any of the persons who had gone up in the manner you have stated, or from anybody else ? — I think it began from the people that went up to the “Westgate” door. Can you tell me whether there was any person at the door with a gun before those people went up ; did you see anybody with a gun before they went up ? — I did not. When you heard the firing begin, what became of you ; did you remain, or did you go away ? — I stayed there a bit. And then what did you do ; what became of you then ? — I went over to Mr. Malloclc’s that keeps the china shop, and desired him to shut the shop up Kelly: Never mind what you desired him to do ; you were asked where you went. Solicitor General : You say you stayed a bit; just tell the Court how long you mean by “a bit”? — I stayed there ten minutes or a quarter of an hour. What firing took place while you were there ? — A great deal of firing. Trial of John Frost, 1839. ici] Did you soo whether that firing came from the people who had marched up to the “Westgate” ? — Yes; I saw some of them firing. Where was Mr. Frost the last time you saw him, before you went to Matlock's ? Kelly: My Lord, I do not understand the last answer as applied to the question ; my learned friend put the question, “ Did the firing come from the persons in front of the house p ” The witness’s answer was, “ I saw some of them firing.” Tindal, C.J. : “I saw some of the people firing who had gone up to the ‘ West- gate.’ ” Kelly : Yes, my Lord, so I understood ; I ought, perhaps, to have objected to the question. Solicitor General : I wish you would ; I would thank you for any suggestion ; I put them as cautiously as I can. Kelly : I know you do ; it is only the answer that is objectionable. Solicitor General {to the witness) : Did you leave the people you have spoken of as coming down Stowe Hill, and after- wards going to the front of the inn, when you went to Matlock's-, or what had become of them ? — Some had run away. Kelly : You put a question respecting Mr. Frost ; I am sorry I interposed at the moment ; I have not heard the answer. Solicitor General : He did not give it ; I will just continue this for a moment. {To the witness.) You say some of the people ran away ? — Yes. Had there been any firing from any part of the “Westgate” Inn from the inside before those people ran away ? — I cannot say as there had ; there was a great deal of firing between them both ; you could hardly see the “ Westgate ” for smoke. When you say there was a great deal of firing between them both, whom do you mean by “ both”? — The soldiers and the mob. Where were the soldiers that you speak of? — In the “Westgate ” Inn. Had those- soldiers fired before the people ran away? — I suppose they had, some of them ; there was a great deal of firing ; I saw them throw their arms down and run away, a great quantity. When you say you suppose the soldiers had fired, did you see any firing come from any part of the “Westgate ” or from any soldiers ? — I did not. Where was Mr. Frost the last time you saw him, before you went to Mallocb's ? — On the paving. Hear where ? — Hear the anchor shop. Can you form any judgment so as to tell the Court about what number of men you think there were there that morning ? — I suppose there were five or six thousand. Where were those men, about that o 67432. [162 number, when you first saw them ? — I saw them up by the machine. You say there having been a good deal of firing, a great quantity were running away when you went to Malloclc's? — Yes. Did you see any more of what took place at that time after you went to Mat- lock's ? — Ho. Did you see any men fall, as though shot, before you went to Matlock's? — Yes. How many did you see fall ? — I saw two fall. Whereabouts were those men that you saw fall when they fell ? — There was one by the door. Where was the other ? — Just opposite the bow window. Parke, B. : What door ? Solicitor General : What door do you mean? — The “Westgate” door. The inn door do you mean? — The inn door. Where did you say the other man was when he fell ? — Opposite the bow window nearly. Is that the bow window which you have spoken of before, by the yard ? — Yes. How long did you remain at Matlock's before you came out ? — Hot long. Just give the Court some idea of the time that you mean by “not long”; do you mean five minutes or ten, or a quarter of an hour, or what time ? — About five minutes. What was going on when you came out from Matlock's ? — The men were running in all quarters. The soldiers were seeing what was going on, so as to keep the “Westgate ” as clear as they could. Did you remain there until the mob was quite dispersed? — Yes. Kelly : In Matlock's ? Solicitor General: Hot in Matlock's; he said he came out of Matlock's in about five minutes. {To the witness.) How long was it before the mob dispersed after you came out of Matlock's ? — They were dispersed in about a quarter of an hour. When you first saw those men at the machine was there any noise or hallooing ? — Boys were hurrahing. Did you see any person raise his arm, or do anything of that sort ? — I did. Who was that ? — Mr. Frost. J ust describe what you saw him do ? — I saw him raise his hand like that. {A gesture to enforce silence.) And after that quarter of an hour you went home ? — Yes, Foreman of the Jury : My Lord. I find it necessary to put a question or two. Tindal, C.J. : You will be so good as to hear the cross-examination first, and then the re-examination ; very likely the question will be asked in the course of that. F Trial of John Frost , 1839. 163 ] Trial of John Frost , 1839 . [164 Cross-examined by Kelly. [The witness denied saying when before the magistrates that he lived at the “ Salu- tation ” Inn.] Did you know that Mr. Frost was a magistrate ? — I did. How long was he a magistrate? — He was a magistrate a good while. How long, as near as you can say ? — I cannot say how many years. Some years ? — Yes. Was he not twice mayor of Newport P — He was mayor once to my knowledge ; I do not know more than once. You say that you knew he was a magis- trate, or had been ; how did you know that ? — I saw him in the town ; I heard people say that he was a magistrate. [I never applied to him at any time, and was never before him. I have been in my present house for about a year. I occu- pied it before I went to the “ Salutation,” and I went back again to it from the “ Salutation.”] I think you said you have lived in New- port for seventeen years or thereabouts ? — Yes, very near that. How many miles now, to your know- ledge, does this parish of St. Woollos ex- tend ? — I cannot say. Tindal, C. J. : In future it would be more convenient that if any objection is taken to the description, the party should be sworn and examined upon the voir dire. Solicitor General: What I should wish is, that my learned friend should not mix the cross-examination upon the merits with the examination upon the voir dire: Tindal, C. J. : That is very desirable, for it confuses one’s notes. Kelly : I will take care, my Lord, not to do so. Parke, B. : It future it must be under- stood that the examination on the voir dire terminates the dispute as to the de- scription of the witness, and when he is admitted there is an end of the objection. Kelly : Yes, my Lord ; it was only while the Act of Parliament was sent for that he was conditionally examined. I will now ask respecting the transaction. {To the witness.) When did you first see the door of the “ Westgate ” Inn ? — I saw it as we came round down Stowe Hill. Was that before the people assembled in front ? — Yes. You say the door was then open ? — Yes. Was anybody there ? — Yes. Who was there ? — A lot of special con- stables. Was the door closed ? — I do not know that it was. How long was it after the people had arrived there before any of them got into the house ? — Not long. But what do you call “ not long ” ? — They got in directly, as soon as they turned round. Turned round where — turned round the corner ? — Round towards the “ Westgate ” door. Was that before the firing had com- menced P — Yes, when they turned round. JVTy question is, whether any of them had got into the house before the firing commenced P — They began to fire as soon as ever they got in ; as soon as a few got within the inside of the door the firing commenced. How long do you say you remained after that time ? — I remained there about half an hour, in one place and another. I do not mean “ one place and another,” but at the spot where the multitude were ? — I did not stay at that place long. But how long ; you have represented that you stayed there during a part of the firing P — I stood there about five minutes, I suppose. Am I to understand you that you swear you believe that you stood there about five minutes after some of them had entered the house ? — Yes. Did you make a deposition before the magistrates ; that is, did you sign any paper like this upon which your evidence was put down ? — I was taken to the “ Westgate.” So I understood you to have said, and you were sworn and gave evidence ? — Yes. Then I ask you, was not your evidence put down in writing and signed by you ? --Yes. ( The depositions were handed to Kelly) Kelly : Just look at that ; I presume that is your mark ? — That is it, I believe. Kelly : Now, my Lord, I believe the more correct course is to have the deposition read. I will, with your Lordships’ per- mission, have it read now, and then I have one or two questions to put upon it. {The deposition of Samuel Simmons was read. It began : — “ Samuel Simmons, sworn, says, I am a la- bourer, and live at the ‘ Salutation,’ in the town of Newport.”) Kelly : You have heard that read ; I now ask the question I asked you before ; do you mean to say, upon your oath, that you did not live at the “ Salutation ” Inn P — I did not say so ; I live below the “ Salutation ” Inn. Is it true or false that you swore what is here set down : “I am a labourer, and live at the ‘ Salutation,’ in the town of Newport” P — Not at that time; I did not live at the “ Salutation.” I am not asking you whether you lived*' at the “ Salutation,” but whether you swore 165] Trial of John Frost , 1839. [166 so p — No, I did not swear that I lived at the “ Salutation I was not there at that time, but by the “ Salutation.” You lived by the “ Salutation” P — Yes. Did you not tell me just now you lived a quarter of a mile from the “ Salutation ” p — No ; not a stone’s throw I live from the “ Salutation.” Re-examined by the Solicitor General. You have spoken, I observe, in the de- position, of the Friars ; whereabouts is the Friars ; how near is the Friars to the “ Westgate ” Inn ? — About a-quarter of a mile, or better. Kelly: I shall have a question to ask with regard to the matter upon the voir dire ; I thought it better not to embarrass your Lordship’s note by asking that now. Solicitor General : You had better ask it here, I should think. Parke, B. : You had better conclude your re-examination now. Attorney General: Yes, my Lord, that would be better. Solicitor General : Is the Friars further from the “Westgate” Inn than the ma- chine, or nearer ? — Further. Do you understand my question ? I want to know which is the nearest to the “ Westgate ” Inn, the Friars or the weigh- ing-machine ? — The Friars is the nearest. Is the Friars in the road from the ma- chine to the “ Westgate ” ? — Yes. Sir F. Pollock : One of the jury wished to put a question. Tindal, C.J. : What was the question, sir, you wished to put ? Foreman of the Jury : Simmons stated, my Lord, that they halted at the machine, and afterwards he said that they marched ; I wish to put the question to him, whom does he mean by “ they p ” Tindal, O.J. : Whom did you mean by “ they,” when you said, “ after they halted they marched ” ? — All the mob. Foreman : Was there anybody directing the mob when they marched then ? — 'No- body, except Mr. Frost; he said they were to go towards the town, and show them- selves to the town. You stated that Frost was on the pave- ment, by the anchor shop, and that he said, “ Show your appearance to the front ;” do you mean to swear that those were the exact words that Mr. Frost spoke to the men ? Tindal, C.J. : You are quite right, sir, in putting the question, if you have any doubt. Witness: That was as near as I could understand it. You stated also that there were soldiers in the “ Westgate ” Inn ; do you know, of your own knowledge, that there were soldiers in the “ Westgate ” at the time ? — Yes, there were soldiers in the “ West- gato ” Inn. Did you see them ? — Yes. You have also stated that you saw Frost before you went to Matlock’s house ; how long after the firing commenced did you see him? — I did not see him long after the firing began ; he was out of my sight. Attorney General: This matter of de- scription, I suppose, your Lordships would wish to dispose of now. Cross-examination on the voir dire resumed. Kelly (to the witness ) : I, perhaps, have not quite understood you ; but how far is your present house from the “ Saluta- tion ” P — Not a hundred yards. To the best of your knowledge, is it about a hundred yards, or rather less ? — Rather less. About ninety yards, perhaps P — Yes. Do you know, of your own knowledge, whether that house of yours is within the boundary of the borough of Newport, the old borough of Newport? — Indeed, I can- not say ; I never paid any rates or taxes, and I cannot say. Now, I have only one more question to ask you upon this point; you have said that the parish of St. Woollos extends for miles round ; I want to know what is the most distant place from the borough of Newport that you know of in the parish of St. Woollos ? — I know of one place, the other side of Stowe a good way, I cannot mention the place’s name. Attorney General: I should think, my Lord, that my learned friend might raise this point by the admission that the parish extends beyond the borough. Parke, B. : The parish extends beyond the boundary of the borough. Does not that answer your purpose P Kelly: Not exactly, my Lord, because there is a difference between its extending beyond the boundary and its being of considerable extent, and forming a great proportion of the parish. Parke, B. : Does it signify whether it is an acre or twenty miles ? Kelly : I think your Lordship will find that makes a difference. Sir F. Pollock : There is another fact ; the place where the witness describe shis house to have been is ninety yards from the “ Salutation ” and in the direction towards Cardiff. Attorney General: He says just the con- trary. Kelly: He says not towards Cardiff. (To the witness.) Is it towards Pillgwenlly ? — Yes. Sir F. Pollock : It is the same thing, and I am tofd that the “ Salutation” Inn, or at all events a point within ninety F 2 167] yards, is the boundary of the borough ; so that where he lives is not within the borough. Kelly: Perhaps it will be more con- venient as the witness does not appear to know it of his own knowledge to prove the fact. Sir F. Pollock: I presume, my Lord, that I am at liberty to call a witness to prove the boundary of the borough P Tindal, C.J. : You are raising an ob- jection on the groui d of mis-description ; I think you have a right to do that when the witness does not know it himself. Thomas Prothero, sworn on the voir dire. — Examined by Sir F. Pollock. [I held the situation of town clerk for a great many years ; they never walked the boundaries for a great many years that I remember. I never perambulated the borough. I have scarcely a doubt that the “Salutation” was within the limits of the old borough. It must be very near the extremity of the old and commence- ment of the new borough. I was town clerk for five or six and twenty years.] Do you know where this man lives ? — Now that I hear the man give his evi? dence, from his description I do know. Is not that without the boundary of the old parish ? — I believe there is an old road near the barn that he speaks of called the Mountjoy Farm, that was the boundary of the old borough ; but I can only say that from belief. I ask you, having been twenty-five years the town clerk, whether, to the best of your knowledge and acquaintance with the borough, the place that he has described is not without the borough ? — I really cannot say I ask you your belief P — I really cannot say; it must be very near the limits of the old borough , and very near the com- mencement of that part of the parish that was comprised in the borough. Attorney General: That was added to the borough? — That was added to the borough. Sir F. Pollock : Were you the town clerk at the time that the Reform Bill passed P — Yes, I was. Did you not yourself, personally, give instructions with regard to the boundary of the borough before it was enlarged? — I did not ; 1 did not act as town clerk for several years before I ceased to hold the office. Who did ? — Sir Thomas Phillips , my partner. Perhaps you will be able to tell me whether the parish of St. Woollos does not extend many miles round the borough P — Yes, it does. [168 The old borough, I believe, was entirely within it ? — The old borough was entirely within it. And formed a very small part of it ? — Not a small part. Is it a half, or a third, or a tenth P — It is certainly very much more than a tenth ; but I should not think that the extent of surface was half. Perhaps not a quarter?— I cannot say. Cross-examined by the Solicitor General on the voir dire. The new borough, I understand, extends beyond the place where this man lives ? — Yes ; in one direction it extends, perhaps, half a mile beyond. Sir F. Pollock : Now, my Lord, I will just call your Lordship’s attention to the other point, for which I think one of your Lordships desired to see the Boundary Act ; that is an Act “ to settle and describe the divisions of counties and the limits of boroughs in so far as respects the election of members to serve in Parlia- ment; ”(a) therefore that Act, I presume, does not extend to the borough of Newport for any other purposes. The question, then, is whether the description, — “ Samuel Simmons, of the parish of St. Wool- los, in the borough of Newport, in the county of Monmouth, labourer,” is a good description. Now we are entitled, my Lord, to have the name Tindal, C.J. : “ The name, profession, and place of abode ” are the words of the statute. Sir F. Pollock: Yes, my Lord; and to say that he resides in the parish of St. Woollos, in the borough of Newport, appears to me to be a rais-description ; it should be “in the borough of Newport, in the parish of St. Woollos ; ” because the borough of Newport is a part of the the parish, and is in the parish ; but the parish of St. Woollos is not in the borough of Newport, there is only a part of it in the borough ; and if the borough of New- port is only a part of the parish of St. Woollos, and no part of the borough of Newport is in any other parish, it does seem very absurd Attorney General: If it be material, there is part of the borough of Newport in another parish. Sir F. Pollock: No, not of the old borough; and I submit that this must be taken to be not the new, but the old borough. Tindal, C.J. : He is living in the borough of Newport ; that is, every man Trial of John Frost , 1839. (a) 2 & 3 Will 4. c. 64. 109 ] Trial of J ban Frost 3 1839 . [170 who was acquainted with his place of abode would say it was in the borough. If it had been out of the new borough of Newport and only in the old borough, then your objection would have been the other way, that it was not what was popularly known as the borough of New- port. Every information is given by this description. Sir F. Polloch: Now, my Lord, allow me to ask whether in a parish like the parish of Lambeth it would be sufficient to say that a person was residing in that parish, or that he was residing in the parish of Marylebone. Tindal, C.J. : Here are two descriptions given : he is residing in the borough, and he is residing in that part of the parish which is also in the borough. Parke, B. : It is perfectly true that he lives in the parish of St. Woollos, and he also lives in the borough of Newport, at all events according to the common boun- daries. Sir F. Polloch : The moment your Lord- ship decides that the new borough is sufficient T, of course, abandon the objec- tion that this description must have reference to the old borough. But I would ask your Lordship this : I believe there is a part of the parish of Lambeth in the borough of Southwark, would it do to say, “ of the parish of Lambeth in the borough of Southwark,’"’ because a party lived in a portion of the borough of Southwark that was also in the parish of Lambeth ? Tindal, C.J. : That would be the same case, would it not ? Sir F. Pollock : Yes, my Lord, it would. Tindal, C.J. : Now you are upon the point that there is no street named ? Sir F. Polloch: I am, my Lord, upon that point, that there is no information given beyond the parish, so as to enable any person to find out where the witness is to be met with. Tindal, C.J, : The man says there is no name to the street where he lives, but it is by the side of a tram road that leads up to the hills; so that upon inquiry you would find him out. Sir F. Polloch : In Watson’ s(a) trial Ire- collect that there was a different descrip- tion from this ; there the description was not only that the party lived in a certain parish, but it gave a court in a street, and the very number of that court. Your Lordship sees the importance of this. We have ten days to inquire respecting three hundred and seventeen jurors and two hundred and thirty-six witnesses ; accord- ing to that the prisoner has to make inquiries respecting fifty persons a day, and very little progress, my Lord, will be made in acquiring the necessary informa- tion so as to be of any use to him in his defence if the description that the party lives in a certain parish is sufficient, when that parish is a large parish extending for several miles, or that he lives in a borough, which borough has been lately added to for the purposes of the Keform Bill, and you have first to go over the whole paiish or borough to ascertain where the party lives, and then to make inquiry who and what he is. In this case the description might have been more specific ; they might have said living “ by the side of a tram-road near the “ Saluta- tion ” Inn. Some such description as that might have been given, which would have enabled the prisoner to get at him, or to have learned something about him. My Lord, I yield at once to your Lord- ship’s suggestion, that the new borough, as a matter of description, is as good as the old ; very likely better ; because no doubt, in process of time, just as in Lon- don, people forget the old boundaries. I dare say there are very few persons here who could state at what house in Chancery Lane the city ends and Westminster begins. I could not. London now means a much larger place than that which is comprehended within the old city boun- dary ; and if, my Lord, it is said the borough of Newport means a much larger place than it formerly meant, it makes my argument stronger, because if it would not be sufficient in a populous place merely to point out the parish, or to point out the borough, as, for instance, to say that a man lives in the borough of Southwark, or in the parish of St. Mary, Lambeth, then I submit that there ought to be a reasonable description, such as will enable ns who are assisting the prisoner to get information which is useful for us, and with a view to which this description is required. My Lord, I point out that in this very instance we had very nearly five hundred persons to inquire after in the course of — I must not say ten days ; the statute gives ten days; but we had, by special grace and favour, two or three days more. We had, therefore, to inquire at the rate of fifty persons a day ; and I submit that the Crown are to give that description which will enable us to get at the house without any difficulty ; and if it is in no street it should be described as near such a street. Upon these grounds, my Lord, I submit that if the rule is to be of any use, and if it is a rule to be made applicable to every part of the king- dom, the description in this instance is too wide and vague to give the prisoner the benefit the Act intended he should have. (a) 32 St. Tr. 69. 171 ] Trial of John Frost, 1839 . [172 \Kelbj followed.] It is a downright mockery to contend, that by this descrip- tion there is fair information given to the prisoner of the place of abode of the wit- ness. Tne population of tjie borough of Newport is about five or six thousand per- sons, and the population of the rest of the parish is five or six thousand more. The prisoner has only about ten days to inquire into various matters respecting about five hundred different individuals, jurors and witnesses. I ask, again, is it not a complete mockery, an evasion of the statute, to de- scribe a labourer, as residing in a parish in a borough, when that parish comprises the borough, and contains altogether a population of about 10,000 or 12,000 persons ? There are parishes, my Lord, in the neighbourhood of London, and so there are in the country, of vast extent, some containing 20,000 and 25,000 inhabitants : is it to be the case, that a prisoner is to be left to make inquiries of a vast number of persons living in such a parish, with no better clue to their residence than some vague information of this kind ? As it appears (and I cannot forget that part of of the case) that the witness himself is known at the “Salutation,” we ought, I submit, to have been referred there. I put it to your Lordships (and I believe it will be the first time it has been so held, if your Lordships should hold that), whether upon this list, without any other clue to a person in the situation of a man like the prisoner, there being 10,000 or more inhabitants in the parish, that is such information as the statute meant should be given. Attorney General: Does your Lordship call upon us to answer this objection ? Parke, B. : Is there not a case upon this subject where the description was applied to Lambeth ? Attorney General: I am not aware of that ; the practice has been to describe the witnesses by the parish, as I am in- formed by Mr. Maule. Kelly: Your Lordships will not take my learned friend’s statement of the prac- tice. I cannot believe that there is any such practice. Before the Attorney Gene- ral begins, your Lordships will pardon me for referring to a case (a) in which an attorney, whose address must be given under the statute of George 2, called him- self of “ New Inn, London.” That was a mere technical mistake, which could mis- lead no one ; but we all know that New Inn is in the city of Westminster. Tindal, C. J. : That was not a want of certainty. Kelly : No, my Lord ; I have referred to that as bearing upon the first part of the argument. Wightman : In Stone's case, my Lord, (a) an objection was made on the ground of the uncertainty of the description of one of the jurymen; his place of abode was stated to be Grafton Street ; and it was contended, that as there are several streets of that name, there should have been something to distinguish which Grafton Street was meant ; but the objection was overruled. Kelly : There the street was named. Attorney General: Under the statute to which my learned friend has referred, requiring the place of abode of the attorney to be stated, your Lordship is aware that it has been held that it is enough to state the town in which he resides, and that, too, in the case of the town of Birmingham, consisting of 30,000 inhabitants. Tindal, C.J. : The objection in this case shapes itself in a double form ; first, that this is a misdescription ; and, secondly, that there is a want of certainty in it. Now the description given in this list is, that Samuel Simmons, to whom the objec- tion applies, is “ of the parish of St. Woollos, in the borough of Newport, in the county of Monmouth.” It appears to me, that this is true in every part and particular which is set down in this list. He is a resident in the parish of St. Wool- los, in the borough of Newport, in the county of Monmouth. There was no intention to enter into any detail as to how much of the parish of St. Woollos is in the borough of Newport, or how much out of it, but merely to give such a de- scription as should be true in matter of fact, the statute saying, that there shall be given to the prisoner “ the name, pro- fession and place of abode of the jurors and witnesses” in the case. The second objection is, that this is a bad description, on the ground of its being too general. In the first place it is to be observed, if the parish of St. Woollos is larger than the borough of 'Newport, inas- much as it is shown that he lives in that part of the parish of St. Woollos which is in the borough of Newport, you may reject altogether that part of the parish that is out of the borough ; and, therefore, the only question is whether the descrip- tion of a man living in the borough of Newport is sufficient or not. It is observ- able, that the statute which first gives to the prisoner the advantage of having the names of the witnesses, and their profes- sions and places of abode, couples in the same words the name, profession and (a) Stears v. Smith, 6 Esp. 138. (a) 6 T.R. 527. 173] „ Trial of John Froet, 1839. [174 placo of abode of the witnesses and jurors. I Now, upon looking at the panel of the jury, I find that every juror is returned, not as of a particular street, but generally, of the town or parish where his abode is. For instance, “ Avery, of Monmouth, gentleman ; Andrews , of Abergavenny, ironmonger ; Ball , of Chepstow, victual- ler;” and so on throughout ; none, indeed, being from Newport, because the sheriff, for a very obvious reason, thought it better not to summon any from that place ; and it seems to me, that if we should say that this was a void description of the witness on the ground of uncertainty, we must equally say so with respect to every jury- man summoned. They stand in the same predicament. On these grounds I think that both , the objections which have been raised must be overruled. Parke, B. : I am of the same opinion with my Lord Chief Justice upon both these points. With respect to misdescrip- tion, that appears to me to be entirely out of the question. The description of the place of abode cf the witness is perfectly accurate ; he does live in the parish of St. Woollos, and he does live in the borough of Newport, and there is nothing like an allegation that the whole of the parish is in the borough. And as to the sufficiency of the description, it appears to me to be enough, especially in analogy to the case cited by the Attorney General, where the town is described as the place of abode. Williams, J. : I should have thought that this was a more favourable descrip- tion of the witness than if the parish were given generally. If it were “ the parish of St. Woollos,” that would comprehend a larger surface ; but it is merely that part of the parish which is in the borough of Newport; and, consequently, that limits and confines the inquiry to a smaller space than if the parish had been given gene- rally. With regard to the other point, the sufficiency of the description, I ob- served that much inquiry was made of the witness as to whether the lot of houses there had any definite name. If it had appeared that that lot of ten or twelve houses had acquired a definite and defini- tive name, by possibility there might be some ground for contending that this was too general a description, because more might have been given ; but nothing of that sort is applicable to this case. It appears that this is the course constantly pursued with regard to those returned by the sheriff to serve upon the jury, and I am of opinion, that it is a sufficient de- scription ; certainly it is no mis-descrip- tion. iThomas Morris, a land surveyor, living at Newport, proved plans entitled, “ A plan of part of the town of Newport and roads connected therewith in the county of Monmouth.” “Ground plan of the ‘Westgate’ Hotel and streets adjoining in the town of Newport,” and “ A plan of the canals and railroads communicating with the town of Newport, Monmouth- shire, 1839.”] Richard Waters sworn. — Examined by the Solicitor General . I believe you are an attorney residing at Newport ? — I am. Had you been sworn in as special con- stable previous to the 4th of November last ? — I had been. Do you know Mr. Frost ? — I do. Did you see him on Monday the 4th of November ? — I did. Where first did you see him on that day? — Immediately before the “West- gate ” Hotel. At what hour of the day ? — About nine in the forenoon. Was he alone, or were any other per- sons there ? — Alone, inasmuch as he was on the pavement, but accompanied by an immense body of men in the road. On the pavement by the house ? — Close by the house. In front of the “ Westgate ” ? — Yes. You say accompanied by an immense number of persons; where were those persons ? — Occupying the whole of the roadway. Had you known Mr. Frost before? — 1 had known him from infancy. Did you observe the dress that he had on on that morning ? — Yes. Describe it ; did you observe any neck- handkerchief ? — I did. Describe it ? — It appeared to be a sort of loose wrapper, a red handkerchief. Have you ever heard that description of handkerchief called by any name ? — Yes ; I have heard them called by several names, a weather handkerchief they call them ; one that would be likely to be worn over another. Did you hear any firing ? — Yes, I did. Where was Mr. Frost when you first heard that firing ? — I cannot say. How near to the time when the firing began had you seen Mr. Frost ? — Almost instantaneously after I had seen Mr. Frost , I heard the firing. Where were you ; were you on duty as a special constable that morning?— Not on any specific duty further than that I had to keep watch. Were you there to keep the peace as a special constable ? — Certainly. Where were you standing at the time that you saw Mr. Frost on the pavement in front of the “Westgate”? — In the commercial room of the “Westgate.” 175 ] Trial of John Frost, 1839 . [176 Jit is the room with the bow window near Stowe Hill as you come round.] Were you alone in that room, or what description of persons were with you ? — I cannot speak to my own knowledge of more than one being in the room ; but I believe there were one or two besides. At what time had you gone out with a view of keeping the peace in this place as special constable ? — I had returned to Newport about eleven o’clock the pre- vious night, and on my arrival there I heard Never mind what you heard ? — The special constables were being sworn in, and I went up to the “ Westgate ” to offer my services. Did you remain out all night ? —I did ; that is, I remained from home all night. Did you remain out with a view to keep the peace of the town all night ? — I did. Were you during the night at one place, or at different parts of the town? — At different parts of the town. How early in the morning had you first gone to the “ Westgate ” Inn? — I had visited the “ Westgate ” in the middle of the night. How long had you been at the “ West- gate” Inn that morning before you saw Mr. Frost, as you have stated ? — I should imagine about twenty minutes ; I have no particular data. That is near enough. Had you seen this company of persons, as you describe them, before you saw them in front of the “ Westgate ” ? — Decidedly not. You did not see, then, from what direc- tion they came ? — Down Stowe Hill. Tindal, C. J. : Did you see that ? — I saw that. Through the bow window ? — Through the bow window. It should be stated that the shutters of the window when I went into the room were closed, and it was mere curiosity, in fact, that induced me to go to the commercial room ; and I opened one of the ledges of the window, when, upon doing so, I saw this immense multitude of people coming down the hill. Solicitor General : And when they came down the hill in what direction did they go to the front ? — They immediately wheeled round. How long did you remain in the com- mercial room after you saw them through the window ? — A very few seconds. Where did you go then ? — I remained in the room as long as I considered it was safe remaining there ; and on leaving the room and going into the passage, by which I might have got into the back yard, I found that the only door, through which I could have gone, was blockaded. Blockaded by whom ? — By the same men. What did you do, or where did you go when you found that door blockaded ? — I had but one place to go to, and that was upstairs. Did you go upstairs ? — I did. Where were you when you saw Mr. Frost on the pavement as you have de- scribed ? — In the commercial room pre- vious to my leaving it. Does any part of the window look across the front of the “Westgate” Inn? — It does, a portion of the bow window. There is a window that looks across the front, is that towards Commercial Street ? — I rather think they term -it Westgate Street ; if I had the plan I could explain. ( The plan was handed to the witness.) It is Westgate Street. Is the street immediately in front of the “ Westgate ” called Westgate Street ? — I believe it is. Is that a continuation of the lane, part of which is called Commercial Street? — It is. And does that lane continue to the High Street ? — It does. Inclining to the right ?— Inclining to the right. How soon after you saw this company of persons coming down Stowe Hill, you being in the commercial room, did you hear the firing, as near as you can speak ? — The time was very short— it is hardly calculable — I should say immediately ; when I say firing, really the noise and din of breaking in the windows in the room where I was was so great that, although firing occurred, I could not distinctly swear that I heard any firing at all. Did you see any smoke ? — I did not. You say there was a noise of breaking in the windows of the commercial room ? —Ido. Did that take place before or after you left the commercial room ? — Before. Who were the persons that were breaking in those windows ? — The men that I had immediately before seen coming down the hill. In what manner were they breaking in the windows ? — With various sorts of weapons. Just describe them — pikes? — Pikes and mandrils. Is a mandril an instrument something like a pickaxe ? — It is. Are the points like those of ordinary pickaxes ? — Yes, a point and a broad edge. There were various sorts of weapons, I can hardly describe them, they were so varied. Then you went upstairs ; how long did you remain upstairs ? — During the whole of the firing. Ho w many minutes, or what portion of time do you give to that ? — I have always 177 ] supposed that it lasted about six or seven minutes ; I calculate that. I think you said you could not distinctly swear that you heard firing ? — I should be sorry to say positively. Does that apply to the whole time or to any part of the time ? — During the time of breaking in the windows. When you got upstairs, are you enabled to say whether there was firing or not ? — Oh, dear, yes, some hundred volleys, I should think. Are you enabled to say, from your own observation, whether the firing came from the persons you saw coming round in the manner you have described ? — I have no doubt that the firing came from them, but I cannot say so of my own personal observation. Did you see any guns? — I did in the crowd. Were you enabled to see in going up- stairs whether those guns were discharged, or any of them ? — I was not in front of the house, and therefore could not see them. While upstairs did you hear firing ? — I did. For about seven minutes? — T should imagine about seven minutes. I think you say while upstairs you were not in front of the house ? — I was in one of the back bed-rooms. What number of persons did you find in the passage when the door was blockaded as you have described ? — That portion of the passage was quite full between the door and the room in which the soldiers were, and between that and the entrance to the house. Is the entrance to the house in the middle of the house ? — It is. Suppose you enter from the front of the house, if you turn to the right, does that lead to the commercial room ? — It does. If you turn to the left, where does that lead to P— In leads into the room where the soldiers were. Tindal, 0. J. : Downstairs ? — Down stairs, my Lord. Solicitor General : The house has two bows ? — It has. That room is one of the bow-windowed rooms, and is the room in which the sol- diers were ? — It is. Is that the corresponding end of the house to the commercial room at the other end ? — It is. And, you say, the space from the door to the room where the soldiers were was full of men ? — From the entrance hall to the room where the soldiers were, as far as I could see of the passage, it appeared to be quite full of men. Did you see whether those men had arms of any description ? — They had. [178 What had they ? — I distinctly saw one person with a weapon something like a pike, I should imagine, deliberately break- ing the windows of the bar, he was the nearest to me ; as to the weapons of the others, the time was so short that I should be sorry to say what they were. Did you go immediately from the com- mercial room up stairs? — I did, inasmuch as there was no egress to the back yard, the door being blockaded, as I have de- scribed. How soon did you quit that back room into which you went up stairs ? — After I heard the firing cease. Did you come down stairs ? — I did. Did you find any dead bodies ? — I saw several in the house, dead and dying. Had you seen any of those persons before you went up, dead or alive? — Hot an in- dividual, that I am aware of. Then they met their death while you were up stairs ? — Exactly. Had you an opportunity of seeing whe- ther there were any dead or dying persons outside the door ? — I had. Were there any ? — There were. How many ? — Four ; three dead and one dying. When you came out, what was the state of that company of persons that you had seen in front ; were they there in the same number, or less, or were they all gone ? — They were dispersed. Entirely ? — Ho, I should say not en- tirely : they were hanging on the skirts and corners of the streets. At the time you saw Mr. Frost where you have described, was there any person near you that you spoke to —I do not ask what you said ? — There was. What was his name ? — Thomas Latch. How soon was the assemblage entirely dispersed — I do not ask to minutes — was it half an hour, or an hour ? — When I came from up stairs to the front of the house the parties had dispersed, and the square, the immediate front of the “ West- gate,” was vacant ; it was completely empty. Had you seen the soldiers go into the room where you have described them as being? — I came from the barracks with them. Can you tell me the number of soldiers ? About thirty. And they had gone into that room ? — They had. How long had they been there before this transaction occurred that you have spoken of? — About the same time that I had been ; I came down with them. Did you say what time — about what time had you been with the soldiers before this assemblage arrived ? — Well, I should imagine about twenty minutes. Trial of John Frost, 1 839 . 179] Trial of John Frost, 1839. [180 Can you tell me whether the shutters of that room were open,, so that the sol- diers could he seen in the room, or whether they were closed ? — 1 believe they were closed. Did you look P — I cannot swear to that , of my own knowledge. Cross-examined by Sir F. Pollock. You say you have known Mr. Frost all your life-time, from your infancy ? — From my infancy, I have. r dare say you know that Mr. Frost was mayor of Newport ? — I do. Perhaps more than once? — I am not aware that he was mayor more than once. In what year was he mayor ? — I should think it must have been in 1836 ; I fancy so. I dare say you personally know that he was a magistrate P — I know it personally. Do you know how long he was a magis- trate — several ydars? — He was a magis- trate, I believe, for three or four years. That would be several ? — Exactly. A very active magistrate, was he not ? • — I believe so. If you do know it, I would ask you whether he was not a very active and con- scientious magistrate ? — For anything that I know to the contrary. You say you went to the room up stairs ? —I did. That was at the back of the house ? — It was. You did not see anything of what took place after you got there ? — Certainly not. Now, you say that you came down with some soldiers about twenty minutes be- fore P — I came down with them ; I really cannot tell the exact time, I have no means of calculating it ; it might have been twenty minutes, or it might have been half an hour. Do not understand me as pressing you upon the subject; I ask you whether it was twenty minutes or half an your ? — A very short time had elapsed. Where did you go to fetch them P — I did not go to fetch them ; I happened to be there at the time when information came that they were to go down. You say you had come down with the soldiers ; where did you meet them ? — At the barracks ; I happened to be at the barracks when they were ordered to go down. That is an answer ; do you see at that distance enough to tell me whether that is the barracks, the union poor-house {'pointing out the same upon the plan) f — It is. Solicitor General: Just mark a small dot at that spot. {The witness marked the plan.) Solicitor General ; This is the union poor-house, which was used as barracks ? — A portion of which was used as bar- racks. Sir F. Pollock: Were there any persons that Sunday night in custody at the “ Westgate ” Inn? — There were, though I did not see them in custody myself. Parke, B.: Which night? — The Sun- day night, my Lord. Tindal, C. J. : Between the Sunday and Monday ? — Between the Sunday and Mon- day, my Lord. Sir F. Pollock : You say you did not see them ? — I did not see them. You mean, you did not see them in custody ? — I did not. Did you see any of them come there ? — No. How do you know they were there ? — I merely tell you, from hearing it at the time, that parties had been taken to the “Westgate”; I had no curiosity to see them myself. Was there any part of the “ Westgate ” Inn that was appropriated to the recep- tion of persons in custody ? — There was. Whereabouts was that? — Between the entrance hall and the room where the sol- diers were stationed, on the left-hand side as you enter. A small room, between the bow window and the door ? — Exactly. And in front? — In front; that is the answer to the question as to whether a certain portion of the house was allotted to prisoners ; I do not mean to say that it was on Sunday night, because that I cannot speak to ; but on Monday night it was. You say there were persons in custody on Sunday night ; where were they ? — I say that I do not of my own know- ledge know that they were in custody, but I know it to be so, inasmuch as it was the current report of the town. How early in the evening did you hear it ? — I should imagine about twelve o’clock. In the day ? — No, in the night. You heard it about twelve o’clock ? — It was the middle of the night. It was the current report all night, long before the main body came to the town, that they were taking them up one by one. Had you not instructions to take per- sons up, as a special constable ? — My general instructions were such ; but I had no instructions that night. What were your general instructions ? • — Merely to perform the duties of special constable ; nothing more than that. Had you any directions to arrest any persons ? — I had not. Were there no directions to you, that* if any persons were found straggling, they should be arrested ? — No, I did not come 181] Trial of John Frost , 1839. [182 into tho town till twolve o’clock that night, when most of the special constables \ had roceived their orders. Do yon know a person of the name of 1 Vincent , of Newport?— I know, him by 1 common report, and from having seen i him latterly ; I know him, also, per- i sonally. 1 Tindal, C.J. : He had no personal ac- quaintance, but he knows him by sight. . < Sir F. Pollock : He was a shopkeeper in i the town ? — Not that I am aware of.. Do you know anything about him ? — i Nothing more than that he made several public speeches in Newport, and also pur- ported to be an author and publisher. Were they public speeches made at public meetings ? — Yes. Do you know that he was in custody at that time in Monmouth ? — I do. On the Sunday night did you know that Vincent was in custody ? — Yes. I believe here, at Monmouth ? — Yes. Do you know, yourself, whether there had been any applications made to the magistrates upon the subject of Vincent, and his mode of being treated in the gaol ? — Of my own knowledge, I do not ; fur- ther than that I have seen letters, I be- lieve, signed by Mr. Frost himself, in which he states Attorney General: No, stop. Sir F. Pollock .* I do not ask the con- tents of the letters written by Mr. Frost ; but I want to know whether there had not been a general talk in Newport of Vincent being in custody, and the mode in which he was treated? — No, I cannot say that I then knew anything of that. You say that you did not know that that was the subject of any general con- versation? — I had learned that men of the same political opinions as himself were Solicitor General : My Lord, I must ob- ject; we shall get very wide of the ques- tion by asking the witness what he heard. He is now going to state something about political opinions, which will lead to a very distracted inquiry. Sir F. Pollock : My Lord, I apprehend I have a perfect right to ascertain whether such a report existed. I am not proposing to prove the fact, that that report was well founded ; but I am proposing to prove that there were, r as a matter of notoriety, general complaints, no matter by whom, of the treatment of a person of the name of Vincent . Surely, my Lord, I have a right to do that. Tindal, C.J. ; To what period are you referring ? Sir F. Pollock : My Lord, I am referring to the time previous to the period in question. I will not disguise from your Lordship my object Tindal, C.J. : No, we do not want you to tell your object. Sir F. Pollock: I doubt, my Lord, whe- ther I am under any obligation to do that ; but your Lordship knows that the state of the country, the prevailing public reports, and the general feeling of the public mind, are taken to be evidence. Solicitor General : I did not object to the question, whether there was any general talk in the town; but having said there was not, then he is asked, “ Did you hear ” so and so. Tindal, C.J. : The note I have taken is this : “ I did not know of a general talk of Vincent, and the mode of treating him.” Witness: That is the answer I would give. Sir F. Pollock : Though you do not know of general talk, do you know of talk among persons of certain political opinions ? — I am not in any way likely to hear. Tindal, C.J. : You need not excuse your want of knowledge, but state the fact. Sir F. Pollock : Do not you know that letters appeared in the newspapers upon the subject ? Solicitor General : That surely cannot be proved? — I have expressly stated my knowledge to that effect. Sir F. Pollock : You stated “ letters from Mr. Frost ” ? — Letters, published letters ; I had no other means of obtaining infor- mation. Now, I ask, was not the mode in which Vincent was supposed to be treated matter of public discussion in the newspapers ? — Not to my knowledge. Or complaint in the newspapers ? — Yes, I have heard. Have you not seen ? — I really cannot fix my memory to the fact, whether I have seen many complaints ; I believe I have seen correspondence by Mr. Frost to the effect referred to by you; but nothing more, to the best of my knowledge ; I never read them. I thought you had stated that you had read them ? — I have seen them, and ga- thered their purport. How have you gathered their purport without reading them?— I could gather the purport without reading the corre- spondence ; it was a subject I had no in- terest in. Do you know how long before that Mr. Vincent had been in custody ? — Some months. Williams, J. : Before the night in ques- tion ? Sir F. Pollock : Before the night in question ? — At the last March assizes, I believe. You are not a magistrate yourself, or 183 ] magistrates’ clerk, and had nothing to do with the prosecution? — I am not magis- trates’ clerk, nor have I had anything to do with the prosecution in any way. Foreman of the Jury : There is one ques- tion, my Lord, I wish to put. {To the wit- ness.) You have said that you saw Mr. Frost in front of the commercial room at the “Westgate”; did the firing and noise take place immediately after you saw Frost? — It is in evidence that I say so. Thomas Latch. — Examined by the Solicitor General. [The son of a merchant at Newport. Was in the commercial room with the last witness and confirmed his evidence.] Did you hear any firing of guns while you were in the “ Westgate ” Inn ? — Yes, Idid. You say you saw Mr. Frost pass under the window ; was the firing before or after you saw him pass ? — After he had passed. How soon after ? — I suppose about two minutes. While you were in the commercial room was anything done to the windows of that room ? — Yes, they were broken in. By what persons ? — By the mob. In what part of the “Westgate” Inn were you when you heard the firing ? — I was in the commercial room. Did you remain there ? — I remained there a few minutes. What became of you then ? — I went out at the back door and made my escape. Did you see any persons in the house as you went from the commercial room to go out at the back door ? — I did. What class of persons were they ? —I saw one person with a pike breaking the windows of the bar. Were there any other persons in the passage, that you saw, besides that one person who was breaking the windows of the bar with a pike ? — I did not see more than one person. You made your escape ; where did you go ? — I went out at the back door through the back premises. [I went into the gardens at the back of the yard, and then I got home. I saw, as near as I can judge, about two hundred pass under the window. I have known Mr. Frost from my childhood.] Cross-examined by Kelly. • What time of the morning of the 4th of November was it that you went to the “Westgate” Inn? — A little after nine o’clock. And, as nearly as you can remember, how long was it before the mob were assem- bled in front of the house ? — About five minutes. [184 Then you went there five minutes be- fore ? — Yes. Had you been out before that the same morning ?^— No, I had not. Or in the night at all ? — No, I had not. Had you been to the “Westgate” Inn the day before, the Sunday ? — To the best of my recollection I had not. Had you been much out and about in the town on the Sunday ? — No, I had not; not more than usual. I do not know what that is ? — Of course I had been out to chapel in the morning. Only to chapel ? — Only to chapel in the morning ; I was out in the evening. Can you tell me whether it was gene- rally known in the town the evening be- fore this Monday, that some persons had been taken, and. were in custody at the “ Westgate ” ? — No ; I did not hear of any persons being taken into custody. How long were you altogether at the “ Westgate ” Inn, on the morning of Mon- day? — I should think I was there ten 'minutes. Did you know, when there, that there were some persons in custody ? — Yes ; I did not know that any were in custody at the “Westgate,” but I knew that some had been taken during the night. Were you at all in the little room be- tween the entrance and the room in which the soldiers were ?— No, I was not. Now, I think you say that you saw Mr. Frost pass under the window? — I did. That is the bow-window of the commer- cial room ? — Yes. Was Mr. Waters, the last witness, with you at that time ? — Yes, he was. I do not ask you what passed ; but did anything pass between you and him at the moment ? — I said I am asking, did anything pass ; was a remark made at the time ? — Yes. And that was the last that you saw of Mr. Frost ? — It was the only time I saw him. We understand there was a bow window to this room ? — Not a bow window — a pro- jecting kind of window, with three distinct windows. Did you look out of that window in the direction leading towards Stowe Hill? — There is a projection of the house that you cannot, standing at that window, see but merely across the road. I was going to ask that very question. Do you mean to say from that projection that you can see Stowe Hill ? — I can see the road leading to Stowe Hill. I am not asking whether you can see the road leading to Stowe Hill, but whe- ther you can see Stowe Hill ? — No. That you are sure about ? — Yes. Were the shutters of the window closed ? Trial of John Frost , 1839 . 185] — When wc first went into the room they were. Did you open them ? — Mr. Waters opened them. Whom did you leave in the room when you left? — A gentleman of the name of Cleave. No one else ? — No one else at that time. You have mentioned, I believe, that you saw some of the soldiers ? — No, I did not. Did you ever know that the soldiers had assembled at that house before ; did you ever know them to assemble there ? — Not a body of soldiers ; I knew that some were billeted there. That would be at ever} 7 - public-house in the kingdom. Did you ever know of any body of military assembled at that inn before ? — No, I do not recollect it. Where is the place at which the magis- trates usually meet at Newport ? — They did meet at one time in the old poor- house ; I do not ot my own knowledge know, because I have never been in the room where they met. Where they have met within a year or so before this transaction you do not know ? — Nm > Solicitor General : Would your Lordship favour me with one of the picture plans for one instant ; I only wish him to de- scribe the window that he has been asked about. (To the witness.) Just describe the window which you say you were looking out of when you saw them pass ( showiny the plan to the witness ) ? — That is the win- dow (pointing it out) . It is a window at the extreme end next the road coming from Stowe Hill ? — Yes. Tindal, C.J. : It is not, properly speak- ing, a bow window. Solicitor General : No, my Lord the house has a bay or bow in which there are three windows. John Bees . — Examined by Ludlow. [I live at Pillgwenlly ; my father’s name is Bees Bees. On the 4th of November, about a quarter to nine o’clock, I was in company with the boy Coles J Do you remember seeing a man on horse- back, riding fast towards Newport ? — Yes. I do not ask you what he said ; but did you, after seeing him, go towards the Court-y-Bella machine ? — Yes. What did you see at the machine? — When I came to the machine I met a large body of men, and they halted on the other side from Newport. You were going to mention that you saw some person do something Tindal, C.J. : Stop a minute; let us look at the general map. Attorney General: Your Lordship will see the Court-y-Bella machine coming from [186 Tredegar towards Newport ; there are two roads, one to Pillgwenlly, and the other goes up to the Friars. Tindal, C.J. : A weighing-machine, is it ? Attorney General : Yes, my Lord ; your Lordship will see, at the same time, the poor-house where the soldiers were, and St. Woollos church; and at the back of the inn your Lordship will see the Catholic chapel. Ludlow (to the witness ) : What were you going to say of Frost ? — Frost came to the front of the mob. Where did he come from to the front ? —From the hind part. Were you and Coles together at that time ? — No. How far apart were you ? — May be, half a dozen yards. Had you gone together to that place ? Kelly : What he said was, that he and Coles were not together. Ludlow : Did you and Coles go together to that place ? — No ; Thomas Davis and I. Had you seen a boy that morning of the name of Coles ? — Yes, by the Court-y-Bella machine; When Frost came to the front, did you hear him say anything ? — Yes, he asked Coles where the soldiers were. Did you hear him ask that ? — Yes. Did you hear whether anything was said in answer ? — He said there were about a dozen gone down to the “ Westgate.” Did you see anyone near Frost at that time near the front ? — Yes. Had he anything in his hand ? — Yes. What had he? — He had a pistol in one hand and a pike in the other. Who was he ? — Jack the Fifer. Was he near Frost at the time that he asked that question ? — Yes, the width of the turnpike-road. One on one side of the road, and the other on the other ? — Yes. Where were the body of men at the time that Frost was on one side of the road and Jack the Fifer on the other; were they in the road, or where were they ? — They were in the road. When Coles said there were about a dozen of the soldiers gone down to the “Westgate” Inn, did you hear Jack the Fifer say anything to the boy? — Yes, for to go on and say they meant to have the “Westgate ” by-and-by for themselves. Did you hear Jack the Fifer say that ? — Yes. Did he say that loud enough for Frost to hear him ? — Yes. Mere the men at that time standing still, or moving ?— Standing still. Did you hear any word mentioned, or anything said by anybody at that time ? — Yes. Trial of John Frost, 1839. 187 ] What? — They said, “March.” Do you know who it was who said “ March ” ? — Mr. Frost and Jack the Fifer. Upon that being said, did the men do anything who had been standing still be- fore ? — They marched on. In what way did they march — in a row, or a rank, or how ? — In a row ; there were so many abreast. Do you know how many abreast ? — No ; I cannot say. Several abreast? — Yes; the width of the turnpike-road. And others following them ? — Yes. Did you see whether any of those per- sons had anything in their hands ? — Yes. What had they? — Some had guns, and some had pikes, and some had mandrils. Were there several of them who had things in their hands ? — Yes. Did you see which way they went on when they marched ? — They marched on till they came to the road that turns up to the Friars. Do you know Commercial Street ? — Yes. And Charles Street ? — Yes. When they came to the road that turns up to the Friars, what did they do? — One party went up the road that turns up to the Friars, and the other kept on to Com- mercial Street. Do both those roads lead into the town of Newport ? — Yes. Do you know the “ Westgate ” Inn, in the town of Newport ? — Yes. Do both those roads lead to the “ West- gate ” Inn ? — Yes. Cross-examined by Kelly . How far from the “ Westgate ” Inn to the Court-y-Bella machine is this place where you saw these people ? — About three quarters of a mile, I should think. Who is this boy Coles whom you have spoken of? — Why, he works with a black- smith. What blacksmith ? — In Mr. Phelps’s yard. What is Mr. Pheljps ? — He is a coal merchant, I believe. Do you know that he is also an attorney, a lawyer ? — No, indeed, I do not. What are you yourself, who is your father ? — Bees Bees . Was he one of the special constables ? — Yes. And was he with you at the time that you speak of? — No. How long had you been upon the spot yourself near this machine before you saw these people coming? — I had not been there more than three minutes. What were you doing ? — Standing. What made you go there ? — To see the Chartists coming in. [188 You had heard that they were coming in, and you went to look at them ? — Yes. Then, when you had been there a little, you saw them come ? — Yes. Now I want to known how long had Coles been there ? — I suppose he had been there about five minutes. IColes had come up the tram-road from Pill towards Newport, towards the Court- y-Bella Machine. Pill is about a quarter of a mile from the machine.] How soon after the men had come up is it that you say you heard Mr. Frost ask anything about the soldiers ? — I should say about two minutes or less. When did they halt then ? — They halted before he came up. And from which direction did he come, after them, following them ? — Yes. How many people should you say -there were altogether ? — I cannot say. Not exactly ; but were there some hundreds ? — I should say there were some thousands. Was there a good deal of talk and noise among them? — There was hurrahing as they came. And in fact, among them, I suppose they made a good deal of noise, did not they ? — Yes. Now you have spoken as to what you tell us Mr. Frost said ; how long did they stop at this spot ? — I should say about five minutes or more. Where was Coles standing at the moment that Frost asked him that question ?— He was standing by the side of him in the front of the mob. Do you mean in the road, or on 1 he side of the road ? — On the side of the road. When they marched on did you follow them ? — No ; I ran on before them. You were not afraid of them ? — No. Did you make any noise yourself ?—No. You did not join in the hurrahing, did you ? — No. How long did you continue to go on before them ; to what place ? — I went across the fields just this side of the machine, and stopped to see which way they would go. You say one party went one way, and the other the other ; how far from the machine is it where the roads divide, and where the party divided? — I should say about thirty or forty yards. A very little way then ?— Yes. If I understand you, one of the roads leads to the “Salutation,” and the other road leads to the Friars and the church? — Yes, Do you mean to swear that they divided there? — Yes. And that one party went by one road* and the other by the other ? — Yes. How many should you say went by one Trial of John Frost, 1839 . 189 ] Trial of John Frost, 1839 . [190 l’oad, and how many by tbe ether ? — Indeed I cannot say. Bid they divide into two equal parts ? — About half went one way, the other half the other. Did you notice Mr. Frost after the time you have spoken of P — No. Did you see any more of him that day P —No. [I then ran across the fields to Mr. Hopkins’s house at the top of Charles Street. I stopped there till the firing was over. I was examined at the “ Westgate ” that evening, and again on Tuesday the 5th. I swear to the truth of what I said on both occasions.! Foreman of the Jury : I wish, my Lord, to ask one question. {To the witness.) You say that Frost and Jack the Fifer said “March”; did you distinctly hear Mr. Frost say “ March ” ? — Yes. James Coles. — Examined by Ludlow. [I live at Piilgwenlly. On Monday morning, the 4th of November, I was on the tram-road, near the Court-y-Bella machine, with j Rees. I saw a great num- ber of people come up ; they had guns and pikes, and different things, some of them one thing and some another.] Do you know the prisoner, Frost by sight? — Yes. Did you see him that morning ? — Yes. Where did you s£e him ? — Just abreast of Court-y-Bella. Is that where the men were ? — Yes. Court-y-Bella is the machine, is it? — Yes, rather above the machine. Do you know a person whom they call Jack the Fifer ? — Yes. Did you see him there ? — Yes. Had he anything in his hands ? — Yes. What did you see in his hands ? — I saw a pistol, and I cannot say exactly what was in the other hand. You saw a pistol in one hand, and some- thing in the other? — Yes. Had Frost what they call a “ comforter,” or handkerchief, round his neck ? — He had a red cravat. Did Frost ask any question of you, or say anything to you ? — Yes. What did he say to you ? — He asked me where the soldiers were that were in the town. Did you make him any answer ? — Yes. What answer did you make? — I told him that I was told that there were ten or a dozen in the “ Westgate,” and the rest in the Union House. Did Jack the Fifer say anything upon that ? — There was one came up from the rank and said, “We want the ‘ Westgate,’ ” and another came up and said, “ I want a waistcoat, for mine is damned wet.” Had either of them a pike with a hook at the end of it ? — Yes ; they were a plan- ning it out when they were stopping. What do you mean by “ a planning it out ” ? — They were showing how they would do it ; and one said that he would cut it, and the other said he would cut it too, “ for mine is damned sharp,” he said, “feel it,” and he showed it to Jack the Fifer. Was that the pike or the hook ? — The hook. “ So will I,” he said, “ for mine is damned sharp ; feel it.” Tindal, C.J. : “ So will I,” what ? Solicitor General: “Cut it” is the expression used before. Ludlow : What did he say he would cut ? — I did not hear that ; one was showing how he would cut something, and then the other showing how he would cut it ; that is all I heard them say. When they were planning it out, and doing this with the things they had in their hands, they were standing, were they ? — Yes. Did you see them afterwards move on ? — Yes ? I heard Jack the Fifer say “March.” Did you hear Frost say anything? — I did not hear Frost say anything. What did the men do upon that ? — They all went on. How did they go on ? — They walked. Were they so many abreast, or how were they walking ? — Four abreast. Do you know a place called Stowe Hill ? — Yes. Is that by the Friars ? — Yes. Did you see the men go as far as that place? — Yes, they made me go with them from there up to Stowe Hill. I wanted to go down Charles street, and they would not let me go. How did they stop you from going down? — Why, there was a man with a stick went before me, and a good many besides. *Did they stop you from going away ? — Yes. Did you see whether they afterwards went to the “AYestgate” Inn or towards the “ Westgate ” Inn ? — Yes. Did they all go the same way, or some one way and some another? — I did not see them, only those that went down. Stowe Hill. Do you know whether any went the other way ? — No, I do not. Cross-examined by Sir F. Pollock . [I am sixteen years and three months old. I was going to Pill at the time to get my breakfast, and I heard a report and turned round. The blacksmith’s shop where I work is about three quarters of a mile from Court-y-Bella. I work now for 191] Trial cf John Frost, 1839. [192 Mr. Plielps, who is an attorney, and also a coal merchant. I work in his smith’s shop where he repairs his tram.] Thomas Sevan Oliver.— Examined by Talfourd. [A printer and a special constable. Was placed by the mayor in the front doorway of the “ Westgate ” Inn with other con- stables, and saw the mob coming from Stowe Hill. 3 Could yon observe whether there was any order in the weapons ? — Yes. Could yon observe that the parties who had particular weapons occupied parti- cular places in that body ? — Yes. What was it you observed in that respect ? — They seemed to be five abreast, and one man of every other rank had a gun ; at least a person with a gun marched on the right-hand side of them ; that was the near side to the “Westgate;” the others were armed with pikes and those different instruments. So that on the outside, of each front rank was a man armed with a gun ? — On the inside. On the right hand leading to the cor- ner ? — Yes ; I cannot say for certain that none of those fives in the middle had guns, because I could not exactly see. But you could observe that, as far as you saw, those who were on the right- hand side of every other rank had a gun ? — Yes ; so that there were ten, and then there was one man had a gun. Were you at that time standing by the door-post ? — I was. In what direction did this body which you have described go, when they first wheeled round the corner? — They went toward the yard gates. Were those gates at that time open or shut ? — I cannot tell. Did you yourself see any attempt made to get in there? — They seemed to go towards it ; I cannot say that they went to the gates then, because the angle of the house would prevent me from seeing the gates. All that you know is that they seemed to go there in the first instance ? — Yes. Do those gates lead into the court at the back part of the house ? — Yes. Did you see a man named Walters there ? — I did. Did you observe what weapon Walters had ? — I did observe it. What weapon had he ? — A gun. Did you observe him as he passed the window do anything, make any motion with the gun? — Yes. What did you observe him do ? — He held it up in a threatening attitude with one hand, seemingly pointing to some person in the window, but I cannot say whether there was any person there. Now after you had" seen the crowd go first toward those gates, did you observe them change their direction ? — Yes ; at least they stopped; they halted in front of the house. Did any of them come to the front door where you were stationed ? — Yes. Can you at all tell what number it was that came up to the door ?— No. How were those armed that came up to the door? — The first was armed with a gun, who came to the door; there were some others who came armed with pikes ; they did not march up to the door, that is, not in order ; they marched there, and then they came up to the door, not in order! The door was not wide enough for them to march up to it ? — About four feet wide. They marched up in order and halted, and then a party came, not in order, to the door, and halted ? — Ye3. Did you hear either of the persons who so came up in that manner towards the passage address anything to the special constables ? — Yes. Tindal, C.J. : Was that the man with the gun? — Yes, my Lord. Talfourd: What was it he said to the special constables ? — He said, “ Surrender yourselves our prisoners.” Did you hear any answer made to that request ? — I did. From some one in the passage ? — Yes. What was it ? — “ No, never ! ” Upon that did the man with the gun do anything with it ? — He did. What did the man with the gun do? — He levelled it at my head. What did you do upon that ? — I caught hold of the door and it struck the gun on one side, and the gun went off about three inches from my head ; it stunned me. Did you hear any firing immediately after that ? — I did. Are you enabled to tell from whom that firing proceeded ? — It came from the out- side, the first that I know of. That you are sure of? — Yes. After the firing, which you are sure came from the outside, did you hear any other firing ? — I heard firing afterwards ; it lasted several minutes. What became of you during that firing ? — The men, when they rushed into the passage, pushed past me, and the smoke became so great that I could not tell one party from the other in the passage. The smoke from what? — From the firing ; I made my way through them ; I could not tell who they were ; and went out at the backdoor of the “ Westgate’’.* into the yard. r 193] You say there was a good deal of smoke from the firing in the passage ; could you at all form a judgment about how many persons there were struggling in the pas- sage P— No ; it was crowded. Could you tell whether the persons in the passage were armed, generally, or not ? — Yes, the generality of persons were. With what sort of weapons P — Those which had come from the crowd. The same kind of weapons ? — Ye3, the same kind of weapons. Did the firing continue after you had got into the yard ? — Yes. How long did you remain in the yard before you returned into the house? — I did not remain there any time ; I went through the yard, and through the back way of some houses, and went home. You avoided the crowd in front alto- gether ? — I did. Did you return again to the “ West- gate ” that morning P — Yes. What was the reason you, as a special ■constable, went away from the “ West- gate,” and went home ? Kelly : If it be a fact my learned friend can inquire into the fact, but I do not conceive the reason can be evidence. Talfourcl : What induced you to go liome ? Kelly : Stay one moment ; I must take your Lordships’ opinion whether the ques- tion can be put in that form. If the object be to obtain the statement of a fact in answer, I submit my learned friend is not entitled to put that question. Talfourd : I will not argue about it if there is any doubt. (To the* witness.) What was the last thing that occurred before you went away ? — Which occurred in the paseage P Yes P — When I went through the pas- sage, the persons were in there who had come from the crowd. Did you leave them in the state you have described ? — I did. How long was it before you visited the Westgate ” Inn again on that morning ? From twenty to twenty-five minutes. Did you find any crowd there at that time ? — No. They were dispersed ? — Yes. Did you see any persons lying dead there ? — I did. How many ? — I saw two in front of the “ Westgate,” and two at the side. Cross-examined by Kelly. [I know Mr. Frost: I have never had much intercourse with him. I was called out between eight and nine o’clock in the evening of the Sunday; I continued to act during the whole of the night ; on the o 67432. [194 Monday morning, at least it was after twelve on the Sunday night, I knew of some porsons having been taken into cus- tody.] At what time on Monday morning, that is, the night of Sunday, or the Monday morning, did you know of any person having been taken custody? — I believe the first to have been the first that I ‘saw, about two or three o’clock. In the course of the night, or before this riot took place on the Monday morn- ing, did you see any more that were taken into custody P — Oh, yes. Several during the night P — Yes. I call it in the night, but it was early in the morning P — Yes. Several you say after midnight, and be- fore the more serious riot took place P — Yes. They were, I believe, Chartists, or what you call Chartists P — They were taken as such. From various parts of the town , I sup- pose P — I do not know of any but from one part. Or, as my learned friend suggests, the ■ country, perhaps ?— I did not see them taken. Where were they placed in the “ West- gate ” Inn ? — I saw some taken into the long room. Whereabouts is that room ? — It is the long room nearest to the yard gates. Can you tell me by what letter it is described on that ground plan ? — The letter E. Is that one of the rooms with a bow window, or a projecting window — never mind the strictness of the expression ? — Yes. The one to the east ? — Yes. Parke, B.: The same room where the soldiers were afterwards P — Yes. Kelly: Were those persons kept some- where or other in the “Westgate” Inn in custody until the attack upon the house by the mob ? — I saw them a little while before the attack upon the house by the mob. I do not suppose you had your eye upon them the whole time ? — I believe them to have been in the house then. [I last saw them about six o’clock. They were then in the room next the long room, marked G.] Between the entrance and the soldiers’ room, as we call it P — Yes. You saw some of them in that room about six, and you have no reason to sup- pose that they afterwards left? — No; it may have been between five and six. Tindal, C. J. : Not in the great room ? Kelly: No, my Lord, but about six he saw them in the room marked G, between the soldiers’ room and the entrance. G T) 'ial of J ohn Fi mt, 1839. 195 ] I About six I went out, and I went borne and had my breakfast, and washed my- self ; I felt tired, but I did not stay at home.] Then you went back and placed yourself with other special constables in the en- trance? — Yes, I was placed there. Now tell me as exactly as you can, to the best of your recollection, how soon after you returned there the soldiers came ? — They were going into the house as I returned. I think you said that was about nine o’clock ? — I returned about a quarter of an hour or twenty minutes before the firing took place, before the row; it must have been about nine ; but I cannot say the time. You went into the inn at the same time with the soldiers, and you had been in a quarter of an hour or twenty minutes before the firing commenced ? — Yes. Just tell me what was the first thing you saw of the riot which afterwards en- sued? — I saw the persons coming down the hill ; the first thing I heard previous to my seeing was the hurrahing. Did that induce you to look out ? — No. Then how and when was it that you saw the persons coming down the hill ? — I was standing at the door, and as they came down the hill, when we heard the hur- rahing, the constables who were in the passage were pushing over my shoulder to look towards the window to see them, and I kept pushing back, being an outside one, and as soon as ever they came round the corner I saw them. Then did they immediately form, or were they in ranks in the way you have described? — They were in ranks at the time they came down the hill. At the time they came down the hill ? — Or round the corner, I cannot say down the hill. You have spoken of some person or other of the name of Walters, and you have spoken of some one carrying a gun, do you mean the same person ? — Walters carried a gun, and another man carried a gun who came up to the door ; I have spoken of two carrying a gun, I believe. Was there any one in particular who appeared to you to be the leader ? — I did not see any person in particular who ap- peared to be the leader. Now just look at that — {a paper was shoivn to the witness ) — is that your depo- sition ; did you make oath to the matters there written ? — Yes. On what day ? — I do not know when it is dated ; I think it was on the 5th of November. Kelly : My Lord, I do not want to oc- cupy the time by reading the whole of this deposition, unless my learned friend wishes it. [196 Attorney General : I wish to have the whole read. Kelly : I see there is one person men- tioned under the title of “ leader,” whom do you mean ? — The first thing that, catches my eye is, “ when the leader said, ‘ Surrender yourselves as our prisoners that is the leader who came up to the- door ; I do not speak of the leader of the- crowd. There is the expression “leader” fre- quently used there ; is it the person whom you have named as Walters, or the other person who had a gun ? — The other per- son; I meant when I said leader, the person who came up to the door ; it says, “ when the leader said, ‘ Surrender your- selves as our prisoners’ ” Kelly : You had better confine yourself lo answering the question. Attorney General : It had better be read. [The deposition of Thomas Bevan Oliver was read ; it contained the following statement : — ] “Previous to their coming up to the front door I saw the prisoner Charles Walters amongst them. He had a gun in his hand, which I believe- to be a double barrel one. I cannot swear to that. I know he had a gun. As he was marching- along he held his gun towards the windows, in a threatening manner, as if there were persons at the window. I did not see him do anything: further. The first of the mob had by that time come to the front door. I heard the leader of them say to us, ‘ Surrender yourselves our pri- soners.’ I believe he was one of those who are now dead. Mr. O’Dwyer, Mr. Hopkins, the policeman, aud Mr. Venn, were standing near me at the time, when the leader said, ‘ Surren- der yourselves as our prisoners.’ Some one near me said, ‘.No, never.’ Immediately that was said, the leader levelled at me. On seeing that I pushed the door aside, and it struck the gun aside, the gun weat off and quite stunned me.” • Kelly : Now, I will just repeat my ques- tion. You observe you call somebody or other “ the leader,” and the “first of the mob,” and so on. I want to know who- was that person ? — I believe it to be one that is dead. “The leader;” that is the leader of those that came up to the door. You need not go into further explana- tions. If you can answer the question, do; if not, do not give me something that I do not ask for. As to the name of the person, I understand you do not know that. Tindal, C. J. : He believes him to be one of the persons that was killed. Kelly : How long after was it that tho mob had assembled before the door that the question was asked about prisoners which you have stated ? — I do not know that a minute elapsed. Was it not one of the first things said or Trial of John Frost, 1839 . 197 ] Trial of John Frost , 1839 . [198 done ? — It was ; that was after they had been hurrahing. When they came to the front of the house where there was an open door, was not that one of the first things said or done by any of that body of men? — It was. Was there a good deal of noise and con- fusion at that time ? — Outside. You yourself, I understood you to say, were quite in the front? — I was. I do not mean to throw the least re- flection upon you ; but were you not con- siderably alarmed at the time from your position, and seeing the persons before you ? — 1 was alarmed ; I cannot say con- siderably. I presume you will not undertake to swear positively to the precise words used by the person who said what you have mentioned concerning the prisoners ? — Those, I believe, to have been the words. I have no doubt you do, or you would not have sworn it. I only ask you whe- ther, considering the noise that prevailed at the time, and your situation, and the alarm, be it small or great, that you felt, you can undertake to swear positively to the words, or do you only believe that that was the substance and effect ? — There may be, perhaps, a single word ; but I am sure I cannot say. I believe them to have been the words that were said. Did you observe whether they were addressed to any particular person ; you have stated somebody or other gave an answer? — Yes, they were addressed to me ; the man was about a yard from me, and he seemed to address himself to me, being on the outside nearest to him. May they not have been addressed to the whole that were then assembled? — Oh, yes. Do you know who it was that cried out “ never ” ? — No. Was it one Of your party ? — Some one from behind me. Was there anybody in that entrance but the special constables ? — Not that I know of. You went away before th9 firing had completely finished ? — Yes. Did you remain within hearing ? — Yes. How long should you say that the firing continued ? — Perhaps, about ten minutes, as near as I can say. [I know Vincent, the Chartist, but not personally ; I do not know that any com- plaints were ever made of the way in which Vincent and the others were sup- posed to be treated in prison.] Re-examined by Tatfourd. How near do you think the person who addressed those words to you and your party was at the time he spoke?— The length of his gun. Whatever might have been the precise words used, are you quite sure that the effect was that which you have stated ? — Yes. You have spoken of two persons who had guns ; were they the only two persons that had guns, or were there many others ? — Many others. Henry Evans. — Examined by Talfourd . [I am a saddler in Newport ; I have a house in the neighbourhood of the “ West- gate ” Inn, nearly opposite. On the morning of the 4th of November I was standing at my shop door; I could see the whole front of the “ Westgate” Inn, but not the corner of Stowe Hill. One Mr. Daniel Evans lives next but one to me, who is a tailor. At about nine in the morning I saw something unusual — a great number of people coming down Stowe Hill armed with different weapons ; from three to four hundred persons came round the corner ; I could not see the others behind ; they marched seven or eight abreast ; it is a rough guess of mine.] Was there any person who appeared to be in advance of the body ? — I did not notice but one man. Was he armed ? — He was. How ? — With a gun. To what point did they first appear to you to direct themselves when they came- round the corner ? — The man that took my attention first went up the “West- gate ” yard, and tried the gates which go into the “ Westgate ” yard. Were they open or fastened? — They were fastened from the inside. Yon say you saw this man go up and try those gates ? — He went up in the di- rection of the gates ; I could not see the gates ; he went up and came back again. He went up to the gates as if to go in, and then turned from them ? — Yes. In what direction did the persons who had wheeled round in front of the “ West- gate ” go when the man had gone to the gate, and had come from it ? — The man that went to the gate returned back, and. met the mob, and they all stopped in front of the “ Westgate.” The man that had gone up returned towards the body, and then they haited in front of the “ Westgate ” ? — They did. What was the next thing that you ob- served? — This man fired a gun into the- long room, in which the military were, in the “ Westgate.” That was the man whom you had ob- served with the gun before ? — Yes. G 2 199 ] [200 Trial of Joh r t Is what yon call the long room the room nearest your house ? — Yes. Did you know whether there were any soldiers there at that time P — Yes, I did. Was that the room in which the soldiers were ? — It was. Did you see any other of those persons who went up there armed, as you say, do anything at that window ? — Ho, I did not. What was the next thing you saw done by either side P — I heard several guns firing, and I saw the windows opened, and I went into my house and shut the door. You saw the windows of that room opened, and then you went into your house and shut your door ? — Yes. And you saw no firing come from the soldiers ? — Ho, I did not. Cross-examined by Sir F. Pollock. Your house, I believe, is on the east side of Westgate Street ? — It is. Is it nearly opposite the gates that you speak of where somebody went up ? — Hearly opposite. How many persons went up to those gates ? — I did not see but the one. But you saw that one go and come away again ? — Yes. Where were the soldiers ? — In the long room. Which do you call the long room? — The nearest r6om to my house ; there are three windows in it. I think your attention had never been called to these occurrences till you heard the noise of persons coming round the corner ? — Yes, it was, because I shut my shop about half-past seven o’clock. You were asked what time you observed anything; you said about nine o’clock; you shut your shop between seven and eight ? — Between seven and eight. And about nine o’clock you heard this noise of people coming round the corner P — Yes, I did. You say your shutters were shut ? — Yes. How were the shutters of the inn at the time that the people turned round the corner ? — The shutters are divided in half, and the lower part of them, which is about six feet from the ground were shut, and the top shutters were open of the long room. Do you know the room ? — Yes, perfectly well. When the shutters are shut are they not six feet from the ground P — Yes, they are. So that persons standing on the floor of the room could not look over them ? — Ho, they cannot. Does the ground slope away from the inn ? — Yes, it does. Were those shutters close shut P — Yes. , Frost , 1839 . Re-examined by Talfourd. You say that you only saw one man go up to the gates as if to try them ; how near were the body to him at that time ? — I should think about ten or twelve yards from him. Daniel Evans. — Examined by Talfourd. [A tailor, living next door to the last witness. Saw the mob by the gates of the “ Westgate ” yard; they then wheeled round, and stood opposite the door in front.] As they stood there did you hear any exclamation from any one of the party ? — After they had wheeled round and were going up the steps, I heard the word given by one person. What was it he said P — I do not know what he said; I think it was, “In, my men,” or “In, my boys,” and at that time I lost sight of them. Did you distinctly hear those words ? — Quite distinctly. Had there been any firing before you heard those words from one of the party ? — Hot that I am aware of. You say at the time those words were uttered, the party were in fact going up the steps ? — The party were going up the steps, and I could see guns and pikes going up the steps. Did you see any of that armed party do anything more against the “ Westgate ” window P — I saw them tearing the lower windows to pieces with their spikes ; they beat them in, and jumped in afterwards through the window. Did you see any firing at that time ? — I could hear firing at the time in the passage; at the time they were beating the windows. At the time that part of the party were breaking the windows you heard firing in the passage ? — In the passage. Do you know the room where the sol- diers were ? — Perfectly well. Did you observe any person in' the “ Westgate ” open the shutters? — I stood at my own door, and the moment that I saw and heard the firing commence in the room before the shutters were opened, I went in and locked the door. You say “in the room,” do you mean in the passage? — The firing commenced from the mob on the front door ; I was standing at my own door. Was that before anyone opened the window- shutters P — Yes. Were those lower window-shutters closed at the time when the mob came up P — They were. Did you see any firing into the room from the party ? — I did. Was that before the shutters were 201 ] Trial of John Frost , 1839 . [202 opened? — After the shutters were opened ; they were opening the shutters at the time the firing was at the windows. Upon that, did you remain there, or did you go into your house P — Before the sol- diers began to fire, I was not aware that they were in that room ; the moment I found that they were in there, I saw it was full time for me to go ; I went in and locked the door, and ran up stairs to the window at the top of my own house, and there I could see them quite plain. Then there was no firing at all from the “ Westgate ” before the w r indow-shutters were opened ? — There may have been fir- ing in the passage. Had there been any firing from the “ Westgate ” into the street before the window-shutters were open ? — The sol- diers I believe, fired before the shutters were opened, but I think they fired up ; they could not fire upon the mob ; they could not see them. They could not possibly fire upon the mob till the shutters were open ? — They could not. Did the upper window that you went to command a view of the front of the “ Westgate ” ? — Entirely. What did you observe from thence? — I was there about half a minute before the first man was shot ; I saw him falling after the soldiers’ window was opened ; he fell nearly by the corner ; the next fell upon the steps ; he was in the act of going in when he was shot ; one arm was in the door when he fell, and the other man was shot from the nearest window to the porch ; he was nearly an hour and a quarter before he died. The next man jumped out of the window next the cor- ner ; he went upon his hands and knees. Parke, B. : It is not necessary to go into these details. Talfourd : Hot at all. Did you see what effect the firing of the soldiers had upon the crowd without? — I did. What was it? — The moment they saw the first man falling they all began to disperse ; they were running in all direc- tions. When you got up to the window at the top of the house, I suppose the windows of the “Westgate” were open? — They were open. Cross-examined by Kelly. I think you said you saw them come up when the mob first assembled before the door? — I saw them first coming round from the direction of Stowe Hill. You say the first man held a sword in his hand ; who was the first man ? — I be- lieve that the first man that came in was Rees the Fifer, as they call him. Whom was it that you next saw that had a gun ? — John Lovett. Where did he come from? — He came along with the mob. Was he outside, or in the middle, or where ? — He was not in the middle ; he walked alongside. How many men did you see with guns ? — I cannot say that. Were there several ? — A great number. Were they in front of the “ Westgate ” Inn together ? — I cannot say that they were together, because when they came to the front of the big doors they appeared to be rather confused, because they found no entrance in, and then they turned back again. I want to know whether those persons who had guns when they first appeared in front of the “ Westgate ” Inn were all to- gether, or was there now and then a man with a gun, and now and then a man with- out one; how was it? — I cannot answer for that ; I can only tell you that I saw a great number with guns. In different places ? — They were mingled together before they came round ; and when they came back again, of course I could not say. Did anyone more than another appear to you to be the leader ? — I did not notice anything of that, more than that I heard the word distinctly from the one man. Was there no one who appeared to you to be the leader ? — Only this Rees the Fifer had a sword in his hand, and he seemed to wave the sword. Is he the one you would call the leader ? — I do not call him the leader more than the others, because they all appeared to be voluntarily coming up. Then I am to understand you to swear, that there was no one more than another that you would call the leader ? — I cannot name one more than another. When the soldiers fired out upon the mob, when the shutters were open and they could fire freely, did not the mob disperse almost instantly afterwards ? — As soon as they saw the first man shot they did, but not before. Was not that as soon as the soldiers began to fire ? — Yes, but the passage was full, and they were getting in through the windows ; but when they saw the first man fall, then they began to disperse. I want to know whether that was when the soldiers first began to fire out in the front ? — They were nearly full in front when they saw men falling, and then they began to disperse. I want to know whether the men did not fall the moment the soldiers began to fire out in front ? — Ho. Then how long afterwards ? — They fired, I dare say, about a minute, or nearly there- 203] Trial of John Frost, 1839. [204 abouts, because they were firing while I was going up stairs. Did you see them firing out in front ? — I did. Do you mean to say there were firing out a minute, or anything like a minute, before anybody was hit ? — Yes ; I could not go up stairs under half a minute. Where were you when you saw them first firing p — At my own door. Did you observe the shutters opened? — They were opening the shutters. Which shutters did they open first? — There were only the lower shutters closed. I suppose it is not one shutter to the whole of the window ? — dSTo ; I cannot say exactly which window, "because there were soldiers at each window. There were three windows ? — Yes. Do you remember out of which they fired first ? — No ; I cannot say. Did they fire sooner out of one than another, or did they fire out of all together ? —That I cannot answer. Am I to understand you to say that you did not observe sufficiently to enable you to tell me whether the soldiers fired first out of one window, or whether they fired out of the whole together? — I cannot say out of which window they fired first. Can you say that they fired out of any- one before they fired out of the others ? — I cannot say. How long after you got up stairs was it that the mob was dispersed, or began to disperse ? — I should think I was up stairs about half a minute before the first man was shot ; and I dare say I was about half a minute going up stairs. William Adams. — Examined by Talfourd. [Park keeper to Sir Charles Morgan of Tredegar Park. "Was standing on the high road by the lodge-gate about ten o’clock on Monday morning, and saw two or three hundred people running and walking. They were coming from New- port, two miles and three quarters dis- tant.] Did a person come up to you whom yon now know to be Frost? — Yes. Had he a handkerchief in his hand? — Yes, in his left hand ; and I thought he was crying. IJp to his face as if he were crying ? — Yes. At what sort of pace was he coming by you ? — A good walk, not running ; a good strong walk. Was he coming in the direction in which you told us the other people had gone from Newport towards Cardiff? — Yes ; I did not know it was Frost. He had his handkerchief up to his face ? — Yes ; and I asked him what was the matter at Newport that the people were all running away for. Upon that did he take his handkerchief from his face ? — Yes ; and then I asked him, “ Oh, how do you do ? ” Upon his taking his handkerchief from his face, did you know it was Frost ? — Yes, I did. Did he make you any answer when you asked what was the matter ? — He did ; but I did not understand what the word was. Did he stop, or did he pass on ? — He passed on at the same pace. At the sarfie pace at which you had observed him coming towards you ? — Yes. In what direction did he pass on ? — He went on towards Cardiff, on the Car- diff road. Were you on foot, or on horseback? — On my horse. Did you turn your horse to look after him ? — Yes, I did. Did he keep the road, or did you see him turn out of the road ? — He kept the road, I should think, for about two hun- dred yards. Where did he go to when he quitted the road ? — He turned down a gateway into a field , and then there is a kind of a copse or a break which comes down the side of the park wall. Is that round the corner of the park wall ? — It is. Is there any public pathway in the field he turned into? — No; and then I lost sight of him. Cross-examined by Sir F. Pollock. [It was very near two o’clock, I should think.] Sir Thomas Phillijps. — Examined by the Attorney General. On the 4th of November last were you mayor of the borough of Newport? — I was. Having been mayor, I presume, from the 9th of November preceding ? — Yes. In the course of Sunday, the 3rd of November, did you receive any intelli- gence that induced you to take any steps for preserving the public peace ? —I did. Did you give any orders to the special constables ? — I gave orders to the super- intendent of police to have a number of special constables in attendance on the evening of that day. Without inquiring into the particulars of the intelligence, was it intelligence that there was some movement in the hill district ? — It was directed upon Newport. How were the special constables sta- tioned in the evening of the Sunday ? — In the early part of the evening they were.; divided at. three houses, the “King’s 205 ] Trial of John Frost , 1839 . [206 Head,” the “Westgate,” and the “Par- rot.” Are those the three principal inns in the town of Newport ? — They .are the three principal inns in the town ; but at a later period of the evening those who had been in attendance at the “Parrot” were re- moved to the “Westgate,” so that from that period they were divided into two parties, one at the “King’s Head ” and the other at the “ Westgate.” Did you concert measures with any other magistrates for the safety of the town ? — I did, with Mr. Brewer and Mr. Edwards, both of whom were then magis- trates of the borough. In the course of the afternoon I explained to the Lord Lieutenant of the county Sir F. Pollock : You had better tell us what you did, not what you said to any- body. Attorney General : In the course of the ■evening did you station yourself at any particular place in Newport? — At the “ Westgate ” Inn. Was either of the other magistrates along with you ? — Mr. Brewer. Had the magistrates met at the “ West- gate ” Inn before : was it a place where they had been accustomed to meet? — No, it was not. When did Mr. Brewer and you station yourselves at the “Westgate”? — About nine o’clock. In what room in the inn (a plan was handed to the witness) ? — That is the room in which we were stationed {pointing it out upon the plan) — the next room to the bow- window. Attorney General : That i3 the room, next the bow window on the west side ? — There are two rooms between the bow window and the door-way ; the room in which we were was the one next the bow window. The room G, next to F, next to the commercial room ? — It is. Did you remain there through the night ? — I did. Did you receive any intelligence of the approach of any persons towards New- port ?— We did. About what hour? — I had received com- munications before I went to the “ West- gate” as early as six o’clock in the even- ing. After we went to the “Westgate” we had further communications, from the period very soon after we got there till daybreak. Did you send out persons to bring you information? — We sent out a detachment of constables who were relieved every two hours ; their directions were to keep up the communications. Sir F. Pollock : Really I must object to this. Attorney General : Directions given to the constables, I should think, are evidence. Sir F. Pollock: No; all we can hear is what the witness himself did or what he saw done. Attorney General: He gave those direc- tions. Sir F. Pollock : If the constables did anything in pursuance of those directions they can prove that ; but my learned friend means to infer from this that the constables did something. Tindal, C.J. : He only asked whether the witness received intelligence. Attorney General : Did you send out persons to procure you intelligence? — We did. Did they from time to time bring you intelligence ? — They did. Do you recollect sending out a person of the name of Walker? — I did. About what hour was W alker sent out ? — I should think about six o’clock. Parke, B. : Six in the morning ? — No, in the afternoon, before I had gone to the “ Westgate.” Attorney General: Was he sent again the next morning? — No; he came back wounded. At what time ? — I should think about eleven o’clock at night. Did you send constables to a place called the Marshes ?— I did. Were any persons brought before you in custody ? — There were. Whereabouts are the Marshes to which you sent the constables ? — They are on the north side of the town, immediately at the northern entrance of the town. Above the bridge ? — Above the bridge. About how many persons were brought in custody before you in the course of the night? — More than a dozen, L should think. By the constables? — By the constables. Were any of them detained in custody? — There were. About how many ? — I should think as many as a dozen must have been detained in custody ; there were more than that brought before us. Where were they placed ? — The greater part of them had been sent up to the bar- racks ; some of them remained in the “ Westgate.” How far do you judge that the barracks are from the “Westgate”? — Somewhat less than half a mile. In what room in the “ Westgate ” were those that remained at the “ Westgate ” ? — I know that there were some of them in the end room on the east side of the house, and in the next room to it. That is the room that the soldiers after- wards occupied and the room uext to it ? — Yes. 207 ] Trial of John Frost } 1839 . [208 Did you receive any intelligence of tlie approach of any persons to Newport later than that ? — I received intelligence of the approach of persons to the town until shortly before nine o’clock, between eight and nine o’clock in the morning of the Monday. Did you hear of their approaching P — I did, at different points of the road. Did you at last send any message or any request for troops to the barracks P — I did. About what hour was that? — It was very soon after day-break. In consequence of that did any military come to your assistance at the “ West- gate ” ? — There did. How many ? — I believe there were thirty ; I do not know that of my own knowledge. Under whose command ? — Lieutenant Gray, now Captain Gray. Do you know what non-commissioned officers there were? — I know Sergeant Daily ; I believe the other was Sergeant Armstrong. There were two sergeants ? — Two ser- geants. When Lieutenant Gray arrived with the soldiers what was done with them P — He first formed them in front of the house. [At my request he then marched them into the yard through the large doors ; they were formed again in the yard, and I directed the large doors to be closed after them, which was done.] Do you know how they were secured ? — I believe they were fastened on the in- side by means of a square piece of iron which crosses them ; I then took Lieu- tenant Gray into the room, to the eastern end of the house, and told him that I had proposed that the soldiers should go into that room if he approved of it as a proper position for them; he did approve of if.; but it was necessary that it should be ven- tilated, and the troops were not marched into it for some little time. They were stationed there with Lieu- tenant Gray and two sergeants P — They were; soon afterwards I went into the passage, and. learning that the party ad- vancing to the town were then in the town That is the passage that leads from the end room into the commercial room? — I passed through that passage into the front passage opening to the front door, and then I directed the special constables who were about the door to withdraw into the house, which was done ; and I directed the front door to be closed, which was also done ; the door was afterwards opened and two or three special constables were put in charge of the door with orders to per- mit no one to enter. I then went from that passage into the room above what you call the commercial room, at the west end of the building ; it is a room, I believe, of the same size and of the same form, with bow windows as that has. On the first floor P — On the first floor of the building ; learning that the body that was advancing was coming down the street at that end of the house. Coming down Stowe Hill ? — Coming down Stowe Hill. Is there a view from that bow window ? — On the first floor there is a window similar to that marked upon the plan, through which I could see a body of men passing the wing of the house formed in column. Describe what you mean by being formed in column? — They were what I call a column of men, formed regularly abreast of each other. Could you see whether any of them were armed? — Those that I noticed were all armed. With what weapons P — Some with gun& and some with long spears or pikes; I stayed a short time at the window to observe the appearance and formation of the body, and I then ran hastily down stairs into the passage below. When I got opposite the bar, which is immediately in front of the door, I there saw the heads of what appeared to me to be a column, or a body of men, entering the door ; I believe they were, at the instant, with- in the door-way, but if not within the door-way, they were close upon the door- way. That is the front porch? — The front porch of the house. In what mauner were they entering the door ?~They were standing with weapons at their sides ; I observed them with what appeared to me to be spears at their sides as they were entering the door. How were the weapons carried ? — They were carried at their sides. Horizontally ? — No, vertically ; I then ran forward to the room in which the soldiers were. Through the passage ? — Through the passage, and I said, “ Lieutenant Gray ” Kelly : You need not mention what you said P — I gave them an order to load. Attorney General: That is strictly evi- dence ? — Whilst the men were in the act of loading, I heard several shots fired in the passage. Which passage ? — I could not tell that from the sound ; it was one of the pas- sages of the house. Inside the house ? — Inside the house. Did you hear those shots before the soldiers loaded their pieces ?— Certainly ; I also heard the windows of the room in which the soldiers were beaten against. 209 ] Trial of John Frost, 1839 . [210 Beaten against, from where ? — From the outside. What effect did that produce? — The lower half of each shutter was closed, and I heard a noise against the board, as if the shutters were pushed against violently, and the glass above was broken. Had the lower half of the shutters been shut when the soldiers were first placed in the room ? — Before they were placed in the room. Of all three windows? — Of all three windows. I perceived the soldiers could not act, on account of the lower half of the shutters being closed. This was after they had loaded their pieces ?— Immediately they had loaded their, pieces. Did the beating against the windows continue? — It did. Had any shots been then fired against the windows ? — I believe so ; I heard a report at least of fire-arms outside. What was then done with respect to the shutters ? — I made an exclamation, and Lieutenant Gray advanced to the shutters of the middle window, which he opened, and I advanced to the shutters of the side window, which I opened. Was that on the right or the left ?— The shutters of the window that looked to the front of the building. That would be on the left? — On my left, nearest to the centre of the house. You and he approached to the window to throw the shutters open ? — To throw the shutters open; he, I believe, opened the middle shutter, and I opened the shut- ter that I named to you. What happened upon that? — I turned round, and I found my hand benumbed, and upon looking at my arm I discovered that I had been wounded, and upon looking down at my trousers I perceived two holes in my trousers, and found that I had been wounded in the hip also. From whence did those shots proceed p — From the outside. Did it afterwards appear with what sort of ball or slug you had been wounded ? — I understood the wound in my arm to have been inflicted with slugs ; the wound in my groin or hip I understood to have been inflicted by a ball. Did you see whether Sergeant Daily was wounded ? — I saw him afterwards in the room wounded. Had you been wounded before the soldiers fired ? — I had. I was wounded in the act of opening the window, and I saw no soldiers fire till after that time. Did the soldiers fire ? — They did. Into the street? — Into the street and into the passage. What was the state of the passage at the time they began to fire into the pas- sage ? — I cannot tell you that ; at the time they began I was near the other end of the room. Probably you do not know what dead bodies were found in the passage ? — No, I can only spdak to one. Where was that dead body found ? — He fell close to my feet. Were there any of the special constables or of the troops killed? — None killed; there were some wounded, as I under- stood ; but that I only speak to from information. Can you judge at all how long the firing continued ? — I should think not quite ten minutes ; according to my judgment it could not have been more than ten minutes. Did you look into the street ? — No ; I did not. Nor into the passage, I suppose, till some time afterwards ? — I was in the pas- sage, and saw this person fall at my feet. Was it known to Lieutenant Gray that you had been wounded? — It was. Did you mention it to him at the moment ? — Immediately afterwards. Was that before the firing began from the soldiers ? — I cannot say that I told him that I had been wounded before the firing commenced. What had the special constables ; how were they armed ? — With staves. Had any of them guns ? — None, to my knowledge. Then soon after the peace of the town was restored? — As far as I know, for I was obliged to give up the charge of the preservation of the peace to other hands. Your wounds were severe ? — The wound on my arm was severe, the other was a flesh wound. You are suffering from the effect now of the wound in your arm ? — I am. When did you leave the room in which the soldiers were? — Not until the affair was over. Who has succeeded you as mayor ? — Mr. Thomas Hawkins. Had he come in before these events took place ? — He was with me the whole of the night, giving assistance in the direction of the special constables at the “ West- gate. ’’ What sort of a night was it ; did you go out yourself at all ? — Yes, I did ; it was an extremely wet night, and a windy one also ; the rain fell very heavily indeed. Did you see any of the arms that were collected ? — I did. Edward Hopkins here called. — Examined by the Attorney General. I believe you are superintendent of the police of Newport ? — I am. Have you got any arms that were taken upon this occasion ? — I have. 211 ] Trial of John Frost, 1 839 . [212 Will you produce the arms P : — ( The wit- ness produced some pikes and staves.) Do you know where these came from? — Not from my own personal knowledge; I do not know where they were picked up. Are there any other arms ? — Yes. ( The witness produced a gun , a sword, and some pikes of various descriptions.) Sir F. Pollock: It would be as well to see where they come from before they are exhibited in this way. Examination of Sir Thomas Phillips resumed. Do you know anything of these weapons ? — I do not of these particular weapons ; ®he weapons that I saw were of the same description as these. The weapons that you saw, where ? — When I looked out of the window at the 4 ‘ Westgate ” ; there were some arms given to Mr. Hopkins, that were taken from a man of the name of Davis, on the night of Sunday, in my presence. Were the mob armed with such instru- ments as these ? — The instruments that they held in their hands were like these. (i One of the weapons produced was shown to the witness.) Kelly : Are you going to make these the subject of evidence ; because, unless that is done, I object to this exhibition of them. Attorney General: Do you know that weapon ? — That is the weapon that was taken from a man of the name of Thomas Davis, on the morning of Monday. At what hour ? — Before day-break ; he was brought in custody by the officers. Is this called a mandril ? — No, it is not a mandril. Kelly : Uhtil Thomas Davis is shown to have been with mob or multitude, even that is not admissible evidence. Tindal, C.J. : When was he brought? — It was before day -break ; he was brought in the morning. Attorney General : Which is a mandril ? —This is what is called a mandril — ( point- ing it out ) — it is used by the colliers in the mines in cutting coal. Cross-examined by Kelly. II am an attorney, and was in partner- ship with Mr. Prothero till the close of the year that has just ceased from June 1824. I have been interested in coal- mines, and am still.] I observe, in this long account which you have given of this unfortunate trans- action, that you have not once mentioned Mr. Frost's name ? — No, I have not. Do you know Mr. Frost ?— I do. How long have you known him ?— For a period of seventeen or eighteen years. Were you well acquainted with him about the time when the Reform Bill was in progress ? — Yes, I was. Previously to that time had you been on good terms with him? — I had known very little of him, and had had no personal intercourse with him of any kind. Had your firm — yourself and Mr. Pro- thero, any dealings or transactions with him ? — None at all. Do you know whether any differences had arisen between him and either your- self or Mr. Prothero ? — With Mr. Prothero there had. Did those differences continue till near about the time of the Reform Bill ? — I think not ; my impression is that there was an action brought by Mr. Prothero against Mr. Frost, and two indictments against him for a libel; I do not know when the sentence upon the indictment was passed, I think in 1823 or 1824 ; and for some years afterwards, I am not aware that any differences of any kind existed between Mr. Prothero and Mr. Frost. Except the state of variance which such proceedings might have occasioned, you do not know of any variance or any new proceeding ? — None at all. About the time of the Reform Bill, did you yourself become more particularly acquainted with Mr. Frost ? — I met him in public. Did you meet him, among other occa- sions, at public meetings ? — 1 did. Had you opportunities of observing his public conduct during that time ? — I had. And afterwards ? — Yes. I need hardly ask you, whether at the time to which I have alluded, about the period of the Reform Bill, there was a great deal of excitement at Newport, as well as at other places? — There were public meetings held at Newport upon the subject. Was there a great deal of excitement? — There was a good deal of interest felt in the subject. Was there no more than interest, was there net a very great deal of excitement at the time ? — I should say there was excitement, certainly. You say that you yourself attended public meetings about that time ? — I did. Have you attended meetings at the same time as Mr. Frost ? — I have; I have seen him present at meetings at which I have been present. And, I believe, from that time to this, Mr. Frost has taken a very prominent part in politics and at public meetings ? — He has. Have you yourself done so likewise ? — Not very prominent. Did you, at the time to which I have 213] Trial of John Frost, 1839. [214? alluded, about the time of the Reform Bill P — I attended a few public meetings on two or three occasions, and took part in the discussions at those meetings. I must ask you, whether you yourself have not at public meetings, or at a public meeting, declared, that the majority of thirty-seven in the House of Lords, who had voted against the Reform Bill, de- served guillotining, or something to that effect? — No, certainly not. You deny that P — Distinctly. Or anything to that effect ? — Certainly, nothing to that effect. Will you undertake to say that you have made no observation at all con- cerning the deserts, in your estimation, of that majority of thirty-seven in the House of Lords? — I have no recollection of say- ing anything at all approaching to wnat you stated. Will you undertake to say that you have not ? — To my recollection I have not. I will call the place to your recollection. At a meeting at the Guildhall at Usk; did you ever attend such a meeting ? — I did, at the county hall at Usk, at which the high sheriff presided — a county meeting. We must go by steps. I ask you if you did not there publicly make some obser- vation concerning that majority in the House of Lords ? — I may have done so. Did you not do so in fact ? I ask you, upon your oath, did you not make some observation ; we shail, by-and-by, per- haps, find what it is ? — I believe I did. Concerning the majority of thirty-seven in the House of Lords. Have you, now that you have had a little time to recollect yourself, any doubt that you did ? — I have already told you that I believe I did make some observation. Have you any doubt that you did ? — I have not. Now, will you tell me, to the best of your recollection, what was that observa- tion ? — I cannot tell you. Did you make any observation import- ing what you thought that majority de- served ? — According to my recollection, I censured the majority, but as far as my recollection goes, T. did it in no offensive terms whatever. Did you say anything as to what they deserved, in your opinion ? — I do not recollect that 1 did ; I believe I did not. Or what you wished they might meet with ? — I believe not. Try and recollect yourself, whether you did not say at that meeting something to this effect, that you wished they might meet with the fate of certain parties in France, in allusion to the French Revolu- tion ? — I believe not. Did you make any allusion to any parties in France, as connected with that observation p — I believe I alluded to what had occurred in France. Did you not allude to the fate of the predecessors of the present King of the French ? — I may have done sc, but I have no recollection whether I did or not. Did you not make an observation rela- tive to that majority of thirty-seven, in connection with the fate of those persons in France ? — I have no recollection of having done anything of the kind. Will you undertake to swear that you did not P — I will not undertake to swear, having no recollection on the subject. Did you make any observation concern- ing the bishops ? — I have no recollection. Were there not about that time very serious disturbances in Newport? — I know of none at all. Do you remember the period when the present Duke of Beaufort was insulted P — I recollect hearing that the present Duke of Beaufort, when canvassing the town, met with some insult. Were there not some disturbances at Newport at the time w r hen the present Duke of Beaufort was a candidate ? — I was not a witness of any. Tindal, C.J. : Was that at the time of this riot ? Solicitor General: No, my Lord, at the time of the Reform Bill. Kelly : You say that you were not pre- sent at any of those disturbances ? — I was not. Were you at that time a magistrate P — I was not. Or mayor ? — No. Then I understand you to say that you have no knowledge of any part taken by Mr. Frost at the time of those disturb- ances ? — I have not. None at all ? — None whatever. You say that you were present at public meetings where Mr. Frost was. During all the time that you have had an oppor- tunity of actually observing his political and public conduct was there anything reprehensible in it, in your judgment ? — I frequently differed with Mr. Frost upon questions upon which I took an opposite view, in which some heat may have been shown ; but I was witness to nothing that, I should say, was distinctly reprehensible. You have differed with him as any per- sons may, whose conduct is perfectly irreproachable? — When I say that, my recollection is brought to a meeting in which I certainly thought Mr. Frost acted with a good deal of want of temper, or feeling, towards me individually. I am not asking you as to his temper towards an individual ; I am asking you as to his public conduct, as far as you yourself personally observed, and I par- 215] ticularly call your attention to those times of excitement, of which you have spoken, when you say he took a very promineut part ; I ask whether there was anything in his conduct tending to riot, or other illegal proceeding P — I think not. Have you had any opportunities of ob- serving his public conduct since he was made a magistrate ? — I have. During how many years was he a ma- gistrate ? — I should say three years, to my recollection, or nearly so. During the whole of that time was not his public conduct, as a magistrate, praiseworthy, as far as you had an oppor- tunity of observing ? — I would rather not have answered that question ; I may have found fault with Mr. Frost’s public con- duct as a magistrate, and I have done so ; but I am not prepared to say that Mr. Frost was not acting from his belief of what was right or wrong. Have you ever seen anything which you had just reason to believe was otherwise than what he believed to be right? — I would rather say that I have not, cer- tainly ; that I have not witnessed any- thing but what he himself may have believed to be right. You have always lived in Newport, I believe ? — Not always ; I have lived in Newport twenty years. Do you know that very particular in- quiries were made concerning Mr. Frost’s fitness and propriety of conduct before he was appointed a magistrate ? — I do not. Attorney General : I am very unwilling to interpose to object to any questions that may be put ; but that, I submit, is not a proper question. Kelly : He has answered the question ; be says he does not know. I have asked you hitherto concerning Mr. Frost’s public character ; I will now ask you, as long as you have known or heard anything about him, has not his private character, as a private individual and member of a family, been perfectly good P — I should say not. As a member of a family ? — That I know nothing of. It was concerning that that I asked you ? — I understood you to ask me re- specting his character as a private in- dividual ; I took it iu two branches ; as a member of a family, I know nothing of him whatever. I ask you as to his character in the relations of private life with his family ? — I know nothing whatever of his relations in private life with his family. Did you know Vincent ? — I have seen Vincent. Were you present at his trial ? — I was. What had you to do with his trial ? — The trial was conducted by the magis- trates ; the management of the proceedings [216 was entrusted by the Government to the magistrates of the borough. At the time you were mayor ? — Yes. Consequently when you were a magis- trate yourself? — Yes. Then, in fact, you, in your public capacity, were one of his prosecutors ? — I was, at least, I considered the Govern- ment to be his prosecutors, and the magis- trates were merely the local agents in conducting it by means of their clerk. He was, we understand, convicted and sentenced to some term of imprisonment ? — He was, at the last assizes for this county. Do you not know that a great deal of dissatisfaction has been expressed publicly concerning the mode in which he is sup- posed to have been treated? — I do not know it, except from the same sources of information that you may. I am not a witness, but you are ; do not you know that the supposed treatment of Vincent, since he has been a prisoner, has been a subject of public complaint ? Attorney General : Do you know any- thing of it but what you may have seen in the newspapers ? — I do not. Kelly : Whatever may be his mean^ of information, I apprehend I am entitled to ask whether the imprisonment of Vincent, or the supposed mode of treatment of Vincent, has not been made a subject of public complaint — whether it was not notorious that that was so ? Tikdai,, C. J. : That is not the question that you put ; your question was, * * whe- ther he knew it ? ” he says he only knows it by seeing it in the newspapers. Kelly : That might be the very mode in which it became publicly notorious. Parke, B. : You must produce the news- papers. Kelly : I apprehend it is not necessary to produce the newspapers in order to show that any matter is publicly notorious. Attorney General : But he knows nothing of it except through that medium. Kelly : The witness thinks fit to answer me in that way; he says, “ I only know it from the newspapers. ” Tindal, C.J. : It might be in various ways ; there might be public meetings in which is was discussed ; you may ask him that question; but if he only know it through the newspapers he must produce the newspapers. Kelly: Now attend to the form of my question ; do you know that complaints have become public and notorious on the subject of Vincent’s supposed treatment ? — I do not, as I have already stated, except from having seen it in a particular paper, which is said to be edited and conducted by himself, called the Western Vindicator. Trial of John Frost, 1839. 217 ] Trial of John Do you know whether any complaints concerning the supposed treatment of Vincent have been the subject of discussion among the magistrates ? — I do not. I believe you did not, as mayor of New- port, act with the county magistrates P — I did not. Have there been any meetings within your own knowledge of late for the pur- pose of putting down the Chartists or Chartism ? — Ho, I know of none. You have attended none ? — Ho, not recently. Within the last year? — I attended a public meeting at Christchurch in the spring of the year, for the purpose of agreeing upon an address of loyalty to the Queen, and an offer of supporting the lawful authority by enrolling ourselves, if called upon, in an association. Had that anything to do with the Chartists or Chartism ? — The meeting was produced by the public meetings held upon the subject of Chartism. That meeting, then, was produced by Chartism ? — It was. And directed against it ? — In so far as supporting the lawful authority might be supposed to be directed against it. Were you at Hewport during the whole of the 3rd of Hovember, the Sunday P — I was. At what time was it, as nearly as you remember, that you first received any in- telligence of a nature which led you to employ special constables? — As far back as the Thursday previously I received in- formation that led me to make inquiries, which ended in my giving, on Saturday, orders to the superintendent of the police to have special constables ready ; but not for the Sunday night, but for a subse- quent night, for the Tuesday night. You first received some information which put you on inquiries on Thursday P — I received information on Thursday ; I made inquiries on Thursday ; and con- tinued those inquiries subsequently. I want to know when you first actually appointed any constables? — Special con- stables had been sworn in some months ago. When did you, after you received this information, first appoint or put in motion the police? — On the Saturday I gave instructions to the superintendent of the police. Where was it that any person was first, as far as you know, taken into custody ? — I think as early as twelve o’clock on the night of Sunday, but it may have been later ; I will not be positive as to the time ; it was not earlier than twelve, I believe. Were all the persons, as they were successively taken into custody, brought to the “Westgate” Inn? — They were Frost, 1839 . [218 brought to the “Westgate” before Mr. Brewer, my colleague, who was sitting there, and myself. Had you any opportunity of observing, after you yourself received the wound under which you now suffer, how soon the mob dispersed? — I should say in about ten minutes, or perhaps less. In ten minutes the place was clear ? — I will not say the place was clear. I under- stood that the street was clear in about ten minutes afterwards. I did not look out into the street myself. I do not know whether I have quite correctly taken your answer with regard to one matter. You have alluded to some circumstance occurring when the present Duke of Beaufort was a candidate. Do not you know yourself that at that very time Mr. Frost interfered to protect him from mischief? — I do not. You do not know it at all ? — Ho. Were you mayor at that time ? — Ho. Hor a magistrate ? — Ho. Hor present at any proceeding arising out of that ? — Hone whatever. Re-examined by the Attorney General. My learned friend had inquired respect- ing a meeting at Usk, during the discus- sions about the Reform Bill, and you say that you cannot recollect whether you made any allusion to the French Revolu- tion, or any observation in connexion with the French Revolution ? — I cannot. Can you state positively whether you made any observation at all, to the effect of that which Mr. Kelly has suggested ? — Most distinctly not, either then or at any other time. Captain Basil Gray. — Examined by the Attorney General. You are now a captain in the Queen’s army. ? — I am. I believe on the 4th of Hovember last you were a lieutenant in Her Majesty’s 45th Regiment of Foot ? — Yes. Was the company you belonged to sta- tioned at Hewport? — Stationed at Hew- port. At the union poor-house, I believe ? — At the union poor-house. Which was converted into a barrack ? — Yes. One company, I believe? — One com- pany. On the 4th of Hovember was there any other military force in Hewport ? — Hone other. The company was commanded, I believe, by a Captain Stack ?— Yes. Do you remember being detached by Captain Stack on the morning of the 4th of Hovember ? — I was detached on the morning of the 4th of Hovember. 219 ] Trial of John Frost, 1839 . [220 With how many men? — Two sergeants and twenty-eight privates. To the “Westgate” Inn? — To the “Westgate” Inn. Did yon receive orders to put yourself under the command of the mayor ? — To report myself to the mayor. Did you march with your men to the “ Westgate ” Inn? — I marched imme- diately with my men to the “Westgate” Inn, and reported myself to the mayor. As nearly as you can judge, what o’clock was it when you arrived at the “Westgate” Inn? — I think about a quarter after eight ; I think I must have taken about eight minutes to march down. Will you be good enough to state to my Lords the j udges and the gentlemen of the jury what took place ? — On my arrival at the “Westgate” I formed in front of the building, and consulted with the mayor, and he desired me to enter the court-yard. Through the folding gates? — Through the stable gate. Tindal, 0. J. : It is not necessary to go through those details again. Attorney General: Were you stationed in the room with a projecting window ? — I was stationed in the room with three projecting windows. A bow with three windows ? — Yes. Did you hear any noise from without after you had been stationed there some time ? — After I had made every prepara- tion, the mayor, who had left the room, returned to me, and informed me that the mob was approaching. At this time were the guns of your soldiers charged ? — They were not charged. Were the lower shutters of the three windows shut ? — The lower shutters were closed. The mayor having entered and made a communication to you, did you yourself hear anything or see anything ? — I heard a loud cheering. Was that without? — From the angle turning up Stowe Hill, continued to the front of the building, and I saw by the weapons which I perceived over the half shutters, that they were forming in front. Over the half shutters you could per- ceive weapons ? — Yes. What sort of weapons could you per- ceive ? — Spears and pikes ; I saw they were forming in front of the building. Did the weapons seem to be in a line ? — They appeared to be forming very steadily from the manner in which the weapons came up before the window; they then discharged a voliey of small-arms at us, and at the same time rushing through the building by the hall door, which they had forced, or which had been left open. When they fired this volley of small arms at you what effect did that produce upon the windows ? — It tore the windows in different parts ; I perceived that it was caused by slugs and balls; the window shutters were torn by the effect of the slugs and balls discharged at us. Down to that time had your men loaded their guns ? — They were not loaded. Did you give any orders to your men upon that? — I gave the word to load immediately. And they did load ? — They did load. With ball cartridge ? —With ball car- tridge. We understand that the lower part of the window shutters still remained closed ? — They still remained closed and latched. What was then done with respect to the window shutters? — They were then opened. By whom ? — One by the mayor and one by myself. You taking the front window, I believe ? — I taking the one nearest to the hall ; I taking the inner window, I believe. Sir F. Pollock : Sir Thomas Phillips re- presented that he was there. Parke, B. : Did you or Sir Thomas Phillips take the one nearest the hall ? — I took the one nearest the centre of the building on the left hand. As you and Sir Thomas Phillips were opening the shutters, what happened? — We were then unmasked; we were ex- posed to their view by the shutters being opened, and another volley of small arms was discharged at us. Did you perceive that the mayor had been wounded ? — Not immediately ; our men commenced firing at the windows when the shutters were opened. When the shutters were removed, did you find that the glass had been broken ? — The windows had been lifted up ; the glass above was nearly all smashed. The lower sash had been lifted up? — The lower sash had been lifted up to allow as much air as possible. That was before the shutters were closed ? — That was before the shutters were closed. Your men then fired through the win- dows? — They did; the mob effected an entrance into the building by the hall, and our firing continued for about half a minute at the windows, and the door- way communicating with the passage of the house was secured till the rush had sub- sided, and till the special constables had time to get clear of the mob. Where did the special constables go to ? — Some of them went up to the top of the building, but most of them behind into the court-yard ; the door was then opened, and our firing commenced into the passage. 221 ] Did you go into the passage ? — I did. Pahke, B. : You mean the door of the room ? — The door of the room. Attorney General : Communicating with the passage that goes along the whole length of the house P — Yes. What was the state of that passage when you looked into it from the door of the room ? — Those who had effected an entrance were passing backwards and for- wards. Did you see whether any of them had arms P — Some of them had arms ; every one that I saw ; there were very few that I did see. Your men fired into this passage ? — Our men fir$d into that passage, and soon the body of one of the mob fell across the passage, who was killed. Could you at all judge how long the firing continued P — Less than ten minutes, the whole affair. By that time were the streets cleared, and the mob dispersed P — The streets were soon cleared of all dangerous objects, but the attack in the inner part of the building continued to the last, and whenever the smoke cleared away, they attempted to force our position. Was that after the firing in the street had begun ? — After the firing in the street had begun. It what manner did they try to force your position ? — By attempting to rush up to the door-way ; but they always faltered when they encountered their own dead, and then received our fire. Was the passage entirely cleared within the ten minutes ? — Cleared of all except the dead and wounded ; I gave my men directions then to spare their ammuni- tion. Was it nearly exhausted ? — No ; I ave- raged that they fired about three rounds per man, and we commenced with twenty- two rounds. Did you see any ammunition that had belonged to the mob ? — A great deal ; we v broke up some, and applied it to our own purposes. Where did you see this ammunition that you say had belonged to the mob P — It was taken from the pockets of those who were killed. Sir F. Pollock : Did you see it taken from the pockets ? — I saw it in some in- stances. Attorney General: In some instances you yourself saw it taken from the pockets of those who were killed ? — I did. What sort of ammunition was it? — There was one man had his ammunition made up very well ; a good description of powder, and made up like soldier’s, with ball-cartridge. [222 How many rounds did you find upon him P — I am not aware exactly ; but I daresay about thirty or forty. Did you see other ammunition that had belonged to them that was less skilfully made up ? — Yes, there was a good deal of ammunition loose. This one man’s struck me as being particularly neatly made up. Did you see any slugs ? — Slugs and balls. Were the slugs made up into cartridges ? — No, they were not ; they were loose. How was the powder that was not made up into cartridges ; was that in flasks ? — We took some flasks. What were slugs contained in? — Loose,, as well as I remember. Loose in their pockets ? — Loose in their pockets. Were the pieces of your men charged with any of that ammunition ? — No ; we loaded four days afterwards, and we re- quired perpetual priming. You afterwards applied it ? — We after- wards applied it ; not then. In the course of this Monday morning did you find any persons in the “West- gate ” Inn that had belonged to the mob ? — There were two prisoners taken in the building that had belonged to the mob. Were you present when they were taken ? — I was present when they were taken. Where were they? — As well as I re- member, they were in a side room con- nected with the passage. Near the room where you were sta- tioned P — Within about ten paces. Had they got any arms with them ? — I saw no arms in their hands. I gave them up to the soldiers, and ordered them to be examined, and ammunition was taken from one of them. Sir F. Pollock: Was that in your pre- sence ? — It was in my presence ; I was standing over them. Attorney General: Then the mob had dispersed, and the streets were empty ? — The mob had dispersed ; there were some here and there, but without arms. Do you know how many dead bodies were found ? — We found nine. Cross-examined by Sir F. Pollock. [There were in the whole thirty under my orders.] How long did you stay in front of the inn ? — About a minute. And then you went into the court-yard ? — Yes. How long did you stay there ? — About ten minutes. Where did you go then P — I then entered the building and occupied the room on the right flank of the building. Trial of John Frost, 1839. 223 ] Trial of John Frost, 1839 . [224 The room where the firing took place ? — Yes. How long did you stay there before you received the order to load ? — I received no orders to load. Tindal, 0. J. : What he said was, that he gave orders to load. Sir F. Pollock : I understood Sir Thomas Phillips to say that he ordered them to load. Did Sir Thomas Phillips give you any orders to load ? — I do not remember receiving any orders to load. What did he give you orders to do ? — We consulted together, and as it was the expectation that the mob would attack us in the building, he was anxious that I should enter it ; he offered me this room, which, on examination, I found capable of answering for the purpose very well, as it was on the ground floor, and as it com- municated with the steps and with the house ; I brought my men there ; I did not load, because, there was no immediate necessity ; it is a point upon which I am the only judge. You say you did not receive any orders to load, but you loaded because you thought the time was come when it was necessary to do so ? — I loaded when I was fired on ; I required no orders to load ; I had not time to look for instructions, and there was no necessity for it. Were you fired on the moment the shutters were opened ? — The moment the shutters were opened, that served to expose us, and we received a fresh volley. Had you been fired on before ? — We were fired on when the mob came in front of the building. Before the shutters were opened P — Before the shutters were opened. Did you then give orders to load? — Yes. The shutters were opened for the pur- pose of giving effect to your fire upon the mob ? — To allow our men to fire ; the shutters were about a foot higher than the men, and unless the shutters were opened the soldiers could not fire. Unless they fired in the air p — Soldiers do not do that. But many Shots came in over the glass ? — Yes, a great many. Many of the shots were in the ceiling ? — Many in the ceiling. Then the practice of the mob was dif- ferent from that of the military, and all the damage they did was to break the windows and to make a hole in the ceil- ing ? — And to tear the shutters, and to wound one of our party, and Sir Thomas Phillips. That was not until after the shutters were opened ? — Ho. Do not mix matters together that I am endeavouring to keep separate; what I want to know distinctly is, whether you did not load for the purpose of firing before you opened the shutters ? — I loaded for the purpose of firing before I opened the shutters. You say you expended about three rounds of ball-cartridge ?— I averaged it at about three rounds per man. How long were you in that room before the firing over the shutters into the ceiling commenced ? — Something better than five minutes. Be-examined by the Attorney General. Before you opened the shutters, had there been firing against the shutters ? — There had been firing against the shutters, and through the shutters. Were the shutters damaged by that firing before you opened the shutters ? — The shutters were damaged and torn by that firing before I opened the shutters. Could you see whether the shot marks were on a level with you ? — Perfectly on a level with us, but the shutters protected us in a great measure. Parke, B. : What was on a level with him, the marks in the shutters ? Attorney General: Yes, my Lord. Could you {tell whether the balls in the ceiling had glanced against the shutters? — Yery likely they might have done so. Sir F. Pollock : That was not the ques- tion ; you were asked not whether it was likely, but whether you could tell ? — I could not tell. Attorney General: If they had glanced against the shutters, might that have taken them up into the ceiling where you saw them ? — We can never account for how a ball goes ; it takes all directions. But independently of the balls that went into the ceiling, can you say whether, be- fore you opened the shutters, the balls struck the shutters on a level with you ?— The balls struck the shutters on a level with me ; the other balls in the ceiling I did not remark till after the whole attack; but those I perceived the very moment they occurred. Foreman of the Jury : Did the mob fire at the military after the military were completely unmasked ? — They fired a vol- ley on us the moment we opened the shut- ters ; and they might have fired a great deal more, but our fire commanded theirs, and the din and noise was so great that I could not tell what they did, except from a knowledge of the wounds we re- ceived. Foreman of the Jury: My Lord, that seems to me a very important point, and the answer we have received is hardly a satisfactory one ; will your Lordship have the goodness to put the question to the witness in the way you think best, whether 225] the mob fired upon the military after they knew the military were in this room, after they bad exposed themselves. Tindal, 0. J. : He says that the mayor and Sergeant Daily were wounded after the shutters were thrown up. Foreman of the Jury: This difficulty suggests itself to my mind — whether those wounds might not have been received by the continuous random firing of the mob previous to the unmasking. Tindal, 0. J. : Do you mean before the shutters were thrown up ? Foreman of the Jury : Yes, my Lord. Parke, B. : You want to know whether they continued firing after they knew the military were in the room ? Foreman of the Jury : That is the point I want to have ascertained. Tindal, 0. J. : The gentlemen of the jury want to know whether you mean to say that the mob deliberately fired upon the military after they knew you were there, when the shutters were opened P — I have no reason to suspect otherwise; the mob fired deliberately upon us when they saw us unmasked ; I was prepared for it, and as I was prepared, they did so. Parke, B. : Are you satisfied that the mob saw you at the time they fired the volley upon you? — I am satisfied they must have seen me. Foreman of the Jury : That is what I wanted to know. Witness : The windows extended to the very floor, and I was exposed, every part of me. Tindal, C. J. : In your uniform P — In my uniform. Parke, B. : Did they see soldiers beside you ? — The soldiers were in a line behind me. Can you state to a certainty whether the mob must have seen the soldiers, at the time they fired, as well as yourself P — They must have seen the soldiers as well as myself. Did the windows go down to the ground ? — They extended to the very floor of the house, all but a few inches. Tindal, C. J. : That is what you wanted, is it ? Foreman of the Jury : It is, my Lord. Kelly : Will your Lordship have the goodness to ask the witness this question : After the shutters were taken down, when he supposes they were unmasked, how many soldiers out of the thirty in the room received any wound ? Tindal, C. J. : You hear the question, Captain Gray ; how many soldiers out of the thirty in the room received any wound after the shutters were opened ? — Only one. Was that Sergeant Daily ? — Sergeant Daily. o 67432. [226 Did the mayor receive his wound after that time P — The mayor received a wound at the same time. Sir F. Polloch : I hope your Lordship will pursue this inquiry ; the mayor said that ho received his wound simultaneously. Attorney General : Any question that you can suggest the Court will put. Sergeant James Daily was called. Sir F. Polloch : My Lord, Sergeant Daily is described thus : — “ A sergeant in Her Majesty’s 45th Regiment of Foot, abiding at the barracks at Pillgwenlly, in the parish of St. Woollos, in the borough of Newport, in the county of Monmouth.” I propose to examine him, my Lord, on the voir dire. (The witness was sworn upon the voir dire.) Sir F. Polloch : I wish to know which of these two is the correct description of you: ‘ ‘ James Daily, a sergeant in Her Majesty’s 45th Regiment of Foot, abiding at the Newport poor-house ” ; or “ James Daily, a sergeant in Her Majesty’s 45th Regiment of Foot, abiding at the barrack at Pillgwenlly ” ? — At the poor-house- Sir F. Polloch: We had a second list sent with that alteration. A ttorney General : Where is it that your company is stationed ? — It is stationed at the poor-house, at the top of Stowe Hill. The whole company is stationed there? — The whole company. Do you know Pillgwenlly ? — Yes.. Do you know how far Pillgwenlly ex- tends ? — I do not. Are there any barracks at Pillgwenlly? — There have been barracks fitted up there for a part of our regiment that arrived there after the riot at Newport, where the mill formerly was. Were you ever stationed at those bar- racks ? — Never. How far are those barracks from the poor-house ? — Near about a mile. Are they all in the parish of St. Woollos ? — I do not know. On the 4th of November, were there any men of your company at Newport, except those that were in the poor-house ? There was a party ordered down to go to the “ Westgate ” Inn, twenty-eight pri- vates and two sergeants, under Lieutenant Gray. Sir F. Polloch : I am afraid 1 must stop this, or I shall be supposed not to be ob- jecting to the witness. Attorney General: We are still upon the voir dire. Tindal, C.J. : At present it seems that there is a description given of the barracks as being at Pillgwenlly; and it would n Trial of John Frost , 1839. 227] Trial of John Frost, 1839. [228 seem from this witness’s evidence that there is not only the place, called the union poor-house, in which the troops have been quartered, but that some of this very regi- ment have been quartered in a place which was fitted up as barracks at Pillgwenlly. Therefore this description was rather cal- culated to mislead, because it says that they ought to find him at Pillgwenlly, whereas, in fact, they ought to find him at the other place. Attorney General : It seems to come to this, that at the time when the notice was given, which is the time we are to look to, there was a barrack in the union poor- house, and there appears likewise to have been a barrack at Pillgwenlly; now the witness it would appear, was of that divi- sion stationed in the poor-house, and not of that stationed at Pillgwenlly. Those are the facts ; but both the barracks are in the parish of St. Woollos and in the county of Monmouth. Parke, B. : He was not abiding in the barracks at Pillgwenlly. Tindal, C.J. : And this description sent them there to look for him. Attorney General : He was not abiding at the barracks at Pillgwenlly ; he was stationed at the union poor-house. Tindal, C.J. : It is over particular. Attorney General : Then it will come to this whether that over particularity may or may not be rejected, because, if it may, there is enough here, because he is de- scribed as of the 45th Regiment, “in the parish of St. Woollos, in the borough of Newport.” But if your Lordship thinks, as this particular description is erroneous, that is a sufficient objection, the moment your Lordship intimates that, of course I withdraw the witness. Tindal, C. J. : I think the over-particu- larity might mislead. Attorney General : That is quite enough. Parke, B. : The description is inaccu- rate. Thomas Walker. — Examined by Wightman. \A special constable, sent out by the mayor towards Risca and the hills on Sunday night, November 3. Three and a half miles from Newport I passed through a party of men, standing by the roadside, at a place called Rigby’ s.\ What were they doing? Sir F. Pollock: I do not see how my learned friend can mate this evidence. There is no connexion whatever between the prisoner at the bar and this trans- action. For anything that has been even opened, certainly for anything that has been proved, or that appears likely to be proved, this may have been a mere insulated matter, possibly a matter of accident. Parke, B. : At present he has proved nothing that is material, but I do not see how we can reject the evidence. Sir F. Pollock: The question is as to the number of persons collected together. It may be very immaterial, but, recol- lecting what use is sometimes made of evidence, I do not like to see a number of immaterial things collected together, for the purpose of being used in argu- ment hereafter, for purposes of which I am ignorant. Tindal, 0. J. : It is in evidence, that in the course of that night this man was sent out from Newport, for the purpose of making inquiry as to what the state of the country was, at a time shortly pre- ceding the arrival of these persons at Newport. I cannot stop that. Parke, B. : Suppose the answer to the next question was, that the men were armed, you could not say that was im- material ? Kelly : Perhaps your Lordship has not adverted to the second branch of the question, which is, “ What were they doing ? ” Suppose they were committing murder ? Parke, B. : It may turn out that the answer may make the question wholly irrelevant ; it may make it relevant. Kelly : It may turn out so ; but it is for the purpose of preventing an irrelevant answer that we object to the question. We say that, at present, the acts of the twelve men, or whatever the number were, who were assembled on the Sunday evening at the time alluded to by the witness are not evidence against the pri- soner at the bar, unless he is proved to have been present, and unless he is, by previous evidence, directly connected with them. I quite agree that, so far as your Lordships’ minds are concerned, whatever the answer may be, it is altogether im- material ; but I cannot admit that it is so, considering the other part of the tribunal before which this cause is conducted. Who shall say what is to be the effect in a long trial lasting several days, of any such acts given in evidence upon the minds of the jury ? It may be calculated to produce a very serious effect upon their minds, though your Lordships may afterwards consider that it has no bear- ing upon the case at all; I apprehend in a case of this kind it is necessary to connect individuals who are supposed to have done any acts whatever with the prisoner at the bar, before those acts can be given in evidence; and, therefore, I object to the question as to what those twelve men on the Sunday evening were doing. Tindal. C.J. ; Let us hear in what direc- tion this was. 229] Attorney General : Ho said that he went in the direction of Risca. Tindal, C. J. : Is that in the direction from which, on the following morning, those persons came to Newport P Attorney General: It is. Tindal, C. J. : Ask that question. Wightman : Is that the road to the hills from Newport? [The road runs by Court-y-Bella, the “Cefn,” and the “Welch Oak” to Risca.] When you got near Risca did you hear anything P Sir F. Pollock: My Lord, I object to that question : Attorney General: We are not going to ask as to conversations ; we will vary the form of the question ? Wiglitman : Did you hear any noise, any sound ? Attorney General: It is the anxiety to avoid a leading question that induces my learned friend to put it in that shape. Sir F. Pollock : I attended to my learned friend’s opening, and I must be quite aware of what this is, and of course I am anxious to shut out that which I feel, upon the authority that I hold in my hand, is not evidence against Mr. Frost. 1 am not capable of doing much more than referring to the authority. It is a case(a) in Boscoe’s Digest of the Law of Evidence in Criminal Cases, page 59.(6) “ Similar evidence was lately admitted in a case of robbery. The prisoner came with a mob to the prosecutor’s house, and one of the mob went up to the prosecutor, and civilly, and, as he believed, with a good intention, advised him to give them something to get rid of them, which he did. To show that this was not bond, fide advice to the prosecutor, but in reality a mode of robbing him, it was proposed to give evidence of other demands of money made by the same mob at other houses at different periods of the day, when some of the prisoners were present. Parke, J., having conferred with Vaughan, B , and Alderson, said : 4 We are of opinion that what was done by the mob before and after the particular transaction at the pro- secutor’s house, but in the course of the same day, and when any of the prisoners were present, may be given in evidence.’ ” Parke, B. : That was upon the special commission at Winchester. Tindal, C.J. : That was an indictment for a robbery. Parke, B. : The mob went about the country robbing different people. Sir F. Pollock: And there the acts of the mob elsewhere were not allowed to be given in evidence with a view of showing their intention, unless they could show (a) JR. v. Winkworth, 4 C. & P. 444. ^6) P. 92 of 11th edition. [230 that some of the prisoners were present. This is not an indictment against Mr. Frost for conspiracy. But suppose it were an indictment for a conspiracy, where you may almost prove anything, and then apply the evidence afterwards ; still, even in that case, where a number of persons are indicted for conspiracy, if you propose to give any evidence against anybody, however little it may affect the person immediately under trial, you must show that it immediately affects somebody con- cerned in the conspiracy. Now here a certain number of persons are supposed to be standing under a wall ; the night is so dark that it cannot be seen whether they had anything in their hands, and it is supposed (for one must not disguise the fact ; it is in that way only I can argue it), it is supposed, that because somebody fired a shot by which the witness was wounded, that that may be legitimately given in evidence against Mr. Frost; as if no shot could be fired that night in any direction towards the hills, without Mr. Frost having some connection with it ; and this without any evidence whatever that anyone of the parties present at the firing of that gun was connected at all with Mr. Frost, or was a person with whom Mr. Frost had had any communication. Any- thing of that sort might have happened : in short, any damage might have been done by anybody Wightman : That is not what I am going to ask him about at present. Williams, J. : The question was not as to a shot, but as to a sound. Sir F. Pollock : I believe that the sound was the sound of a pistol, and that then he found himself wounded. Wightman : No ; you had better wait till you hear the answer. Parke, B. : I think you cannot object to the question, because a legitimate answer may be given to it ; suppose the answer was that he saw a number of men there armed, or a number of men being drilled, why, this is the very quarter from which the party came the following morning, and that would be legitimate evidence. Kelly : As it does not appear that either Mr. Frost, the prisoner, was present, or that anyone of the persons who composed the multitude of the 4th of November was present ; but for aught that appears to the contrary, this may have been a body of men totally distinct from and unknown to every one of the individuals composing the multitude of the 4th of November, and totally unconnected with and unknown to Mr. Frost; I beg to ask upon what principle at; all authorised by law can any- thing said or done by these people be evidence against Mr. Frost ? In order to show the danger of this evidence until a: 2 Trial of John Frost , 1839. 231] Mr. Frost or some of the mob of which he is supposed to have been a member on the 4th of Hoy ember are connected with this particular meeting of persons, let me just suppose this, that in answer to the ques- tion put by my learned friend a3 to what he heard, the witness were to answer, that he heard one of them say, “We are marching to London for the purpose of deposing the Queen,’ 5 is it to be pretended / that a declaration of that kind (for a de- claration in a matter of high treason is an act done, it is evidence of a compassing, and would be an overt act) is it to be pre- tended that an act of that kind, or indeed any act done by any body of persons not proved to have been even known to or seen by the prisoner at the bar, is to be used upon his trial against him? Now, suppose some such answer were to come out, how is it possible for your Lordships, with the utmost care and desire to exclude irrelevant matter, to divest the minds of the jury of the effect of such an answer ? My Lord, I apprehend that upon the very clearest principles nothing done or said by a body of persons, of whom the prisoner is not proved to have been one, and to which he is not proved directly or indirectly to be at all a party, can be admissible in evidence against him. Tindal, O.J. : I think we have a right to see how this large body of. men were collected. The evidence might show that upon the very same road, by which the multitude arrived in the morning, a large number of men on the preceding night were found in such a part of the road, and another party upon another part of the road, and that they met together at a certain place to proceed for a general purpose ; I think the question is clearly admissible. Parke, B.: It is impossible to exclude this evidence. The prisoner will not be affected by it unless there is some evidence afterwards to show that he was a party to it. But you must go by steps ; I think they may certainly prove that at an early period of the night a number of persons armed were assembled in different parts of the country, who were to be with the prisoner in the morning ; that is clearly legitimate evidence ; and supposing this witness proves that they fired upon him, that is another fact from which it may be subsequently collected that there was an armed force occupying that district, which he afterwards commanded and directed. It is clearly admissible evidence. Williams, J. : Supposingthisbodyofmen had been brought nearer in point of time, and nearer in point of distance to the trans- actions at Newport, there could have been no question then that this was admissible eAddence. Then the only difference is [232 that it is more remote in distance and more remote in time ; but wbat difference does that make, except that the evidence is weaker ? I am totally at a loss to dis- cover, in point of legal principle, as to the question of admissibility, what dis- tinction there can be. The evidence may be weaker — it may prove less — but the state of the country that night and about that time is some proof, so far as it goes, tending to throw some light upon what occurred at that point of time ; I admit not very near, and therefore just in that proportion more weak. (a) Wightman : About how far is Eisca from Newport ? — About six miles. When you got near to Eisca, did you hear any noise ? — Yes. What was that noise ? — -I heard cheering, and I heard a gun fire. About what o’clock would that be ? — I should think it was past eleven. Parke, B. : He is not now speaking of the twelve men. Wightman: No; he saw the twelve men about three miles from Newport ; he is now about six. Did the cheering appear to you to be from one or more persons ? — It seemed to come from a good many. How far were you beyond the place called the “ Welch Oak” ? — About a mile, I should think, Towards Eisca ? — Yes. In what direction did the sound appear to you to be ? — From up the hills above Eisca bridge. When you heard this, did you go on, or did you return ? — I returned. What sort of a night was it at this time ? — Earning, and very dark. On your way back, when you got to Rigby's, the place you have spoken of, did you see any persons ? — Yes. About what time would it be when you got to Rigby’s the second time, in coming back ? — I should think about twelve. Tell us what you saw there ? — The men tried to stop me, and stabbed me. Kelly: Does your Lordship think this evidence also ? Parke, B. : Yes ; I do not see how we can reject it. Wightman : When you got to Rigby’s, tell us what you saw ? — The men tried to stop me, and struck me with something in the thigh. Where was that? — At Rigby’s, in the road. What number of men ? — About sixteen, I should think then. How were they standing ? — Across the read. Were they in a line? — Yes, I should Trial of John Frost, 1839. (a) See ruling of Parke, B., below, 244. 233 ] Trial of John Frost, ISM). [234 think they were. I could not see quite plain. Parke, B. : Could you see whether they were armed or not P — I could not see. Wightman : Did anything happen to you ? — Yes, I was stabbed. Could you teli with what you were stabbed ? — No. Was it with a sharp instrument ? — Yes, something very sharp. Did anything else happen to you there P There was a pistol fired, or a gun. Was that fired from one of those per- sons ? — Yes. Where were you stabbed ? — In the thigh. What sort of a wound was it ? — A long wound. Was it a considerable wound, or a small one P — A large one. Parke, B. : You could not tell whether the pistol was fired at you or not?— I think it was fired at the man that was with me. Wightman: Was Webb with you all this time ? — Yes. Parke, B. : What makes you think it was fired at him P — I was rather the first of the two. 1 was five or six yards before him when it was fired. Wightman : He followed you ? — Yes, he did. Was he so near that you could see him ? — Yes, I could see him. Sir F. Pollock: See whom? — Webb. Wightman : Could you see whether any- thing happened to him or not? — No, I could not tell. [I then went back to Newport, and reported what had occurred to the mayor. I was very weak ; I was obliged to be carried into the house.] Parke, B. : That is not material. Sir F. Pollock : I daresay it is thought very material. Wightman : Can you tell us whether your wound had bled ? — Yes, it had bled a good deal. Tindal, C. J. : The only value of the evidence at all is to show that on the night in question there were parties of men collected, some of whom were armed, in the direction which those persons came in the morning. Parke, B. : It is some evidence to go to the jury, that these persons, whoever they were, fired upon this witness, in order to prevent his communicating with Newport. It is a matter for them to decide upon, but it is evidence to show that some armed force was collected in an earlv part of the night. Solicitor General : Its effect will be for consideration afterwards. Foreman of the Jury : I wish to ask a question. Did you know any of the parties that you saw on the road ? Tindal, C.J. : He could not see them. Solicitor General : I do not know to what time your Lordships would propose to sit to-night. The witness I am about to call will occupy some time. Tindal, C.J. : We will now adjourn till to-morrow morning, at nine o’clock. Friday, January 3. Matthew Williams. — Examined by Ludlow. [A quarryman at Argoed, a little below the hills, sixteen or seventeen miles from Newport. Spoke to seeing Frost at the “ Welch Oak,” near Risca, on Sunday, November 3, about midnight ; also to him- self attending a Chartist lodge at Argoed on the previous night.] Were your names called over there ? — Yes. You were a new member, I think P — Yes. You say your names were called over ; did anybody take down your names? — Yes. Had you any person put over you as a captain or commander ? — Yes. Over you, and how many others ? — Ten more ; eleven altogether, with the cap- tain. Was any money called for ? — Yes, 5 d. each was called for. Did you afterwards receive any direc- tions from your captain?— The captain was to abide there all night. Parke, B. : What night was this ? Ludlow: The Saturday night. Did you see the captain again the next morning, the Sunday morning ? — Yes. [We met the captain near the chapel, and we met again there in the evening about six o’clock. There was another lodge held at the same place between three and four on Sunday afternoon.] At that lodge was any appointment made for your meeting again at a later hour ? — Yes. What were you to do at that next meet- ing ? — To meet together to provide for Newport. Was a place called Cefn mentioned ? — Yes. Sir F. Pollock: Perhaps my learned friend will ask who said this ; we have got now merely what was mentioned, bun not by whom. My learned friend goes on asking, were you to do so and so? Yes, we were to do so and so. By whose direc- tions ? Ludlow : He has already mentioned that they met Frost at the “ Welch Oak,” and i am going to show you that they went together. 235 ] Tindal, C.J. : The objection is to the form of the question did you do so and so ? Ludlow : I shall be happy to -accommo- date my learned friend as to the form. Sir F. Pollock: I am asking for no accommodation; I am asking for strict justice. Ludlow: Did any person mention a place called Cefn? — No, Did you go to Cefn ? — No. Was any public-house mentioned called the “ Welch Oak” ? — Not there. Did you go to the “Welch Oak”? — Yes. I believe before that, after the meeting, you had gone home and gone to bed, and were called up again ? — Yes. In what manner were you called out of bed ? — I had gone to bed a little after six, and I told my wife That we must not hear, but you may tell us what happened after you got to bed ?— Somebody came and knocked at the door and called me out of the house ; they told my wife to tell the men to come out of the house. G-entlemen, if you please, I would rather speak Welsh. Ludlow: No, you are going on very well. How were you called out of your house ? — I went to bed about six o’clock, and between that and seven o’clock I heard a knock at the door, and they came and said they wanted the men out of the house, and my wife said there were no men there. Upon that was anything said or done ? — They said they knew better, and they struck the door in, and then I cried out, “ I am coming.” Was any person put over you ? — Yes. For what purpose ? — To keep me from running away; I was guarded. You took a stick with you, I believe ? — Yes, I did. [We went to Newbridge, and then to the “ Welch Oak.” It was a very wet night. We stayed there until daylight, and then went towards Newport.] You have told us that there was a cap- tain over you and nine other persons ; was that the case with respect to the others ; was there a captain to every ten ? — Yes, I believe so. I did not hear only my own order. Were there persons that took the com- mand and gave directions as you were going along? — Yes; my captain was not there. Before the party set off from the “ Welch Oak ” did you hear any person of the party say where you were going? — No. Did you hear anything said at New- bridge by any person as to where you were going ? — No, no further than to go after Mr. Frost. [236 Did you see a person of the name of Peeves there ? — No. I beg pardon, I be- lieve I made a mistake in that man’s name. What is the name of the person?— George Reeves. Who is the person with respect to whom you made the mistake ? —This man was a messenger to Mr. Frost. . Can you give us his real name ? — George Reed. You made a mistake between Reeves and Reed ? — Yes. Ludlow : Did you hear that person, George Reed, say anything ? Yes. Sir F. Pollock: Now I apprehend that everything George Reed said is clearly not evidence, and therefore you are not at liberty to ask what did he say, so as first to hear it, and then to see whether it is evidence or not. Tindal, C.J. : The more correct way would seem to be to ask did anybody give any directions, and if so, who ? Attorney General: This question seems to me to be unexceptionable ; was any- thing said by any person there respecting what was to be done ? Sir F. Pollock : Then I must, with great humility, take your Lordship’s opinion, whether that is the proper mode of con- ducting such a prosecution as this. Parke, B. : No, that is rather too general. Ludlow : Before you went to that place where you met Mr. Frost had any direc- tions been given at any of the places where you had met, as to the place where you were to go to ? — Yes, at the lodge. What was said as to the place where you were to go to ? Sir F. Pollock: No, what place were they to go to ? Ludlow : It comes to the same thing. Sir F. Pollock : If your Lordships have read the depositions you will be aware of the object of these questions ; I have seen them only by a copy in the newspapers, which I believe is correct ; but it is from knowing what the deposition is that has been taken, and from knowing a fact which was objected to before the magistrates that I am rather anxious to shut out what I believe may be very prejudicial. Ludlow: I should have thought, if I had put it in the way you suggested, it would have been a leading question. To what place were you going ? — To New- port. Parke, B. : You may ask where did you learn that r Ludlow : Where did you learn that you were to go to Newport? — At the lodge. Do you know who it was that told you that you were to go to Newport ? — Yes. Who was it ? — George Reed. Trial of John Frost, 1839 . 237 ] At the same time did he tell you, or did anybody ask, and was any answer given as to what you were to go for ? Sir F. Pollock : Stop a moment ; this is the question that I object to. Of course I could not object to the general direction that they were to go there, but I do object to any evidence that they were induced to go there by a statement that when they got there they were to blow up the “ Westgate Inn,” or knock down the bridges. Tindal, C. J : What directions did George Reed give P Ludlow : Did George Reed give any further directions ? Sir J 7 . Pollock: I must object to there being received in evidence against Mr. Frost what anybody said they were to do when they got to Newport. I apprehend that that is not evidence against Mr. Frost. As the evidence now stands, I do not find that Mr. Frost is earlier connected with this transaction than by meeting some parties at the “Welch Oak;” that he met those parties there by arrange- ment I am not prepared now to deny, at least that there is evidence of it, inasmuch as they were to go there and meet him, and when they got there they did meet him ; but I say that does not make evidence of everything that passed as against Mr. Frost. Parke, B : I do not think we have got the fact that they were to meet him at the “ Welch Oak ” proved anywhere yet. Sir F. Pollock : But I am even conced- ing that fact. I want really not to waste the time of the Court by taking objections to matters that are immaterial, but to come at once to the point I object to, which is this : that the vague directions given or the declarations made as to their purpose or object by any party in that large body of men that moved on and met Mr. Frost (if they did meet him) at the “ Welch Oak,” are not evidence against Mr. Frost at all events, unless it be shown that he was present at the meeting, or had been present at some prior meeting, and had given a sanction to the general design, so as to show that everything that was said by everybody there would be evidence against Mr. Frost. Kelly : I have further to object to the evidence which is now sought to be brought before the jury upon this ground, that Mr. Frost cannot be bound by any statement made by any person in his ab- sence before he is, in point of time, con- nected with any particular object or pur- pose which these parties may have had in view. My Lords, thus far (without saying that perhaps if strictly examined even that evidence might nob be objectionable) we do not propose to object to the evidence [238 which is offered. Mr. Frost having met certain bodies of people before they ad- vanced into the town of Newport, and having (at least so stands a portion of the evidence at present) accompanied those persons into the town of Newport, wo do not object to any question being asked, or any answer given, as to a direction pre- viously given to follow Mr. Frost or to meet Mr. Frost. Parke, B. : You object to declarations made by persons in this collection of men, prior to the time at which Mr. Frost is connected with them, prior to twelve o’clock at night. Kelly : As to their purpose. Tindal, C. J. : I do not understand that you object to the evidence that A.B. comes to this body of men at Argoed, where this lodge was held, and says, “You are to meet Mr. Frost at such a time at the ‘ Welch Oak.’ ” Kelly : I do not object to that. Tindal, C. J. {to the Attorney General) : Do you propose to carry it further P Parke, B. : At present the evidence con- nects the prisoner with this mob at twelve o’clock on Sunday night at the “ Welch Oak ” ; that is the first time he is brought into contact with it. The counsel for the prisoner, do not object to the directions given to meet him there, but they say that the declarations of intention made by persons in that party prior to the time of their meeting Frost are not admissible. Kelly : That is what we object to. Parke, B. : I think you had better post- pone that question, at all events, till you have gone through the evidence. Attorney General : As the evidence now stands, I submit to your Lordships that we are entitled to inquire into what was said at that meeting before Frost is proved to have been actually present with those who there met. What are the facts as they now appear ? There is a party that comes down the country from Argoed to the “ Welch Oak,” and there they meet Frost, and they are led on by him to Newport. Parke, B. : At present you have proved no direction to meet Frost at the “ Welch Oak ” ; that has only been conceded for the sake of argument; it has not been proved. Attorney General: I thought I was to argue upon that supposition. Parke, B. : Would not it be better to prove the fact first ? Ludlow: At either of the places, at which you were before you went to the “ Welch Oak,” had you any directions where you were to meet Mr. Frost / — At Newbridge. Where was it told you that you were io Trial of John Frost , 1830 . 239 ] Trial of John Frost, 1839 . [240 meet him ? — That he was gone on to Cefn- de-Machog. When and where were you told that ? — At Newbridge. Tindal, C.J. : When was it that he was told this at Newbridge? — About ten o’clock on Sunday night. Ludlow: Is the “Welch Oak” near Cefn-de-Machog ? — Higher up. How far from it ? — I never was along that piece of road in my life. Did you go to the “Welch Oak”? — Yes. Had you been told before the time of your meeting Frost at the “ Welch Oak ” that you were to meet him there ? — We were told at Risca that they halted at the “ Welch Oak.” Kelly : You are now going a great deal further. Sir F. Pollock: Though my learned friend certainly plumped the question, “Were you told that you were to meet him at the ‘Welch Oak’?” the witness does not say “ Yes.” Ludlow : You said something about halting at Risca ? — We were told at Risca that they had halted at the “ Welch Oak.” Was the name of any person mentioned as being at the “Welch Oak”? — No further than that Mr. Frost was there. Then that was mentioned, was it, that Mr. Frost was there ? — Yes. Do you know who it was that said that ? — -No, I do not ; it was a mob of people at Risca Bridge. Where was it that you were told by Peed that you were to go to Newport ? — At the lodge. At what time of night was that ? — About five o’clock in the evening. On the Sunday evening ? — On the Sun- day evening. The lodge was at Argoed ? — At Argoed. Did the persons or any of them who were with you at that lodge go with you to the “Welch Oak,” where you met Frost? — Yes, most that belonged to that lodge. Now, I propose to ask, when it was said at the lodge that they were to go to New- port, whether anything further was said as to the purpose of their going there. Sir F. Pollock: That I object to, because it is not stated, nor is it proved, nor is it suggested, that Mr. Frost was present at Newbridge, or could have any possible knowledge of what passed at Newbridge before he met the party at the “Welch Oak.” My Lord, I apprehend that, al- though after Mr. Frost actually joined this body of persons, it is. then matter merely of observation and remark, how far the vague, absurd, foolish, insane specu- lations of anybody may be given in evi- dence. And although I admit that after that time no objection can be made to the reception of the evidence, yet I appre- hend that prior to Mr. Frost’s joining them what was said by anybody in the party cannot be made evidence against him, for it really amounts to this, that among five hundred persons anything that anybody said would then be evidence against Mr. Frost, and merely upon this ground, that they were told they were to meet Mr. Frost there, and to go on to Newport, and that, in point of fact, they did afterwards meet Mr. Frost there, and go on to New- port. My Lords, how can this be received, according to any reasonable notion of the rules of evidence, which in certain cases (and I do not complain of it) are neces- sarily very lax, so that you have great difficulty afterwards in knowing how to deal with the evidence ? I admit . that when once you do connect an individual with a large body, then all their acts, and any declarations that accompany those acts, would be evidence against him. But, my Lord, even in the ordinary case of a conspiracy, I doubt whether what one of the conspirators not indicted with the rest says privately in his own chamber, or is overheard to tell a person not connected with the conspiracy, I say I doubt whether that would be evidence against any of the parties indicted, it being no act and no part of the conspiracy. I ap- prehend that that would not be evidence against a conspirator, although it was said after the time that he had joined the conspiracy. But, my Lord, can that be evidence according to any reasonable view of what ought to be evidence against a man as to the object and motive that acted upon his mind ? because that is the question. It is exceedingly possible that the parties engaged in transactions of this description may have had very different designs. Perhaps one of the best in- stances of that would be the case of % Lord George Gordon. The question was, with what intent Lord George Gordon took the part that he acted. Your Lordship knows that in that case all London was for ten days in the hands of an infuriated mob ; all the prisons were burst open; the Chief Justice’s house, I believe, was burnt down ; there were thirty fires in different parts of London ; yet Lord George Gordon was not held guilty, because he was no participator in the designs of those persons who had committed all those outrages. Williams, J. : Those things broke out afterwards. Sir F. Pollock : Some of them were con- secutive. Some of them were matters in which Lord George Gordon was impli- cated. I think some of them occurred afterwards, but some of them were con- temporaneous. But I apprehend that 241 ] Trial of John Frost, 1839 . [242 what takes place before, merely in the way of direction and conversation, is not evidence against the prisoner. Suppose this was a meeting of chartists at a lodge, in a conclave at which the witness might have been present, and a resolution was put and carried that so and so should be done ; my Lord, I submit that that would not be evidence against Mr. Frost unless there was some evidence that it was com- municated to him. But here it does not go the length, of that. It is nothing more than something said by somebody, appa- rently having no authority nor even pre- tended authority. The question is, “ What was stated to be the object of your going P ” My Lord, I say, that if that was stated before Mr. Frost joined them, anterior to his meeting them, it is no evidence against him for the purpose of showing with what object he accompanied them from the “ Welch Oak ” as far as the “ Westgate ” Inn. IKelly followed.] The question now under consideration, and to which all the evidence must have some reference, is, What was the intent in the mind of Mr. Frost ? They are now proposing to prove that, not by anything said or done by Mr. Frost, or by anything said or done in his presence, but by a statement made in his absence by an individual of whom we know nothing but that he purported to be a messenger from him, and at a time long anterior to the meeting at which Mr. Frost himself first appeared. Now, upon what principle can that be admitted in evidence? No evi- dence of declarations made by other per- sons can be given against an alleged party to a conspiracy, until it is proved that he and these persons were parties to the same conspiracy. The compassing or conspiracy alleged upon this record is a conspiracy to depose the Queen, or to effect by force some alteration in the law. Now, these two par- ties must be proved, upon some evidence, to have been parties to a conspiracy with that object, before this evidence can be admitted. Your Lordships will find that is laid down upon authority. In Mr. Starkie’s book upon the Law of Evidence, under the head “ Conspiracy, ”(e&) — “ Although, in general, upon principles al- ready adverted to, the act or declaration of one man is not evidence against another who is charged as a fellow conspirator, until such pri- vity or community of design has been esta- blished between them, as affords a reasonable presumption that the act or declaration of one is the act or declaration of the other, made with his sanction, and therelore indicating his mind and intention.” Now, what does that show P It shown that there must be evidence to go to the jury that this j Reed, at the tiriie when he made that declaration, was acting in a conspiracy with Mr. Frost, and with the joint and common object on the part of both of them that is stated upon this record. There is no evidence at all at present of any such common object. But, if there were, the question is whether the declaration cf this man, made before the time when Mr. Frost is brought upon the stage at all, without any proof of any previous communication whatever between him and this man, can possibly be ad- mitted in evidence. My Lord, Mr. Siarkie goes on to say (a ) : — “ And allhough it follows from these princi- ples that such a connection must be established before the acts and declarations of one man can properly be used as evidence to show the designs of another, yet in some peculiar instances, where it would be difficult to establish the defendant’s privity, without first proving the existence of a conspiracy, a deviation has been made from this rule, and evidence of the acts and conduct of others has been admitted to prove the existence of a conspiracy previous to the proof of the defendant’s privity.” Then Mr. Starkie cites Hardy's case.(&) Lastly, Feed, who is supposed to have made this statement or communication purporting to have the authority of Frost , is not one of the parties to this indictment. If he be a living man, and if there be any truth in the evidence, he might; himself be called as a witness ; then it might be made evidence Parke, B. : I do not understand the question to apply simply to Feed. The question, the admissibility of which we are now debating, is this, “Was it said at the Chartist Lodge that you were to go to Newport, and was it said for what pur- pose?” Attorney General : That is the question. Kelly : That is the question. Williams, J. : By anybody — not by Feed alone. Parke, B. : Supposing the answer to the question showed that there were a number of persons assembled at that lodge who had a definite object in view, such as, for the sake of illustration, that they meant to attack the “Westgate” Inn, in order to destroy the troops there and to take possession of the town of Newport ; supposing it to be proved that the persons there had agreed upon that, then is not that admissible evidence, it being after- wards a question to go to the jury, whe- ther the piisoner at the bar by his subse- (a) 2 Stark. Ev. 234. (a) 2 Stark. Ev. 235. (i) 24 St. Tr. 473. 243 ] Trial of John Frost, 1839 . [244 quent conduct is proved to have adopted and acted upon that conspiracy ? If he is not, it amounts to nothing. Kelly : I apprehend not, and upon this ground : whatever the statement may have been, still we must fall back upon this, what were the acts afterwards done ? If the acts do not prove such a design, the whole evidence is useless, and it is waste of time to hear it. If the acts do prove such a design, then that design must be inferred from the acts themselves, and not from what persons may have said, of whom, as well as of their statements, the prisoner may know nothing. My Lord, the only ground or principle on which any evidence of this nature can be admitted against anybody is either be- cause he had authorised it to be made- beforehand, or because he has in some way or other ratified or sanctioned it afterwards. Now here there is no proof of any prior authority ; nor is there at present, any proof of any subsequent ratification ; all that is here proved is, that Mr. Frost proceeded with a multi- tude who did certain acts. But that is not evidence to show a ratification of any plan laid, of which, at present, your Lordships know nothing. The evidence must be admissible at the time it is given, and it is not sufficient that it may perhaps be admissible afterwards. Your Lordships are not to permit the jury to hear the answer, and then to enter into the question whether the evi- dence is admissible. We do not object at all to the evidence which has been given of the purpose of the parties to meet, because they did meet ; but I do humbly protest against any further admission of evidence till it is clearly shown that the statement as to the purpose was authorised or sanctioned by the prisoner at the bar. There is no evidence of that kind at present, and I submit that it would be bringing a mass of evidence upon a person who must be utterly unpre- pared to meet it, if it were to be esta- blished that evidence of this description and under such circumstances could be admitted at all. Tindal, C. J. : It appears to me that this evidence, upon the principle which has been established in other cases, and by various decisions, is admissible. What the value or effect of it may be is matter of observation afterwards, when the coun- sel come to make their observations upon the whole case to the jury. It is very true that one mode of showing conclu- sively that a conspiracy has been entered into between various persons is by showing antecedent acts, or acts which may bring them together. But that is not the only mode ; another mode is by showing various acts subsequently, in which they have con- curred — acts done by them ; leaving it afterwards to be inferred by the jury, from the agreement or disagreement of those acts with reference to a common design, whether such common design existed or not. The question here is, whether, when the prisoner at the bar is found with a great body of men at the “ Welch Oak,” and from that “ Welch Oak ” leading them, according to the evidence as it stands at present, to the “Westgate” at Newport, whether that which was determined upon by this body of men on the precediug night shall or shall not be admitted in evidence to the jury. Now, I agree en- tirely, that if there is any purpose deter- mined on that has no reference whatever to the facts that are afterwards proved in evidence, it falls entirely to the ground. But suppose it turns out that it was agreed upon on that night, by this body of men, to do the very thing that after- wards is shown to have been done in the presence and with the participation of the prisoner, why is not that to be, admitted in evidence P It may be for the jury to assume that, -as they were going along,' the design which they entered into on the night before was communicated to the party who is charged as acting in the com- mon design. I think we have no right to anticipate what the answer to this, ques- tion will be. If the answer be one way, it may be that it will be no evidence at all against the prisoner ; if it be the other way, it may be that it may further and strengthen the evidence which will after- wards be given in the course of this in- vestigation. It would be taking the matter too early to say that this is not in any view of the case admissible evidence. Parke, B. : I think this question may be properly asked, and that the evidence is admissible that may result from this question ; what the value of it may be is another matter. I take it that there are two cases in which, upon an indictment for high treason, evidence of the acts of others is admissible against the prisoner. The one is where you prove that the parties combine together for a particular purpose ; there the acts of those persons, pursuant to that combination, and the declarations of those persons, will become evidence to prove the overt acts stated in the indictment. The other way in which the acts of the others may be admissible is by laying the foundation, by showing the existence of a conspiracy, and by showing the objects of that conspiracy ; and then, when the conspiracy is proved, and the question is, whether the prisoner at the bar is a party to the conspiracy, you may proceed to show, by acts in evi- dence, that the prisoner afterwards adopted 245 ] Trial of John Front, 1839 . [246 that conspiracy and became a party to it. Now, I think that the evidence of what took place ar the lodge is evidence of the second class that I have been making these observations upon. It is evidence to show actual conspiracy, between some persons, to carry into effect some precise object. If it turns out that that object is to attack the town of Newport, or to attack the “Westgate” Inn, then it be- comes a question, whether the prisoner at the bar did enter into that conspiracy, and adopt it by his subsequent conduct at the time when the party came to Newport, and at the time when the “Westgate” Inn was attacked. Supposing the answer to this question were to lead to proof that they determined to attack the “ Westgate ” Inn for a particular purpose ; that would be evidence to show that he acquiesced in that purpose. Upon that ground it ap- pears to me that the evidence of this previous act of consultation together, which took place at the lodge, is admis- sible in evidence, and, therefore, I think the question ought to be asked ; whether the answer will turn out to be of any value is quite another question. Williams, J. : I am of the same opinion. I do not think this evidence can be ex- cluded. I quite agree with Sir Frederick Pollock, that this question, and the mode in which it has been discussed in the books, is one of very considerable diffi- culty. But, according to the decided cases, it seems to me impossible to ex- clude this evidence ; of the value of it, when it comes out, we are no judges at all, and have no right to be ; the effect of it is, properly, for the consideration of the jury. 1 feel no doubt that the learned counsel will take care, by-and-by, that it shall not weigh one feather more than it ought to do. At present, it seems to me, that this case comes within the principle of Hunt’s case, which was decided, not by a single judge at nisi joriusia ) (where, perhaps, a variety of decisions may be, in some measure, accounted for), but which came before the Court of King’s Bench, upon this point, how far Mr. Hunt , who presided at a meeting that was held in St. Peter’s Field, at Manchester, was or was not to be fixed with the conduct of persons two days before that meeting, and the language of persons coming to that meet- ing, at which meeting Mr. Hunt first made his appearance ; as well as the drilling of men, two days before that meeting, in a distant part of the country. Upon the objection being considered by the Court of King’s Bench, it was held to be admis- sible ; and the conduct of another body of men, who never came to Mr. Hunt till that day, their hissing at a particular man’s house, who was supposed to have given information respecting the drill- ing, was, upon objection made by Mr. Hunt, and upon consideration by the Court of King’s Bench, held to be admis- sible in evidence. Now, how does that bear upon the present question, as to the admissibility of this evidence ? Why, here Mr. Frost is shown to have been with a certain number of persons at the “ Welch Oak,” and the evidence tendered is of the conduct and language of a party of men going to that house. Now, upon the same principle upon which the Court of King's Bench admitted evidence of the conduct of persons coming up to that meeting, at which Mr. Hunt presided, how can I say that this is not admissible, whatever may be the effect of it in this particular case P Ludlow {to the witness ) ; You have told us that at the lodge at Argoed, on the Sunday evening, it was said you were to go to Newport ; at the time it was said you were to go to Newport, was anything further said as to the purpose for which you were to go there ? — Yes. What was said ? — We were to go there to stop the coaches, and the post, and all traffic. Did you hear anything further said ? — We asked what they were going to do there besides, and it was said that we were to stop there to guard the town. Was anything further said? — Not par- ticular then. At any other time during your march to Newport P — No. “ To guard the town,” was that the ex- pression ? — Yes. You told us just now that you met Mr. Frost at the “Welch Oak” and several persons with, him ; what time was it when you first met him ? — About middle night. Did he remain at the “ Welch Oak ” after that, or did you miss him for a time ; did he go away for a time P — I was told he went away. Did you see where he went to ? — I did not. Did you see him afterwards come to the “ Welch Oak ” ?— Yes. At what distance of time ? — It was almost break of day. Had you seen him at the “ Welch Oak ” from the time you first saw him at mid- night till the time you saw him come back again in the morning P — I had not. Tindal, C.J. : Did you see him actually coming back ? — I did. Ludlow : When you saw him coming back to the “ Welch Oak ” near break of day, did he come alone, or did other per- sons come with him ? — There were other persons with him. (a) 1 St. Tr. N.S. 491. 247] Few or many P — A great many after him. Did you see whether those persons that came with him, or came after him, had anything in their hands P — Yes. What had they in their hands ? — Spires, spears and guns, and that. Arms of different kinds ? — Yes. Tindal, 0. J. : I suppose by “spires”' and “ spears ” he means the same thing p Ludlow : Do you mean anything diffe- rent by a “ spire ” and a “ spear ” P — No. Did you and the mgn who were with you there about midnight wait there till those other persons came on with Frost in the morning ? — Yes. And did you then go on towards New- port ? — Yes. Cross-examined by Sir F. Pollock. [I had seen Mr. Frost before the time I saw him at midnight ; I knew him ; I saw him coming back between six and seven in the morning. I was at the Chartist lodge at Argoed on the Saturday night. I had not been there since last harvest. I paid neither money nor attention to them. It was publicly known that a lodge was held there every Saturday night. I Will you describe what a lodge is ; what do they do P — There was a penny a night to be paid. And they drink? — I did not see any beer drunk. Do they eat ? — No. How long does a lodge last ; I wish you would tell us what they did there ? — I did not know but little about them ; I did not trouble my head much about them. Give me the little you picked up while you did trouble your head about them ? — I can tell you but little about them. Give me rhat little ; tell us what is a lodge ; what do they do ; does anybody get into a large chair at the head of the table? — Yes, there were two, sitting at each end of the table, and they- were writing names down and receiving the money. Was there any speaking p— Yes, some words, but I cannot remember what I heard. How many were at the lodge on Satur- day night ? — I cannot tell, there were a great many ; it was a small room, and it was lull sometimes. How many would the room hold ? — About twenty. Was that number assembled on Satur- day night? — Oh, no, more than that; some going up and some coming down. Do you remember the persons you saw at the lodge then ? — Yes. How many of them did you personally know ? — I did not know them by their names, but I knew them by their features. [248 Did you know a single person there by his name ? — I knew George Peed for one. Who is George Feed ?— The messenger that came. Do not tell me about his being a mes- senger ; what is he ; he does not get his livelihood by bringing that message? — No. Then tell me what he is ; what is George Peed ? — A shoemaker. I was told after- wards that I gave a wrong name to him ; I said he was a collier, but his name is George Peed, and he is a shoemaker. How long have you known him ? — For about eight or nine months. Where does George Peed live ? — He did not live far from me. How far ? — He might live about one hundred yards. How long had he lived there ? — I do • not know. How long have you known him live there P — About eight or nine months. One hundred yards from you ? — Yes. Is he a married man ? — Yes. And has a family ? — I do not know. And you have known him about eight or nine months P — Yes. Is he the only person that you knew at that lodge? — No; I knew the publican, and I knew two or three more by their faces. Did you know their names ?— No. Then you only knew by name the pub- lican and George Peed ? — Yes. You say you made a mistake, you called him George Peeves ? — George Peeves. In making some statement somewhere else you made a mistake and said George Peeves instead of George Peed ? — Yes. Now who is George Peeves, and what is George Peeves ? — I suppose it is the same man, but I gave the wrong name ; I gave Peeves instead of Peed. Is not there a person of the name of George Reeves ? — No ; I do not know one. I thought you spoke of somebody who is a collier? — So I did. Whom did you mean by the collier P — This George Peeves I said was a collier, and it is George Peed the shoemaker. But there is such a person as George Peeves, a collier, is not there ? — I do not know. Whom did you mean by the collier ? — I said this George Peeves was a collier. Where does he live ? — There is no such man there. When did you say George Peeves was a collier ? — When I was examined. Then you do not know anything of any- body of the name of George Peeves there at all P — No. Then there is no such man as George Peeves at all I do not know any man of that name. Trial of John Frost, 1839 . 249 ] Nor whether he is a collier or not ? — I do not know a man of that name. But in making your statement about the messenger you stated that his name was Reeves instead of Reed ? — Yes, I did. And you said he was a collier instead of a shoemaker ? — Yes, I did by mistake. Do you mean to -say, upon your solemn oath, that there is not a man of the name of George Reeves , a collier, that lives within one or two hundred yards of you at Argoed ? — I do not know ne’er a man of that name. Where do you come from now ? — New- port. What part of Newport ? — From the Union at Newport. Are you in custody at Newport;, or are you a free man ? — I was taken there after I was wounded to the Union. Have you been in custody ever since ? —Yes. In confinement ? — In the Union. In confinement ; are you allowed to go about P — About the house. Abroad ? — No. You understand what being in confine- ment is ? — Yes ; I was kept in the Union. That is not the first time, perhaps, that you have been in confinement ? — No, I dare say not. Where have you been in confinement before ? — I do not know, indeed. Do you mean to give me that answer ? —I do not know what you mean ; I beg your pardon. I mean to ask you whether j t ou were ever in confinement before ; you under - stand me ? — Yes. How is it; were you ever in confine- ment before ? — Yes. How often ? — Only once. How long is that ago ? — Six or seven years now. Where was it ? — At Usk. Were you in gaol P — Yes. How long ? — Three months. Were you at the assizes or the sessions P — At the sessions. The Usk sessions ? — Yes. What was it about ? — For taking a bit of coal. Stealing P — As well I suppose, sir. You were wounded in front of the “ Westgate” Inn, on the 4th of Novem- ber, were you not ? — Yes. You were apprehended, I presume ? — I stood there looking at them. That was nob thO question I put to you ; I did not ask you what you were doing, but what other people did to you : you were taken up ? — Yes. They seized you, did not they ? — Yes. You were wounded P — Yes. And they came and took you as one of the Chartists ? — Yes. [250 At what time was that ? — It might be ten o’clock I dare say. On the morning of Monday P — Yes. And you have been in confinement ever since P — Yes. At Newbridge who was it that said you were to go Newport to stop the coaches, and the post, and all the traffic ? Solicitor General: Not at Newbridge, it was at Argoed. Sir F. Pollock : That was at Argoed, was it ? — Yes. Was that at the Chartist lodge P — Yes. At the lodge on Saturday night ? — On Sunday evening. Was there a lodge on Sunday evening ? — No ; it was when the messenger came there. Attorney General: He said it was at that meeting. Sir F. Pollock: You told me just now that it was at the Chartist lodge ; was it at the Chartist lodge or was it at the meeting on Sunday night? — On Sunday night. Parke, B. : Was it at the Chartist lodge ? Sir F. Pollock: No, it was not at the lodge. Attorney General : He takes a distinc- tion between a lodge and a meeting. Sir F. Pollock : Where was the meeting held ? — At the lodge, in the house. You say it was said that you were to go to Newport and stop the coaches, and the post, and a^l traffic ; who was it said so ? — George Reed. The shoemaker ? — Yes.' What else did he say ; what were you to do besides that ? — To be sure to bring arms with us. What else were you to do ? — There was another man that asked him, “ Did not we propose to carry our meetings peace- ably through the country P ” “ Yes,' 5 the messenger said ; “ but then if we do not break the old law we shall never get a new one.” Somebody said, “ Did not we propose our meetings should be peaceable ? ” — Yes ; ‘ ‘ instead of that we are carrying arms and we know that that is again the law ; ” and then there was another person asked where was John Frost. Tindal, C. J. : What was the answer to that question ; what did the messenger answer ? — He said he had left him at Blackwood. Sir F. Pollock : You say another man asked him, “ Did not we propose our meetings should be peaceable ? instead of that we are carrying arms, and we know that is against the law.” Did Reed say anything in answer to that P — Yes. What was it ? — He said, “If we do not break the old law we shall never get a new one.” Trial of John Frost , 1839 . 251] Sir F. Pollock : My question is not what anybody said there, but what more you were to do besides what you have stated, whether you were to do anything besides stopping the coaches, stopping the post, and stopping all the traffic ? — Nothing. That was all ? — That was all. You have turned Queen’s evidence, have you not ; that is what you call yourself ? — I have not said those words. You are now giving evidence for the Crown P — Yes. When did you first agree to give evi- dence for the Crown ? — When I was exa- mined. Who examined you P — Mr. Edwards was one ; I do not. know the other. WTio is Mr. Edwards ? — A magistrate of Newport. Where was your examination ? — At the “ Westgate” Inn. Had not you been examined before that P — Yes. Who examined you before that P — Mr. Edwards was there then. Did he come to where you were before you were taken to him in public P — Yes. Tell us what passed between you and Mr. Edwards upon that occasion at first when he came to you ; what led you to go and be examined before him? — Just the same as I said before. What did Mr. Edwards say to you P Tindal, C. J. : Were you able to go to him at that meeting? — No, I*vas on my bed. Sir F. Pollock : What did Mr. Edwards say to you ? — He asked me, “ Matthew, how be you ? ” I said I was very bad. “ Well, Matthew ” says he, “ you must try to tell me the truth how you came to do this and I told him. How long did Mr. Edwards stay with you ? — He stopped all the time he examined me. Then he examined you before you were taken before the magistrates ? — Yes. Did not he tell you that you had better tell the truth, and then you would yourself get off?— I told the truth as near as I could. Did not he tell you that if you told the truth you would get off? — No. Then do you mean to say that when you went before the magistrates you expected to be committed to prison and tried? — No ; I thought to die at that time ; I thought more about that than anything else. And Mr. Edwards never said a word to you about your not being punished if you told the truth P — He told me that I should be severely punished ; he told me what I was guilty of. Tell us what else he said? — I forget what he told me. [252 He told you you would be severely punished P — Yes. And then you went to the magistrates ? — Yes ; I was carried from there to the magistrates. Solicitor General : He was carried on a bed. Sir F. Pollock : I am aware of that. [I have not been in gaol on any other charge ; I was taken up about two years ago for leaving my children, but I had not left them. They did not keep me half an hour ; they found that I had, gone to seek for employment-. I was never charged with sheep-stealing, nor anything else but that piece of coal, the value of three half- pence.] Ee-examined by Ludlow. [Mr. Edwards was a magistrate. He came to see me at the union house. When I was taken to be examined I was carried down upon my bed.] Williams, J. : Had you known Mr. Ed- wards before? — Yes, my Lord. Foreman of the Jury : You have told us that your names were taken down at the lodge on the Saturday night; who took down the names ? — I did not know them. There was one at each end of the table, and I did not know them. You made an appointment to meet a second time, on the evening of Sunday ; with whom did you make that appoint- ment P — With the captain. You say that George Peed was the mes- senger that came to you to inform you what you were to do ; how do you know that he was a messenger from anyone to you P — He said himself that he was a messenger from Mr. Frost. Parke, B. : That is no proof of the fact. Foreman of the Jury : You have told us that you waited at the “Welch Oak ” from twelve till six in the morning ; till break of day ; why did you wait there so long ? — I went in the crowd, and I asked them, “ How long are we to stop here again ? ” Why did you wait there so long? — I might have gone away, but I was afraid. Do you know why the party with whom you were waited at the “Welch Oak” from twelve o’clock till break of day? — Yes. Why f — They waited for Mr. Frost to come back. You understood so ? — I understood that we were to stop there till Mr. Frost was to come back. You have told us about George Peed; now, supposing three months ago you had met George Peed, by what name would you have asked him “ How do you do ” ? — George Peeves. By the name of George Peeves ? — Yes. Trial of John Frost , 1839. 253] James Ilodge. — Examined by the Solicitor General. Where do you live ? — Near Blackwood. Do you know Mr. Frost? — Yes. Do you remember Sunday, the 3rd of November ? — Yes. Kelly : I wish to ask a question of this witness upon the voir dire. Solicitor General : You should have asked that before I began. Kelly : I will put it to the judges, and see whether the judges are pleased to allow it. Solicitor General : The witness has been sworn in chief, and it is too late to swear him upon the voir dire . ‘ Parke, B. : The course seems to have been always to swear the witness in chief, and then to examine him upon the voir dire. That ought not to be done. The regular course would be to ask the counsel for the prisoner whether he has any objec- tion to him. If he has, then he ought to be examined upon the voir dire ; and then if there is any objection to his description, it should be taken ; and after that it should be too late to take any objection to the description. Attorney General : If my learned friends say they have had no opportunity we will waive any objection. The witness was sworn upon the voir dire. Examined by Kelly on the voir dire. [I was examined before the grand jury on December 1st, at Monmouth. I stayed at Monmouth a night or two, and then went to Newport to the “Bush” Inn, where I remained two nights. I believe I then went home to Woodfield. I stayed at Woodfield three or four days, and then went back to Newport, where I put up at the “ Parrot,” the “ Salutation,” and dif- ferent other houses. Woodfield is a little house that I rent. I have a family there.] Kelly : I submit that under the circum- stances the description “ of Wood- field, near Blackwood,” is insufficient. Tindal, C.J. : According to his own account, he was shifting about from one public-house to another ; I do not see how it could be said that that was his abode ; and if he had been described as living in one of those public-houses, then it would have been objected, that as the man had a place of abode, where his family lived, it ought to have been given. Parke, B. : It is impossible for the soli- citors for the Crown, when they prepare the list, to know anything but the abode of the person ; how can they tell where he may be at the precise moment ? Kelly: If your Lordship thinks that [254 they are not bound to give a more precise description Parke, B. : Clearly not ; they are merely bound to give his place of abode and pro- fession. Examined by the Solicitor General. You said that you knew Mr. Frost ? — Yes. Do you remember Sunday, the 3rd of November last ? — Yes. Were you on that day at the “Coach and Horses ” at Blackwood ? — In the evening. Was Mr. Frost there ? — He was. What time in the evening was it that you were at the “ Coach and Horses,” and likewise Mr. Frost ? — I should suppose it would be about seven o’clock. What number of persons were there in the room where you and Mr. Frost were ; I do not ask precisely, but whether there were several ? — There were a great many. During the time that you and Mr. Frost were in that room, was there a man wear- ing a glazed hat? — Yes. Did that man say anything to the per- sons in the room about Newport? — He did. State what that man said while you and Mr. Frost and those other persons were in the room ? — He said that he came up from Newport, and that the soldiers were all Chartists, and that their arms and ammunition was packed up, and that they were ready to come up, only for we to go down and fetch them. Did that person, at the time I have asked you about, make any inquiry of you and others in the room about ammuni- tion ? — He asked if any person wanted ammunition. Was anything more said about the sol- diers, or where they were ? — They were in the barracks. Did this man say anything to the people assembled there, generally, before he went away ? — He said that the people ought to be out on the road with guns, to stop any person to go up or down, or to pass. Did that person call the men there by any name of relationship ? — Yes. What did he call them ? — He said, “ Come, brothers, it is time we was off, for oar enemies are flying in all directions and we ought to be down these two hours.” Did the people assembled there after- wards leave the house ? — Yes ; they were all on the road. In what direction did they first go ; do you know a place called Blackwood? — Yes. In what direction did they first go ? — Some were for going up and scour Black- wood, and some were not. Trial of John Frost , 1839. 255] While that was going on, did Mr. Frost say anything to the men ? — There was a stagnation, and Mr. Frost went up and headed the people, and told them to follow him. Upon that being said, did the people continue in the direction in which they were going before, or turn about? — No, they turned about. Did they follow him ? — Yes. Did the men put themselves in any particular form or order? — There was a man wanting them to form threes ; he got me by the arm for one, and I damned him, and told him to mind his own business, and to let everybody do as they please. Did you march promiscuously one with another, or in any form ? — In no form. When Mr. Frost told the men to follow him, did he mention any place ? — To the “ Cefn.” Did Mr. Frost say anything about meet- ing anybody there ? — Zejplianiah Williams with five thousand men, and Jones , of Pontypool, with two thousand. JWe went towards the “ Cefn ” — towards the “ Greyhound ” ; some were armed with pikes, some had guns, and some sticks.] Did the men go on voluntarily all of them ? — Some were willing and some were not. What was done with those who were not willing ?— They were ordered to be kept up. What description of persons ordered them to keep up ; were they armed men or not ? — There were armed men behind, but I cannot say who gave that order. Do you know a place called the “Welch Oak ” ? — Yes. Did you arrive there ? — Yes. About what time ? — I should suppose somewhere from twelve to one o’clock, perhaps more. Did you afterwards arrive at a place called Pye Corner ? — Yes. Did you see Mr. Frost there ? — I did. When you gob to Pye Corner did Mr. Frost give any orders as to who should be in front ? — He said that the guns should take the front, and the pikes next, and the bludgeons next, and the people without arms next, towards Newport. How near were you to Mr. Frost when he said that ? — Within a few yards. Upon Mr. Frost giving those orders, did you go up to him and speak to him ? —I did. State to my Lords and the jury what you said to him ? — I asked him in the name of God what was he going to do; was he going to attack any place or people ? He saw he was going to attack Newport, and take it, and blow up or down the bridge, I cannot say which, and stop the [25G Welsh mail from proceeding to Birming-, ham ; that there would be three delegates there to wait for the mail there an hour and a half after time ; and if the mail did not arrive, then the attack would com- mence in Birmingham, and from thence to the North of England and Scotland. Anything else ? — And that was a signal for the whole nation. Upon Mr. Frdsfs stating that to you, did you say anything more to him? — I told him he might as well lead us to a slaughter-house to be slaughtered; that he imitated a butcher leading a flock of lambs to a slaughter house to be slaugh- tered ; and I begged him to desire the men to return to the hills. When you said this to Mr. Frost about leading the men to the slaughter, like lambs to a slaughter-house, what answer did he make you ? — He said, ‘ * Do you think so ? ” In what manner was that said to you ? — In no particular manner, only be turned away with a scornful look, as I thought. This was at Pye Corner ; at what time did this happen ? — It was in the morning, early. Was it before or after day -break? — It was after day-break. At this time what number of persons, as nearly as you can judge, were assembled there ? — The road was lined further than I can express. Were the men armed? — Some were and some were not. After Mr. Frost had made this state- ment, did you remain \Vith the mob, or what became of you? — No, I jumped into the brambles, and from that over the hedge into a field, and made my escape. [I had tried to escape before, but was prevented. There were a great many forced on against their will.] On that Sunday night before you started, had anything been said about any par- ticular words ? — Yes ; a passport was given by the “ Coach and Horses.” In the road ? — Yes. What were the pass-words given you ? — “ Beans,” and “ Well.” “Beans” was the word of challenge, and “ Well” was the answer?— Yes. Was anything said as to what should be done with persons who were met that did not know those pass-words ? — That they should be made prisoners. Do you know a person of the name of Jones ? — Yes. Where does he live? — At Pontypool. Is that the Jones that Mr. Frost referred to as the Jones that would meet him with two thousand men ? — Yes. Had you seen Frost and Jones in com- pany anywhere before this night ? — No ; I saw Mr. Frost on Friday night in the Trial of John Frost, 1839. 257] “ Coach and Horses,” and I saw Jones in the passage ; Frost was in tlie kitchen. Kelly : He has not said yet that he saw Mr. Frost on that night. Solicitor General : What night do you say that you saw Mr. Frost in the kitchen of the “ Coach and Horses ” ? — Friday night. And what night was it that you saw Jones in the same passage? — The same night. The “ Coach and Horses ” is at Black- wood? — Yes. Is that a house in which any Chartist lodge has been held ? — Yes. On that Friday night was there any meeting appointed of any persons at that house ? — Yes. What were they called ? — I cannot say, I heard some say that there was a delegate meeting there ; but I do not know. Was it mentioned at that place on that night that there was a delegate meeting ? — Ho, it was not. Was there any meeting there on that Friday night ? — Yes. Did you attend that meeting ? — I did. What part of the house was that meeting held in ? — In the long room upstairs. Was there a meeting in any other part of the house that you know of ?— Hot that I know of. Cross-examined by Kelly. You say there were a great many persons at different places forced on against their will ; tell me the name, if you can, of any one person that was forced on against his will? — It is a thing impossible for a man to tell the names of persons where there were so many hundreds in the mob. I am not asking you what is possible or impossible. Attend to my question. I ask you the name of any one person who was forced on against his will ; can you give me the name or not ? — I can give you my own name for one, I can give my brother-in-law’s name for another. Give me your brother-in-law’s name ? — Thomas Williams. Where does he liye? — At the same place where I live myself. Hame another ? — I cannot pretend to name people’s names, for I do not know the names of those that I saw; I saw hundreds there. You can give me explanations by-and- by ; in the meantime, is there any other person that you can name who you will undertake to swear was forced on against his will ? — I can undertake to say so far as this, that at Risca, I suppose there were from four to five hundred people ; and when they came to Mr. Gross's house, I should think there might be nearly one hundred more ; and we were nearly all in a mind to return, whether or not. o 67432. [258 Do you think that is an answer to my question, when I ask you to name one ; I ask you to name one besides yourself and your brother-in-law ? — I do not know people’s names. There was in Risca If you are not going to give me a name, do not make a statement till you are asked to do so. I ask you a very plain question; can you name anyone ?— There was a man of the name of Cooke , in Risca — I am positive he was forced — an agent under Mr. Lemon. Do you know his Christian name ? — Ho, I do not. Can you name any other ? — There are a great many now in Monmouth, witnesses, but I do not know their names. Those are all the names you can give me ? — Those are all the names I can give you at this present time. What a.re you by business or occupation ? — A collier. For whom do you work? — For Mr. Prothero at present, when I am at home. Is that Mr. Prothero who was the part- ner of Sir Thomas Phillips, the mayor? — I cannot say whether they are in partner- ship. Is that the gentleman who sits there (Mr. Prothero was pointed out to the wit- ness) ? — That is my master. How long have you been in his em- ploy ? — Hot long at this present time ; I have been employed for him at different times. How long is what you call “ this present time ” ? — I suppose I have been a month or six weeks, or perhaps two months ; I cannot exactly say. I want to know whether this last em- ployment began before or after the riots of the 4th of Hovember ? — After. How soon after ? — Within a day, or two, or three, or four days ; it was within a week; I believe that I went to work at throwing out the water within two or three days after that. Did he apply to you, or you to him ? — I never saw his person; I applied to his agent. When was it that you first gave infor- mation to anybody, or had any communi- cation with anybody, as to the proceedings of this night of the 3rd of Hovember ; you went home you say ; I want to know how soon after the riot had taken place you first made any communication, or gave any information to anybody about what you knew of that affair? — I gave it the next day, after we went to work again. Do you mean the next day after the 4th of Hovember ? — Ho, the second day after I commenced work. When was that ? — I was two or three days idle before I went to work after the riot. Trial of John Frost , 1839. l 259 ] Trial of John Frost , 1839 . [260 Was it the same week as the Monday the 4th of November ? — Yes. Can you tell me what day P — No, I can- not ; we were all met together, and we did tell everyone of us one another what we had seen. I am asking you whether you gave any information to anybody which led to your being examined? — I cannot say the day of the month when I gave information. When did you first hear of the riot of the 4th of November ? — I heard it on the same day. Then you can tell me about how many days afterwards you first gave any infor- mation to anybody of what you knew ? — I cannot tell you how many days. About how many days ? — I cannot say. Was it two, or three, or four? — It was more than that. Was it five ? — I cannot say. I ask you again ; was it the same week ; was it before Sunday ? — No. Was it on the Sunday ? — No. Was it on the Monday ? — I believe it was on the Sunday ; I think the first in- formation I gave was on the Sunday. To whom did you give that informa- tion? — To Daniel Evans. Who is he P — He was a constable I think. Hid you tell him all that you have told us now to-day? — No, I do not think I did. Then, what information did you give to Daniel Evans ? — I cannot say what I gave him. Yes, you can, and you must ; what in- formation did you give to Daniel Evans ? — I cannot say what particularly I gave to him. I ask you, upon your oath, to tell me what it was ; what did you tell to Daniel Evans ? — Concerning the riot. I want to know what it was concerning the riot ; what was it that you told to Daniel Evans ; if you recollect what people told you, and what you heard at the time of the riot, you can recollect what you yourself said at a later period ; what was it that you said to Daniel Evans on the Sunday ? — I told him I was with the mob, and I told him what happened, I believe, at the “ Coach and Horses.” I want to know what you told him ? — I cannot tell you what ; I told him every- thing, as nearly as it laid in my power, what I have told you to-day. If it has laid in your power to tell us now, yon can tell us what you told him ; I ask you, upon your oath, what it was that you told Daniel Evans ; tell me all you told him ? — I do not know what I told him ; it is of no use for me to go over a thing I cannot be positive of; I cannot be positive whether I told him all or not all. I am not asking whether you told him all or not ; I am asking you what it was that you can undertake to say that you did tell him ; what was it you told him ? — I told him what I have said here. I ask you, upon your oath, to tell me now what it was you told him; do not tell me that you told him the same; what did you say to him ? — He asked me if I saw Frost anywhere on the Sunday even- ing, if I do not mistake, and I told him I did. What else did you tell him ? — He asked me where, and I told him at the “ Coach and Horses.” What else did you tell him ? — I told him that we went from there to the “ Welch Oak,” and I told him what he said, when he headed them, that he was going to meet Zephaniah Williams with five thou- sand men, and Jones , of Pontypool, with two thousand : I told him that. Anything else, or is that all that you can remember ? — I believe I told him more than that. What was it that you told him beyond that ? — I think I told him that the guns were ordered to the front, at the “ Welch Oak,” and to be proved. Anything more, or is that all ? — I do not remember that I told him anything more. To whom, after Daniel Evans, did you give any information ? — I gave a few words to Mr. Prothero. When ? — The day I was examined by the magistrates. I cannot say what day of the month that was. » The day you made the deposition ; that was on the 20th of November ; then am I to understand that you gave no informa- tion to anybody except to Daniel Evans, on the Sunday that you have spoken of, until you gave some to Mr. Prothero on the day you were examined ? — Not to my knowledge. Where did you meet with Mr. Prothero, or how came you to see him on the day you were examined ? — I met him at the '* Westgate ” Inn. What made you go to the “ Westgate ” Inn? — I was brought there by the con- stable. Do you mean that you were appre- hended ? — I was taken as a witness, Daniel Evans told me. Was it Daniel Evans that came to you ? I want to know whether he took you as as prisoner, or whether he merely de- sired you to go as a witness ? — He told me that my time would not be long, he expected ; that he only wanted me as an evidence. He came, and you went with him ? — Yes. 261] Where did you go to in the first place ; to the “ Westgate ” P — No. Where did you go first P — I went to the Union. Whom did you see there p — I saw Mr. Edwards there. Did you see Mr. Edwards before you saw Mr. Prothero ? — Yes, I did. Did you make any communication to him P — Yes, I made some short discourse to him of evidence. Then you were incorrect in saying that Mr. Prothero was the next person ? — Yes, I was wrong ; it was Mr. Edwards. What did you tell Mr. Edwards ? — I told him nearly the same as I have given to- day. You swear that ? — I swear that I gave him nearly the same information, not all, I believe. I want to know what was the excep- tion ? — I might have given all ; I cannot say. Do you believe that you gave all the same evidence that you have given to-day ? — No, 1 do not think I gave it all ; I am not positive. Then you saw Mr. Prothero ? — Yes. Did you tell him anything about it P — Yes. What did you tell him? — I told him nearly the same as I did Mr. Edwards. Have you any reason for thinking that there was a part of the statement you have made to-day kept back ; because you say you do not think you told him all ; have you now any reason to think that there was any part of the statement kept back ; if so, what was it ? — No, I was not examined so close as I am to-day by this gentleman ; I did not know they were going to examine me till I came before the magistrates. When you came before the magistrates, who examined you then ? — Mr. Coles. Who is he ? — The chairman of the ma- gistrates ; Mr. Prothero asked me some questions, certainly, and Mr. Coles was chairman. Were you desired to state all you knew about this matter ? — Yes ; I was desired to state all I knew about the prisoner at the bar. When did you first tell anybody, until to-day, about a man having said that the soldiers were all Chartists, and that the arms and ammunition Vvere packed up, and that they were ready to come up if we would go down and fetch them ; when did you first tell anybody about that till you told it to-day ? — I do not remember when. Did you ever do it p — Oh, yes, I have ; I have no doubt of it. To whom; let us begin at the begin- [262 ning; did you tell it to Daniel Evans ? — No ; I did not. You say that all this was stated in Mr. Frost’ s presence ; you mean to swear that now ? — He was present in the room, whe- ther he heard it or not. It was stated in his presence ? — Yes, it was. The man wearing a glazed hat said that he came from Newport, that the soldiers were all Chartists, and that the arms and ammunition were packed up, and that they were ready to come up if we would go and fetch them ; you say that was stated in Mr. Frost’s presence P — Yes. Did not that appear to you to be a very material and important statement P — Yes. Then, now tell me if you cannot re- member to whom you first told that? — I have told it to Mr. Edwards, if I am not mistaken. The magistrate ? — Yes ; and there are many other things that I have not told yet. I am not asking you about other things, but about this thing ; when was it' that you told it to Mr. Edwards ? — I cannot say. Was it when you saw him and gave him an account of Mr. Frost, and of your going to this meeting ? — No. Then you can tell me when it was ? — I cannot. I ask you, upon your oath, to tell me, if you can, whom you ever told about this, and when ; give me an answer one way or the other ? — Yes ; to Mr. Phelps. When ? — I cannot remember the day. I am not asking you the day of the month? — The last time I came to New- port ; before I came to Monmouth. When did you tell it to Mr. Phelps ? — I told it to Mr. Edwards, merely, in the street : I do not know that I was examined to it.. I am not asking you where but when ? — I cannot say when. Which did you tell it to first, Mr. Ed- wards or Mr. Phelps ? — I cannot say that. Did you tell it to Mr. Prothero ? — No, not to my knowledge. Can you tell me anybody else to whom you told it ? — Not to my knowledge. At what time was it that you left Blackwood, on the Sunday evening? — It was between seven and eight o’clock, I suppose ; I do not know anything about the time, from the time we left till we came back. Can you tell me what time, or about what time, it was when you got to Pye Corner ?— No, I cannot ; I never saw a watch, nor a clock, from the time I went away till I got home. Where were you at day-break ? — At Pye Corner. I 2 Trial of John Frost, 1839. 263] How long did yon stay at Pye Corner P — I stopped none. Yes, you did, because you told us a long story about what Mr. Frost said there ? — They made no stop. There was no stop at all at Pye Corner ? — Not to my knowledge ; I do not know what was done after I went away. Will you swear that it was not as late as seven o’clock in the morning, when you were at Pye Corner ? — I will not swear anything about it. Will you swear that it was not as late as eight o’clock when you were at Pye Corner ? — No. Then it might have been at eight o’clock in the morning ? — It was not. Then you will swear that it was not so late as eight o’clock ? — I do not believe it was, by the light. Will you swear that it was not? — No; I will not swear to any time. How far is Pye Corner from Newport P — I cannot say. Is it not somewhere about a mile and a half or two miles P — It is more than two miles. Between two and three miles P — I sup- pose it is. How soon after you had been at Pye Corner did you leave the people to go home P— I left the people directly, and I went into the fields ; I squatted a little in the briars and brambles, and then I got through the hedge into a field, and went under hedge. Was it directly after you had left Pye Corner? — Yes. How far is it from Pye Corner to your house P — I cannot say. Tell us somewhere about ; you know something of distances, a man of your age ? — I suppose the road I went it might be twelve miles. At what time did you get home P — I was home by ten o’clock. Not before? — No, nothing to speak of. I do not think I was anything before ; it was somewhere thereabouts. By my clock it was before ten ; my clock, I believe, was not altogether right ; 1 am not certain. ' How long were you going home ? — That is more than I can tell ; I had no time- piece. You cannot tell at all P — No. I ask you, upon your oath, were you not in your bed at home between nine and ten o’clock P — I was in my house, with my clothes off, before ten o’clock. Were you not in your bed between nine and ten o’clock P — I was in my house before ten o’clock, and with my clothes off. Were you not in bed ?— Certainly, I was. [264 Were you not in bed shortly after nine o’clock that morning ? — I was not. Do you know a person named Mary Jones ? — Yes. Did Mary Jones come to your house that morning? — Yes. Did she see or know that you were in bed? — My wife said she came to the house, and she said that I was in bed. How long had you been in when she came to the house ? — I cannot tell. 1 do not want to ask you exactly, but within half an hour? — Not many minutes. Were you in bed when she came ? — Yes. With regard to Pye Corner; can you name any person who was present when Mr. Frost said any one word of the kind you have mentioned P — The man was there close by with a glazed hat and a drab coat. The same man who came and told you about the soldiers, and everything of that kind P — Yes. Anybody else ? — Not that I can name ; I did not know the people. Do you know at all who this man was P — No, I did not know his person ; I should know him if I saw him., but I do not know his name. Have you ever seen him before ? — No, not that I know of. Have you ever seen him since ? — No. Did you never hear him called by any name P — I heard some people say that his name was j Reynolds, that they thought that was his name. Did you hear him called by any name ? — That night do you mean ? You only saw him that night ; did you hear him addressed by any name P — No. Nor hear his name in his presence P — No. Is there any other person at all who was present, and within hearing, while Mr. Frost made any part of this statement that you have told us of? — Not that I can name. Or describe P — No, not people that I do know. {A deposition was shown to the witness .) Is that ycur handwriting ? — Yes. Kelly : I should desire this deposition to be read. I presume this was read over to you before you signed it P — I believe it was. Was it read over or not? — Yes. Did you hear it p — I heard it read. And did you swear to it P — I believe I did. Have you any doubt that you swore to it as true P — I swore to it as true. The deposition of James Hodge was read, as follows : — “ James Hodge sworn : states, I am a collier and live at Monythusloyne ; I am at present in Trial of John Frost, 1839. 205 ] Mr. Prothero’s employ; I live at Woodfield near the Blackwood ; I was at home on the evening of Sunday the 3rd of November ; I was at home that evening at seven o’clock ; a number of men came to my house that night ; they were from seven to ten ; they were armed ; there was a gun or two and a pike or two ; they told me I must go with them to the Blackwood to meet Mr. Frost at the ‘ Coach and Horses ’ ; the ‘ Coach and Horses ’ is kept by Richard Pugh ; I was compelled to go with them ; at the ‘ Coach and Horses ’ I saw Mr. Frost and another man with him ; that man was a stranger to me ; he had, to the best of my knowledge, as well as I could tell by the light of the candle and lantern, a light drab coat, a cased hat, and a red cravat round his neck ; there were a considerable number of men present ; Mr. Frost advanced up the Blackwood about 30 yards, and said that he would scour the Blackwood first ; then there was some of the people said they would rather not f )r it to be scoured ; it was not then scoured ; I do not know what happened after, not by that party whatever ; Mr. Frost desired us to follow him to the ‘ Cefn ’ ; when we got to the road turning towards Abercarne, some turned the road towards Abercarne and the others con- tinued along the tram-road ; he said that Zephaniah Williams with about five thousand men would meet us at the ‘ Cefn ’ ; he said Jones, of Poutypool, was to meet him with about two thousand ; I next saw Mr. Frost at Pye Corner ; on the way down from Blackwood to Pye Corner we met a man on horseback with a candle and lantern in his hand ; it was near Mr. Cross’s house ; he told us to proceed on ; that Mr. Frost was there with a body of men waiting for us ; some made a remark, that what was the good of going there without arms ; the persons re- turned Avith an answer, that there was plenty of guns, bayonets, and ammunition there ; at Pye Corner I heard Mr. Frost order the guns to the front to prove them ; he ordered the pikes on next ; I ran up to Mr. Frost and said to him, ‘ In the name of God Avhat are you going to do, are you going to attack any person or place ? ’ he said, ‘ Yes,’ that they would attack Newport and take it ; he said he would bloAV down the bridge, to stop the Welsh mail proceeding to Birmingham ; he said there would be delegates at Birmingham to wait the mail for an hour and a half after time, and if it did not arrive there in an hour and a half after time, it would be the signal for them to attack Birmingham, and it would go through the North of England, Scot- land, and all the nation ; on hearing that from Mr. Frost, I said he might as well lead us all to the slaughter-house; I told him it imitated a butcher leading a flock of lambs to a slaughter- house ; I said to to him, ‘ For God’s sake desire the men to return to the hills ; ’ he asked me if I thought so, and he turned away from me Avith a very scornful look, as I thought ; I tried all the way down to make my escape ; I then found an opportunity of escaping with great difficulty ; I do not know the prisoner ; as I passed through the croAvd I said to the men I thought it better to retire ; I am not in custody upon any charge that I knoAv of ; I have been examined by Mr. Edwards and Mr. Prothero before I came into [260 this room as to the facts I have stated ; I was so examined at the Avorkhouse, and at this house likewise ; it was this morning at the workhouse by Mr. Edwards, and since here by Mr. Pro- thero ; I am not a prisoner.” Kelly : Just let me know if I have taken your account correctly about one part of this matter. I understood you to say that you told Daniel Evans on the Sunday, among other things, that Mr. Frost ordered the guns to the front to be proved, at the “Welch Oak ”p — I did not say that Mr. Frost ordered them. I do not know who ordered them. That they Avere ordered P — That they were ordered. Kelly : Will your Lordships permit me to ask if that appears so upon your notes, as to his having told Daniel Evans. Tindal, C.J. : Do you mean in the exa- mination in chief? Kelly : No, in the cross-examination as to what he told Evans on the Sunday. Tindal, C.J. : “I think I told him that the guns were ordered to the front to be proved.” Pabke, B. : At the “ Welch Oak.” Tindal, C.J. : He does not there say that Frost ordered them, but that they were ordered. Kelly: Were the guns ordered in front to be proved once or more than once ? — To be proved only once. Were the guns ordered in front at all more than once P — Yes. When were the guns ordered in front ? — They were ordered to take the front at Pye Corner and at the “Welch Oak”; they were ordered to be proved at the “ Welch Oak.” Now, you have heard your deposition read, I want to ask you again, can you tell me to whom and when you first said anything about a man having told you that the soldiers were Chartists? — No, I cannot. How long have you been in the habit of attending the meetings of those people ? — I attended one of the first meetings that ever was attended at the “ Greyhound.” When was that ? — I cannot tell ; that is the first that ever was held there. Had you been for several months in the habit of attending their meetings? — No, I never attended another till I attended that on the Friday night previous to the riot. Was that meeting at the “ Greyhound ” long ago ? — It is getting on for a twelve- month. Then you attended a meeting about a twelvemonth ago, and no other till the meeting at the ‘ * Coach and Horses ” P — No association meeting. You are quite sure that you did not stop at all at Pye Corner? — I am quite Trial of John Frost , 1839 . 267] sure that I did not stop at all, no further than go off the road to take my way off. Foreman of the Jury : Did you hear Mr. Frost make any remark when the man with a glazed hat made that statement about the soldiers? — No, not that I know of. When at Pye Corner Mr. Frost made the statement to you about blowing up the bridge at Newport, and so on ; did he do so in a low voice to you personally, or so that all the people might hear ? — It was not a low voice, and it was not a loud voice. Was it told you as a secret ? — No, it was not a secret, I think. Did you think you were obliged to hide yourself after you made your escape ?-- Yes. For how long do you think ? — Not many minutes. While the crowd was passing? — Some were passing, and then I got into the field, and then I turned up again and squatted again; but all the time I was squatting I suppose I did not lose more than fifteen or ten minutes, perhaps, or perhaps five. George Lloyd. — Examined by Sir F. Pollock on the voir dire. [I live at Coalbrook Yale. I am not rated. I live in part of the house. My mother-in-law lives in the rest. She takes the house of the landlord ; she rents it of her brother-in-law.] Sir F. Pollock: My Lord, the question is this, whether George Lloyd, who is merely living in part of a house, should not have been described, as John Matthews is below, as “ abiding at the house of” so- and-so, “ in the parish of ” so-and-so ; be- cause if he is merely in the parish as a lodger or as a servant, the description is insufficient, unless it states what house he is living at. If he is a housekeeper like the first witness, upon whom an objection of this sort was raised, it may be said tha t that is a proper description of him ; that he being a housekeeper there, that is all you can say ; but here, Lloyd living with his mother-in-law, whose house it is, the proper description would have been, not ‘ ‘ George Lloyd, of the parish of Aberys- truth,in the county of Monmouth,” but “ George Lloyd, living at the house of his inother-in-law, in the parish of Aberys- truth, in the county of Monmouth.” Tindal, C.J. : I understood him to say “ My mother-in-law takes the house, I hire part, I am not rated, I have two rooms in it.” Sir F. Pollock : One room. Attorney General: He lives there with his family. [268 | Tindal, C.J. : He has the part of the house in which he lives as his separate abode ; he could not be turned out of it. Sir F. Pollock : What do you pay your mother ? — I pay 8s. a monih. Tindal, C. J. : I think there is no objec- tion to the description. Examined by Ludlow. [I live near Zephaniah Williams. As I was going home from Nant-y-glo about six o’clock on Sunday evening, Novem- ber 3, I fell in with forty or fifty men. They asked me where I was going and said, “ Damn your eyes ! you must go with us,” and they took me to Zejohaniah Williams's. J Did you observe whether any of them had anything in their hands? — Yes, a great many had some weapons in their hands of different sorts, and some few had none What sort of weapons were they which they had in their hands ? — Some had spears, some had old knives on the end of a stick, and long rods of iron peaked at the end. Was anything given to you when you were there ? — Yes, they gave me a piece of a mop- stick, and they told me to take that with me to defend myself. How long did; you stay at Zejohaniah Williams's house ? — I did not stop no time ; they were all out directly, to go on to the mountain. Did you go with them to the mountain ? — Yes, I went along with them. About how far is the mountain from Zephaniah Williams's house ? — About two miles. Is it between Ebbw Yale and Nant-y- glo ? — Yes, on the top. Did you stay there for any time ? — Yes, from two hours and a half to three hours. While you were there, did other per- sons come to the place P — Yes, they were coming in. droves from all parts. To what number do you think they came in in droves ? — I should think four or five thousand there ; but it was so very dark that I could not judge exactly. Did you see whether they had anything in their hands or not ? — Yes* they had. Of the same description as the others had ? — Yes, of the same description that the others had. Is there a tump upon that mountain ? — Yes. A place higher than the rest ? — Yes, a place off the road, upon one side of the road. Did you see Zephaniah Williams ? — Yes, he got on the top of this tump. When he got upon the tump, and the people stood bv. did you hear him say anything ? Trial of John Frost, 1889. 269] Trial of John Frost, 1839. [270 Kelly : I presume that your Lordships will hold what was said by Zephaniah Williams to be admissible, upon the same ground as that which was said by that person named Reed, before objected to. I shall not repeat the objection; I would only now, once for all, beg your Lordships to consider that we object to the admis- sion of it ; it will not be necessary for your Lordships to hear it argued again. Tindal, C.J. : This is not exactly upon the same ground as the other. There is evidence before us that the prisoner at the bar referred to the name of Zephaniah Williams, and stated that he was coming. Kelly: No doubt. I do not deny that there is evidence that Zephaniah Wil- liams had been named by the prisoner; and, for aught I know, may afterwards have been joined with him. The ground of my objection is, that this took place before the prisoner was present, and be- fore he joined the body that afterwards marched into Newport. Ludlow: Did you hear Zephaniah Wil- liams say anything ? — Y es. What did you hear him say ? — He got on the tump, and he said, 4,5 My dear Char- tists, you need not be frightened because we are bound to be at Newport at two o’clock ;” he said, 44 The soldiers will not touch you.” Did he say anything further ? — He said something in Welsh, but I did not know what it was. Did you hear whether there were others on the road or not P — Yes ; he said a lot was to meet them from all parts. Kelly : It is rather too much a leading question to put the words into the wit- ness’s mouth. Ludlow : Will you tell my Lords and the jury all that he said, as nearly as you can remember? — He said something in Welsh, but I did not know what he said, and then they all started down. Was any answer made by anybody to what Williams said? — They said, “Come on, my boys.” When he said, 44 The soldiers will not hurt you,” was anything said in answer to that? — The men all whooped, and said, 44 We do not care for them.” Did they say anything further ? — No, they all marched away. As you were going along, was anything done to any of the houses as you passed ? — Yes. What was done ? — There was knocking the doors open, and breaking the windows and taking people out of bed. What was done with the people whom they took out? — They took them along with them. Where ? — Where they were going ; to Newport. What do you mean by taking them ; was anything done to make them go ? — Yes. What p — If they did not come they were dragging them out; they pressed them to go. Did you at any time show any unwil- lingness to go any further P — I made my escape on the road ; and they were push- ing me on, and knocking me on the back with a stick, and they swore they would serve me out, if I did not come along with them. Is there any canal anywhere along the line of road ? — At Abercarne. Did anything happen to you at the canal ? — Yes, they threw me in. Into the canal? — Yes. Attorney General: Your Lordship will see Abercarne rather more than half way between Newbridge and Bisca. Tindal, C.J. : Yes. Ludlow : What had you been doing just before they pushed you into the canal ? — I was trying to make my escape from them. And they pushed you into the canal ? — Yes ; they were saying all along the road they would serve me out. Did you get out of the canal ? — Yes. Was anything done to you after you got out ? — After I got out they pushed me along, but I could not walk from cold and wet. I was quite stiff, and dropped as they were pushing me along, and I lay on the road, and afterwards I got to a small house at Abercarne, and I asked them to take me in, and so they did ; they were gone to bed, but I knocked them up. [About half-past six in the morning I left the house, and made my way towards home, and in my way I met from twenty to thirty men. They took me with them by force on the road back to Newport. I went with them near to Newport.] As you were coming towards Newport, did you meet any coming back ? — Yes ; they were running back in all directions, some with their hats on, and some with their hats in their hands. Upon seeing them coming back in all directions, did you and the men that you were with turn back? — I wanted to cut back with the first running back, and they said, 44 Damn your eyes, what is the matter ? ” The others desired you to stay, for what ? — To know what was the matter. Kelly : This must have been after the transaction. Ludlow: This is the party in retreat. (To the witness.) Upon learning what had passed they turned back ? — Yes. Cross-examined by Kelly . [It was between six and seven o’clock when we went to the mountain where 271 ] Williams was ; this was eight or ten miles, or perhaps more, from Abercarne. We got to Abercarne between one or two in the morning. We stopped on the hills from two and a half hours to three hours. I do not know where Cefn is ; I do not know Mr. Frost. James James sworn. — Examined by Talfourd. I A. miner. I know Zephaniah Williams ; he keeps a beer-shop, the “ Eoyal Oak,” at Nant-y-glo, about twenty-one miles from Newport ; there is a tram-road from Nant-y-glo to Newport. There was a Chartist lodge at Williams's. I attended it. I was at Zephaniah Williams's on Sunday, November 3, from half-past ten to eleven, and again in the afterncon about three o’clock. Zephaniah Williams and many people were there. A strange man told us to come up on the mountain, to meet about six o’clock, and if we did not come we should be in danger. He said we were to bring bread and cheese with us, as perhaps we should want victuals before we came back. He said that we should hear, when we got upon the mountain, what we were to do ; nothing else. Zepha- niah Williams told people in Welsh to come up to the mountain that night, and to bring bread and cheese with them. I went to the mountain and stayed an hour and a half or two hours. I saw a man come and speak with Zephaniah Willmms when we got down on the tram- road.] Did you hear anything that passed between that man and Zejphaniah Wil- liams? — Yes; the man came and asked, what did we want down at Newport; w r e were going to be killed, all. Did you hear Zephaniah make any answer to that P — Yes ; Zephaniah an- swered him, “No,” says he, “I hope that we shall all come safe back ; nobody will be killed there.” At the time that those words passed between Zephaniah and the man, were the people coming down from the moun- tain ? — No, they came down to the tram- road. After this conversation between Zepha- niah and the man you have told us of, did the body move on along the tram- road ? — Yes ; they called upon us to go on, and on we went. II twice tried to escape but was stopped. I went down with them as far as Stowe Church ; that was somewhere about nine o’clock in the morning. I was going, on towards Newport. As we were going down towards Newport I heard firing ; the people when they heard the firing turned back, and I turned back and went home ; [272 it was a very short time after we heard the firing when we went home.] Cross-examined by Sir F. Pollock. [ Williams talked about the people providing bread and cheese. I have heard him tell the people to keep the peace, but this was three or four months before the riot. Many times, at the Chartist lodges, he told us not to drink too much beer, but to keep the peace. I have heard Vincent's name mentioned many times. I have heard Williams say he was a prisoner at Monmouth. I have heard that Vincent had been there. The people there liked him very much ; the people knew he was in gaol. I have heard them speak about him. It was about nine o’clock when the people met us. James Samuel sworn. — Examined by Talfourd. I am a hallier, and keep a beer-house or public-house called the “ Coach and Horses ” on the road between Nant-y-glo and Newport. On Sunday night, Novem- ber 3, about half-past eleven, a number of men came to my house when I was in bed. They knocked and I let them in. I can- not say how many there were ; I thought to turn back and go to bed, but before I got to bed another party came, and I had to turn back again ; and then there was a rush made, and the house was all fall. Zephaniah Williams was not one of them. The first party went off, and another party came, and one was a very big man, who stopped for some time and ordered beer for others, and told them to go. When the most part were gone, about half-past one to two o’clock, Zephaniah Williams came in ; he appeared to be quite wet ; he sat down by the fire and drank a pint of beer. He asked me where were my horses ; I told him they were at a place that was about two miles above, where I had a little land ; I do not know that I mentioned how far it was ; but I mentioned the place. Then in a little time I- was fearful that some person might go to my stable, which was the other side of the road, where there were five ; and I told Williams that I had one at home. I called my servant up, and sent him off with a horse and tram. I cannot say whether Williams mentioned Newport or no. He said, as he ought to be down something sooner ; he thought he ought to be down about four o’clock. I called my boy, Henry Smith. Henry went off and drove the tram, with Williams in it. My house is fifteen and a half miles from Newport.] Cross-examined by Kelly. I Williams behaved quietly in my house, he called for a pint of beer and paid for it. Trial of John Frost, 1839. 273] Trial of John Frost, 1839. [274 There was nothing to complain of. They were not all quiet, they stole some of my things. Henry Smithy sixteen, servant to the last witness spoke to driving Williams and others in the tram towards Newport, and passing large bodies of armed men on the way. Williams got out at Tyn-y-Cwm. Witness went on to Newport with the tram, and put up near the “ Salutation.” He saw Williams turning back from Newport after the firing. Cross-examined by Sir F. Pollock. I put up the horse this side of the “ Salutation,” at that stable, and then I went out and stood right over the “ Salu- tation.” I did not go further into New- port.] How long after you had put the horse up did you hear the firing ; was it more than five or ten minutes P — Yes ; I suppose it was a quarter of an hour. William Howell. — Examined by the Attorney General. [I was at Zephaniah Williams’ public- house in the evening of Sunday, Novem- ber 3.] Were there a number of persons in the house besides Zejphaniah ? — A great number. Did you hear him say anything to the persons who were in the house P — I heard him say that there was to be a large meeting on the mountain. What more did he say ? — Aud he told the people to take “ some’at ” with them, to defend themselves, for fear that some people might interrupt them. [I went to Zejphaniah’ s house again be- tween five and six. There were a great many there. I did not see any without arms.] Cross-examined by Kelly. Did he not say that it would be better for everyone to have something with him, or “some’at” with him to defend himself, for fear that some person might come to the meeting to interrupt them ; you say that was on the Sunday ? — Yes. What meeting was he talking of ; was it not this meeting that was to be held on the mountain P — The meeting was to be held on the mountain. Did not Williams say at the same time that there was to be no shedding of blood, nor anything of the sort P — I did hear him say so. And that everyone was to go home peaceably ? — Yes. [James Woolford, Mr. Phelps’s keeper at Abercarne, about ten miles from Newport, spoke to armed men coming to his house about half-past one on Monday morning, and taking three of his master’s guns, a pocket pistol, a shot pouch, a shot belt, half a pound of powder, and a match. They said they came for firearms and were going to take Newport.] Joseph Anthony. — Examined by Wightman. [I am a hallier at Tydu, three miles from Newport. Five armed men came to my house between six and seven in the morning and forced me to go along with them down to Tredegar Park. About ten minutes after getting there Frost came up and put the crowd into order. He did not tell them nothing, only catched hold of their arms, and put them four deep. They marched on in that order. I went as far as the Court-y-Bella machine. I stopped there in the machine-house about a quarter of an hour till the engine came by. I went home by the engine. As I was going home I met people running back.] Cross-examined by Kelly. [We waited an hour in the park. I cannot say how many people were there. I never reckoned them ; it was more than I could count. I went home from the weighing-machine. I may have stopped twenty minutes in the engine-house. The people were turning back when I came out. I saw Mr. Frost five minutes after we stopped in the park.] How far is it from the park, where you then stood, to the weighing-machine ? — A mile and a half from where we started. Did you stop in the engine-house p — Perhaps I was a quarter of an hour or twenty minutes in the engine-house. Was that while the people were going on towards Newport ? — They were turning back when I came out. Is the weighing-machine near enough to Newport for you to have heard the firing ; did you hear the firing p — No. But, however, when you came out, which you say was about a quarter of an hour or twenty minutes after you had arrived at the weighing-machine, the people were turning back P — Yes. You are sure of that ? — Yes. [I saw Mr. Frost five minutes after we stopped in the park ; he was then coming from Tydu ; from Pye Corner. Be-examined by Wightman. He was going towards Newport.] John Nichol Hawkins. — Examined by Talbot. [A surgeon at Newport. Spoke to meet- ing about a hundred men armed with 275] Trial of John Frost, 1839. [276 pikes, tops of scythes, &c. between eight and nine o’clock at Pye Corner on the road from Bisca to Newport.] Were they npon the tram-road, or upon the other road ? — Upon the tram-road. Do you know Zephaniah Williams ? — I do. Did yon see him that morning ? — I did. Where ? — On the tram-road ; I saw him at Pye Corner, and on the tram-road. How far from the other persons? — He was intermixed with them, some before and some behind him. Did yon say anything to any of those persons ? — I did. What was it ? — I told them to go back ; there were two or three packets of soldiers arrived in Newport ; they had better go back. Did any person give yon any answer to that? — He did. Who ? — Zephaniah Williams. What did he say ? — I believe, I will not be quite certain of all the words he told me, but only of this part of the evidence ; he damned the soldiers, and said, “ Come on, and he would show what the colliers could do in Newport.” There was some more. To whom were those words addressed ? — To the mob that was with him. What was the last that yon saw of that party ? — I fancied, but I would not be certain, that he put his hand to draw a pistol, and I went on. When you last saw those persons, were they moving on, or stationary ? — Going on. Still in the same direction ? — Yes. Cross-examined by Sir F. Pollock. [I was going to Llanvrechoa or Michael - stone-y-Vedw. I returned to Newport when the mob were dispersing. It was probably between eight and nine when I first met them. I returned in less than two hours, perhaps near eleven. I will not say it was not past eleven.] Foreman of the Jury : My Lord, I wish to put a question. (To the witness.) Did you meet a larger body of men than the one hundred, or about one hundred, of which you have spoken? — No, I did not; the main body had gone on before I ar- rived. Tindal, C.J. : You have spoken of Zepha- niah Williams ; did you know Zephaniah Williams before ? — Yes, My Lord, I did. Williams, J. : Does the tram-road of which you have spoken go through Trede- gar Park or by the side of it ? — By the side of it. Sir F. Pollock .* Will your Lordship permit me to request, as he states that the main body had gone on before, that your Lordship would ask him how he knows that. Tindal, C. J. : How do you know that the main body had gone on before? — I heard them firing in the park. When you were in the park ? — No, when I was in the road. Parke, B. : Firing not in the town, but in the park ? — In the park. Foreman of the Jury : When you speak of the main body firing in the park, are you aware that it was the main body that was then firing? — I am. At what time of the day was it that you heard this firing? — Between eight and nine, as I have stated before. Pye Corner is about a quarter of a mile nearer Newport than the park? Attorney General: No, the other way, sir. John Parsons sworn. — Examined by Talbot. £1 am a butcher at Pillgwenlly. I saw a great many people on the road from the Court-y-Bella machine to the “ Westgate ” a little after nine. After they had gone by I saw Zephaniah Williams. At a rough guess I should say there were from four to five thousand, more or less, in front of him. The fore ones were walking seven or eight abreast. A few came after Zepha- niah Williams. They were not armed. I heard firing in Newport, not more than ten minutes later, I should think.] Cross-examined by Kelly. IZephaniah Williams had no offensive weapon about him, so far as I saw. He was walking along the side of the road, unarmed.] Thomas Saunders, of Tynycwm, sworn. — Examined by the Solicitor General . You are a farmer, I believe ? — A small farmer. Do you live near the “ Welch Oak ” ? — I want to be asked in Welsh. You and I shall understand each other in English, and I do not understand Welsh; do you live near the “Welch Oak ” ?— Yes. Were you at home on Monday morning the 4th of November ? — I was. Did you hear any noise on the tram- road that morning? — I did. Where were you when you heard that noise ; were you in bed or up ? — In bed. Did yon hear anybody call to you by name ? — I raised myself in bed when I heard the noise ; it was twelve o’clock at night. Of the Sunday ? — Yes ; I sat up in bed upon hearing the noise, and I thought it was some person come to the public- house and I lay down again, and in a 277] Trial of John Frost , 1 839. [278 short time after I heard some person call me by name ; he told mo to get up ; “ What do you want at this time of night,” I asked. “ Rise in a minute, and then I will tell you,” says he ; and I got u^fand he said, “ Now,” said he, “ you had better move off, because there are hun- dreds and thousands of the Chartists on the tram-road.” Did that person make any application to go to the barn ? — I will tell you ; I went to the barn to hide myself, and in about an hour after I went to the barn there came a troop to the door of the barn and opened the door, and I jumped off the straw and got to the door to them and asked where they were going ; they told me that they were to shelter there for a little time, that they did not know how long. Did you let them shelter there ? — I did ; there was no use in resisting them. Do you know Zephaniah Williams ? — I do. While the men were in your barn for shelter did Zephaniali Williams come? — Then I went to the house out of my barn, and they were there ever so many ; 1 do not know how many because the tram- road was as light as it is now here. You mean light with lanterns? — .Yes. Besides men in the tram-road when you came down again, did you find any num- ber of persons in the barn ? — I cannot tell how many because the barn was full ; and I went from the house to the barn and told them to take care of the straw as they had candles in the barn. Just attend, because a good deal that you may think material is not so. While you were in the barn did Zephaniah Wil- liams come ? — He did not go to the barn. Did he come to the house ? — Then I lit the fire, and the men were drying them- selves. While you were in the house did Zepha- niah Williams come?— He did come. Did he say anything to the men who were in the house and the barn ? — He said to the men who were in my house a dry- ing, “ Come, my good men, let us go,” he says. Did he say anything more ? — And every one made themselves ready as soon as they could, and off they started. Had any of those men arms ? — No ; some had guns and pikes, and ever so many articles. Could you see enough, by the lanterns they had, to form any judgment of the number of men that were at the house, and about the house, and the tram-road ? It was coming light then, between six and seven o’clock. Those men had come between twelve and one ? — Yes. And they had remained till seven? — Yes. Can you form a judgment of the num- ber of men there were ? — No, I carmot. Was it a great number ? — It was out of my number. Did you ask Williams any question as to where he was going ? — After these men went out of my house and he with them, he returned to the house and asked me if he might dry himself a little because he was very wet, and a man with him that I did not know ; “ Yes, of course,” I said, “ as well as the rest ; ” and there he was at the fire. And I asked Mr. Williams, “Where are you going?” “ Why do you ask,” says he ; “ Because,” said I, “ some of the men in my house told me this morning they were going to Monmouth to draw Vincent out of prison.” When you told him why you asked him the question, what answer did he give you? — He said, “No, we do not attempt it,” says he; “we are going to give a turn as far as Newport.” Did they all leave your house about seven o’clock ? — They all left my house about seven o’clock. Cross-examined by Kelly. I do not know if you have exactly said what hour this was ; about what hour was it that you saw Williams when this con- versation took place ? — About half-past six in the morning I saw him first. But I want to know when it was that he came back and asked you to let him dry himself, when this conversation took place ? — In about two or three minutes after the men went off. Tindal, C.J. : Between six and seven in the morning ? — Between six and seven. Barnabas Brough. — Examined by the Attorney General. [I am a brewer and wine merchant at Pontypool. I was stopped by armed men on the Sunday night on the road from Newport to Pontypool, and compelled with my companion, Thomas Watkins, to go back towards Newport. We were ordered to halt in the marsh, just before we got to Marshgate, about half a mile from Newport. We went into the public- house at the Cefn and remained there an hour ; it was half-past three or four. From the “ Cefn ” we were taken to the “ Welch Oak. ”3 When you had got to the “ Welch Oak ” will you state what happened ? —I had previously requested a person to find Mr. Frost for me. How was it that you came to make any [280 Trial of John Frost 9 1839. 279] inquiries about Mr. Frost ?— I beard Mr. Frost's name mentioned in the lane. How? — The person said, “Who were they ? ” and the reply was, they were looking for Frost or Frost’s men, I do not know which. In consequence of that you made in- quiries for Frost ? — I requested this per- son to find Mr. Frost for me in con- sequence of my having previously had some acquaintance with him ; and we were taken eventually into the “Welch Oak,” and whilst there Mr. Frost came in. Could you judge of the hour at which Mr. Frost came in? — Yes, it must have been past six, I imagine, from the day dawning soon afterwards. Describe what happened ? — I heard Mr Frost’s voice before I saw him ; he asked, “ Where is Mr. Watkins or Mr. Brough ? ” I immediately got up and said, “ I am here, sir.” I requested him to obtain my liberation from that situation, or some such observation, I am not sure of the words. He seemed astonished to see me there, and asked me what brought me there. I told him the parties who had me in custody could best tell him. He told me I was a very old acquaintance of his, and that he had a great respect for me, that though he detested or hated my politics he had a personal regard for me. What was done upon that? — He then stated that I was dismissed, or discharged. I appealed to him for my companion, to know if he was included in the liberation ; the answer was, “ Certainly.” I thanked him and left the party. Were Mr. Watkins and you both libe- rated upon that ? — Yes. As you were proceeding, did you ob- serve any lights ? — I saw once a light approaching from towards Newport where we were waiting. What, sort of light did it appear? — It appeared like a lantern ; it came rapidly towards us, and was extinguished before it reached me. Cross-examined by Sir F. Pollock. Have you known Mr. Frost some time ? — Some five or six years. You had every reason to expect that if he were there you would receive no harm ? — I had every confidence, if he had the power to prevent it, that I should receive no personal injury. And his general chai’acter accords with that ? — As far as I have experience. When did you part with Frost at the “Welch Oak” ? — Half-past six. I looked at my watch soon afterwards, and it must have been about that time. Kelly : It was daybreak ? — The day was dawning then. Saturday, January 4, 1840. Thomas Watkins. — Examined by the Solicitor General. [Confirmed the last witness.] During your progress in the night, were you moved from place to place ? — Yes. Did you observe during the night any signals by fireworks or otherwise ? — I ob- served two or three lights. What description of lights ? —Rockets, and that kind of light. Can you state whether you were enabled to see sufficiently to know in what part of your progress it was that you saw those lights ? — Between Newport and Risca. Were you between Newport and Risca, or did you see the lights between Newport and Risca ? — I saw the lights between Newport and Risca. Where were you, as far as you can judge, when you saw the lights ; in what part of your progress during the night ? — About the end of a lane going from the toll-house to Risca. In what manner were you guarded during your progress ? — By men with arms. Cross-examined by Sir F. Pollock. Are there any iron-works between the place at which you were first met by these people and Newport ? — Not between that place and Newport. Are there any in the direction of Bris- tol ? — Near the place we were taken first there are tin- works. What are you ?— A currier. You live at Pontypool? — I do. In what direction were those lights which you speak of? — Between Newport and Risca. Re-examined by the Solicitor General. Are you sufficiently acquainted with iron-works to be able to distinguish be- tween the fire from tin-works and the light that you saw ? — Yes. Were those lights rockets ? — Yes. You have been asked respecting those tin-works ; did you see any of those rockets after you had passed those tin- works ? — It was after we had passed we saw the rockets. Foreman of the Jury : One question, my Lord, I wish to ask in explanation. (To the witness.) By what means should you distinguish or do you distinguish between the light of a rocket and the light from ironworks ? — There were no ironworks be- tween Newport and Risca. Were those lights lying near the ground ? — They were rising high. Very high ? — Yery high. Cannot yon see from a distance over iron-works a considerable reflection in 281 ] Trial of John Frost , 1839 . [282 the atmosphere ? — I did not notice any- thing of the kind. You can generally do so ? — Yes. t Do you tell us positively that you are sure that the light you saw was not the reflection from iron-works but rockets ? — Ido. John Harford. — Examined by the Solicitor General. [I am a collier at Bedwellty ; on Sun- day the 3rd of November I was very poorly; I did not get up soon in the morning ; at six in the evening I was in the house ; a great number of persons came to me ; they told me I must come along with them ; they told me if I did not come along with them, and bring the sword, they would kill me ; they pulled me out by the collar. I went to Mr. Jones’s first; the men who took me had pikes ; I got at last to the “ Welch Oak ” ; it was about one o’clock in the morning when I got there; there were hundreds and thousands of men with me, who were armed ; I saw them go to the doors and order the people out, and pull them out. I know Frost ; I saw him that night be- tween the “ Cefn ” and the “ Welch Oak ” ; he was alone when I saw him ; he was standing alone, with his hands in his pockets, in the road. When we met Frost we went straight on.] Now, I was asking you when your party met Mr. Frost, whether any of the party said anything to Mr. Frost , and whether he made any answer to what they said ? — Yes. Now, tell my Lords what question they asked him, and what answer was given ? — The mob asked Mr. Frost if they had not better return. Mr. Frost said, no, they had better not return, and they asked Mr. Frost what he did intend to do ; he said, first, they should go to the new poor-house and take the soldiers and their arms ; then he said there was a store- house where there was plenty of powder ; then they would blow up the bridge, that would stop the Welsh mail which did run to the north, and then that would be tidings, and they would commence there on Monday night. Where ? — In the north. Did he saything more ? — He said he should be able to see two or three of his friends or enemies in Newport. Did he say anything more P — No. After that was said, what became of Mr. Frost and the men P — They went on towards the “ Welch Oak.” How long did they remain at the “ Welch Oak” p — I do not know. Did you make your escape ? — Yes. When and from what place P • — From about two hundred yards from the “ Welch Oak.” Where did you go P— Into a cow-shcd. Did you escape by that means ? — Yes. How long did you remain at the “ Welch Oak” with Mr. Frost and the men before you went to the cow-shed ? — It was about four o’clock ; between three and four when they went to the “ Cefn ” from the “ Welch Oak.” What time was it when you saw Mr. Frost first P — About four o’clock. At what time was it that you first saw him P — It could not have been more than a quarter-past four. Did you see any more of them ? — No, I did not see any more of them that night. Cross-examined by Kelly. Were you examined before the magis- trates P — Yes. When? — I cannot tell you the day of the month. Do you mean before the grand jury P — Yes, I have been examined before the grand jury. But were you examined at Newport, before the magistrates ? — Yes. How long after this business, which you have spoken of ; was it a day, or two, or a week, or what ? — Indeed I cannot tell you the day of the month. I am not asking you the day of the month ? — On a Friday, it was. Was it the Friday after you had left your house in this way ? — No. Was it the Friday week after, the second Friday after P — Yes. Who told you to go and be examined ? — Well, the people with me. What people do you mean ; who told you ; tell me the name of somebody who told you to go and be examined ? — The people that were in the union at the same time that I was. Do you mean the union workhouse ? — Yes. How came you to be at the union work- house? — Yes, because I was pressed out of the house with the sword by Mr. Frost’s mob. That was not the way you got to the workhouse P — Yes, I was apprehended. Then you were taken into custody? — Yes, by the magistrates. You were apprehended you say by the magistrates ? — Yes. When were you apprehended by the magistrates ? — I was apprehended on Sun- day fortnight after the riot took place. Where were you apprehended ? — In my house. And where were you taken to P — Taken to the “ George ” Inn. Where is the “George” Inn? — At Blackwood. 283 ] What was done with yon there? — I remained there till very near evening. Whom did you see there ; were you examined at all there ? — No. W here were you taken to in the even- ing ? — I was taken to Newport, to the union. Have you been in custody ever since ? — No. You were taken that night, were you, to the union ? — Yes. Were you locked up there for the night ? — No, I was not locked up. Were you detained there the night? — Well, I stopped there the night. What do you mean by saying you stopped there, and were not detained there ; were you detained there ? — Yes, I was bound to stop there. When were you examined ; the next day ? — No. Just let us understand you ; how long were you detained at the union work- house ; you got there at night, and were detained there till the next morning ; how long were you detained there? — I was there thirteen days. During the thirteen days were you examined ? — No. When were you examined ; were you detained there till you were examined ? — Yes. Where were you examined? — At the “ Westgate.” Were you taken from the union work- house, after being detained there for thirteen days, to be examined at the “ Westgate ” ? — Yes. Upon what charge were you taken and detained there ? — For carrying a sword in the mob. Then, after the thirteen days, you were taken to the “Westgate”; now, when you were taken to the “ Westgate,” was a charge made against you ? — No. Then what was done when you were taken to the “Westgate” ? — Well, I said the few words I had to say against Hr. Frost. Had you told anybody before you went to the “ Westgate ” what you could say ? Yes. To whom did you tell that ? — Well, I do not know, indeed, what the gentleman’s name was ; the man who keeps the union workhouse, Mr. Harris, I think his name is. At the time you told him what you had to say, you knew you were there upon a charge of having taken a part in this riot ? — I was obliged to take a part. I am not asking you that, but whether, at the time when you made this communi- cation to the master of the workhouse, you did not know that you were there upon the charge of taking a part in the [284 riot? — Yes ; I was obliged to take a part, or I should have lost my life. I am not asking you the part you took, but whether you were not there upon the charge of having taken a part ? — Yes ; I was obliged to take a part. Do you understand my question; lam not asking you whether you did take a part in the riot, or were obliged to do it ; I am asking whether you did not know, at the time you told something to the master of the union workhouse, that you were there upon the charge of taking a part ; look up, and give me an answer? — The charge that I had was for carrying a sword. Did you not know that a great many other persons had been committed to prison to take their trial?- — I heard that some had gone to prison. Did you hear, too, that some had gone to prison upon a charge of high treason ? — Yes. Did you k now that if any persons were convicted of that they would suffer death, they would forfeit their lives ? — No, 1 did not understand the law. Do you mean to tell me, upon your oath, that you did not know that if a person w^ere convicted by a jury of high treason, that person would suffer death? — No, I did not. You had been speaking to the master of the workhouse ; did you tell anybody else what you could say against Mr. Frost before you were taken before the magis- trates ? — No. How long before you were taken before the magistrates was it that you told the master of the workhouse anything ? — One day. Then, if I understand you, you had been twelve days in custody upon this charge, and then you told the master of the work- house what you could say against Frost; was that it p — Yes. And then you were taken up before the magistrates at the “Westgate ” ? — Yes. Now, before you went there, were there other prisoners besides yourself at the union workhouse ? — There were other men there. Were there other prisoners, other per- sons, like yourself, in custody, or detained there, or whatever you choose to call it ? — Well, there were other men there; but what cases they were there upon I do not know ; I did not ask them the cases. I am not asking you about the par- ticular case of each man ; but were there other men that were detained there upon some charge or other? — Certainly, the men were there upon some charge. The union workhouse was guarded by soldiers, was it not ? — No. Were there any soldiers there inside or Trial of John Frost , 1839 . 285] not? — Of course there were soldiers there, because there were soldiers there that were wounded. Now, give me an answer ; do you mean to say, upon your oath, that there were no soldiers but wounded soldiers? — Yes, there were other soldiers there. What did you mean, then, by saying there were soldiers who were wounded ? — So there were, and recruits learning their exercise every morning ; they were there on the parade, I believe they call it. Do you know how long this union work- f house had been used as a place of custody ? —No. Did you ever know it to have been so used before these riots in November last ? — I know nothing about it, nor about Newport. You say there were other persons there upon some charge or other ; did you talk to those other persons about this business during the twelve days that you were in ? — There were fresh ones coming in and going out ; I had not much chance of talking to them. That is no answer to my question ; did you talk to any of the persons that were there during the twelve days about this business ? — Yes. Did you talk to several of them about it ? — No. Only to one ? — Only to one. Who was that one ? — I do not remember his name. You swear that, that you really cannot remember his name ? — Yes. You do not know who it was ? — No. Did you ever see him before ? — No. Did you ever know his name? — No, I did not. Did you tell this person, whose name you never knew, what you had done in this business ? — No. Did you talk about Mr. Frost with him ? —No. What did you talk about ? — Well, he told me that if 1 knew anything about Mr. Frost he would tell it if he was in my place ; that was all. Now, answer me this question upon your oath ; did you not go and tell this about Mr. Frost in order that you yourself might get your liberty ; upon your oath, yes or no ? — ( The witness hesitated.) Come now, state whether you did or not ; give me an answer ? — ( The witness hesitated .) Did you not go and tell this about Mr. Frost in order to get your liberty ? — No, I did not. Did you expect to be freed from this charge yourself when you told that?— Yes, I did. When you had gi ven your evidence did you get your liberty ? — Yes. [286 I will ask you this : you say you were examined before the magistrates ; did you sign anything ; can you write ? — No, I cannot write. Did you put your mark to anything ? — Yes. Kelly : I should like to have his deposi- tion, if it is here. Solicitor General : I have asked for it and it has not been found. Kelly: It is later than the others, I snppose. {To the witness.) Now, you were examined, you say, at the end of thirteen days before the magistrates ; were you examined more than once ? — No. When you had made your statement you were at once set at liberty ? — Yes. And went home, did you? — Yes. Whom have you been working for since ? — Mr. Jones , the same master as I worked for before. What are you ? — A collier. Was the name of the person, which you say you cannot now remember, to whom you spoke about this matter of Frost at the workhouse, Edwards ? — No. You are sure of that ? — Yes. Was it Morgan ? — I do not know Mor- gan. You have not then spoken to anyone of the name of Morgan about this business ? — No, I have not. What time of the night or morning was it when you say all this long statement was made by Mr. Frost ? — When I saw Mr. Frost it was about four o’clock in the morning. Was it about that time that he, as you say, told you all this about the soldiers, and the powder, and the post, and every- thing else?— It was within a quarter of an hour, as he was standing upon the road, that he told the mob of it in my hearing. Foreman of the Jury : Did you ever at- tend a Chartist lodge ? — Yes. Did you try to make your escape after you had left your house with the mob ? — Yes, I did, a good many times. Were you prevented? — Well, yes; I could not make my escape. What means did they use to prevent it ? — Collared me, and dragged me back, and threatened to drive their pikes through, me, and blow my brains out many times. You have stated to us that Mr. Frost told you that when you got to Newport he should be able to see two or three friends or enemies in Newport ; do you mean that Mr. Frost said ‘ ‘ friends or enemies,” or that you do not know which he said ? — Mr. Frost said it. Did he make use of the words “ friends and enemies ” ? — “ Friends or enemies.” Did he name anyone ? — No, not in my hearing. Trial of John Frost, 1839. 287] Trial of John Frost, 1839. [288 Did yon not bear, when yon were in the union workhouse at Newport, that somebody was likely to be hanged for this rising or riot ? — No, I did not. You never did P — No, not in the union. Did you never fear yourself that you should be hanged , for being connected in anyway with them? — No, I did not, be- cause I had done nothing to be hanged or to go to prison for. William Karris sworn. — Examined by the Solicitor General. [I am a collier at Blackwood. On Sunday night, November 3, 1 was near the “ Coach and Horses ” public-house at Blackwood about seven o’clock. I saw Mr. Frost outside the door with a great many per- sons ; some were armed . Did you see a person of the name of Davies there ? — Yes. How near was Davies to Mr. Frost ? — They were close together. While they were close together, did you hear Davies say anything to the people who were about ?— Yes, I did. What did he say P — He told them to go on ; there was enough there to eat New- port. Did you go away after this or remain P — I went up the road. After that were you and your wife at any later period of the evening walking together ? — Yes ; we went up the road together, and met a mob coming down. Did they say or do anything to you ? — Yes, they told me to come along. What did you say? — I told them I would not. What did they then say or do to you ? — They told me to come. What did they then do with you? — I then went on with them to the ‘ ‘ Grey- hound.” How long did you stay there ?— Why we were not more than a quarter of an hour, I suppose. Did you find any number of men at the “ Greyhound ” ? — Yes ; I daresay there were two hundred there. Had those two hundred anything in their hands ?— Yes, they had. What had they? — Some had pieces, and some had pikes, and some mandrils. You say “ pieces” ; what do you mean by “ pieces ” ? — Guns. At what time did you leave the “ Grey- hound ” ?— I do not know what time it was. Did the party proceed from the “ Grey- hound ” at some time in the evening ? — Yes ; Mr. Beynolds along with them. Do you know the “Welch Oak”? — Yes. Did you afterwards find yourself at the “Welch Oak” ?- Yes. Can you form any judgment at all of the number of persons that proceeded in your party to the “ Welch Oak ” ? — No, I cannot. Was it a great number or a small num- ber ? — A great number. Did you meet other persons as you went along the road ? — Yes. Did they join you? — Yes, they were coming down in every part. Were they generally armed or not ? — There were some armed. When you got to the “ Welch Oak,” did you see Mr. Frost ? — Yes. Do you know Zejphaniah Williams?— Yes. Did you see him there? — Yes, I saw him in the morning. What morning do you mean ? — On the Monday morning. How early ? — About seven o’clock in the morning. Was that the first time that you saw Zejphaniah Williams , during the Sunday night or Monday morning? — Yes. Tindal, C. J. : What time was it you got to the “Welch Oak” and saw Mr. Frost ? — About eleven o’clock. Solicitor General : Eleven o’clock at night ? — Yes. Where was it that you saw Zejphaniah Williams ? — On the turnpike-road across the tram-road. Is there a place where the turnpike- road crosses the tram-road ? — Yes. Was it at that place ? — Yes ; I saw Mr. Frost up the turnpike-road. About what distance from where you saw Mr. Williams ? — About forty yards. Did either Williams or Frost speak to you at that part of the road ? — Yes, Mr. Williams spoke to me, because I was going back home, and he told me not to hang back there, but to go on with the rest. Where did you go ; what became of you after that ? — I went on towards New- port. How far did you go towards Newport ; did you go to Newport? — No, I did not go in ; I went up as far as the Friars. Did you meet any men coming from Newport when you got to the Friars ? — No ; they were all going on as fast as they could go. You say you did not go on to Newport ? — No. Where was it you turned back ? — At the Friars. How came you to turn back ? — Because I was frightened to go on. Why were you afraid to go on ? — Be- cause I was afraid they were going up to kill people. Mr. Frost had called the pieces forward at the “Welch Oak,” and then I thought they were going to do something. Kelly : Why should we have what he thought ? Solicitor General : Because I am asking his motive for turning back. (To the wit- ness.) You say that when Mr. Frost called the guns forward you thought something ; what was it you said ? — I thought they were going to kill people. Then you heard Mr. Frost call the guns forward ? — Yes. What was it he said ? — £ ‘ All that have guns come in front.” Were the guns tried at all ? — Oh, yes, they were ; they were tried ever so many times up in the turnpike-road. Had it been raining between the diffe- rent times the guns were tried ? — Yes, it rained every bit of the night. When you turned back at the Friars, did the main body turn back with you ? — There were two or three of us turned back. Did you get away ? — Yes, I did ; I went to the engine to get on to the tram- engine. Do you mean to travel by that P — Yes. A steam- carriage, is it P — Yes. Cross-examined by Sir F. Pollock. Where do you come from now ? — I come from Blackwood. Were you ever in custody at all P — Yes, I was taken to Newport. Tell me what day you were taken into custody ? — On the 20th. Of what ? — The 20th of last month. Tell me the name of the month?— No, T cannot tell the name of the month, be- cause I do not know the months ; it was the last month. Tindal, C.J. : Do you mean the same month when this affair took place, or last month, because we are just out of one month ? Sir F. Pollock : Tell me how many days ago or weeks ago P — It is going on three weeks ago come Monday. How long were you kept ? — I have been kept ever since. Where ? — At Newport and here. Where are you living now P — Up in Blackwood I live. Where do you come from this morning ? — From the “ Black Swan.” When you came to Monmouth, where did you come from ? — I came from New- port. How long have you been here ? — I was here last Monday ; I came last Monday. You came from Newport P — Yes. How long were you at Newport? — I was there a fortnight. Where were you staying there ? — At o 67432. the “ Parrot ” ; I was at the “ Salutation ” for a week. Were you in custody there P — Yes. At the “Parrot” and the “Saluta- tion ” P — Yes. When were you taken into custody ; how many weeks ago ? — Three weeks ago come Monday. You were examined before the magis- trates, were not you ? — Yes. Will you just tell me whether that is your mark ( the deposition being shown to the witness) P — Yes, it is. This was read over to you, was it not ? — Yes, I believe that is the mark that I made ; I know it is, too. Attorney General : If you propose to put any question to him upon it, it had better be read. Sir F. Pollock : I am proposing to ask him the facts, and not respecting this ; I have put the deposition into his hand that he may know that he has made a depo- sition ; I am not going to ask him of any- thing in the deposition ; I am quite aware I cannot do that without its being read first. (To the witness.) When you went as far as the “ Coach and Horses,” where you met some of those persons, what o’clock was it ? — Towards seven. Yery dark ? — Yes, it was middling dark, not very dark; I could see what was at the “ Coach and Horses.” How often had you seen Mr. Frost be- fore that ? — I had seen him a good many times up and down Blackwood. Do you know him very well ? — IN o, not very well ; I knew him when I saw him. Did you know him well enough to know him when you saw him ?— Yes, I did. Now, I beg to ask you, did you not tell the magistrates that you did not know him. Attorney General: The deposition ought to be read first. Sir F. Pollock : Pray read it. Tindal, C.J. (to the witness) : Now listen while this is being read. ( The deposition of William Karris was read as follows : — ) “ County of Monmouth J The information and to wit. J depositions of the seve- ral witnesses whose names are hereunder written, taken upon oath this 5th day of November 1839, before James Coles, clerk, Octavius Morgan, Esq., and others Her Majesty’s justices of the peace, acting in and for the said borough, and in and for the said county, on the examination and iu the presence and hearing of William Davies, brought before the said justices, charged with having, on the 4th day of November, in the year 1839, at the borough of Newport, in the said county, committed high treason and sedition against our Sovereign Lady the Queen, her crown and dignity. E 291] Trial of John Frost, 1839. [292 “ William Harris sworn, states : I am a col- lier, and live at Blackwood, in this county; I live in a house of my own ; I remember a Sun- day in November last, but I do not know the day of the month ; I remember seeing a good many people about there that evening ; it did rain ; I can’t tell how many Sundays ago it was ; I work for Mr. Powell, at the Bryn, and have my money every week ; I heard of the riots at Newport ; I was down to none of it ; it was on a Monday, and the Sunday I have been asked about was the day before the Monday ; I don’t know if it was the beginning of the month ; I can’t remember how long ago it was ; 1 was at home every bit of the day (Sunday) till the evening ; I went down as far as the ‘ Coach and I Horses ’ in the evening, where I was forced to go ; the £ Coach and Horses ’ is on the bottom of Blackwood ; it is kept by Richard Pugh ; it was about seven o’clock, I should suppose, when I went there ; it was dark ; I don’t know who forced me to go ; I was axed to come, and I did not like to deny ; I was afraid ; I don’t know hardly what they had with them ; I seed some sticks along with some of them ; I saw nothing upon the sticks ; I did not see any guns, nor swords, nor pikes, nor pistols ; I did not see one mandril ; not with they who come to our door ; I seed a parcel of people out on the road ; I don’t know if they had anything ; they were on the upper side of the house ; my house is about five or six yards from the tram-road ; when I went down to the “ Coach and Horses ’ I saw a good many people there ; some of them had some weapons ; some with pikes and somewhat ; I did not go off the turnpike-road ; the tram- road is the other side of the turnpike- road ; I don’t know Mr. John Frost very well, but I know him middling ; I know Mr. William Davies, the prisoner, now present ; he lives up in the Blackwood ; I don’t know who he lives with, except he lives with his father ; to the best of my belief he lives with his father, who keeps a shop ; I seed Mr. John Frost at the ‘ Coach and Horses ’ that night ; I saw Mr. William Davies that night ; Mr. Frost was by the door w hen I saw him, and I think William Davies was by the door along with him; they were saying something ; I don’t know what it was, there were so many people there ; I am sober now, and know what I am talking about ; betwixt the rain and the bother, I don’t know the words William Davies said ; Mr. Frost was speaking, but I do not know what he was speaking about. I have been examined since I have been in New- port ; I think it was yesterday ; I had a couple of pints of gin hot up at the ‘ Ship ’ ; I drank the main of it ; a man, who was along with me, and my wife, had some ; the man was a con- stable ; I had some beer also, a pint ; I had a pint up above here, but I don’t know the house ; a soldier drank once with me ; I don’t know what time of the day it was ; I don’t know what time I was examined ; it may be about eleven o’clock ; I was examined after I had had the gin and beer ; I was at the ‘ Ship ’ last night ; I was about all day yesterday with a youug man ; but I was up at the * Ship ’ the main of the evening, and my wife was with me ; a good many people spoke to me; no one asked me what brought me down to Newport ; no one asked me if I was going to give evidence ; I have seen no one but my wife and the constable, and the people who were in the room ; I don’t know everything I said yesterday : I don’t know what W illiam Davies said that night at the £ Coach and Horses ’ when I saw him there ; I did not see William Davies afterwards ; he said nothing more than I have said ; I seed him right over against the door. The mark of Tho. Hawkins. x W. Brewer. William Harris. Octavius Morgan. “ Cross-examined by Mr. Hall, on behalf of the prisoner, William Davies. — I can’t read ; I can’t write ; I did not know, when I was making those two statements which I have heard read, that I was to be bound by what I then said, or that I was on oath. “ Taken before us, at the borough of New- port. Geo. Hall. James Coles. Octavius Morgan. W. Brewer. Tho. Hawkins. “ William Harris sworn, farther states : I am afraid to give evidence against William Davies ; this paper is true ; I will not give evidence unless I get a paper that no one will hurt me ; what will become of I ? I am afraid to give evidence ; I told the constable how I am afraid someone will do something to me; a good many was looking at me yesterday ; Mr. Davies was look- ing after me ; Mr. Davies was calling to me ; I ; told Mr. Davies to go off, Roger Davies ; the 1 first evidence was true, but not the last ; Roger I Davies said nothing to me ; he called, but I told him to go off ; when I was at the ‘ George ’ I was very tipsy; the statement I made yesterday was true ; I was going towards the ‘ Salutation ’ when Roger Davies called to me to come over to him ; we were both on the same side of the street ; I was before him ; he called out ‘ Harris,* and beckoned me; the evidence I gave this morning was in consequence of fear that some- body would do something to me I remember a Sunday in November ; that time of the row when they were going to meet to come down here ; I was opposite the £ Coach and Horses ’ that evening, about seven o’clock ; there were a good many people outside ; I do not know how many ; I dare say there were fifty there, if not more; I saw Mr. John Frost there); 1 saw the prisoner Wilham Davies there ; they were stand- ing outside the door, close by the door of the £ Coach and Horses ’ ; I heard William Davies speak; he said, ‘There is enough to eat New- port ’ ; that is what he said, and the same I said yesterday ; I was standing on the turnpike-road, about as far as the window of the room from them, say five or six yards or more ; there was some persons between me and Davies when he said this ; I heard no one say anything else ; I went off home afterwards: 1 did not hear any- one say, ‘Go on, don’t be afraid,* but I had a thought it was Mr. Davies said so ; I was there. 293 ] Trial of John Frost, 1839 . I should suppose, about ten minutes ; Frost and Davies were outside the door, close together ; I know the ‘ Welch Oak ’ ; I w as there that night, but never before ; I did not see anyone on horseback by the ‘ Coach and Horses ’ ; I know Risca ; between Risca and the ‘ Welch Oak ’ I saw a man on horseback , he said, ‘ How the devil do you keep hanging back there, why don’t you •come on faster ? ’ there were five or six people with me ; he said, ‘ Half the soldiers are gone to Abergavenny ’ ; he had a pair of trousers and a cut back coat, and he had a halter on the horse’s head, and no bridle ; the man on the horse also said, ‘You are eno’ to eat Newport’; I saw John Frost at the ‘ Welch Oak ’ ; I heard him say, ‘ All those who had pieces were to come forward on the turnpike-road’ ; every one that had guns went forward ; I went into the bouse and went to sleep ; it was pretty near as light .as it is now. When I woke in the m orning I seed two men in the left-hand room ; they were dressed respectable ; there was a man guarding them with a pistol, to prevent their running away ; I saw Mr. Frost there ; Frost then told them to go on, as they were two scamping fel- lows, or some such Avord as that ; I don’t know which way they went then ; I understood they were to go where they had a mind to ; I am sure he told them to go on ; the man with the pistol went on ; Frost went on the tram-road as fast as he could go towards Newport ; I went on to make my way home ; I saw Zephaniah Wil- liams ; he stood on the cross- way ; he said, ‘ Go on Harris ; what dost thee hang back here for ? ’ I did go on ; he came on after us, behind us ; I went up to that lane on the left hand which turns up by the ‘ Waterloo ’ public-house ; it is where the engines do bide at ; I don’t know how far it is from Newport ; it is more than a mile, a long way ; it is, I should think, two miles from Newport ; when I got up the lane I got over the hedge, and afterwards got back to the ‘ W ater- loo,’ and then I saAv the people coming back ; the people who came with me, some had sticks : the main had nothing ; I saw guns ; I saw some pikes in the night, but none in the morning, for they were all gone. Frost had on a big coat, rough one, and a red cravat round his neck. “By the Court: I don’t know Avho William Davies was speaking to when I saw him at the * Coach and Horses ’ door. The mark of x William Harris. “ Taken and sworn before us at the borough of Newport, Geo. Hall. James Coles. Octavius Morgan. W. Brewer. Tho. Hawkins.” Sir F. Bollock : Had you been examined the day before yon made this deposition ? — I do not know ; I was examined two or three times. In the first place, I ask you, is it true, as you swear upon this occasion, were you then sober?— No, I was not very sober [294 when I was speaking that up at the “ George.” When yon made your mark to that paper, which says, “ I am sober now,” were you then sober ? — I was, to be sure. Tindal, C.J. : What time does the “ now ” refer to ; when he was not sober ? Parke, B. : Is ii the early part of that examination, or his examination the day before, that he refers to P Sir F. Pollock : His examination the day before ; whether I shall be able to get the fact out I do not know. (To the witness.) The day before that on which you said, “ I am sober now,” had you not been be- fore some magistrates ? — I do not know. Re-examined by the Solicitor General. You have heard that deposition read which has your mark ? — Yes. And you observe it is there put down that you did not hear what William Davies said ; to-day you have said that William Davies said to the people, “Why do not you go on ; you will be enough to eat Newport”? — Yes, so he did. How was it you did not state that to the magistrates ? — I did not like to ; I thought I should have it when I got back, and I told them so at the time. What do you mean by the expression, “ you thought you should have it ” ? — I thought that all the neighbours would be against me, as one family, if I said any- thing. You have said that you have been stop- ping at Newport since your examination ; did you, after your examination, send any paper in to the magistrates ; is that your mark (a paper being shown to the witness) ? —Yes. How soon after you were examined did you send that paper in to the magistrates ? — I suppose about half an hour. And since you gave this paper you have been kept at Newport ? — Yes ; I was kept there on the Friday, and then went home. Solicitor General : It is witnessed by a person, whom we shall call as a witness ; Moses Scard is the witness. I will call call him now or by-and-by. Sir F. Pollock : If you mean to call him, I will not insist on your calling him now. Solicitor General : We propose to read that paper. Sir F. Pollock : I do not know whether your Lordship will think it evidence. The witness, after he is examined, is proposing to set up his testimony by a note he wrote to the magistrates. Tindal, C.J. : Let us just look at the note. 295 ] Trial of John Frost, 1889 . [296 Sir F. Pollock : If your Lordships will do so, you will see the nature of it. [Their Lordships examined the note.) Tindal, O.J. : I think there may be some doubt about it, and it is much better, therefore, not to pursue the examination respecting it. Solicitor General: He has been asked, your Lordship will observe, whether he has been kept at Newport since his exami- nation. Tindal, C.J. : But recollect he has told you, that the reason why he did not say this before was because he was afraid. Solicitor General: Very well, my Lord, I am satisfied. [To the witness.) You have remained at Newport ? — Yes. Although you stated in that paper that you did not know what William Davies said, and for the reason you have assigned, do you mean now positively to swear that you did hear him use the expression you have spoken to to-day ? — Yes. Sir F. Pollock: Your Lordship knows that the date of this examination is the 5th of November. Attorney General: That paper is with- drawn. Foreman of the Jury : How near were you to Mr. Davies when he said, “ Go on, you are enough to eat Newport” ? — T sup- pose about eight or ten yards. Were you in a rank with other men ? — No, we were going on all together ; there were a good many heard him besides me. Was there a great deal of noise at the time when Davies said this ? — No, there was not much noise ; they were speaking. Was there a great deal at the time of what you called “bother,” on a former oc- casion ? — Yes, there was some speaking ; but I heard Mr. Davies speak in that tone that everybody could hear him at the time I heard him. Did Davies say this about there being plenty to eat Newport in Mr. Frost’s hear- ing ?— Yes ; Mr. Frost could hear him if I could. How far was Mr. Frost from Davies ? — They were close together. Did you see Mr. Frost and Zephaniah Williams together at any time ? — No. You have told us that the people tried their guns ; what do you mean by trying their guns ? — To see how the guns would go off, I suppose. By firing them off, or trying them with the ramrod ; which ? — They were firing them off. Were you so drunk when you were exa- mined the first time, that you did not know the next day that you had been examined ? — No ; I was not so drunk as that ; I had had a little. You remembered the next day that you had been examined? — Yes. Did you remember what you had said ? — Yes, I did; what I have said is the truth, and nothing but the truth. James Fmery. — Examined by the Attorney General. [I am a cabinet-maker, residing at Ponty- pool. I know William Jones of Pontypool. He is a watchmaker. On Sunday, the 3rd of November last, I saw him at a beer- house at Abersychan about eight in the morning ; there were about twenty others there. Jones told the people to be pre- pared by two o’clock, and to collect to- gether as many as they could. He ordered them to go on to the Racecourse. It is near a mile from Pontypool on the way to Newport. I also recollect his speaking of going round the hills to collect the Char- tists together. In the evening I went to “ Bristol House ” at Pontypool, which is kept by Jones. A man named Shellard told us to go on to the Racecourse, and that Jones had gone on with a number of men. W e got there about ten. There were people on the road opposite the Racecourse, and some on the Racecourse. I could hear by their shouting. A good many were armed. Jones was there. I attempted to run away, but was stopped by four men, and taken to the “ New” Inn, a mile further on the road to Newport.] Did you hear Jones give any orders at the “ New ” Inn? — I heard him order the men out repeatedly. According to the best of your recollec- tion, in what words did he give the orders ? — He told them to turn out and march towards Newport. Did he give any direction as to the order in which they were bo march? — He told them they were expected by the people of Newport in three bodies ; the pikes Were to go first, the guns next, and the others with what weapons they could get. Did you see them march on ? — I did ; I saw them form in the road, and then I came away. Just describe what you mean by “ form ” ? — I saw the pikes form themselves in ranks, so many abreast. So much for the pikemen ; did you see any of the others form ? — I saw them form- ing together ; I saw the guns come out and stand behind the others. What did you do then ? — I ran away. Were you obstructed in running away the second time ? — I was. By whom ? — By two men. How were they armed ? — With pistols. What did they say to you ? — They threatened to blow my brains out if I attempted to run away from them. 297] Trial of John Frost , 1839. [298 But you did make your escape ? — I did. You went back to Pontypool ? — Yes. You went no further than the “ New ” Inn ? — No. Cross-examined by Kelly. Were not you yourself, I will not ask you if you are now, I hope you are not ; but were you not then a Chartist yourself P — I was ; I had attended their meetings. How long had you been a Chartist ? — I had joined the body about a week before that time. But had you not attended their meetings before? — Yes; many public meetings I had attended before that time. During how long a period had you attended their public meetings ? — I had attended several meetings for twelve months before. And had you also been at their lodges before ? — 1 had, at public meetings. How often had they those public meet- ings of which you speak ? — Once a week. Were you at Monmouth at the time of Vincent's trial ? — I was not. How soon after he had been convicted did you know that he was gone to prison ? — I think I knew it at the same time that he was convicted. I suppose that there was a great deal of interest attached to it, and you knew it as soon as the accounts could come from Monmouth to Pontypool ? — Yes. Did not the Chartists take a very great deal of interest in his fate ? — I believe they did. And were there not some two or three other persons, Chartists, convicted at the same time and imprisoned? — I believe there were. They were all, I believe, imprisoned in Monmouth ? — I believe so. Do not you know that among the Chart- ists there was a great deal of dissatisfac- tion at the supposed mode of treatment of Vincent?- — I do recollect hearing some- thing about it, and about a petition being attempted to be drawn up amongst them. You will observe that I am not asking you of anything concerning yourself per sonally, but I ask you whether you do not know that for a very considerable time a great deal of dissatisfaction prevailed at Vincent's imprisonment, and the mode in which he was supposed to be treated in prison ? — I do recollect the people’s minds being excited by some ill-treatment that he had received at some time or other. And was it not notorious among the Chartists that petitions were to be pre- pared to get some better treatment for him? — I was not particularly connected with them ; I cannot say, unless there was anything notorious among them. Was it sufficiently notorious for you to hear it ? — It was. Though you were not yourself a member at that time ? — I was not. If I understand you, you had gone before as well as after you were a mem- ber, several times to those meetings P — I had. And when you went to this very place on the Sunday evening did you not go entirely of your own accord ? — I did. I do not mean to the “ New ” Inn, but when you went to the meeting ? — Yes. It was only when you saw the numbers, and the arms, and the order you got alarmed ? — It was then I became alarmed. Foreman of the Jury: You spoke of a petition ; what was the object of the peti- tion, do you know ? — I understood it was a petition to the Queen that Vincent should be released. John Parry.- -Examined by the Attorney General. [A ruffer down, working at the Pont- newynidd furnaces. Confirmed the last witness, and spoke to men armed with spears coming to his house on Sunday evening and forcing him to go to the meeting at the Racecourse. We marched on to the turnpike gate at Malpas, halt a mile from Newport. It was about one when we got there. I remained there half an hour and then escaped.] Cross-examined by Sir F. Pollock. You never were a Chartist ? — No, I never knew what a Chartist was. I William Bousell , a collier at Abersy- chan, confirmed the evidence of the last witnesses. John Phillips, described as “of Cross-y- Ceilog, in the parish of Llanvrechoa, ” was sworn on the voir dire : There are two public-houses near together called “ Cross- y-Ceilog ” ; it means “ Cross of the Cock.” My house is not called “ Cross-y-Ceilog,” it is near Cross-y-Ceilog ; it is about a hundred and sixty yards from one public* house and a hundred and seventy yards from the other. Barnabas Brougli recalled, and sworn on the voir dire : I understand that the col- lection of houses is called Cross-y-Ceilog. I supply beer to both public -houses. I knew the witness’s house, and should direct to him, if I had occasion, ‘ ‘ Cross- y-Ceilog.” I have so directed invoices, not letters, to other persons there. The invoices were generally with the goods. Sir F. Pollock : The witness distinctly states that Cross-y-Ceilog is not his de- scription. Mr. Brough's evidence does not contradict him.] Tindal, C.J. : I think it is left so far 299] Trial of John Frost, 1839. [800 doubtful that the party ought not to be examined. Attorney General : I am sure, my Lord, I will not press it. Christopher Kidher . — Examined by Ludlow. [A butcher near Oross-y-Ceilog, and about four miles from Pontypool. Spoke to armed men coming to his house between seven and eight on Monday morning, and making him go with them.] Do you know Jones, the watchmaker, of Pontypool, who keeps the “ Bristol ” House? — Yes, I have seen him many times. Did you see him that morning, after you had been taken by the men P — Yes. Where ? — I saw him at Malpas. With how many men did you go to Mal- pas ? — I should think there were from two up to three thousand altogether. Is there a place near the Malpas turn- pike called Crindar? — Yes. Is there a lane there that joins the two turnpike roads, the one from Pontypool to Newport, and the other from Risca to Newport, towards Penylan ? — Yes. Did you, and the men whom you were with, go along that lane ? — Yes. Prom the Pontypool road towards the Risca road ? — Yes. Who was it told you to go up that lane ? — Jones. What did Jones say when he told you to go along the lane? — He said, “This is the way, up this lane.” And that lane leads to the turnpike road that runs from Risca to Newport ? — Yes, sure. As you were going along that lane towards the other road, did you meet any collier ? — Yes. Y\ 7 as he coming from Newport? — Yes, across the fields. By any path ? — No, there was no path ; he came to this lane. Did he come in the contrary direction to that in which you were going ? — Yes. Did anything pass between him and Jones ? — Yes; he came up to the hedge, and Jones asked him where he had been ; he said he had been to Newport, and there were three or four killed. Parke, B. : At what time of the day was this ? — It was about ten o’clock. Ludlow: Was the man coming fast? — No, he was not coming fast ; he came up to the hedge. Did Jones say anything upon that ? — Jones said, “ Dam’me, then we are done.” Did you hear Jones say those words ? — Yes, I did. Did he say anything further ? — No, he did not say anything further than we were to follow him. Which way did you go then ? — To Penylan Yawr. Where did you go from there ? — There I left the company, and I went to Newport. Parke, B. : Did Jones go with you to Penylan Yawr ? — Yes. What became of him afterwards ? — I do not know ; I never saw him after. Ludlow : This body of persons that you have spoken of, from two to three thousand, did you see whether they had anything in their hands or not ? — Oh, yes, a great many of them had arms. What sort of arms? — Some had pikes, and some guns, pistols, and hatchets, and different sorts of weapons. Cross-examined by Kelly. [Jones did not go on towards Newport,, but away from it.] John Matthews . — Examined by Talfourd. [A servant in Mr. Prothero's house at Malpas. Spoke to being forced to join Jones's party about eight o’clock on Mon- day morning. Instead of going on to. Newport, they turned up a lane leading to the Risca Road. They halted in the lane.] At the time when you halted in the lane, did any persons meet you and give any intelligence ? — They did ; some per- sons who had been at the “ Westgate.” Some persons who you understood had been at the “ Westgate ” came and gave some intelligence ? — Yes. Did you hear what news it was they brought from the “ Westgate ” ? — I did. What was the news that those people brought from the “ Westgate ” to Jones's party ? — That they had attacked the “ Westgate ” and were defeated. Did you see Jones at that time ? — I did. Did he hear, do you think, what those people said who came up ? — Yes ; the mob then gathered around him and was conversing with him ; but as to what they were saying I cannot tell. Was that all you heard said by those persons when they came; did they say- how they had been defeated ? — They said Kelly : That cannot be evidence here. Talfourd : It was said to the party. Parke, B. : It is hardly worth while to. waste any time upon it ; when they re- ceived information they went back. Talfourd : Yes, my Lord. (To witness.), What happened to you ? — I got away. Cross-examined by Kelly. How long were you with them ? — Nearly two hours. Where did you go when some intelli- gence was received ? — I stood there for a little time ; but as soon as I could make, 301 ] Trial of John Frost , 1830 . [302 my escape I did, and I went into New- port. Could you see whether the number of persons who had come there wont the other way, or did they disperse ? —There were some sitting down, and some stand- ing, and some going on towards Risca. Bichard Pugh. — Examined by the Attorney General. [I keep the “ Coach and Horses ” pub- lic-house at Blackwood. I know John Frost , the prisoner, Zephaniah Williams, and Jones , of Pontypool, by sight. In the week before the disturbances at Newport they were all at my house on the Friday morning between eleven and twelve. They were in the long room upstairs. There were some persons there who were stran- gers to me. They left our house between five and six o’clock, as near as I can re- collect. They had been together in the room all the time. There were about thirty others in the room besides. They had no refreshments. I do not know where the strangers came from. A Chartist lodge used to meet in my house on Mondays. This meeting on Friday was not a regular meeting of the lodge. Frost was at our house again on Saturday evening, perhaps, for an hour or more. I do not know who was with him. I saw nothing of Williams on Saturday. I did not see Jones on the Sunday, as far as I can recollect. I saw him just as it was getting dark on the Sunday evening. It was between five and six, as nigh as I can recollect. Frost was there on the Sunday between six and seven. He left my house about seven. I heard the people going by all night. I remained indoors.] On the Friday, while the persons were above in the long room, did you know of any persons going up into that room besides the strangers and the three persons whose names I have given you ? — No. Cross-examined by Sir F. Pollock. How far is Blackwood from Newport p — Fourteen miles. By the road? — Yes. Of the persons present at this meeting you only knew Mr. Frost, Zephaniah Williams, and Jones ? — I knew them three. Did you know any of the other persons P • — One ; William Barwell. Re-examined by the Attorney General. Do you know what William Barwell is ; is he a Blackwood man ? — He did not live in the parish of Blackwood. Is he connected with the lodge ; did he act in any capacity with regard to the lodge ?— He was secretary. [Edmund Lloyd, of the “ Royal Oak ” at Blackwood, also spoke to seeing Frost, Williams, and Jones at Blackwood several times during the week before the riots.] Were any of them at your house the week before the riots at Newport ? — I never saw Mr. Frost in my house. Did you see him at Blackwood during that week? — Yes, I did. Did [you see him several times during that week? — I saw him three or four times passing and re-passing. With regard to Zephaniah Williams ? — His horse was at our house. Zephaniah Williams's horse was put up at your house ? — Yes. [ Joseph Stockdale spoke to seeing a vast number of people near Williams's house on Sunday. Williams told him to go to the hill, where he would meet 14,000 more, and to bring a weapon with him.] Morgan James examined on the voir dire. [The witness, who was described as — “Morgan James, of Pillgwenlly, in the parish of Saint YVoollos, in the borough of Newport, in the county of Monmouth, collier, sometimes abiding at the house of his son, John James, in the parish of Bedwellty, in the county of Mon- mouth, collier,” stated that his son’s house was in the parish of Monythusloyne, and not of Bed- wellty. The witness also stated that he had lived at his son’s house during the previous year, but had gone once or twice a month — generally from Saturday to Monday — to his own house at Pillgwenlly, where his wife lived, and took in lodgers.] Sir F. Pollock objected that the descrip- tion was bad. Solicitor General : The man is mistaken in supposing it not to be in the parish of Bedwellty ; we have the collector to show that it is in that parish. Parke, B. : Perhaps you had better prove that fact before we proceed further. We had better postpone this at all events ; call another witness. [William Henry Williams, an auctioneer, spoke to knowing Mr. Crossfield , a con- siderable dealer in gunpowder, who had a warehouse in Newport, and supplied gun- powder to the mines in the hills. He supplied over a thousand barrels a year.] Moses Scard sworn. — Examined by Wightman. [In the Newport police. Spoke to wit- nessing the attack on the “ Westgate,” and knew of another powder-house for the soldiers about three quarters of a mile from the “ Westgate.”] Bees Bees called. Kelly : There is no such witness in our list. 303 ] Sir F. Pollock: We have him, perhaps, in a supplementary list. Solicitor General : He is not in the list. Attorney General : Then, of course, he cannot be called. Thomas Watts.— Examined by Talbot. [A hallier. On the morning of Monday, the 4th of November, I left my house at about ten minutes before eight ; I went down the tram-road. When I got to Pye Corner I saw a pike, a gun,, and several weapons lying on the tram-road ; pikes, mandrils, and weapons like these I have seen in court.] Did you see any number ? — Yes ; I think I saw, from first to last, two hun- dred, from that to three hundred. Any guns ? — One gun. What were the rest ? — Pikes and man- drils. Did you see those that were in court just now ? — Some Buch. Did you meet any persons as well as see those pikes P — If I met one, I should think I met, speaking within compass, from eight to ten thousand. Where were they going? — They were running in all directions. Did you see any of them with anything in their hands ? — I did. What was it P — I met from forty to fifty with guns. Solicitor General: My Lord, I under- stand that the collector is not here whom we wished to call with reference to the description of Morgan James. I will only trouble your Lordships with a single word upon the objection. The first part of this description, — “ Morgan James, of Pillgwenlly, in the parish of St. Woollos, in the borough of Newport,” is a good description of his abode within the meaning of the statute. He has lived there for eleven years ; his wife has con- stantly remained there, acting as the owner of the house, and he has returned regularly once a month, and sometimes twice a month, from Saturday to Monday. Many commercial travellers are only at home a few days in the year, but it has never been questioned that, within legal contemplation, the place of abode of such a person was the house where he had left his family, and of which he continued the master, and of which, in legal contempla- tion, he was in possession just as much, during his absence, as while remaining there. Then, my Lord, we have added to that description that which must now be taken to be an erroneous description in respect of the parish. It is stated he is — “ sometimes abiding at the house of his son, John James, in the parish of Bedwellty, in the county of Monmouth, collier.” [304 It must be taken that that is an erroneous parish, that being the adjoining parish, not the parish in which the man resides. Now, I say that that latter part is alto- gether superfluous, and that if, in point of fact, the place of abode is given in the first part the statute is perfectly satisfied. All that we are required is to give the place of abode. If that part of the statute is satisfied, though we have added some other place purporting to be where infor- mation could be got, but where, in point of fact, information could not be got ; yet as we have referred to the only place which the law requires, where information was to be obtained, namely, his place of abode, then the circumstance of our having added some other place where information could not be got, would not vitiate it. Attorney General : It is only from an extreme anxiety to give the fullest infor- mation that the difficulty has arisen. It would be unfortunate for prisoners here- after if very great strictness were required as to the additional information, because the effect would be that no additional in- formation could with any safety be given ; for if it shall turn out that there is any- thing erroneous in the additional informa- tion, why, then, you will vitiate what goes before, which, of itself, would have been perfectly sufficient. Parke, B. : Supposing the description had been, “of Pillgwenlly, in the parish of St. Woollos, in the borough of New- port,” which, for a moment, we will assume is a sufficient description, and they had added, “and also abiding in some other place,” would that have been a sufficient description within the Act of Parliament ? that is, are you called upon, if a man has two residences, to state all his residences, or is it enough to give one of his residences? All that the Act of Parliament says is that you must give his place of abode. Attorney General: I should say it was quite enough to give one place that would be considered as his place of abode. Sup- posing there is a nobleman, with a town house and a country house, and that each is his domicile, I should apprehend that it W'ould be enough to describe him as of either. Tindal, C.J. : Perhaps giving either would do ; but if you attempt to give both, and one of them be faulty, does it not vitiate the whole ? Attorney General : I will assume, for the sake of argument, that if it had stood “ Morgan James, of Pillgwenlly, in the parish of St. Woollos,” alone, that would have been sufficient. But can it be said that what has been done is to be vitiated by our having added, from an anxiety to Trial of John Frost, 1839 . 305] give further informatioD, that this person sometimes is — “ abiding at the house of his son, John James, in the parish of Bedwellty, in the county of Monmouth, collier ” ? We have still* given the true residence and true place of abode. My Lord, he could not have been properly indicted, he could not properly have been described as of the parish of Monythusloyne ; he has not two places of abode. It is not like the case of a nobleman or a gentleman having a country house and a town house, who is domiciled in either, and who might be described properly as of either ; if this man, Morgan James, had been indicted as “of the parish of Monythusloyne, in the county of Monmouth,” he might have pleaded, in abatement, that he is not of Monythusloyne, although he goes tnere to work. That is not his place of abode. This is not an instance where a party has two places of abode ; he has only one place of abode ; that is in the parish of St. Woollos ; and this is not given as another place of abode within the meaning of the Act of Parliament ; it is only that he is casually there. Kelly : Ho, “ sometimes abiding.” Attorney General : The word “ casually,” I admit, is not introduced. The words are, “sometimes abiding at the house of his son John James, in the parish of Bed- wellty, in the county of Monmouth, col- lier.” That is not given as his proper abode, it is not given as an addition under the Statute of Additions, so that he could properly be described, if he had been summoned upon a jury, as “of the parish of Monythusloyne.” But it seems to me to be this, — we first give you his place of abode, and, that you may more easily find him, we add something as to where he is very likely to be found ; we do the best we can to give you all the information in our power. But with regard to his place of abode, under the statute, we tell you that he is “ of Pillgwenlly, and in the parish of St. Woollos.” Therefore, it seems to me, with great respect to your Lordships, that what goes before is not vitiated by what follows, and that the evidence of this witness ought to be admitted. Sir F. Polloch : My learned friend the Attorney General appears to me to have confounded the Statute of Additions, and what the law understands by an addition, with the place of abode for the purpose of this inquiry. It may be that this witness might have been, for the purpose of an indictment, correctly described as being of Pillgwenlly, because he had a house there and his wife lived there ; but I do ask your Lordships with confidence, whe- [306 ther he might not have been described as of the parish where he spends sometimes twenty-seven days out of every month, and at other times twenty-six ? My Lords, the place of a man’s abode does not mean the place of which you designate him with respect to his home or domicile ; the place of abode means the place where he abides, where he eats and drinks, and sleeps, and works. How, let me put the case of a person having two houses, who regularly spends part of every week at each house, — and there are many such instances in London; there are many gentlemen who live a short way out of London on the Saturday, Sunday, and Monday, who return for commercial purposes to the city, and remain in Lon- don Tuesday, Wednesday, Thursday, and Friday, and who, therefore, regularly live in a house of their own four days in the city and three days in the country. How, I do not presume to say, — it is not neces- sary for my argument to say, — that you would be bound to give both those places of abode, though I think you would, if you meant to set out what is the place of abode. Where a man has two houses you may not be obliged to give them both. But if you have attempted to give both, and have given one of them incorrectly, then, I say, you have no right to fall back upon the other; because, if you have mis- led the party to whom the information is required to be given, so that the party to whom this information is intended to be important and useful may have lost one single minute in a doubtful inquiry in con- sequence of this fallacious information, I say that then the object of the statute is violated. It may be sufficient to describe a man as of a parish at large, but if you describe him as of a particular street in that parish, as, for instance, if you were to say, “ of Hew Street, Spring Gardens, in the parish of St. Martin,” and it turns out that he does not live in Hew Street, but that he lives at Charing Cross, that is a misdescription. Yet you may say, well, but I told you the name of the parish. At all events, this incorrect addition did not waste time, for you must in any case have had to wander all over the parish . Tinual, C. J. : We do not feel it neces- sary to hear you any further. If this case had rested upon the first part of the de- scription alone, I for one should have been satisfied that it was sufficient ; for when he is described as, £; Morgan James, of Pillgwenlly, in the parish of St. Woollos, in the borough of Newport,” and it is found that he has a house there, and has had for eleven years, and that his wife and family live there, and he occa- ! sionally returns to it, I should have Trial of John Frost, 1839. 307 ] Trial of Joh\ thought that quite a sufficient description of his abode within the meaning of the Act; otherwise parties would be put to endless difficulties where persons are passing their lives during any part, of the year at a distance from their homes, or in any other place than that where they have their regular abode. The case occurred to my mind of a fisherman, who may be but for a month at a time, or a commer- cial traveller, who may go out for five or six months together, or a merchant, who may go abroad every year and scarcely ever be in his place of abode. If you wanted to describe such a person by his place of abode, the place where he has his house and family must be con- sidered a proper and sufficient description. But it appears to me that in this descrip- tion more has been intended than done. There seems to have been a degree of doubt whether with propriety the descrip- tion could be limited to Pillgwenlly or not, and it has been thought that it was proper to describe him as sometimes abiding in another place. Now, this is a good description in the first place by saying, “ of Pillgwenlly,” because we find that to be his place of abode. If we insert the words, ‘"abiding at” instead of the word, “ of,” then it will stand thus, “ Morgan James, abiding at PillgM enlly, in the parish of St. Woollos, in the borough of New- port, in the county of Monmouth, collier ; and sometimes abiding in another place.” Then taking the whole together, the whole is a good description of his abode during the year. Now, if that were true in both parts, all would be right. But it appears to me, inasmuch as it is true in the first part only, and not true m the latter part, with respect to his abiding in the house of his son at Bedwellty, that taking the whole description together, it is not a sufficient description of his place of abode. And although this is an error that has arisen, I have no doubt, from a great anxiety to give every possible in- formation upon the subject, still we are called upon to decide it according to the law; and the opinion I have formed, looking at the Act of Parliament, is, that the description as a whole is inaccurate, and the witness cannot be examined. Parke, B. : Although I have some doubt in my own mind as to the propriety of the decision at which we are about to arrive, yet having the opinion of the Lord Chief Justice and of my brother Williams , in favour of that decision, I concur in the propriety of rejecting this witness. I take it, that all that the Act of Parliament re- quires is the place of abode of the witness ; that is the place of his domicile ; and if he has two domiciles, the , Or own is not > Frost , 1839 . [308 bound to give them both ; and if in this case they had confined themselves to naming his place of abode at Pillgwenlly, I should have had no question that this was a proper description of the witness ; because, it appears that he lives with his son not as an abode but for the purpose of getting work ; and therefore if in this case his place of abode had been described as “of Pillgwenlly,” and not sometimes elsewhere, that, I think would have been sufficient, because that would not have misled; but the doubt thrown into my mind is by the argument of Sir Frederick Pollock , that by giving an inaccurate de- scription you may subject the prisoner to hardship by leading him to expend time by looking after him where he cannot find him. This certainly is an inaccurate description of the place where he some- times abides with his son, the name of the parish being wrongly stated; and there- fore, as the prisoner might by possibility be subjected to expense and loss of time in looking after him in that wrong parish, I concur in the propriety of rejecting the witness. Williams, J. : The question really is, whether or not the whole is to be con- sidered as the description of the abode. One statement, which was made by both the Attorney and Solicitor General , it is impossible to deny, namely, that if they were indicting for a burglary, the proper description would be in the earlier part of this description. So, ir. the case put by the Solicitor General of the residence and place of abode of a traveller, the observa- tions made may be perfectly just. But, as it seems to me, there has been here an endeavour to give a more general descrip- tion of the place of abode than would have been supplied by the first part, and the latter part is involved in the description. It is sufficient to say that, the latter part of the description is not correct, inasmuch as it gives a wrong parish. I think that, if there is a fair and reasonable doubt upon the point, we ought not to receive the witness. Thomas Jones Phillips sworn. — Examined by the Attorney General. [I am a solicitor practising at Newport in this county, and clerk to the magistrates of Newport. I left home on Sunday the 3rd, and did not return till the morning of the 4th of November. I returned be- tween half-past ten and eleven. There were a great many persons about the streets ; the first thing that took my atten- tion was a dead body under the portico of the mayor’s house.] Did you go into the “ Westgate ” Inn P, — Yes. 309 ] Trial of J ohn Frost, 1839 . [310 How many dead bodies did you see P — I saw nine altogether that morning ; they were not all dead when I went into the “ Westgate ” Inn ; some were in a dying state. In the house ? — In the house. Was there a warrant granted against John Frost, the prisoner at the bar, on that day ? — Yes, there was. We understand that he usually resides in Newport ? — He does. And carries on the business of a draper there ? — Yes. About what hour was the warrant granted ? — It was some time in the course of the afternoon or evening. About what time ? — About five o’clock, I should think. Hid you go to his house to assist in exe- cuting the warrant P — It was a search warrant as well as a warrant to apprehend him ; I did go to his house. Did you go to his house P — I did, at- tended by the superintendent of police. Edward Hopkins? — Yes. Was he to be found in his house? — He was not. Did you at anytime go in search of him at the house of a person of the name of Partridge ? — I did not go in search of the prisoner ; I afterwards proceeded to the house of John Partridge. For what purpose ? — I went there to attend the execution of a search warrant against Partridge. Was that on the same day? — On the same evening ; almost immediately I left Mr. Frost’s. Will you go on and state what happened ; you went to Mr. Partridge’s house to exe- cute this search warrant ? — I did, attended by some special constables. About what hour was it that you went to Mr. Partridge’s P — Somewhere between seven and eight o’clock ; I knocked at the door of Partridge’s house ; no notice was taken of my knocking, and I attempted to open the door; I called out, “Mr. Part- ridge ! ” Did you try to open the door P — I did, and I found it fastened. I called, “ Part- ridge! ” He said, “ I am gone to bed.” I said, “ Get up and open the door, or I must force it open.” The door was not opened, and I forced it open ; and I heard the irons that seemed to have fastened the door fall on the inside of the house. Immediately the door was opened I saw, standing within two yards of it, Mr. Frost , the prisoner. Was he in the passage? — There is no passage ; it opened into the room ; it is a very small cottage. He was within two yards of the door P — Yes ; standing facing me as I went in. Was there any other person in the room p — Yes. Who besides ? — A person of the name of Charles Walters. Is he one of the persons included in this indictment ? — He is. Anyone else P — And Partridge. In the same room P — Yes. All three in the same room P — Yes. What did you do P — I walked up to Mr. Frost, and Mr. Rogers, who attended me, walked up at the same time ; and he was told that he was a prisoner ; I laid my hand upon his shoulder on one side, and Mr. Rogers laid his hand upon his shoulder on the other side. Mr. Frost said, “ Very well, I will go with you directly.” I said, “No; we are not prepared to take you; you must wait a little.” I then saw Part- ridge, and I told him what my business was there, and proceeded to execute the warrant. As to searching Partridge’s house ? — As to searching Partridge’ s house. Did you observe the appearance of Frost, and of his clothes ? — He appeared very much fatigued. Indeed he told me that he was very uncomfortable. Was he searched ? — Not then. When was he searched ? — He was searched afterwards at the “Westgate” Inn. He was conducted to the “ Westgate ” Inn p — Yes ; he walked under my arm from thence to the “ Westgate ” Inn. How far may Partridge’s house be from the “Westgate” Inn? — I should think about a quarter of a mile. Was Walters brought at the same time ? — I found Walters in a corner of the room, looking round towards me. Was he conducted likewise ? — Yes. Was there a warrant against him? — No. He was conducted without a warrant ? —Yes. When you got to the “ Westgate,” was Frost searched P — He was searched. What was found upon him? — Three pistols. In his pockets ? — Yes. Any gunpowder ? — A powder-flask and some ball. W ere the balls in a bag, or were they loose in his pocket ? — I believe they were loose. Was Walters searched at the same house ? — He was. What was there found upon him ? — Four pistols and a powder-flask, and some ball and some lucifer matches. Were the pistols found upon Mr. Frost loaded P — Yes. All three P — Yes. Have you got them here ? — I have. Just produce them ? — These are the 311] Trial of John Frost, 1839. [312 pistols found upon Mr. Frost. ( The witness produced three pistols, one of them being rather larger than the other two.) The balls, I suppose, you have got ? — Ho. Are the pistols still loaded ? — I believe they are. Do they remain as they were? — Yes, with the exception that the caps were taken off ; these are the balls ( producing nine balls, one of which was rather larger than the others) ; that is the powder-flask ( producing it). Were those found upon Walters loaded likewise ? — Yes. Do they appear to be loaded with ball as well as with powder ? — I have not examined them. Are they in the same state in which they were when you found them ? — They are. Was there powder in Mr. Frost's powder- flask ? — It was nearly full. Have you the pistols that were found upon Walters ? — Yes {producing four pistols). Are they loaded likewise? — I believe they are. Tindal, C. J. : Are there balls in them ? Phelps: Yes, there are, my Lord; you can see them. Phillips : This is the powder-flask found upon Walters ( producing the same). A quantity of the powder has escaped out of the flask into the paper. You say there were some lucifer matches found ; on whom were the lucifer matches found? — On Walters. Were all those balls found upon Walters ? — Yes.' Attorney General : They appear to amount to about forty or fifty. Upon that the prisoner, John Frost, was committed to gaol ? — He was. Cross-examined by Sir F. Pollock. You say you went to Mr. Frost's house ? — Yes. Had you a search-warrant then ? — Yes, I had. Did you execute it ? — I did. What did you search? — Papers ; manu- script papers. Tell me what room you went into, and what boxes, drawers, desks, cupboards, and so on, you searched ? — It was the room that Mr. Frost usually occupied at the back part of his house. A private room ? — I believe it was his public room where he used to see persons that applied to him upon his magisterial business. Did it appear to be the room where he kept his private papers ? — There were a great number of papers there ; it appeared to be the room where he kept all his papers. Did you break open anything there, or did you find the papers in such a state that you could get at them without break- ing anything open ? — I did not find it necessary ; the papers were all exposed in the room. What papers were they ? — There were a great number of manuscript papers in Mr. Frost’s handwriting. Copies of correspondence ? — Yes. Were they lying on the table, or how were they disposed ? — They were princi- pally on shelves ; they were handed to me by one of Mr. Frost’s daughters, who attended me the whole time I was in the room. His family were still there ? — Yes, they were. What does his family consist of ? — Mrs. Frost, and, I think, five or six daughters and one son at home; he has two sons, one abroad, I believe, and one at home. Were they all there, except the one that was abroad? — Ho, I believe not; I saw several of them. Was Mrs. Frost there? — Mrs. Frost was there. And several of the daughters ? — Yes. At what time of the day did you make that search ? — It was in the evening, between six and seven o’clock. Was it after you had apprehended Mr. Frost ? — Ho, it was before. Then you merely took the papers from the shelf ? — I did not take them from the shelf ; they were taken from the shelf by Miss Frost, and she handed them to me. What papers did you ask for ? — I asked for the papers, generally ; I do not think I asked for any papers in particular. Were they all on the same shelf, or on different shelves ? — On different shelves. Did that appear to be the place where he kept his papers ? — Yes. From the documents you saw, did not that appear to be the place where he kept his copies of letters, and so on? — Yes. Whom did you see when you first went to the house ? — I saw Mrs. Frost ; I think I saw the servant at the door, and then I was shown into a room behind the shop, and then I explained to Mrs. Frost what my business was. Did she make any difficulty in showing you the place where Mr. Frost’s papers were kept ? — Hot the least in the world. The members of the family assisted you by handing them down and giving them to you ? — There were two of Mr. Frost's danghters in the room the whole of the time. You had no reason to doubt that ydu had all the papers ?— Hot the least. You have them now ? — I have them now 313] After that yon went to the house of this Partridge, and there you met with Mr. Frost quite accidently P — Quite acci- dentally. [Mr. Frost’s house is in the High Street. Frost’s house and Partridge’s cottage are nearly back to back, with gardens between. Partridge is a printer. Frost has known me for a long time ; he must have known my voice.] Re-examined by the Attorney General. What distance should you say there is between Mr. Frost’s house and Partridge’ s house, going by the street ? — I should think three or four hundred yards. Is there any back communication that you are aware of between the two ? — I be- lieve there is, which would make the dis- tance much shorter. When you were at Pa/rtridge’s, searching his premises under the search warrant, do you recollect Mr. Frost saying anything about his papers ? — Yes. What did he say? — When I was exa- mining some manuscripts which Partridge handed to me, which were on two files, Mr. Frost walked to me across the fire- place and asked me by what authority I examined those papers ; I said I did not consider it necessary to make him ac- quainted with my authority ; he said, “ If you expect to find any of my manuscripts there you are mistaken.” Attorney General : This is the case, my Lords, on the part of the Crown. Sir F. Pollock : Perhaps your Lordships would not call upon me to address you at this late hour. Tindal, C.J. : We shall certainly not call upon you, unless you wish it and feel yourself equal to it ; otherwise it may stand over till Monday. Monday, January 6, 1840. Opening Speech for the Defence. Sir Frederick Pollock ; May it please your Lordships, gentlemen of the jury, — It is now my duty to address you on behalf of the prisoner Mr. John Frost, and to state to you what is his answer to this charge which has been made against him. My learned friend, towards the close of his address, spoke of it as a difficult task that the prisoner’s counsel would have to perform. Gentlemen, I do not agree with my learned friend, and I would to God that I had as little difficulty in relieving Mr. Frost from every charge of criminality on that eventful and fatal day as I believe I have in answering the charge of high treason. I believe I shall satisfy you that of that charge he is innocent. Certainly, gentlemen, I shall bring the case within [314 tho compass of those expressions which my learned friend the Attorney General used, in stating that which would entitle the prisoner to your verdict of not guilty. Gentlemen, in the course of my address I must entreat your indulgence, and that of my Lords. To me criminal business is extremely new — a charge of high treason altogether so. The business of this Court, as opposed to that of the other, is accom- panied by a feeling of interest and anxiety to me so intense, painful, and almost over- whelming, that I have, on all occasions where I could with propriety, declined being a party to a criminal prosecution. But on the present occasion I readily say I thought it my duty, when called upon, to undertake this defence ; and I stated to the gentleman who first applied to me, on the instant, and without hesitation, as he will well remember, that if I could make it accord with my professional engage- ments, there would be a want of manli- ness on my part not to give Mr. Frost the benefit of any services of mine that he might wish to command. And I am sure that my learned friend will cordially agree with me that no loyal subject can be better employed than in disproving the existence of treason and satisfying you, the gentle- men of the jury, and the public at large, that this is not a case of that complexion, whatever degree of criminality of another sort there may have been. Gentlemen, I am far from making any complaint, as sometimes has been done on occasions of this sort, of the solemn and almost awful proceedings in which you are called upon to take a part. I make no complaint of the Special Commission, or of the charge being that of high treason ; least of all do I make any complaint as to the manner in which the proceedings have been conducted. I think it was quite right that when the public peace had unques- tionably been disturbed, — when numbers of Her Majesty’s subjects had been alarmed by the events that you have heard described, that there should be as early as possible a vindication of the law, a punishment of offenders, and that sort of assurance and protection given to the peaceable subjects of the realm which results from the law taking instant cognizance of crime, ac- cording to the character and nature of the offence, and awardingto it that punishment which may seem to be due. Nor, gentle- men, do I complain of this charge being pro- secuted as one of high treason. I think it became the Law Officers of the Crown, under all the circumstances that at first presented themselves, so to offer the charge to your notice ; nor has the prisoner the slightest reason to complain that he is put by that means into a worse position than he otherwise would be. From the earliest Trial of John Frost, 1839. 315 ] Trial of John Frost, 1839 . [316 time of our history, those who had most reason to dread accusations of this sort, — those who from the earliest history of our law, were continually in conflict with the Crown for the liberties of the subject, especially guarded the individual who was charged with this high offence. He is pro- tected by having a copy of his indictment ten days before his trial — a privilege from which other persons are excluded. He is protected by having a list of the jury and a list of the witnesses ; and even before the Prisoners’ Counsel Bill was passed(u) he had the privilege of making a full defence by such advocates as he might require to be assigned to him by the Court. And, gen- tlemen, one benefit even of the inexperience that belongs to us in a case of this descrip- tion is that, instead of taking the practice or the law from any books, we sat down with the Acts of Parliament before us, with the original documents ; and our very inexperience induced us to exercise a caution and a vigilance which has raised that point which my Lords have been pleased to reserve for further considera- tion. Gentlemen, with respect to the pro- ceedings that have occurred in your presence here, as far as the learned judges are concerned, so far from utter- ing one syllable or whisper of complaint, I do feel that the administration of jus- tice was never rendered — I had almost said more amiable — certainly never more satisfactory. I have never known or read of any proceedings of this sort that have been conducted with such unexam- pled patience and moderation on the part of those learned persons. And I do for the prisoner at the bar feel deeply indebted for that time for consideration which has always been given, that patience in hear- ing, "that readiness to give every possible opportunity to hear the evidence while yet attention is unexhausted, and to afford the opportunity of considering it before any address should be made to you ; and I may be allowed, gentlemen, perhaps, to say that your ready acquiescence in every arrangement suggested at the bar, or adopted by the Court, your patient for- bearance from uttering one single murmur of complaint at the great inconvenience that you must have experienced in being separated for so long a time from your families, and kept away from home, de- mands, and I trust, gentlemen, you will accept, my sincere and cordial thanks. Gentlemen, it is a good omen for the administration of justice that thus far everything has been satisfactory. In my learned friend’s opening I have nothing to ■complain of. It was short ; I think it was meagre. It abstained very much from de- tailed statement. I make no complaint of that, because I ascribe it partly to the for- bearance and moderation of my learned friend, and partly to the nature of the case that he had to disclose. I own, gentlemen, it would have been satisfactory to me — I know it is not usual — if the Crown had summed up the evidence in a case of treason ; certainly for many years that practice has not been adopted — but it would have been of some assistance to me in addressing you upon the evidence, if my learned friend had originally stated dis- tinctly and precisely, not what were the general points upon which he relied, but what was the particular fact, or the par- ticular declaration upon which he meant to rely in bringing chis charge home to the prisoner at the bar [and which of the inconsistent statements of his witnesses he means to adopt]. Gentlemen, the charge is one which our law has always considered, and I believe every law, and justly, to be the highest crime against society. It is one of the deepest dye. It is visited with the severest punishment. It is presented to you in four counts of a very long indictment. Gentlemen, I make no complaint of the forms of our pleadings in courts of law, whether civil or criminal. The four counts of the indictment have certainly much of repetition, and a plain man of sense might wonder to find that a charge such as apparently might be brought against Mr. Frost should be necessarily wrapped up in so much circumlocution and repetition, as really to make it exceed- ingly difficult for an unlearned and unin- formed person precisely to know what the indictment means by so many counts, and by such frequent repetitions of the same expressions in each count. But I believe I have my learned friend’s authority for saying that I need not give myself much trouble on the third or on the fourth count. So far as this charge involves any personal attack upon Her Majesty the Queen, I believe I may say that my learned friend’s speech did not raise the slightest intimation in the mind of any- one that he thought that charge could be sustained. So, gentlemen, with reference to the change of Government, which, I think, is in the fourth count, if I remem- ber rightly, my learned friend disclaimed that count as one that would not require much attention from either you or me. But he particularly called our attention to the first and second counts, which, so far as I could collect from reading them, appeared to me to be of this nature : the first count charges, I think, a levying of war for certain definite objects ; and the second is for levying and making war (a) Passed as 6 & 7 Will. 4. c. 114. 317 ] Trial of John Frost, 1839 . [318 generally. I believe, therefore, I shall perfectly satisfy the objects which I have in view in defending Mr. Frost , to say, if I confine myself to the second count of the indictment, for I am not aware that the substantive charge in the second differs from the first, except that in the first the levying of war is stated to be for certain purposes. Tindal, C.J. : There are certain overt acts stated in the first. Sir F. Pollock: Certain overt acts are stated in the first. Parke, B. : The purposes do not differ ; the first count contains more particulars than the second. Sir F. Pollock : Just so, my Lord ; but the second count contains the charge of levying war, if I mistake not, in exceed- ingly general terms ; the levying of war being itself a distinct and substantive treason. Attorney General: My Lord, I am very sorry to interrupt my learned friend, but I beg it to be understood that I do not give up the fourth or any of the counts of the indictment. Sir F. Pollock : Gentlemen, I am some- what surprised at my learned friend’s in- terruption, because, when I found my learned friend, in his opening address to you, after describing the four counts, stating that your attention would be chiefly directed to the first and the se- cond, it did appear to me to be as much an Attorney General’s abandoning the third and the fourth, as an Attorney General could express upon such a subject. Now, gentlemen, I certainly am in- debted to my learned friend for explicitly stating on the part of the Crown what is your duty upon this important and solemn occasion. Says my learned friend, at the outset, “ You are to presume Mr. Frost to be innocent ; you are to begin the inquiry with every presumption in favour of that innocence, until it is assailed by the evi- dence ” ; and my learned friend said that the evidence to prove him otherwise than innocent must be “ strong, clear, and con- vincing.” Gentlemen, I infer from that, that if, instead of being strong, clear, and convincing, it is weak, feeble, confused, inconsistent, part of it impossible ; then, gentlemen, you cannot possibly find a verdict against the prisoner. Gentlemen, in my judgment, the great point in this important inquiry will be this : Was the proceeding of Sunday, the 3rd of November, which terminated in these fatal transactions of Monday morn- ing, done for any treasonable purpose, and was that treasonable purpose existing in the mind of Mr. Frost at the time that he concerted the proceeding (if he did con- cert it), at the time that he joined, as I must admit that he did join, and marched with those persons from the “ Welch Oak,” where I think we first find him, down to the corner of the “ Westgate ” Inn, where it appears he quitted them ? Gentlemen, I take that to be the great question in this case. If I can satisfy you, as I feel very confident I have the means of doing, that there is no evidence upon which the lease reliance can be placed, even as the matter now stands, upon which you can come, as sensible and judicious men, to the conclusion that this was a treasonable purpose ; still more, if, as to certain parts of it, I can prove that it was not so ; then, gentlemen, Mr. Frost will be entitled — whatever criminality may belong to the meeting, the marching, the arming, the alarm, the terror, and the fatal conse- quences that have ensued — how criminal soever, however much to be deplored and lamented — if I satisfy you that the purpose was not a treasonable one, then, gentle- men, Mr. Frost is entitled to your verdict of not guilty. Nor let it be supposed that anyone in these realms, or in this country, or in this court, has an interest in a ver- dict of an opposite character. If I can make out that Mr. Frost was not guilty of treason, far from its being a verdict that is to be heard with regret, that any per- son is to deplore, it is, gentlemen, of all others the one that would give the greatest satisfaction to the country, to the king- dom, to the public at large ; of all others it is that verdict which would best re- assure those whom this transaction has alarmed, believing it to have been treason of a widely spread, dangerous, and despe- rate character. If, gentlemen, I satisfy you that the thousands and thousands who assembled that night had no treasonable object in view, I relieve this county from a stain, from a charge, from an imputa- tion of the blackest and the deepest dye ; I give an assurance that the alarm that has spread from county to county, all over England, is not well founded; that no person need be afraid of a repetition of that lawless violence which prevailed on the 3rd and 4th November, and that should even such an assembly again collect, it will not be for purposes of treason, or for any of those purposes that would create an alarm and a terror inconsistent with the public safety. Gentlemen, before I proceed to consider the evidence that my learned friend has given, I must make a few observations as to the time at which we are now assembled and are considering this important mat- ter ; I mean to make no reflections upon those who now guide the councils of Her Majesty. I have no instructions, and 1 have no inclination to utter one word of 319 ] bitterness or asperity towards individuals from whom I differ on many political subjects. But it is impossible to con- sider the character of this transaction without adverting shortly to the tran- sactions that have occurred within the last seven or eight years. Gentlemen, some years ago, meetings of persons, such as the evidence tells us, took place at the ** Welch Oak,” at Pontypool, and at NTant-y-Glo, would have been deemed of themselves, almost without anything more, indications of a treasonable design. Gentlemen, the law cannot be altered by the conduct of those who are called upon to obey it. I do not mean to say that any change of the law has occurred by reason of the relaxed discipline of society that has prevailed for some time past. But I do mean to say this distinctly, that from what has actually taken place , from what has been permitted, perhaps, gentlemen, in some instances even sanctioned, a very different estimation is to be held of public meetings, aye, gentlemen, and even of armed meet- ings, from that which might have been formed some twenty or thirty years ago, and that the object and the intention of the parties may justly receive at the close of the year 1839 a construction far more favourable than, perhaps, could fairly have been conceded in earlier periods of the history of this country, that you and I are familiar with ; for I do not go back to very remote periods. Gentlemen, we have lived to see thou- sands — I believe I should not be wrong if I were to say hundreds of thousands — of men collected for the purpose of exhibiting their numbers and showing their strength ; aye, gentlemen, and we have lived to see the numbers displayed and the strength exhibited for purposes connected with a change of the system of Government. According to the strict law, as my learned friend laid down the other day, the one or two hundred thousand persons who assem- bled, I think, at the White Conduit House a few years ago, (a-) and marched in military array, a certain number in each rank, and the ranks following each other, like an armed forc6, who marched down to the office of the Home Secretary, (b) and pre- sented a petition complaining of griev- ances, and praying for alterations in the (а) April 21, 1834. — The demonstration was organised by Robert Owen and the National Trades’ Union to petition for the recall from transportation of the six labourers convicted at the Dorchester Spring Assizes for belonging to an association bound together by unlawful oaths. The numbers who walked in the procession from Copenhagen Fields to the Home Office were estimated at 30,000.— See Ann. Reg. 1834, 58. (б) Lord Melbourne. [320 constitution ; — I say, according to the strict letter of the law, those men were guilty of high treason. There can be no doubt that arms are not necessary, ac- cording to the construction of the statute, to a levying of war; yet, gentlemen, you can all remember when that extra- ordinary event took place ; when the leaders of that meeting were admitted to personal communication with an Under Secretary of State(a); when a gigantic pe- tition, corresponding with that vast army of men, was unfolded in the inner cham- bers of the seat ©f Government ; and when they, were dismissed, I cannot say without a reprimand, for I believe they were told that their proceedings were unlawful; but, if I mistake not, they were allowed to deposit the burden of their petition in the chambers of the Government, though they were told that it would not be received as a petition, for, that coming in that fashion, it was much more like treason than a lawful proceeding, or that at least it was a tumultuous meeting, to which no attention ought to be paid. But, gentlemen, no public notice was taken of that whatever ; no man was punished for it; and those one or two hundred thousand persons retired to their peaceful homes that night in the city of London, having marched in the array that I have described, till all London, through which they marched, was alarmed and terrified at the sight of so powerful an army, for really I may so call it. Gentlemen, I believe that was after the passing of the Reform Bill; but at the period of the Reform Bill, the agitation as to which commenced as early as the introduction of the first Bill, I think in February or March 1831 ; at that ‘period in various parts of the kingdom, persons assembled in numbers to show their strength, and to exhibit by what pre- ponderating and overwhelming numbers (a) Mr. Phillipps. Five deputies presented themselves with the petition at the Home Office, and were shown into Mr. Phillipps’ room. Owen accompanied them, but Mr. Phillipps refused to receive him, as he was not one of the deputation. Owen having withdrawn, Mr. Phillipps said that Viscount Melbourne was in the office, and had directed him to say that his Lordship could not receive a petition presented under such circum- stances and in such a manner; that Viscount Melbourne had seen a copy of the petition ; that he did not disapprove of the language of it ; and that, if presented on another day and in a be- coming manner, he would receive it and lay it before the King. The deputation then withdrew with the petition, which was presented to Lord Melbourne by a deputation from the Trades’ Unions a few days later, and laid before -the King in the usual way. Trial of John Frost, 1 839 . 321] the expectations of the Reform Bill were entertained, and its doctrines were to be enforced ; and in one of the most popu- lous parts of the kingdom, I mean at Bir- mingham, persons assembled, w ho talked of marching to London, and encamping, not as an army — oh, no, gentlemen, not as an army, bat as a body of petitioners — as persons who were to come up to London to represent their grievances. (a) They were to come from Birmingham, and en- camp in the neighbourhood of London ; of course not to overawe the House of Lords — oh, nothing of the kind, but merely that the persons in London, and especially those in the Legislature, who opposed Reform, might be aware that there was this large body of men, formidable unarmed, and almost irresistible if armed ; and that they were ready to bear their part in the general agitation of that period. With this body of persons so acting, I believe some members of His Majesty’s Government were in actual communication ; I believe that is matter of history, about which there is no more doubt than that we to-day have the happiness of living under our Gracious Sovereign, and have before us the pros- pect of much happiness and prosperity in so living under her mild and beneficent G overnment. Gentlem en, under the name of agitation, what has not been done almost in every town and in every corner of this kingdom P And if we pass — and, gentlemen, I shall do this lightly, because I do it reluctantly — if we pass for one moment, and take a glance at the sister kingdom, there familiarly we hear talk of a petition from 500,000 fighting men. (6) Gentlemen, I say no more upon this point, but I call upon you to remember these transactions when you come to de- liver your verdict on the guilt or the innocence of the prisoner. And let it be understood that so far has the authority of the law been practically relaxed, so far has permission, if not actual encourage- ment been afforded to such proceedings, that it would be most unjust to use the same measure that was formerly in use as to the motives of parties. It would not be justice to weigh in the same scales as were formerly used the transactions about which you are making inquiry to-day. [Now, gentlemen, I proceed to call your attention to the manner in which my learned friend has made out his case. It was, I think, very skilfully marshalled. He is an experienced and an able general, and, I think, made the most of the forces that he had to bring into the field.] He (а) See Place MSS. 27, 7934 ; Spencer Wal- pole’s History of England, vol. 2, 658 ; Roe- buck’s History of the Whig Ministry of 1830. (б) See Appendix A, p. 1357. o 67432. [322 began by proving what occurred on the fatal morning of the 4th of November. He then traced the prisoner at the bar to various places on what he would call the line of march. He then traced Zejohaniah Williams from Nant-v-Glo, and he then traced Jones from Ponty- pool, and he showed that they were all marching upon the town of Newport, Each of those narratives of the collection and the marching of the persons was in- terspersed with certain declarations, to which I shall presently call j r our most especial attention. Without those expres- sions the case is absolutely nothing — I mean, gentlemen, as treason. Ho not for a moment imagine that I forget the crime committed in the assembling of those armed persons, and marching them as they were marched for any purpose. But I say that, without those declarations, the case, as a case of treason, is absolutely nothing. My learned friend then proved, by the landlord of the “Coach and Horses” at Blackwood, a person of the name of Pugh , that a number of persons assembled, I think on Friday, the 1st of November, at his house, somewhere about thirty persons, with most of whom he was unacquainted, but that the prisoner at the bar, Zejohaniah Williams, and Jones were three of those persons ; and my learned friend’s case concluded by the evidence of Mr. Phillips with respect to the apprehension of Mr. Frost himself. Now it is quite impossible to deny, nay, it would be part of my case, that those persons did march ; that they intended to be at Newport at or about the same time ; that some of them were armed. I own, gentlemen, I should doubt very much whether the arming was anything like so extensive as has been spoken of, because the number of weapons picked up after the mob retreated from the inn was very inconsiderable. I do not know whether they produced them all; there certainly seemed to be a disposition to make as much display as possible, for the purpose of producing an effect which I think hardly legitimate. But, I think, from the number of weapons produced, and the weapons picked up, you can hardly imagine that the arming was so exten- sive as has been described. Nor can it be denied that, in point of fact, they did march to Newport, and that there was a conflict, first with the special constables ; and then — whether or not there was a conflict with the military — that one of the military was wounded ; but under what circumstances we will presently see : and that, to use the ex- pression of one of the witnesses for the Crown, “ The moment the mob saw one person fall, that instant they all fled in L Trial of John Frost , 1839. 323 ] every direction ; ” and in a few minutes the town of Newport was apparently as clear from Chartists as it was at the early hour in the morning of six or seven o’clock, when not a single Chartist had arrived. Gentlemen, all this cannot be denied ; but the question is — What was the object of it P Now, for the purpose of bringing in one view before you what their object probably was, I shall take the liberty of presenting the evidence of a few of the witnesses who have stated what were the objects, as they profess to have collected them, either from the general body or from the leaders. I Thomas Bevan Oliver, the special con- stable at the “ Westgate,” says that the mob came up to the door of the inn, and called out, “Surrender yourselves our prisoners,” but he is the only witness who speaks to this, and, in all probability, what was demanded was the surrender of the Chartist prisoners confined there.] Above two hundred witnesses have been summoned, and out of those wit- nesses not more than thirty-nine or forty have been called. Why has no one been brought forward to support Oliver’s state- ment ? Why, there were hundreds of per- sons — aye, gentlemen, and persons quite competent to prove it. There were per- sons among the Chartists who have been witnesses here ; and one of the constables is said to have called out “ Never !” Not Thomas Bevan Oliver. Who is the man that called out “ Never ?” Where is he ? Why is he not produced? Has he been sought for, gentlemen ? Could he be sought for in vain ? Is there any want of disposition to come forward, and claim to have taken a gallant and manly part in the events of that day P I speak with no disparagement of anyone, least of all in disparagement of Sir Thomas Phillips, now deservedly honoured by the dignity which he has received from the Crown, but I beg to say, gentlemen, that I do not perceive any backwardness on the part of anyone in claiming a share in the trans- actions of that day. I find that the mayor and the gallant captain contend for the post of danger. It is quite clear that on that day the post of danger was the bow-window, nearest to the door of the inn. At that bow-window the mayor places himself ; but there, also, the gal- lant commander of the troops places himself. As I understood Sir Thomas Phillips, he was at the side window, and the captain was in front. The captain reverses the position : he places himself in the post of danger, and the mayor in front. 'T'hese are discrepancies that may well occur in a scene of so much confusion. But I mean to say, there is no want of disposition to come forward and [324 claim any honourable part in the events of that morning. Where is the man who called out “ Never ?” Where is the bold individual who, when these armed persons came up, and called upon them to sur- render themselves as prisoners, called out “ Never? ” But, gentlemen, before I entirely dis- miss this part of the case, I am instructed that not one or two, but several— I had almost said many — witnesses might be called to prove to you, that what passed upon that occasion was a demand of the prisoners who were then in confinement in the inn. I understand that we shall be in a condition to show, beyond all doubt, by some persons who were then acting as special constables themselves, not Chartists, not persons concerned in the affray at all, but persons standing by as indifferent spectators, that the demand for the prisoners was loud and general ; and that, except by mistake (and that not very easily to be accounted for), no one would have given the account of the transaction that Thomas Bevan Oliver has given. Gentlemen, so far as I recollect, that is the first indication of purpose tending to fix any guilt upon the prisoner. And see, when the truth comes to be investigated, what is the result. So far from fixing the guilt ''of treason upon Mr. Frost , it tends to show that the immediate object of their going to the “Westgate” Inn was to obtain, the prisoners whom they knew to be there ; avoiding the soldiers whom, gentlemen, I think I will give you the strongest reason to believe, they certainly did not know to be there, and believed not to be there. Gentlemen, another witness says that Mr. Frost used the expression, “ Turn round and show your appearance to the front.” Now, I remember one of you, gentlemen, asking, whether he was quite certain that that was the expression. I think it exceedingly probable that that was not the expression; but I call your attention to Mr. Frost’s expression, as it is given by the witness. There is no “ Turn round, and take the inn there is no “ Turn round, and fire on the military;” there is no turn round, and do anything, except what? — “Turn round, and show your appearance to the front ;” and I believe, gentlemen, that expression which comes from a witness on the part of the Crown is the true solution to the whole character of this unfortunate transaction. Gentlemen, I now pass to some of the more extraordinary, though in some de- gree less important, objects which are imputed to the parties on that 4th of November. I come next, gentlemen, to ^ the evidence of Matthew Williams, the ' Trial of John Frost , 1839 . 325 ] Trial of John Frost , 1839 . [326 witness with respect to whom a very odd matter occurred — I mean about the mes- senger Reed or Reeves. You may remem- ber that he was pressed into the service. You will judge, gentlemen, how far per- sons who were pressed into the service would be exactly the individuals who would immediately become privy council- lors in this treason. Williams says, “ Be- fore the party set off I did not hear where we were going, nor at Newbridge, only that we were to go after Mr. Frost.” And then he says, “A messenger came from Mr. Frost ,” who now turns out to be George Reed, a tailor, but is described in his deposition as George Reeves, a collier. Gentlemen, it may very often be extremely convenient if you have fixed upon a wrong man who may be called to contradict you, or who may be proved to have been elsewhere, suddenly to turn round and substitute somebody else in his place. I am not aware that I am in a condition to prove anything about George Reeves, but I own I cannot explain how the witness Williams, who knew the man — who lived, I think, within one hun- dred yards of him — and who knew that he was married, should speak of him as George Reeves, a collier, when the man turned out to be George Reed, a shoe- maker. Some blunder about a name one can understand, but a blunder about a man’s business whom he knew so well as to know that he was married, a man living within a hundred yards of him, one cannot understand. Now these are the purposes that Wil- liams discloses. “We were told we were to go to Newport to stop the coaches, the post, and all traffic.” This, gentlemen, does not purport to come, I think, from Mr. Frost. If I remember rightly he spoke of a messenger purporting to come from Mr. Frost , and he spoke of the object of the meeting as being talked of or com- municated. He says, “ When it was said we were to go to Newport, it was said we were to stop the coaches, the post, and all traffic. We asked what we were to do besides ; we were to stop there and guard the town ; nothing more particular was said.” Gentlemen, at that time Mr. Frost had not arrived. £He is not affected by the evidence, but Williams is an untrust- worthy witness. Not only is there the suspicious incident about Reed, but he has been convicted and imprisoned for three months for stealing . I Gentlemen, I now proceed to the state- ment made by James Hodge, who was the second witness called on the second morn- ing ; he was called immediately after Matthew Williams. Now his statement with respect to the object is this, “ I went to Mr, Frost and asked him in the name of God what was he going to do? Was he going to attack any place or people ? He said he was going to attack Newport, to blow up or down the bridge ” — he would not pin himself to the expression — “ and stop the mail from reaching Bir- mingham ; three dedegates were to meet the mail at Birmingham, and an hour and a half after the non-arrival of the mail, if it did not arrive in time, the attack was to commence in Birmingham, from thence it would spread to the north of England and Scotland, and that would be a signal for the whole nation.” That, as disclosed by Hodge, professes to be the object of this great movement from Pontypool, from Nant-y-Glo, and from the “ Welch Oak ” or Blackwood. Now, gentlemen, it is somewhat singu- lar to begin with, that not any one of these professed objects was ever even at- tempted. Why, it may be said, they were totally routed and defeated long before it was time to begin any one of them. Gentlemen, I should have thought not ; I should have thought that if they meant to blow up the bridge the military possession of the “ Westgate ” Inn was of small importance compared with setting about to achieve these great and impor- tant objects which Mr. Hodge says they had in view. Gentlemen, I am told that the mail from Newport to Birmingham proceeds first to Bristol, that it crosses the water at the Short Perry (I do not know whether that is the old or the new), at one of the passages. Ludlow : The old. Sir F. Pollock : That it crosses the water at the Old Passage, which is the shorter of the two — the one higher up the river. I dare say, gentlemen, many of you know that the mail-coach itself does not cross. I have no right to press any experience of my own into the service, but I have a right to appeal to yours, whether the fact is not that when you come to the Passage the letters cross, but the coach itself does not go over. When the mail arrives at Bristol, Bristol acting as a sort of post office for all that part of England, the letters are all re- sorted there, and no mail goes on from Newport to Birmingham. So that, in the first place, the same coach does not cross at the Passage ; and, in the second place, the coach that goes from the Passage to Bristol does not go on from Bristol to Bir- mingham ; a new mail starts from Bristol to Birmingham, and not the same coach that has come from the Passage to Bristol, and not the same coach that has come from Newport to the Passage. Why, then, gen- tlemen, how very absurd, how monstrous that the non-arrival of the mail from Bris- tol to Birmingham should be the signal, at the end of an hour and a half, for a L 2 327 ] Trial of John Frost, 1839 . [328 general revolt. Suppose the non-arrival of the Newport mail, by blowing up the bridge, let us see what the effect of that would be. They would stop the coach, cer- tainly. I will suppose that they seize the bags and say, “ The bags shall not go on ” ; still that could not possibly prevent the passage of the mail from Bristol to Bir- mingham; so that when the three dele- gates marched out, as they expected them, watching for the non-arrival of the mail, in would come the mail at its regular time. For depend upon it the mail from Bristol to Birmingham does not wait for the New- port bag. [f the Newport bag is not there, it must go by some other conveyance ; all the north of England will not wait for its communications because the Newport bags have been stopped. The three delegates would march out there, and seeing the coach, I suppose, trot in, they would imme- diately march back again. And yet this is the sagacious scheme that is supposed to have been laid by Mr. Frost to communi- cate to all the north of England that he had taken military possession of the town of Newport and had blown up the bridge. I say, gentlemen, that it would have given no information whatever, and that they might as well have agreed with the three delegates at the same hour of the night to look upon the same stars in the heavens, as to devise such a mode of communication as this. Gentlemen, I do think it became the Crown, if they intended to rely upon this, to show that the thing was feasible, and that if this had been done it would have produced the effect which it is sup- posed would have resulted from it. I there- fore do charge, as to this declaration of Hodge, that it is absurd, not to the verge only, but to the utter impossibility of its being untrue. I say that if Mr. Frost had used that expression, there could have been no three delegates to wait for the non- arrival ofthemailat Birmingham. Nothing could be so absurd. Mr. Frost is a man of business. Mr. Frost has communications with Bristol. Mr. Frost makes his bills payable there. I shall have occasion to show, by-apd-by, that Mr. Frost had a bill coming due on that very Monday, the 4th of November, at Bristol, at the bankers there ; one of his own bills in the course of his dealing. I shall have occasion to prove to you that he had made provision for that bill on the Friday previously. I shall use that fact, as you will necessarily perceive, every one of you, for a very important purpose by-and-by. Now, gentlemen, having, as I trust I have, effectually demolished this affair of blowing up the bridge, stopping the mail, and thereby giving a signal to Birmingham and Lancashire and the north of England for a simultaneous rising, let me mention another matter. If I mistake not, it was suggested that this was to occur, and that it was to be known at Birmingham on the Monday night. Now see the absurdity of this. The mail would not leave Bristol, I think, till Tuesday, and certainly would not reach Birmingham before late on Tues- day night. But really after having called your attention to the absurdity of stopping the mail as a mode of communication, it appears to me to be rather weakening the observation by showing that the rest of the sentence is in perfect harmony with, though subordinate to, the absurdity and inconsistency of that great flagrant matter which my learned friend opened to you as the basis of this part of the charge, and which turns out, when it comes to be examined, to be utterly destitute of foun- dation. Gentlemen, I am obliged to my learned friend for reminding me that it is not part of Hodge’s, but of Harford’s testi- mony, that the information was to arrive at Birmingham on Monday night. Gentle- men, I own I should have expected that if there had been the slightest foundation for any part of this charge as connected with Hodge’s declaration, that my learned friend on the part of the Crown would have had some evidence showing that preparation had been made at Birming- ham, or in the north of England, or somewhere else, to correspond with this supposed movement at Newport. Gentle- men, the case in an entire blank in this respect. There is no such testimony. Then, gentlemen, I think I have a right to ask you to believe with me that there was no such thing, that there were no delegates waiting, and that there were to be none ; that there was no prepa- ration for co-operation, and that there was to be none. Then, gentlemen, 1 say there was to be no signal, and there was none, and I say that Hodge’s story upon this subject is one of. those fabrications made to suit the purpose of the moment. When magistrates and active officers con- cerned in endeavouring to trace this crime to the bottom were anxious to get some evidence against Mr. Frost , when there was a sort of premium offered for anyone who would give a statement against him, in steps Mr. Hodge — “What is the sort of information yon want ? — Why, we want to know where they were going, and what they meant to do. Oh, I will tell you that. I was seized by them ; I was compelled into their society ; I had the hardihood to say, ‘ Why, you are leading them all to slaughter ; ’ I said he might as well lead us to the slaughter-house ; £ it imitated a butcher leading a flock of lambs to a slaughter-house to be slaughtered.’ ” No doubt, gentlemen, it was perfectly true ; 329 ] Trial of John Frost, 1839 . [330 a very just remark, though wholly inap- plicable to this occasion, for I apprehend that a reluctant man, forced into the ser- vice of that mob, going upon this expedi- tion, would have been much too discreet and sagacious to venture to offer such an expostulation in the presence of the sup- posed leader of this army, in the face and front of all the men, who were to listen to it. But Mr. Hodge, who heard this, is asked, ‘ ‘ Name a single individual in whose presence this took place.” — “I cannot; all I can tell you is, that I was compelled into the service ; that I saw Mr. Frost, that I expostulated with him, and that he opened his whole scheme to me at once. Knowing that I was a reluctant recruit, ready instantly to become a deserter as soon as those who guarded over me should cease their vigilance, he opened to me the whole scheme, and I had the hardihood to expostulate with him, in the face of all the persons around him, in terms of just, bold, and defying remonstrance; and I remained with him until an opportunity occnrred of effecting my escape.” Gentlemen, I have not done with Hodge yet, because it is only by taking this case piecemeal, by examining its details with minuteness, and patiently going through the particulars, that you can ascertain. the true value of this testimony ; and this is all the evidence you have upon this sub- ject. There is no act done by Mr. Frost — there is no act done by anyone that stamps upon the events of that day the character of treason, unless you are to rely upon the testimony of James Hodge, and such persons as James Hodge appears to be. Gentlemen, Mr. Hodge had mended his story ; his deposition was read, and my learned friend cross-examined him. Before that he said, “ A man with a glazed hat came from Newport, and said, ‘ the soldiers were all Chartists, and their arms and ammunition were all packed up.’ ” Where was that information ob- tained P Was it true? or was it any approximation to the truth ? How came Mr. Hodge to make that statement ? He told it us the other day, but he did not tell it when he was before the magistrates, making his deposition. Gentlemen, it is for you to judge of the value of this omis- sion in the statement at first, or of this addition to it afterwards. But, gentlemen, I go to a third point. Mr. Hodge admits that he was at home and in his bed at 10 o’clock in the morn- ing. I believe, gentlemen, I have the means of showing that he was at home, and in his bed at nine o’clock in the morning, or very little after ; and you will say at what period it was possible for him to have been with Mr. Frost at Pye Corner, for there he fixes the place of his conver- sation. Gentlemen, he was obliged to say that this conversation took place at break of day. Had he fixed upon such a time as nine o’clock, of course that would be out of the question, because nine o’clock was the period of the events at Newport. Had he fixed it at eight, or at seven ; why, judge, gentlemen, of the time it would take a man to go to his home, twelve or thirteen miles off, having been up the greater part of the night, marching from Tydd in a stormy night, tired and weary, having to find his way over a cross coun- try, and having previously occupied part of the time in hiding him seif in the brambles till he was perfectly certain that he could move with safety. Therefore, if he had not given as the period of the conversation an early hour in the morn- ing, his story could not be consistent — I was going to say with truth — but it could not be consistent with possibility. Now, what time does he fix ? he says at break of day. Gentlemen, we have the evidence of Mr. Brough, the brewer, of Pontypool, distinctly, that Mr. Frost returned to the “Welch Oak” at break of day, and it is quite certain, taking the distance, and the time that Mr. Frost and the party were at Pye Corner (the scene where Hodge lays this conversation), that it was at a period which made it utterly impossible for Hodge to be in his bed by ten o’clock, still more impossible, if, in fact, he was in his bed, as I believe I can prove him to have been, a very little after nine. Now, gentlemen, I pass to James James, who is a witness called on the second day, No. 17, next but one to James Hodge. James James says, that some man came to Zephaniah Williams and asked what they wanted down at Newport, and Williams said, “ I hope we shall all come safe back ; nobody will be killed there.” I apprehend that in all probability this conversation which took place related to the dangerous weapons that they were carrying, certainly weapons calculated to alarm, and undoubtedly competent to do a great deal of mischief. But the ques- tion being, whether they were going upon an affair of life and death, Zephaniah Williams said, “ I hope we shall all come safe back ; nobody will be killed there ;” and more than once Zephaniah Williams told the people to keep the peace. I daresay you may remember, as a feature in the transaction, that they were required to take food with them ; they did not mean to forage upon their enemies, but they expected to be a certain time out, and therefore they were to take food with them, the real object of which I trust I shall very soon be able to satisfy you, as well as what the real object of the move- ment was. They were to take provisions 331 ] Trial of John Frost, 1839 . [332 with them, in order that they might sub- sist while they were out ; they were to take arms with them, but the peace was to be kept, and Zephaniah Williams said, “I hope we shall all come safe back;” and, speaking of Newport, he said, “ No- body will be killed there.” Gentlemen, the next witness who said anything about this subject was William Howell, witness No. 2(b He said that he heard Zephaniah Williams say, there was to be no shedding of blood, or anything of the sort ; every man was to return to his own home peaceably ; that is part of the evidence of the Crown. The next, gentlemen, is James Woolf or cl, who says that they said they were going to take Newport. Now, I am not aware that this is fixed upon any individual person ; whether it was an idle expression in the crowd, whether the thing passed at all or not, or whether some expression, “that they were going to Newport,” was con- strued into “that they were going to take Newport,” as might very easily happen. Gentlemen, the next witness is Thomas Saunders, the twenty-fifth witness. He is a farmer living near the “ Welch Oak.” He says he asked Williams where he was going, and Williams said, “ Why do you ask ?” The answer was, “ Because some of the men said that you were going to Monmouth to draw Vincent out of prison ;” and Williams said, “We do not attempt it ; we are going to give a turn as far as Newport.” Now, here is an expression which, if a similar one had been heard by the gamekeeper, Woolford, the last person I mentioned, he might easily have mis- understood that to mean, “We are going to take Newport.” Gentlemen, it is here, at this point of the consideration of the evidence, that I mean to glance at what I think no- one can doubt was the true character of the whole proceeding. Vincent has been tried for sedition, (a) His sedition was that of indulging in language I admit not to be endured — language dangerous to the peace, and possibly fatal to it; and for his offence of sedition he was then in prison. But he was considered by the Chartists as a martyr to the cause that they espoused, and for that reason meet- ings were held. It is a matter that I should think some of you must know. Discussions occurred in the papers upon the subject ; a meeting was held, and statements appeared in a paper published in this town of Monmouth ; and Mr. Frost himself wrote to the editor to cor- rect a misstatement, but clearly giving a character to the meeting as if the parties (a) See The Queen against Vincent, 3 St. Tr. N.S. 1037. had assembled expressing a determination to rescue Vincent out of the gaol of Mon- mouth. And 1 believe at that meeting (whether I shall be able to give any direct and positive evidence of it I am not as- sured ; I have some doubt, but I am not without some hopes of it) it had been con- templated by the large body of ignorant men up among the hills, that such a scheme was possible. Mr. Frost depre- cated the use of any such violence, even for a purpose not treasonable, but highly dangerous to the security of civil order. Mr. Frost advised them to march to New- port, or, I should say, not advised, but permitted so much of their scheme to take effect that they might not, in despe- ration, take some course that would be fatal to the public peace. With inten- tions only peaceful, they were permitted to go to Newport, with the single purpose of “ showing their appearance ” and their strength there, prior to their making another appeal to the magistrates, either in favour of Vincent having the term of his imprisonment altered, or the supposed character of his confinement changed to a system less rigorous and severe. And I say, gentlemen, that this passage in the evidence of the Crown throws the greatest light upon the subject. Here we have an actual expression that the men supposed they were going to draw Vincent out of prison ; but that Zephaniah Williams said, “ No, we do not attempt thar — that is not our intention ; we do not mean to attempt it, at least I do not ” ; and Mr. Frost would have held the same language: “ I do not mean to attempt to draw Vincent out of prison, but, as there is a desire to do something on behalf of Vincent , we are going to give a turn as far as Newport, to show our strength and numbers, and the deep interest and feeling that the people take on behalf of Vincent ; and when we have done that, we will make another ap- peal in his favour to see whether this exhibition of the interest and sympathy which exists among the Chartists on his behalf shall not produce some bettering of his condition in which they all take so lively an interest.” Gentlemen, I now proceed to very nearly the last of those declarations in which the whole case of the Crown is in- volved. John Harford says, “ I saw Frost between Cefn and the “ Welch Oak.” I asked Mr. Frost what he intended to do. He said, first, he should go to the new poor-house, and take the soldiers and their arms. Then he said there was a store- house where there was plenty of powder ; that they would blow up the bridge, and that would stop the Welsh mail that did run to the north ” — that was his expression — •* * ‘ and that would be tidings in the north. 333 ] Trial of John Frost , 1889 . [334 and they would begin on Monday night there, and he would be able to see two or three of his friends or enemies in New- port.” Now, gentlemen, you have to consider how far this story is involved in the same remarks that were made with respect to Hodge as to the stopping of the mail. With respect, however, to this man, gentlemen, I beg to read the very few notes of his cross-examination, which was administered to him by my learned friend. [Counsel read notes on Harford's cross- examination and proceeded.] Gentlemen, if some anonymous person is sent into a place of confinement where unfortunate men are under a criminal charge, and is there permitted to insinuate such an expression as that which the wit- ness here avows, “ He told me if I knew anything about Mr. Frost, if he was in my place he would tell it ” I own, gentle- men, that that looks not only like an in- vitation to tell all that you actually know ; I do not mean to say that it is an invita- tion to invent something that you do not know ; but it is a pretty plain intimation that anything that can be urged against Mr. Frost will be received with considera- tion. He says, “I did not tell it to get my liberty, ’but I expected to get my liberty, and when I had given this infor- mation I did get my liberty, and went home ; I went to work for Mr. Jones." Mind, this reluctant individual had been twelve days in prison, and it is not till he hears that persons had been committed upon a charge of high treason, nor till an unknown person— that one individual to whom he spoke — had told him, “If I were in your place, if I knew anything about Mr. Frost I would tell it ” ; it is then for the first time that he begins to disclose this. Whether it is true or whether it is false, it is for you to judge. Gentlemen, I believe there is only one other witness upon this part of the case, and that is William Harris, who was ex- amined next to Harford. He says, “ I saw Davies ; he was close to Frost ; I heard Davies tell them to go on ; they were enough to eat Newport.” Now, gentlemen, assuming the object of this meeting and marching to have been a demonstration of the strength and the number of those who took an interest in Vincent's case, I can well understand the expression, that ‘ * they were enough to eat up Newport ” ; to be perfectly harm- less. Because it might mean merely this : “ Why, we shall march down there in numbers quite sufficient to make a display of strength that will satisfy the magistrates, that if we were really dis- posed to do mischief, we have the power of doing a great deal of mischief in our hands ; wo are enough to cat up New- port.” But I beg you, gentlemen, before you consider the e fleet of the evidence, to ask yourselves this : Is it true P Does it come from any source that can reasonably challenge any credit at your hands ? Now, gentlemen, I will read to you William Harris's deposition, which ap- pears to me in very strange contrast to the evidence that he gave on the trial. Gentlemen, this man now swears, “ I heard Davies tell them to go on ; there was enough to eat Newport.” [Counsel read the deposition down to the words, “ I am sober now.”] Gentlemen, that is an affir- mation that carries with it more weight than might at first sight appear. It means, “I was drunk, yesterday.” You will see the importance of that statement to the magistrates in this case. “ I am sober now, and know what I am talking about. Between the rain and the bother I do not know the words William Davis said. Mr. Frost was speaking, but I do not know what he was speaking about.” Now it is quite plain, gentlemen, that two statements were then read to him, which he was supposed to have made when he was in the condition to which this gin and beer was likely to reduce him ; and it is for you to say what you will think of a witness who is taken to drink with a constable and a soldier, until his conscience is drowned in the liquor that they have induced him to swallow ; and is then, and not till then, fit to be taken before the magistrates as a witness ; when the matter being so overdone, that his drunken and disgraceful condition appears, he is nevertheless permitted to make some statement in that condition ; but the magistrates, as it became them, refused to permit him to sign it. That is what I collect from this. He is dis- missed for that night. When he is brought before them the next morning, he says, “I am sober now,” and I know what I am speaking about, and I did not think what I was stating last night was to bind me, or that I was then upon my oath ; and now, that my returning so- briety has brought back my conscience and my sense of right, I say that what I stated in my drunken moments (which for aught I know, was suggested by the con- stable or the soldier) is not the truth ; I disavow it; I deny it. But for some reason or other, he has been induced to re-assert it before you in the box the other day. Gentlemen, one of you asked him, “ When you were sober and taken before the magistrates on that day when this de- position was taken down, had you been so drunk the day before as to have forgotten that you had been examined, and to have 335 ] forgotten what it was that you had said ? ” An extremely important question. The answer was, “ I was not so drunk but that I remembered I had been examined. 5 ’ That is, he was not so drunk the day before, but that the next day he remem- bered distinctly that he had been examined, “ and I knew what I had said ; ” he states it when drunk ; and when sober he says it is false. And this, gentlemen, is one of the men upon whose testimony so got, the life or the death of Mr. Frost, and the loyalty and honour of 10,000 of the in- habitants of this county are to be impli- cated. The peace and security of the whole kingdom is imagined to be in dan- ger upon the evidence of the man who puts his cross to that deposition. Ill this, gentlemen, it is for you to judge of. Now, gentlemen, I have done with my comments upon the supposed objects of this marching. I now proceed to make some comments upon a part of the case which I feel deserving of especial atten- tion ; I mean the deliberate firing upon the Queen’s troops. Gentlemen, speaking in point of law, the offence of attacking the civil power, for a treasonable object, would be just as great as the offence of committing violence upon the Queen’s troops. The only importance of it is this : it is supposed, and I think reason- ably enough, that persons may get into conflict with constables and policemen, the general civil force of the community, without there being at all necessarily or strongly an inference that their object is treasonable. Such unhappy affrays be- tween mobs and the protective force of our towns are unfortunately so frequent as to render it unnecessary to make any further comment upon that. But it is imagined, and I think not improperly, that a deliberate attack upon a military force, furnishes a stronger argument of a treasonable intention. I have therefore thought it important to draw your atten- tion to this particular part of the case ; and it divides itself naturally into two questions : first, When did the military arrive from the poor-house at the “ West- gate ” Inn, and what possible knowledge could Mr. Frost and the rest of them have had that the military were there? and secondly, How did they conduct themselves when the shutters were re- moved, and the military were unmasked ? I think, gentlemen, I shall be able to satisfy you, beyond the possibility of doubt, that Mr. Frost did not and could not know that the military were there at all ; that no person that marched up to the door had the slightest notion that there were military in the house ; and that the moment the shutters were re- moved and the military appeared, and a I [336 volley was fired, the street was instantly cleared and the mob ran away ; strongly confirming the notion with which I set out upon the defence in this case, that there was no object of real warfare ; for that the instant an angry gun was fired, they threw away their arms and all went away, not one remained; they threw down their weapons, such as had them, and, as was described by one of the wit- nesses, hundreds and thousands were seen returning with the greatest precipitation, to the homes that they had left either that morning or the day before. Now, gentlemen, you will recollect the evidence is that Mr. Frost and the party came from Tredegar Park, and passed by the weighing-machine at Court-y- Bella, which, according to the scale upon this map, would be about three quarters of a mile from the “ Westgate” Inn, Pill- gwenlly being a full mile ; and it is sug- gested, upon the evidence of the two boys, that Mr. Frost came up here and asked a question about the military ; and that they told Mr. Frost that ten or twelve soldiers had gone to the “Westgate.” Gentlemen, the boys describe that they divided into two bodies, one of which marched up in the direction of the Friars to the “Westgate,” and the other body marched up, so as to get to the “West- gate” the other way, which is perfectly untrue, as I believe I shall show you, and is utterly unconfirmed by any one witness in the case. There is not a syllable of truth in it. It was probably suggested to the boys by asking them, ‘ ‘ Did some of them march up that way ; was it as much as half, or how many ? ” “ Yes, it was about half.” But I understand there is not a syllable of truth in that story. Now, gentlemen, let me call your atten- tion to the evidence as to the arrival of the soldiers. The witnesses, Bevan Oliver, Captain Gray, and Waters, all put the arrival of the soldiers at the “ Westgate ” about eighteen or twenty minutes before the firing began. Gentlemen, what do the two boys say P Coles says this : “ Frost asked where the soldiers were that were in the town.” Now, that does not mean the union poor-house ; observe, Mr. Frost, as a resident in New- port, perfectly well knew that there were soldiers in the union poor-house. Coles says, “ Mr. Frost asked where the soldiers were that were in the town.” I say, gentlemen, it is utterly impossible that Mr. Frost, who was marching up here with these persons, and had then got to about Court-y-Bella, could have known that any troops had marched towards the town, they actually having arrived there only about a quarter of an hour, or eighteen * or twenty minutes, before the firing began. Trial of John Frost, 1839 . 337 ] And observe, the movements of Mr. Frost were undoubtedly very slow ; the whole march was very slow ; they did not move over the ground as soldiers would move. I say, therefore, it was perfectly impos- sible for Mr. Frost to put that question ; for it imports this: “I am aware that there are soldiers at the union barracks, but I understand some of them have marched into the town, and I will be obliged to you to tell me what part of the town they have gone to.” [Counsel commented at length on Coles'' s testimony.] I say it was impossible, with reference to the time of the actual marching of the troops, for Mr. Frost to know that any troops had marched at all ; and with respect to the answer of the boys, I say it was as impossible for those boys to know that those troops, or any of them, had marched to the “ Westgate ” at that time. And what, I must say, I think is a little remarkable, my learned friend never ques- tioned either of those boys how they knew anything about it. If any importance was attached to their testimony, as to their having given this information, which, of course, could not have been given by them, if they did not know the fact, it did occur to me to be of the last importance for the solicitor for the prosecution to say to them, “Now, young gentlemen, before we put you into the box, tell us how you knew that the soldiers were gone to the ‘ West- gate ; * ” but such a question is not put before they come, nor is it put here. Per- haps you will ask me why I did not put it. Gentlemen, for this plain reason : when my learned friend had cross-examined the first of them, it appeared manifest to us that the story was trumped up, and they being both of them in the employ of Mr. Phelps, who is assisting in this prosecution, and knowing that there was great earnest- ness and zeal to get something against Mr. Frost, it did appear to us that this story was one of those inventions with which the case abounds, and we did not think it became us to clear up the doubt, and to put a hazardous question, to which we might receive some answer that might not strictly be evidence, but which might have an influence upon the minds of those who heard it, that they had been told so, or something of that sort. I now hasten, therefore, to the other part, the actual firing upon the military after the military were unmasked. Now, gentlemen, I mean to state no- thing disrespectful of Captain Gray nor anything disrespectful of Sir Thomas Phillips, but unquestionably they are completely at issue. I do not mean upon that very unimportant point, compara- tively, which of them was at the window, the post of danger, whether the magis- [338 trato or the soldier ; but as to the period at which the mischief took place, upon which the Captain Gray founds bis opinion that the military were fired upon after the shutters were opened. Captain Gray is asked emphatically by one of the jury, “ Are you satisfied that after the shutters were opened and the military were dis- played to the mob, that the mob fired upon the military p ” His answer was what we lawyers call a reasoning answer. His answer was, “ They must have seen me and fired after, for Daily was wounded and the mayor together.” That is the reason, “ for, ” says he, “ Daily was wounded and the mayor together, and the circumstance of their being wounded proves to me that they fired upon the military after the military were unmasked and were disclosed as the troops. Now when was the mayor wounded ? Gentlemen, fortunately there was one witness, Sir Thomas Phillips, who upon this point could not be mistaken. It was a matter of personal feeling about which it was impossible he should make a mis- take. The mayor says this : “I per- ceived the soldiers could not act, the lower part of the shutters being closed ; Captain Gray opened one shutter and I opened another nearer the centre of the house ; 1 turned round and found my hand be- numbed, and looking at my arm found I had been wounded ; the shots proceeded from the outside ; I had been wounded before the soldiers fired ; I was in the act of opening the window-shutters ; I saw no soldier fire before that time.” Gentle- men, is not that perfectly decisive P Gentlemen, it is now quite plain that the circumstances were these : they were ordered by the mayor, or Captain Gray, on his own responsibility, thinking that the period had come to act, ordered the soldiers to load ; they were not, however, able when loaded to fire upon the mob; the shutters were therefore opened, and in the very act of opening that nearest the centre of the building the mayor received a wound, which I regret to see that he is still suffering from, and Captain Gray at the same time opened the front shutter. The moment the shutters were opened, the glass having been before thrown up for the sake of getting air, they fired immediately upon the mob, and the mob dispersed instantly ; not a shot was returned into the room ; it is impossible that a shot could have been returned without being fatal or highly dangerous to some one. I think, therefore, gentlemen, I may fairly say that I have now disposed of another extremely important part of this case, about which I perceived some of you, when it was under discussion, while the evidence was going on, felt some con- Trial of John Frost, 1839 . 339] Trial of John Frost, 1839. [340 siderable anxiety to get at the truth. And I think after hearing this evidence stated and commented upon, no one can now doubt that the military arrived a very short time before the firing took place, and that, the instant the shutters were opened, the mayor having been wounded in the very act of opening them, the soldiers pointed their pieces and fired upon the mob, and the mob that instant threw down their weapons and took to flight, and no sort of resistance was offered after that. Then, gentlemen, with respect to another fact, which is important — the existence of certain prisoners in custody — it is now quite clear that there were some pri- soners, Chartists taken in the morning, of whose confinement there Mr. Frost and other persons undoubtedly were apprized, and for whose liberation they were loudly vociferating at the moment when they first went up. We are not here to deny that persons assembled in large numbers, and marched, and that they were armed ; but we assert that the very moment that the military appeared, and there was any prospect that what they were doing might be construed into treason, that instant they all dispersed ; not a man remained ; the town was cleared, and it was quiet in the space of a very few minutes. Gentlemen, I think it extremely impor- tant next to call your attention to the personal conduct of Mr. Frost during the whole of that day ; and, perhaps, also the personal history and character of Mr. Frost. Mr. Frost, as you have learned from the evidence, was a tradesman in the town of Newport ; he had a wife and five daughters and one son living with him ; he is a man of strong opinions, and what is called a zealous reformer ; he had taken a most active part, when the Reform Bill was brought forward, in keeping up that excitement or agitation, which at that time was considered lawful, proper, praise- worthy, and fit to be specially rewarded. In conjunction with the present mayor, he had attended meetings, and taken a conspicuous part in urging forward the progress of reform ; and when, at the close of the year 1835, the Municipal Cor- poration Act (a) was carried into effect, Mr. Frost was, after a full investigation into all the circumstances of his character and past conduct, with a perfect knowledge, I believe, that he had even been impri- soned for a libel (a misfortune which occurred to him in common with many other very considerable persons, Cabinet Ministers, Members of Parliament, and even Peers of the Realm), with a full knowledge of his character and conduct, the Secretary of State for the Home Department recommended him for ap- pointment, by the then King, as one of the magistrates of the town of Newport. In that situation he was active, zealous, impartial and independent; and he was finally removed from that station under circumstances that I do not mean further to advert to than to say, that he was removed because he exhibited an uncom- plying and independent spirit, because he used language, which I as little mean to justify, as I do to disparage in the slightest degree the individual that re- moved him ; he was removed because he appeared to have a desire to carry his views of reform further than it had already proceeded, and because he conducted him- self, I must admit, in a way which made it almost impossible for *the Secretary of State, after the correspondence which had taken place, to continue him in his office. (a.) But during every part of those struggles which terminated in the Reform Act (if indeed they may be said to ha,ve termi- nated), during every part of his public or private conduct, he has, I believe, been remarked for that care and concern for human life, that disposition to keep the peace and to protect those from whom he politically differed, of which you have had a signal instance in his instantly releasing Mr. Brough, and I think his companion, Mr. Watkins, when they were detained on the night of Sunday, the 3rd of November. Gentlemen, I trust, I am not irregular in mentioning (and I must say, that I believe that I am not) that upon one occasion, during some of the fierce contentions that arose about the period of the Reform Bill, he was sent for, from his known character and influence, to protect the lives of the Duke of Beaufort and Lord Granville Somerset from the mob who were pressing upon them, and were about to drive them into the river ; he instantly went to their rescue ; he preserved them from insult, probably preserved them from much worse mischief, and, I believe, he declined any particular expression of acknowledgment, stating that he differed from them alto- gether in political opinions, and he had done nothing for them that he would not have done for any fellow-subject or fellow- creature in existence. Gentlemen, he became a Chartist, and, in common with many others, he adopted the opinions that are supposed to belong to that body of men. Gentlemen, I hardly (a) Frost’s name was removed from the com- mission of the peace in February 1839 for acting as chairman of the National Convention, and for attending Chartist meetings at which violent language was used. See his correspondence with Lord John Russell, Ann. Reg. 1839, 22. (a) 5 & 6 Will 4. c. 21. 341 ] Trial of John Frost, 1839 . [342 know what is meant by a Chartist. One of the witnesses, on the present occasion, spoke of five articles ; but what the five articles were did not transpire. But the little that one picks up from the intima- tions of the newspapers on the subject, would induce me to suppose that they carried their views of reform far, far beyond the Reform Bill introduced by Lord Grey's Administration, and that they ardently desire to establish universal suffrage, vote by ballot, annual Parlia- ments, no property qualification, and, ac- cording to some statements, that they look forward to a better distribution of property. Gentlemen, with respect to the first four of these matters, I, for one, do not agree in any respect with the Char- tists ; but, I believe, upon these subjects their opinions are entertained by many Members of Parliament of undoubted re- spectability and honour, and considerable talent.(u) If what I have heard upon the subject be true, many names have been subscribed to a document, the avowed object of which is to frame what is called the charter of the people, by expounding the principles on which it is to rest.(&) (а) According to Francis Place, a public meeting was convened by the Working Men’s Association at the “ Crown and Anchor,” in the Strand, on February 28, 1837, to petition Parliament for universal suffrage, no property qualification, annual Parliaments, equal repre- sentation, payment of members, and vote by ballot. Two meetings to discuss these points took place at the “ British ” Coffee House, Cockspur Street, May 31 and June 7, 1837, between Hetherington, Cleave, Watson, Moore, Lovett, and Vincent, representing the W orking Men’s Association, and the following members of Parliament : Daniel O’Connell, J. A. Roe- buck, John Temple Leader, Charles Hindley, Colonel T. P. Thompson, and William Shar- man Crawford. At the meeting on June 7 four resolutions were passed, and afterwards signed by the members present. The second resolu- tion, proposed by O’Connell and seconded by Hindley, was as follows : — “ That we agree to support and vote for a Bill or Bills to be brought into the House of Com- mons embodying the principles of universal suffrage, equal representation, free selection of representatives without reference to property, the ballot, and short Parliaments of fixed dura- tion, the limit not to exceed three years.” The third resolution was in favour of reform- ing the House of Lords, and the fourth appointed the above twelve signatories as a committee to draw up a Bill or Bills embodying the principles agreed to. No such Bills were then drawn up. Place MSS. 27,819, pp. 210-221 ; Lovett’s Life and Struggles, 111-121. (б) “ The People’s Charter — An Act to pro- vide for the just representation of the people of Great Britain and Ireland in the Commons’ House of Parliament” — was first published May 8, 1838. These Chartists stand at present in the same relation to the present constitution as established in the year 1832, in which the advocates for reform stood in relation to the old constitution ; and however dif- fering from them in opinion, I must do them the justice to say, that Chartism so far is not treason, nor the public asser- tion of it rebellion ; and although I trust never to live to see the day, and I trust no one in whom I take any interest will ever live to see that day (fatal as I think it would be to the happiness, the prosperity and the well-being of this country), when these principles shall be established ; yet I must say, that if at any time it should become the confirmed opinion of the large mass of intelligence and of numbers — of the strength and sinews of the community — if the intelli- gence that controls that strength should finally determine to adopt the Chartist code, doubtless adopted it will be, as the Beform Bill was, and mere wealth would struggle against it, in my opinion, in vain. With respect to the other point that I alluded to, the fifth, as to an equal distri- bution of property Prisoner : That is not the subject of the fifth article. Sir F. Polloclc: Gentlemen, I am glad to hear it ; I was merely about to make a remark, then, as to a new distribution of property, nothing can be more chimeri- cal — Prisoner: The fifth point is, the pay- ment of Members of Parliament. There was never any talk of a distribution of property other than what exists. Sir F. Polloclc : I was merely going to observe, that it is so chimerical that I could not imagine a person of Mr. Frost's undoubted intelligence and talent enter- taining such an opinion. That it is an opinion which has been sometimes set on foot, and disseminated among the lower classes with a view to produce commotion there can be no doubt; but it was re- marked upon it by one of the most elo- quent persons that was ever at the Irish bar — I mean Mr. Curran, and perhaps I may say, therefore, as eloquent a person as ever existed, “ that a new distribution of property might make many persons poor, but it could make no man rich.” Now, do not understand me as saying, that because in the reform times that was done in many parts of the kingdom, which undoubtedly fifty years before would have It was chiefly the work of William Lovett aided by Francis Place, and was revised by J. A. Roe- buck. See Lovett’s Life and Struggles, 1 64-1 70 ; Place MSS. 27,820, pp. 98-101 ; and Mr. Gonner’s article on the Early History of Chartism in the “ English Historical Review,” October 1889. 343] Trial of John Frost, 1839. [344 \ been deemed bordering upon treason — was done without punishment, without reproof, nay, gentlemen, was encouraged and re- warded — do not understand me to say, that for that reason any person can be allowed to promote Chartism by any act- directed against the peace of the com- munity. Nor do I put the defence of Mr. Frost upon tbe ground that these men were armed and assembled for tbe purpose of enforcing in the remotest degree their Chartist opinions; it was nothing of the kind. I claim, however, as I stated in the outset, a lenient, a favourable, I may say a just construction for demonstrations of force, which are now met with much oftener than formerly, and I say that they are not to be considered as indicating so wild and dangerous and desperate a spirit as might have been ascribed to them in the byegone times before we had had the experience of the present day. Gentlemen, Mr. Frost became a chartist, and, like every other matter upon which he entered, he became zealous, devoted and sincere in the cause. He frequented meetings, and exercised a considerable influence among the body, and I say it may be safely laid down that no man ever did exercise a large and powerful influence among a free people — for we are free — unless he united to the talent by which he influenced their minds, a considerable share of that kindness and benevolence of disposition, the tendency of which is to win friends in private life. Gentlemen, Mr. Frost undoubtedly was considered by the Chartists not only to be able, zealous, and sincere, but to be a person of the kindest disposition, having the greatest respect for the peace of the community, and one calculated to advise them, and keep them from harm. Gentlemen, at the summer assizes of last year, Vincent was committed for sedition, (a) and sentenced to gaol, and, as you cannot but be aware, the state of Vincent in prison, and the manner in which he was treated, created a consider- able degree of excitement among the Chartists. They regarded him as a vic- tim in their cause, and they were desir- ous in every possible way to testify their sympathy with him, and to ameliorate his condition. Mr. Frost took an active part in it. He addressed the lord lieu- tenant, he addressed the magistrates, he attended Chartist meetings. At those meetings I think I shall be able to give you reason to believe, from what passed, that proposals were made to rescue Vincent by force, when the advice of Mr. Frost , — like the advice or statement of Zephaniah Williams, which you have in evidence, who said, “No, we do not attempt that, but we mean to make a turn to Newport ” — Mr. Frost’s advice was, “No, do no such thing.” And I believe, gentlemen, it will appear that Mr. Frost, so far from calling that meeting, and assembling those troops, if they are to be so styled, with a view to a hostile movement upon Newport, actually was there, and consented to be there, that he might prevent the mischief that he thought otherwise, and but for his interference, might arise ; and that the object of going to Newport was to make a demonstration in respect of Vincent, as Mr. Frost said, and it is the last thing that he was heard to say, “ Show your appearance in front ; ” and that it was in- tended that the persons should then peaceably retire to their homes, as Zepha- niah Williams expressly said was to be the case. Gentlemen, I am not here to defend the part that Mr. Frost took upon this occasion. I have only to say, that it was not, treason. Mr. Frost may learn a lesson, that it is dangerous to deal with the excitable materials that he had before him ; he might, gentlemen, have remembered, that to deal in that sort of excitement and agitation may lead to consequences that no one can foresee — that ‘ * they that sow the wind shall reap the whirlwind ; ” a piece of advice that might not be thrown away upon many persons in far higher stations than Mr. Frost has ever had the honour to fill. I do not justify the joining them even for the purpose of prevention and control in respect of the mischief that they might have done. I pause not to give a character to the offence ; I admit it to be a grave one. All I contend for is, that it was not treason ; for it had no character and purpose connected with treason about it. Mr. Frost himself was openly and visibly with the people ; about that there was no disguise. Witness his coming forward upon being sent for by Mr. Brough; his avowing his influence with the party, and his exercising that influence in favour of an old acquaintance; Gentlemen, it appears that Mr. Frost was, on Friday the '1st of November, at the “ Coach and Horses.” My learned friend says that was the period when this movement was fixed upon. I do not know how that may be, but I know that the mayor said, that he began to make his pre- parations as far back as the Thursday. But be that as it may, undoubtedly at some time or other it was arrranged that the parties should meet. One party came from Blackwood, another from Nant-y- Glo, and a third from Pontypool ; the second being headed by Zephaniah Wil- liams, and the third by Jones. At mid-, night Mr. Frost is stated to have been (a) 3 St. Tr. N.S. 1037. 345 ] seen at the “ Welch Oak ” ; he was then away till an early hour in the morning, when Mr. Barnabas Brough saw him at the break of day. Mr. Brough was not likely to be mistaken at the time that Mr. Frost, upon being appealed to, liberated himself and Mr. Watkins. Mr. Frost is traced onwards to Pye Corner, where, I say, he did not and could not have met Ilodge. He is seen at Tredegar Park ; he is seen on his way into Newport ; one man last saw him on Stowe Hill, at the Roman Catholic chapel ; another saw him, I think, on the pavement at the anchor shop, when he said, “ Turn round and show your ap- pearance in front.” The firing began ; and Mr. Frost is next seen about ten o’clock, with his handkerchief to his eyes, as if he had been crying, some mile or two from the town of Newport, and going into a wood. Gentlemen, the conclusion that it ap- pears to me must be drawn, looking at these circumstances, would be this, that .Mr. Frost so little expected that anything would occur in the town of Newport to lead to the lamentable consequences that ensued, that the moment that occurred which he and others had expressly for- bidden, he retired from the spot over- whelmed with sorrow and regret, and, I trust, shame, at what had occurred. £ When arrested he made no attempt to escape, still less to resist by means of the deadly weapons he had about him.] In addition to these circumstances, I ask you, can you believe that Mr. Frost, who is sup- posed on the Friday preceding to have formed a scheme to throw the whole coun- try into confusion, would have actually on that day made provision for the payment of a bill of his own that was coming due the following Monday ; and on that very Monday, the 4th of November, on that important and eventful day, that bill was actually paid ? And yet the expressions of taking and keeping Newport, blowing up the bridge, stopping the mails, eating up Newport, are ascribed to Mr. Frost and his companions, he having a wife, five daughters and a son living with him in that very town upon which it is supposed he was making this hostile movement. Now, here, gentlemen, I must appeal to your feelings as men, as fathers, and as husbands — can you believe that Mr. Frost on that day contemplated in the town of Newport, from which he had not removed those members of his family, to whom he is dearly attached — a scene of bloodshed and revolution ? [Mr. Frost's papers were seized, and the Crown has been unable to find among them one single line or syllable to prove either concert or intention or treason in any shape whatever.] [346 Gentlemen, under these circumstances I again say that I know of no public measure that would tend so much to the honour of the county, to the peace of the community, to the quieting of that alarm which this lamentable transaction has created, as a verdict of not guilty, if that verdict can be pronounced with truth. It is no question whether you can safely pronounce that verdict ; the single ques- tion is, can you pronounce it with truth? If you can, it would be the largest measure of safety to the country. If you can assure Her Majesty’s subjects in all parts of her dominions here, that these thousands upon thousands did not medi- tate rebellion; that their object was to enforce some claims on behalf of a suffer- ing brother Chartist ; that the accidental circumstance of their finding persons whom they were determined to rescue at the spot where they had meant to make only a demonstration of strength, led to violence, and that the instant they found that led to bloody resistance, they fled with terror and dismay from a field that they never had intended to enter — such an assurance will be attended by the best results. I say, gentlemen, that nothing could occur so much to re-assure this county and the kingdom at large as the verdict of not guilty, if you can truly pro- nounce it ; and I believe there would be more safety in that verdict, if true, than if ten thousand troops were parading the different parts of this county to enforce obedience to the law at the point of the sword. You would free the county from this deep stain and imputation that has been cast upon it ; and I think, except as regards the misconduct of some few iso- lated individuals, I may call in aid the circumstance that these thousands and thousands of persons marched down upon Newport with very little aggression, with very little violation of private right, with none of the appearances and the demands of a riotous and tumultuous meeting marching down under the notion of levy- ing war ; when they came to the “ West- gate ” Inn they dispersed at the first shot, and in returning to their homes — now mark this, gentlemen — in returning to their homes I do not find that it is sug- gested that any one of them committed a single act of aggression of any sort, or that any violation of the peace or security of any of Her Majesty’s subjects occurred on that day, or has since occurred at all. Gentlemen, the rest of England would hardly believe the quiet, the peace and the security in which the proceedings here at Monmonth have been conducted. Where there was the remotest suspicion that treason existed in the country among persons to some extent armed, Trial of John Frost, 1839 . 347] Trial of John Frost , 1839. [348 and capable of combining in large num- bers, it was perfectly right that the high authorities of the law should be protected, and that the peace of this town, where justice is to be administered, should be secured by the unusual presence of soldiers for that purpose ; but as far as I can learn, their services have been altogether superfluous ; and if I am right in the view that I take of that meeting and that marching, their attendance might have been dispensed with without any danger. Gentlemen, it is for you to ascertain what is the just and the reasonable con- clusion to be arrived at after giving effect to all the circumstances that belong to the transaction that preceded it, that accom- panied it, that have followed it. If you think that the solution that I have offered is the true one, and I see, gentlemen, no escape from it, then is the prisoner at the bar entitled to a verdict of acquittal ; but if you should doubt that, if the matter rests in that uncertainty which almost every part of this transaction more or less seems to rest in, then, according to the Attorney General’s statement, and accord- ing to the law, I am entitled to say that the presumption is in favour of Mr. Frost’s innocence, and is to be removed only by certain and convincing evidence before you can find him guilty. Gentlemen, if I have not exhausted the subject I have nearly exhausted myself, and I have merely to pray you, for the sake of the individual whose counsel I am, and of those dearer to him than his own life is, to give a calm and a patient con- sideration to all the circumstances in the case, and to come to a just, and, where there is any doubt, to a merciful conclu- sion. I pray you to take into considera- tion the whoie case on the part of the Crown, and the evidence that will be offered on certain points, I admit not many, on the part of the prisoner ; and may the God of truth and mercy lead you to a just conclusion. Evidence por the Prisoner. John Wilton sworn. — Examined by Kelly. I A lath maker at Newport, spoke to seeing the mob coming down Stowe Hill from the corner of Foundery Lane, oppo- site the “Westgate.”] You say that they were coming round the corner ; did you hear any of them say or cry out anything ? — I did. What did yon hear them say? — As they turned round to make their way to the “Westgate” steps I stood in the middle of the road ; when I heard some of them talking I moved towards the mob ; I heard them state that they were come for their prisoners that were at the “West- gate ” ; that they were determined to have them before they went back. Did you hear that, or anything of that kind, said by one only, or by more than one ? — Yes ; three or four talking together in a cluster. Will you let me understand clearly where was it that you were standing, where with respect to the “Westgate” Inn? — In the front of the “ Westgate ” ; the middle of the road. What did you see any of the mob do after that, or which way did they go ? — They went to the “ Westgate ” steps. Do you mean the steps in front of the door, or where ?— In front of the door ; that was during the time I heard those men talking about it. Did you hear them say this about the prisoners, while they were at the steps, or when they were going towards the steps, or when ? — They had reached the steps when I heard those words. Did you see any constables at the door ? —No. How soon after you had heard those expressions used about the prisoners, did you see or hear any firing ? — I heard some firing. How soon after ? — It may] have been about two minutes after, it may have been less. Where were you at the time you heard the firing ? — Near upon the same spot. When you heard the firing, being in that situation, did that lead you to do anything ? — No. What did you do ? — I stood and looked on for a couple of minutes, or rather more. What then ? — I moved then from the road to the corner, at Mr. Lloyd’s shop, nearly opposite the “Westgate.” Did you see anybody who had got hurt ? — I did, after the mob had run. Did you stay there till the mob had dispersed then ? — I went round the corner just as they disappeared. I went out of the way of the shots. Till you had turned the corner were you within reach of the shots of the “ Westgate ” ? — I was. Now, I do not ask you exactly, but as nearly as you can say, how long did the whole business appear to you to last? — About ten minutes, as near as I can calculate. [After the mob had begun to disperse I went to the assistance of a man named Lovell, who had been wounded in the thigh, and helped him into a house close by. I was brought before the magistrates, but discharged on making my statement.] Did you yourself belong to auy Chartist 349] Trial of John Frost , 1839. [350 lodge, or society, or anything of that kind ? — I attended a meeting called “ The Working Men’s Association.” Do you mean one meeting or the meet- ings of a society called “ The Working Men’s Association ”(a) P — The meetings of a society. One, or more P — I attended several meetings. Were they all Chartists, or principally Chartists, or what ? — I do not know whether they were Chartists or not. It is not a Chartist lodge, or anything of that kind? — It is called “ The Working Men’s Association.” Had you ceased to belong to that ? — I had not attended it a long time. For how long ? — Hear upon three months. In fact, do you now belong to any Chartist society at all ? — No. I will just ask you this question : have you frequently heard Mr. Frost make speeches in public, at meetings ? — I have several times. - Have you always heard him speak in favour of peaceable behaviour and against force P — I have. Have you heard that very many times ? — Yes, several times. Cross-examined by the Attorney General. Then you have never heard him, I pre- sume, call together people with guns and pikes and mandrils ; you have never known him do that before the 3rd or 4th of November last ? — I never knew him do that at all; I never knew him persuade people to that at all; always against it. You never heard him desire people to come armed ? — No. In all the meetings at which you have seen Mr. Frost the people were without arms P — Yes. And they met to discuss and to delibe- rate upon political questions ? — Yes. Perhaps to petition either House of Parliament or the Queen ? — Yes. At what time of day were those meet- ings held ? — They were held in the even- ing. At daylight p — No, not at daylight exactly ; at candle-light sometimes. They were held in a house ? — Yes. The meeting in any open space at New- port was during daylight ? — No, not very often daylight; sometimes it was rather late ; mostly. (a) The Working Men’s Association was founded in London April 30, 1835, and branches were afterwards established throughout the country. Place MSS. 27,819 (27) ; as to its part in formulating the Charter, see above, p. 341(a). How late in the evening have you known meetings held out of doors P — Till near upon ten o’clock. That is they lasted till near ten o’clock ? — Sometimes. Beginning when P — Nob particular to half an hour. Beginning at tive or six o’clock? — About seven ; perhaps rather sooner. At those meetings there were resolu- tions moved and carried P — Sometimes. How early in the morning did you ever know any meeting held before at New- port P — I never knew one held in the morning. You never knew one held before day- light in the morning? — No. I should like to know how long you had left this association before the 3rd of November last, before this disturbance ? — It may have been about a month ; I cannot say to a few days. Had you resigned, or anything of that sort, or was it merely that you did not happen to attend any meeting? — I had resigned going there. Had you resigned ?— Yes ; I do not go very often. Do you mean you had sent in your re- signation to the association ; upon your oath ? — Given up my name ; I did not know that they had my name amongst them in the last three months. Had you done anything to intimate to that association that you had withdrawn from being a member ? — I do not under- stand. Tindal, C.J. : Have you ever had your name put on ? — Yes. Attorney General: Have you not paid money to the secretary ?— It was always a practice on going into the room to pay a penny or twopence to enter. Have you not done so as often as you attended ? — Yes. Did not you know that your name had been put on ? — They always put the name on when the money was paid. Have you done anything to intimate that you have withdrawn from the associa- tion P — No, I have done nothing ; I should have attended it if I thought proper. [The association has sometimes met at the “ Royal Oak,” Newport, which belongs to Mr. Frost. I went to Bristol on [the Wednesday or Thursday after the distur- bances. I was arrested there and taken to Newport. I have seen the prisoner Walters at the meetings of the association. I do not know thal he was secretary. I have paid him money ; he had a pen in his hand and a book before him. I never had a card given me as a member of the association. Some paper was once given me with writing on it. I returned it six months ago, when the time was up for it. 351] I went three or four times to the associ- ation afterwards. Frost sometimes visited the association. I had not heard of any meeting for the Monday morning, either on account of Vincent or for any other reason. I saw the people come down Stowe Hill, but did not see them try the folding gates leading into the yard. I did not hear any demand to the constables that the prisoners should be given up. I was not close enough to the door to hear that.] Did you see the soldiers P — Ho. Did you see any firing from the “ West- gate ” Inn ?— Ho. Where did the firing come from that you saw P — Hot till after the mob went to the door. Kelly : What then happened ? — I did not see the soldiers till after the mob went to the door. Attorney General : You saw some firing ? — Ho, I heard some firing. Did you see any pieces ? — Ho, not at the door. Could not you judge whence the firing proceeded ? — Ho. Could you tell whether it came from the mob, or whether it came from the “ West- gate ” ? — I could not. You could not at all judge P — Ho. Did you see anybody hurt P — Ho more than Lovell at that time. At any time did you see anybody hurt ? — I saw the bodies lying there afterwards. That was when the disturbance was all over ? — Yes. How many minutes do you think you continued opposite the “ Westgate” after the firing began ?—• I was there about ten minutes altogether. Was there firing during the best part of that time P — There was. But you cannot tell where any of the shot came from P — I cannot. Were you ever present when Mr. Frost was elected a delegate at this association ? — Ho.(a) Re-examined by Kelly. When you had retreated to the corner of this lane, were the mob, or any of the mob, between you and the door ? — I can- not say that. I want to know whether, when you got to the corner of the lane, if your attention was directed that way at all, you could see the door without any object inter- posing, or whether any of the crowd came across the space in front so as to be be- (a) The National Convention, which met first at the “ British Coffee House,” Cockspur Street, February 14, 1839. It sat intermittently during the next few months, and broke up in the Sep- tember following. — Place MSS. 27820. [352 tween you and the door P — There were a great many. When you appeared before the magis- trates after that was done, did they dismiss you with commendation for what you had done ? Attorney General: The question should not be put in that way. Tindal, C.J. : You might ask him, did they say anything ? Kelly: What did they say about your conduct upon that occasion ? — They brought it in as an act of humanity. William Frost sworn. — Examined by Kelly. [A labourer at Hewport. Ho relation to the prisoner. Spoke to seeing the mob arrive and come in front of the “ West- gate.”] Either as they were coming, or when they had arrived in front of the “ West- gate,” did you hear any of them say any- thing ? — I did. What did you hear them say? — They desired us to clear the road. Whom do you mean by “us ” ? — There were a number of other persons as well as me. Did you do so ; did you get out of their way? — We did. Was that in front of the “ Westgate ” ? — Ho, before you come to the front. How near to the inn was it ? — Within five yards of the end of the “ Westgate.” Did you hear any of them say anything else ? — They told us at the same time that they told us to clear the way for the “ Westgate ” that they were going there for their prisoners. Did you see where they went to, or what they did next ? — I saw them going to the farther end of the “ Westgate.” What did you see further ? — I saw them return back from the farther end of the “ Westgate,” and they went up to the door. Do you mean the front door? — The front door. Just tell me, as far as you saw, what next happened ; what next did you see them do ? — I saw them for the space of half a minute, I suppose, at the door, but I was not near enough to hear anything that was transacted at the door ; I did not go near enough. Could you see what they did when they got to the door, or were you near enough P — I saw them standing in a body in front of the doorway ; and in the space of half a minute I heard some firing, and I saw a rush into the house. What did you do then; did you stay where you were P — I went to Mr. Clement's, the druggist, at the corner, about twenty Trial of John Frost , 1839. 353 ] yards from the “ Westgate,” and there I remained. [I then went up the lane towards the mayor’s, going back to my house. I saw Sir Thomas Phillips's father on the top of the garden wall with a ladder. I went up the ladder and helped the old gentleman down, and took him to a place of safety. I saw no more of the riot. I have lived in Newport for twenty years. I have heard Mr. Frost address the people. I remember Mr. Vincent being committed to prison.] Did you hear Mr. Frost on that occa- sion give any advice to the people? — Yes, I did. What was it ? — To be peaceable, and to go to their homes. Was there at that time a great deal of excitement among the people ? — There was. Cross-examined by the Solicitor General. [This speech was made out of Mr. Frost's drawing-room window the afternoon that Mr. Vincent was taken from the “ King’s Head.” I think it was at the time of his commitment.] Had you an opportunity of seeing the mob as they came down? — I saw every person, I believe, that came down the hill. What happened before they went for- ward to the yard beyond the “ Westgate ” ? — They marched, at least they walked, in a mob round ; they went to the other end of the “ Westgate.” But before they went to the other end of the “Westgate,” before they had passed the front, did they do anything? — No, I did not see anything done. You were in a very good situation to see, were you not ? — Yes, I could see all the front of the house. There is a bow in the house, is there not, just at the corner of Stowe Hill ? — Yes. If they had broken those windows as they passed, you must have seen them, must you not ? — Yes, I must have seen them. Did they not break the windows ? — Not till they were in the doorway. [I do not belong to any Chartist lodge or Working Men’s Association. I have never attended one meeting.] Who were those men that talked to you about the prisoners ; do you know ? — I did not know one man among them. You say, they told you to clear the way for them ? — Yes. Where were those men that said that to you ; in the middle of the road or the side of the road ? — In the middle of the road. Were they walking in rank ? — The first three or four ranks were complete ; four or five men abreast ; but the rest were all disorderly. o 67432. [354 Was it the men in disorder that said this P — I cannot say whose the voice was. They said it to you as they passed P — Before they came. Do you mean that they hallooed it out, or told you as they passed ? — They were within two or three yards of me when they called out to me to clear the way, that they were going to the “ Westgate ” for their prisoners. Did they say it to you or call out loud ? — They called loud enough; there were plenty of people to hear it. Did they continue to call it out ? — No. More than once ? — About twice, I be- lieve ; I heard them before they went by me. How many do you think you heard say that ; a good number of voices or a few ? — They were speaking mostly together, in a clamour. I am talking of those who called out ; I want to know whether there were many voices that called out, or a few ? — A few. Was it loudly done, or only so that a few could hear it ? — Bather loud ; so that a person could hear them a good way. Foreman of the Jury : Was there a great deal of hurrahing by those men as they came down by the bottom of Stowe Hill ? — They cheered, I believe, once. Was that before or after you heard them talking about the prisoners ? — It was after. Had they come quietly up to that time ? — They were very quietly marching down, coming down the hill. Without a great deal of noise ? — With- out any noise ? — Without any noise ; I did not hear the least noise till they came near the “ Westgate.” You could see the whole of the front of the “Westgate” from where you stood? — I could. Did you see any soldiers during the time ? — I did not ; the shutters were closed inside. The shutters of what place ? — The shut- ters of the “Westgate.” The whole of the front of the “ West- gate” ? — Yes. Were the shutters shut of the room in which the soldiers were ? — All the lower shutters were shut. You tell us that the shutters were shut through the house ? — Yes. Did you know there were soldiers in the “ Westgate ” ? — I did not. Benjamin Gould . — Examined by Sir F. Pollock. [I am a painter and glazier at Newport. On the 4th of November I was asked to go to the “ Westgate ” as a constable.] About what time in the morning did you go there ; was it before any of the fir- ing commenced ? — About twenty minutes before, I should think. M Trial of John Frost , 1839 . 355] Were you provided with anything to have in your hand ? — Yes. What P — A constable’s staff. Were you put into any particular posi- tion P — No. Where were you P — At the front door. Were you put at the front door P — No. Did you go there ? — I did go there. Were other persons there with you P — Yes. Did you see any persons coming round from Stowe Hill ? — Yes. With arms ? — Yes. Did any of them come forward? — Yes. Just describe what sort of people they were ? — Two men came forward to the steps leading into the 44 Westgate.” Did they go up any of the steps ?— Yes, they did. Just tell us what passed ; did anybody say anything to them ? — Yes ; Mr. Hop- kins was there , the superintendent of the police ; he was at the door. Just tell us what passed, if you please P — He asked them what was it they wanted. What was the answer given? — “We want our prisoners.” What took place then ? — Then there was a sort of groan made from the inside. Behind you? — Behind me, from some of the special constables. Had the man who made that answer, “We want our prisoners,” anything in his hand ; a weapon, or anything of that sort ? — Yes, he had. What was it ? — He had a sort of stick in his hand. Was there anything upon the stick P — Something on the end of it, a sort of piece of iron, I should suppose it was. Was it long or short? — About six feet, I should think. Tindal, C. J. : Altogether ? — About six feet altogether. Sir F. Pollock : Was anything done by any constables or special constables with this spear p — Yes. What was it ? — There was a hand reached out to take this stick. From what part did that effort come to take the stick; was it from the “West- gate ” or from the mob P — From the “Westgate,” inside amongst the special constables. What took place then P — Then there was a general rush. Where P — In the “ Westgate ” ;• the special constables went away, and I went away also. Did you retire back or go in front ? — I went at the back, at tbe backway. What next did you hear ? — I heard firing. How soon after the rush was made in the passage, and the constables gave way, did you hear the firing ? — In the course of [356 about a second or two, just as I got into the backway, Were you a constable in May last? — Yes. Were you acting as constable at all at the time that Vincent was apprehended ? —No. You were constable at that time P — Yes. Was there any collection of persons in the streets of Newport at that time? — Yes, there was. Did there appear to be any angry feeling between the people and the constables ? — Yes. Did you hear Mr. Frost do anything ? — Yes, I did. What did he do P — He went into his own house when he came home, and went on the leads over the shop, and he addressed the people, and advised them to go home in the name of God ; and if they did meet the special constables, not to molest them, or say anything to them, but to pass and go to their homes, and stop there, and to be peaceable and quiet. Have you heard him give similar advice on other occasions ? — Yes, I have. More than once ? — Yes. Cross-examined by Ludlow. How long before the 4th of November was the last time you had heard Mr. Frost give this peaceable advice ? — It might be twelve months. Have you been constable long ? — Twelve months. You were not a special constable P— No. At what time that morning, the 4th, was it that you were applied to, to go to the “ Westgate ” ?— About half-past eight o’clock. By whom ? — By the man who employed me. Who is that P — Francis Camden. Were you applied to as constable ? — I was going to my work. Were you applied to as constable? — Yes. Who is Mr. Camden ? — He is a master painter and glazier in Newport. And you work for him ?— I did at that time. He applied to you as constable to go to the “ Westgate ” ? — He desired me to go to the 44 Westgate ; I told him that I would ; knowing that the magistrates were all assembled I went there. Who told you that ? — Different people parading the streets ; I wondered to see the shops shut, and I wanted to know the reason. Were the shops shut that morning and not opened p — Some shops were shut, not all. How long were you at the 44 Westgate” before the people came down Stowe Hill ? Trial of John Frost , 1839. 357 ] — I might have been there five or six minutes perhaps, more or less. When you were at the “ Westgate,” I think you say you were at the front ; who put you at the front ? — I went there of my own accord ; I went in at the front. Did you put yourself under the orders of the magistrates, or take the part ac- cording to your own fancy P — I took the part according to my own fancy, as I was sworn to do. You put yourself at the front, at the door ?— I did. From the situation where you were standing could you see the folding gates belonging to the “ Westgate ” p — No. Am I to understand you that when those persons came up nothing was done by the pikes, or anything to the windows or doors ? — No. Where was it that you heard Hopkins ask the question that you have men- tioned P — He stood by the front door when the two men came up. Was he in the passage or in the front of the house ? — In the passage leading into the “ Westgate.” Was the door shut or open at that time ? — Open. Do you know Mr. Richard Waters ? — No. There is not such a person living at Newport, to your knowledge? — Yes, I know many Richard Waters. Do you know Mr. Richard Waters, an attornev at Newport ? — Yes, I do by sight. Was he there as a special constable that morning P — Yes. Do you know a person of the name of Latch ? — I know many Latches. Did you see any Mr. Latch at the “ Westgate ” that morning ? — No. [I am not a member of a Chartist lodge, but attended one once, twelve months ago. 3 When one of the special constable reached forward to take the pike was the pike carried upright or presented forward ? — Upright. The man who was on the outside of the “Westgate ” with his pike had it up ? — Upright. So that the hand of the special con- stable was put from behind to seize this pike that was held upright ? — It was. No pike had been levelled against the front of the house or the windows at that time ? — No. That you swear ? — Yes. It was a piece of iron; I did not know that it was a pike. No offence was offered ? — No, only what was begun by the special constables. The special constables in fact began the offence ? — Yes. The people who came up were very [358 peaceable till the special constables began the offence P— Yes. They made no noise? — They made no noise whatever, only asked for the pri- soners. Just in a quiet civil way ? — A quiet civil way. “ Be pleased to give us our prisoners,” or “We want our prisoners.” That they said in a low voice P — That is what they said, in a quiet and low voice. Just like one man asking a civil ques- tion of another ? — A civil question. A sort of whispering low voice ? — No whispering at all. A low quiet tone of voice ? — Just as low as you speak now. Perhaps lower, as low as you speak ? — Perhaps so. In a quiet peaceable manner ? — Yes, as I thought. Keeping their pikes, or whatever they were, at their shoulders ? — I believe, to the best of my knowledge, that the stick rested on the ground. And the point up in the air ? — Yes. Nothing was done to show any offensive demonstration on the part of the mob ? — Not the least. Then this offence that was given by the man who reached out his arm behind you was the first thing you saw to create any disturbance ?• — No. What was the first thing ? — A sort of groan. That was before the constable reached out his hand for the pike ?— Before. A groan from the inside of the house ? — From the inside, near to the front door. Merely one groan, was it ? — Merely a groan. Was it folio wed,pretty quickly by reach- ing out the hand for the pike ? — Yes. Immediately ? — Immediately. And then a rush was made in P — Yes ; and when they made a general rush the special constables ran away ; I did not see anything else, and I ran with them. The first thing you saw upon reaching out the hand for the pike was the con- stables running away? — Yes. Sir F. Pollock : He has said that that was after the rush ? — They ran away after the rush. Ludlow: Did they run away after the rush, or before the rush ? — When the man reached his hand to take hold of the pike, or stick I call it, with a piece of iron on at the end of it, when he put his hand out to catch hold of that, there was a general rush in. Was it before or after that rush in that the special constables ran away ? — After that ; I do not know whether the con- stables made a rush as well as the others, because I think they made more noise than anybody else. M 2 Trial of John Frost, 1839 . 359 ] Among the other noises that they made did you hear one of them call out, “No, never,” very loud? — No, I did not. What sort of noise was it that the con- stables made ? — Pushing along as though the roof of this house was falling in, and we were all trying to get out. Was that in the opposite direction from the front door?— Yes. I want to know whether that was before or after the rush that was made by the mob to get in ? — That was the rush. The rush that the constables made to get out at the back way was the rush of the mob getting in ? — I did not see the mob come up ; I saw no more than two men come to the door asking for “ our prisoners,” in a civil quiet way. Those two men were alone, were they ? — They were standing at the door, the same as I stand before you. Those two men who asked for their pri- soners in a quiet peaceable way ; did I understand you to say that those two per- sons were alone, without any person with them ? —There were more outside ; they were on the top of the steps leading inside. How near to those two persons who asked this question in this quiet way were any other persons that you saw, some distance, I suppose, ten or twenty yards behind them ? — Perhaps they might have been six or ten yards. Do you know who those two persons were ? — No. Neither of them ? — Neither of them. Had neither of them a gun ? — I cannot swear that either of them had a gun. Did you see any guns ? — Yes, I did. Had those people got into the house before the people who were behind them came forward ? — No ; they did not attempt^ to come in before ; they came to speak to tell what they wanted. Did they, as soon as they had spoken, and said what they wanted, attempt to get into the house ? — I did not see them move from the spot which they stood in when they spoke. How long do you think they stood in that spot? — They might stand perhaps two or three minutes. Do you believe that they stood as long as two or three minutes? — Yes, I do. By themselves, six yards from the others ? — Yes. During all which time you heard nothing from the special constables except the groans, and no other words from those two men but these : “We want our pri- soners ? ” — No. You did not hear any answer made P — No. How soon did you yourself go away from the front of the house ? — As soon as the constables ran away, I ran away. [360 I understand you to say positively that nothing had been done to molest you, or assault or frighten anybody ? — I did not see it.- You were before the special constables ? — I was near the front door. W ere you before the special constables ? — Before the greater part of them. Were there any before you ? — I do not believe there was. You were quite in front ? — I was quite in front, before them. Then if any offence or violence had been used by those two persons towards the special constables and the house, you must have seen it ? — I must have seen it. And you swear there was none ? — None whatsoever. No violence, or threat ? — Not the least. When the special constables went away, did those two people come into the house ? — I did not see them move from where they stood. I saw the special constables run away from the house. Did you see those two persons, or any persons, come into the house ? — No. You went away ? — I went away by the back yard. Inasmuch as you went there as a con- stable in the morning, and inasmuch as you stood at the front of the door and saw those special constables run away, and then ran away with them, why, I ask you, did you go away as fast as you could ? — Because I did the same with the rest, and when my superiors ran away, I thought I might run away; I thought they might be going away to do some good somewhere else. Do you mean by doing some good to run away from two persons who merely asked them a question in a civil way ? — Very often in Newport there are constables wanted. I want to know what you mean by their doing good somewhere else? — I thought they might be wanted elsewhere, and I thought it my duty to follow them. You went for the purpose, as I under- stood you, of assisting these special con- stables in any useful purpose that they might have in view elsewhere? — Yes, I did. Without knowing where they were going, or what they were going to do? — Yes. Had you got out of the yard before you heard this firing ? — No. While you were in the yard you heard it ? — Yes. Upon hearing the firing did you go back or go away ? — I went away. Did it not occur to you that if there was any firing you might be of as much use there as anywhere else ? — Not with a stick. Trial of John Frost , 1839 . 361 ] Trial of John Frost , 1 839 . [362 Did you go away because you were not I better provided jhan with a stick ? — No. Why did you go away ? — Because the superintendent of police, Mr. Hopkins, went away, and I thought it was my duty to follow him ; I saw him running, and I ran after him. In order to assist him wherever he was going ? — In order to assist him wherever he was going. Where did you go when you heard the firing P — I went home to my wife and family. Then you did not follow Hopkins as far as he went P — I left him behind me ; I went home to see if my wife and family were at home and safe. I thought you went to assist Hopkins ? — I went to assist him, but I went home. You did not assist him ? — I went home to my own wife and family ; I thought I had a right to protect them. [I did not see Oliver, O'Dwyer, Waters , or Latch among the special constables. If they had been by the front door I must have seen them. I cannot bring to my recollection the names of any other con- stables there except Scard and the super- intendent.] When you heard Mr. Frost making those speeches, telling the people to be quiet, do you remember his telling them at any time when Vincent had been apprehended, to be quiet, for the time was not yet come ? —No. Will you swear that he did not add those words ?■ — I will swear that I did not hear him ; I do not recollect it. Did you stay at home at your own house all that day ? — Nearly the whole day ; I went out some time after in the afternoon. But not until after the riot was over P — No. In fact, except from what you have heard, you do not know that any riot took place ? — Yes, I heard firing. Except from what you have heard, you do not know that there was riot or breach of the peace?— I did not see one man break the peace at Newport as a rioter. Except then, from what you have beard, and having heard the firing of guns, yon do not know of any breach of the peace ? — I did not see a man striking another with sticks. Everybody was quiet ? — Yes. And there was no fault but with the special constables P — No. Re-examined by Sir F. Pollock. You have been asked about time and space, how far do you think you are from this gentleman who has been asking you these questions P — I might be six foot. How long do you think he was putting all those questions P — I cannot say ; time goes very light with me. You cannot form an opinion ? — I might ; but I should beg to say the truth ; I might have been here half an hour or more. You were in the passage of the “ West- gate ” Inn ? — I was in the passage. How far do you think you were from the front door ? — I might have been perhaps a foot or two, not much further. Were you at the door so as to see out- side, or within, so as not to be able to see ? —I was on the left-hand side going in, the door being on the right-hand side going in. Can you tell me how many persons wero in the passage P — There might have been perhaps forty or fifty for what I know My learned friend wants to know par- ticularly the time, at what time were there forty or fifty P — About nine o'clock in the morning. But I mean with reference to the time when the mob was coming round, how many people were there at that time in the passage P — They all crowded to the passage to see the mob come, more out of curiosity than fear, I suppose. Then I think you say that at that time there might be forty persons in the pas- sage P — Yes. Do you remember anybody except Scard ? — Not one, except Scard and Mr. Hopkins. 1 think you said that you went straight to the door of the “ Westgate ” ; did you see anything of the mob coming until you were in the doorway p — No, I did not. What I want to know is, were you as much as one foot within the door, or two feet, or four or five ? — I was close to the door at one time ; perhaps I might be a foot or two from the door. You say there was a sort of rush of the constables to go back? — Yes. Did they go back, was there much con- fusion ? — Yes ; they were going out the back way. Did you see what persons came into the passage when the constables went out of it ?— No. You said you heard firing, did you hear firing before you went out the back way ? — I did not, to the best of my knowledge, not before I got into the back yard. How soon after you had got into the back yard did you hear firing p — I heard firing when I was in the back yard ; the yard is not very large. How soon then did the firing begin after you turned about to go the back way into the yard? — The firing began, perhaps it might be a minute or two minutes. Did it begin immediately ? — Yes. Foreman of the Jury : You say there 3631 Trial of John Frost, 1839 . [364 was a large number of persons in front of the inn P — Yes. Were they armed ? — Some of them were armed; I saw some sort of arms with them. Did the great number of arms frighten you ? — It did not frighten me in the least. Edward Patten. — Examined by Kelly . [A carpenter at Newport. On the 4th of November I saw a multitude of people coming down into the town down Stowe Hill. I went up to the top of Charles Street, and went down with them.] Where did they go to ? — To the “West- gate.” When the foremost of them arrived in front of the “ Westgate,” where were you ? — On the pavement, against Mr. Phillips’s house. The mayor ? — Yes. Did you hear any of them as they were going on, when they arrived there, say anything ? — Yes, I did. What did you hear any of them say ? — I heard them say that they would have the prisoners that they had got in the “ West- gate.” When was it you heard them say that ? — That was the 4th of November, the same morning. Of course it was the 4th of November ; but where had they got to at the time you first heard them say they would have the prisoners P — They were coming down Stowe Hill ; I heard them say that they would have the prisoners that they had taken in the morning before day light. When they arrived in front of the “ Westgate ” did you hear anything more said by anybody about those prisoners ? — I did. Just let me know what you heard and saw P — They asked if they would please to give up the prisoners they had got or taken before daylight. Was it one person whom you heard say that ? — I cannot say ; I believe it was two or three persons. Where were the two or three persons at the time that they said that ? — Standing a little distance from the “Westgate” steps of the front door ; a few yards from the front door. To whom did they appear to say that? — I was not far enough in front of the “Westgate” to see who was in the “Westgate,” and by that means could not say. Did it appear to you that they were addressing somebody or other in the “ Westgate ” P — They were addressing someone. Were you near enough to hear what answer they got, if any?— They said, “No, neveV,” someone, I cannot say who. What did you next see or hear after that ? — Close upon that there was a rush made towards the front door, and then 1 heard firing. Were you able to see whether they got in or not when they made the rush to- wards the front door P — I cannot say that I saw anybody go in. How soon do you think it was after you saw them make a rush that you heard the firing ? — Almost close upon it. Where did you go to, or did you remain where you were ? — When I heard the firing I went back to my own house as fast as I could go. Was that all you saw of it yourself?— That was all I saw or know. Did you continue to hear the firing ? — I heard firing ; I never saw any smoke ; I heard it. Was it one or more than one person that you heard say anything about getting their prisoners ? —I think 1 heard two ot- three voices. Cross-examined by the Attorney General. You say that you saw a parcel of people that morning ; what sort of people were those whom you call a parcel of people ; were they armed ? — Yes, they had sticks and arms. Any guns ? — Yes, there were some guns. Were they marching abreast? — No; they were not marching abreast in par- ticular ; but they were marching higgledy- piggledy. How many do you think you saw alto- gether ; the whole of this body P — I should suppose between two and three hundred. Not more ? — I suppose not many more at the time I saw it. First and last you saw all that were at the “ Westgate ” and that were on Stowe Hill? — Yes, sure. Had you a full view of all those that were on Stowe Hill ? — I had. And you said that altogether they did not exceed two or three hundred? — I could not say to a few. Were you at all alarmed when you saw them marching down in this manner p — Yes, I was a little bit alarmed, but no- thing particular ; I wanted to hear what they would say and do. I suppose you never were at a Chartist lodge ? — Never. [When they came down some went round to the gates of the “ Westgate,” but not all.] Having gone to the gates and come back, they drew up in front of the “ West- gate,” opposite the porch ? — They did. It was then that you heard them say that they would have the prisoners, that had been taken before daylight P — Yes. 365 ] You are sure they said, “ that had been taken before daylight ” ? — I am. That was after the mob had come into the town P — No ; the mob were coming down Stowe Hill when I heard them say so. Those prisoners that they said they wished to have, had been taken before daylight? — They were taken before day- light that were in the “ Westgate.” You say that they asked at the “West- gate ” if they would please to give up the prisoners that they had taken before day- light ; how many went up to the porch of the “Westgate”? — They did not go particularly, not at the moment ; but they stood for a space, and asked for them. The body of the mob stood for a space, and asked for the prisoners P — They asked for the prisoners that the opposite party had taken before daylight; the special constables, as we called them, had taken some. Were there any two of the mob that went forward as spokesmen ? — No, not particular ; not one more than the other. They all moved on in a body ? — Yes. And came close up to the special con- stables ? — Close to the door ; I cannot say whether the special constables were there, because I could not see who were there. Did they come close up to the door, so as to be able to touch the door ? — I could only just see the steps ; I saw them go to the door You saw that the mob went close up to the steps? — Yes. All together in a body ? — Yes. Did they ask for the prisoners in a very quiet manner? — Yes ; in the first moment or two. What happened then ? — Then they went to the front door ; there was a rush made. Had those of the body of the mob that went up pikes in their hands ? — When I heard firing I took to my heels and went away. Before you took to your heels and went away, I ask whether you saw that those who went up to the steps of the “West- gate ” had pikes in their bands ? — I can- not particularly say whether they had pikes, or guns or sticks ; they were armed the biggest part. You heard some one say, “ No, never ” r —I did. In a loud voice? — I heard that very loud. How far were you from the door when you heard those words, “No, never”? — I suppose it was about twenty-five yards ; somewhere thereabouts. They must have been very loud to reach you ? — I do not know that they were very loud. Did you hear any groaning ? — No. [366 The firing began very soon ? — The firing began and I wont away. Could you judge where the firing began ? — I could not say ; but I saw no smoke on the outside ; and as soon as I heard the firing, I went back to Stowe Hill. Do you think the firing began from the “ Westgate ”? Sir F. Pollock : Surely that question can- not be put. Solicitor General: Is the question ob- jectionable ? Sir F. Pollock : My Lord, I submit it is objectionable to ask the witness to specu- late upon a fact which he has no means of knowing. Attorney General : From the sound he might be able to know ? — I defy a man to tell from the sound. Could you judge whether the firing came from the “Wfcstgate,” or began outside the “ Westgate ” ? — You could not tell, and I could not tell ; in fact, it was im- possible for any man to tell. You saw no smoke ? — I saw no smoke on the outside ; I heard a report of a gun, and I took my way off. You heard a report and still you saw no smoke on the outside ? — I did not. Then for anything that you can tell, according to your representation, the firing may have been begun from the “ Westgate ” Inn ? — It is likely enough. Be-examined by Kelly. You say that you could not see much more than the steps of the door ; how far were you from the front door of the “Westgate” Inn at the time that the rush was made towards the door ? — About twenty-five yards. Were you on any eminence high up, so that you could see over their heads ? — No, it was near upon a level ; I think if there is any difference, the ground rises rather to the “ Westgate ” door. Was there a great number of people between you and the door ? — Yes, there were people. One word about this gun ; you said you heard a gun fired ; and immediately you ran away ; have you the least notion which party fired this gun ? — I could not possibly tell which party it was, whether it was inside or outside ; I never saw any smoke outside. Joshua Thomas . — Examined by Sir F. Pollock. [I am a carpenter. I saw the mob come down Stowe Hill. I was standing by the “ Parrot ” at the corner of Charles Street and Commercial Street. None of them went by Charles Street or Com- Trial of John Frost , 1839 . 367] Trial of John mercial Street to the “ Westgale.” They all went by Stowe Hill. 3 The Eev. James Coles. — Examined by Kelly. [One of the magistrates for the county of Monmouth, residing at Pakington Meadow, about six miles on the Cardiff road, from Newport to Cardiff. Spoke to receiving a letter from Mr. Frost, dated the 28th of September 1839, as follows : — “Sir, “ I beo leave respectfully to solicit that, as a magistrate for the county of Monmouth, you will be pleased to make some alteration in the very severe regulations of the gaol to which Messrs. Vincent, Edwards, Dickenson, and Townshend are now subject. As the agitation has now subsided, an alteration for the better would now appear an act of mercy. “ I remain, very respectfully, “ Your obedient servant, “John Frost.”] Kelly (to the witness ) : I will just trouble you with one more question ; was any alteration made in the condition or treat- ment of Vincent in consequence of or after that letter? — I know not; I am not a visiting magistrate. Cross-examined by the Attorney General. You do not know what the regulations of the gaol are ? — I do not. Or what treatment Vincent, or any other prisoner, received ? — I do not. Y ou neither know the discipline nor the relaxation of the discipline of the gaol ? — I do not. Capel Hanlury Leigh.— Examined by Sir F. Pollock. I believe you are the lord lieutenant of this county ? — I am. Was any application made to you by Mr. Frost on behalf of Vincent? — Yes, there was. Have you the letteT which was addressed to you upon that occasion ? — I have. Will you have the goodness to produce it ? (The witness produced the letter, which was read as follows : — ) “ Sir, “ I beg leave respectfully to solicit that, as a magistrate for the county of Monmouth, you will be pleased to make some alteration in the very severe regulations of the gaol to which Messrs. Vincent, Edwards, Dickenson, and Townshend are now subject. As the agitation has now subsided, an alteration for the better would now appear an act of mercy. It is in- tended to get an address to Her Majesty, signed as numerously as possible, praying for the libe- ration of these prisoners. I hope, sir, that your influence as lord lieutenant will not be exerted Frost, 1839. [368 in opposition to the wishes of thousands of the working classes. “ I remaiu, very respectfully, “ Your obedient servant, “John Frost.” Sir F. Pollock : Do you know whether any alteration took place in the treatment of the prisoners in consequence of that ap- plication ? — No, I cannot say whether any alteration tookqjlace. You have no reason to believe that any did take place ? — I never made any appli- cation for that purpose. Cross-examined by the Attorney General. Were you a visiting magistrate of the gaol ? — No, I was not. I had nothing to do with the regulations of the gaol. Do not you know that, in point of fact, there was a relaxation in favour of Mr. Vincent, in his being allowed to read what- ever books he thought fit ? — I cannot say. Kelly : My Lord, as the time has now arrived at which your Lordships usually adjourn, I would just venture to state that there is a material witness from Bristol, to whom my learned friend Sir Frederick Pollock has alluded, who has been expected during the day, and is hourly expected at the present moment. As his evidence will occupy a very short time indeed before I commence my address (which I conceive your Lordships, with your usual indul- gence, would not call upon me to com- mence at this hour in the evening), per- haps your Lordships would allow an ad- journment to take place now? Tindal, C. J. : Is that the only evidence you produce ? Sir F. Pollock : There are some witnesses to character whom, I must say, I think it can be hardly necessary to call. Tindal, C.J. : You must endeavour to reduce the evidence to-morrow into a small compass. Kelly : I will take care, my Lord, that it is exceedingly short. Sir F. Pollock: We feel too strongly the indulgence that your Lordships have al- lowed us, to abuse it in any degree that we can possibly avoid. Tindal, C.J. : Are not the other wit- nesses here ? Sir F. Pollock : The Duke of Beaufort is not here ; probably he will not be here in time to be examined. Kelly: My Lord, there are some wit- nesses who have arrived ; if your Lord- ships are not disposed to adjourn at this, moment I will call some witnesses to character. Fdward "Thomas . — Examined by Kelly. What are you by business ? — I am a grocer and tallow-chandler ; it is better ' 369] Trial of Joh: that I should state that I am also a draper. How long have you lived and carried on business at Newport ? —Eight years. Before I ask you with regard to Mr. Frost, I will just trouble you with a ques- tion on another subject. Do you happen to know by what means letters put into the post at Newport would be conveyed to Birmingham? — I believe they go to Bris- tol from Newport, and from thence to Bir- mingham. I will ask you, as you have lived eight years in Newport, is there any mail direct from Newport to Birmingham ? — I am not aware of any mail. Have you ever yourself had any corre- spondence with that part of the country, so as to enable you to know how letters go P — No. Have you ever been by the mail to Bris- tol ?— Yes. What time does the mail which goes to Bristol pass through Newport? — About one o'clock in the day. Which way does it go from Newport ? — It goes to the Old Passage. Is the mail-coach which conveys the let- ters from Newport then left on the Mon- mouthshire side, and is there another coach to take on the passengers and let- ters on the Gloucestershire side? — Yes. Tindal, C.J. : That is, the mail-coach itself does not pass over the Passage P — It does not, my Lord. The coach is left behind at the Passage- house ?— Yes, my Lord. Kelly: The passengers and letters cross the river in a boat ? — They do. And after crossing they find another mail-coach to convey them on to Bristol ? — Yes. What time does that arrive at Bristol ? * — I think about four o’clock ; I am not sure. It is six years since I went that way ; I think between four and five. Do you remember whether you have ever gone, after proceeding from New- port to Bristol, north towards Gloucester, Worcester, or Birmingham ? — Never. I will not trouble you with any further questions on that point ; but you tell me that you do not know, of your own know- ledge, how the letters go to Birmingham, or at what time ? — I do not. How long have you known Mr. Frost ? — Will you allow me to think a moment ? I have known Mr. Frost about eighteen years. Have you had opportunities of witness- ing his public and his private conduct ? — I have. I ask you whether, as far as you have observed, and have had opportunities of knowing, his character and conduct have been that of a person likely to attempt to , Frost, 1839. [370 subvert the Government, or the contrary ? — I believe not. Attorney General: I am extremely loth, my Lord, to make any objection in a case of this sort, but I wish my learned friend would shape his questions differently. Kelly : I am not aware that I have shaped the questions in an improper form. (To the witness.) What is his character for humanity ? — I believe Mr. Frost has always had a character for benevolence and kind- ness amongst his neighbours. Cross-examined by the Attorney General . Will you allow me to ask whether you are a Chartist ? — I am. How long have you been so ? — I have entertained the opinions for about ten months. What lodge do.you belong to ? — I be- long to no lodge at present. How long have you ceased to belong to a lodge ? — I have not belonged to any lodge since the 22nd of July. Have you not attended any lodge since then ?— I have. How often? — Some half-a-dozen times. In Newport ? — Yes. Anywhere else ? — I have attended Char- tist meetings in other places. You have attended public meetings at Newport, I presume ? — Yes. How early in the morning did you ever attend any public meeting at Newport ? — I do not recollect ever attending any public meeting at Newport in the morn- ing. You never attended any meeting before daybreak ? — No. Nor knew of any ? — Not at all. The meetings that have been held at Newport, that you have been aware of, have been held when people are generally out of bed ? — Yes. Did you know anything of this meeting on the 4th of November last ? — Nothing whatever. Did you happen to be in Newport ? — I was. You took an interest, I suppose, in Vin- cent ? — I did so. You had not been told that there was to be any meeting for Vincent on the 4th of November, had yon ? — No. When there is to be a public meeting held at Newport, I suppose, there gene- rally is notice given of it for some days before, by advertisement or placard, or in some way? — It is some time since any open air meeting has been held ; I believe it was the custom of the working men to meet together every Tuesday night. For what purpose ? — For discussion, and to read the papers. But I am asking of a public meeting to be held in the open air ; of such meetings 371] has there not been generally notice given by advertisement or handbill ? — Yes. You, living at Newport, can tell us that there was no notice by placard, or in any other way, of a meeting to be held on the 4th of November P — I never saw any. Nor heard of any p— No. Sir F. Pollock: Nor was any meeting held on the 4th of November. Attorney General : You have gone by the mail coach from Newport to Bristol ? — I have. The letters from South Wales to Bristol, and from thence to the north of England, pass through Newport, do not they P — Yes, I believe they do generally. And from Ireland? — From Ireland to Bristol. And to the central counties in England ? — Yes. Though the coach does not pass across the Old Passage, does not the mail bag pass P — Yes, I believe it does. And is put into another coach,. and so goes on to Bristol ? — Yes. I mean the bag containing the letters from South Wales and from Ireland P — Yes. Although you have not travelled from Bristol yourself to Birmingham, perhaps you may know that the mail coach starts from Bristol to Birmingham about an hour and a half, or two hours, after the mail from Newport arrives at Bristol ? — I should suppose so ; I do not know. Re-examined by Kelly. Do you happen to know what the dis- tance is from Bristol to Birmingham, so as to judge how long the mail coach would be likely to be on its journey P — No, I do not know distinctly. Alfred Williams. — Examined by Kelly. Are you an innkeeper ? — I am. What inn do you keep? — The “Trede- gar Arms.” Where ? — At Newport. How long have you lived at Newport ? — Eleven years. How long have you known Mr. Frost ?— All that time. I would ask you, during that time, what has been his character for humanity P — As far as I have known him during that time, and have had intercourse with him, it has been extremely good. William TownsTiend. — Examined by Kelly. Are you an iron merchant P — I am. At Newport ? — Yes. How long have you known Mr. Frost ? — More than twenty years. During that time what has been his [372 character P — Good ; none better that I know of. Cross-examined by the Solicitor General. Your son was convicted with Mr. Vin- cent at the last assizes ? — He was. Have you ever said that the charter would be the law of the land by force if' it could not be obtained otherwise ? — Never. Nor anything to that effect p — Never ; I never thought of such a thing. Did you ever say that Mr. Vincent should not have been committed if you had been sufficiently well at the time ? — No, never. Or anything to that effect ? — No. Now recollect ? — No, I do not believe I ever did. Have you ever declared, that if you had been sufficiently well at the time your son and Vincent were committed, you would rather have sacrificed your life than have allowed them to be taken, or to that effect? — My feelings were much excited as a parent ; and when I got to a state of convalescence, I may have made use of language which you might have so con- strued ; on my oath I do not think I made use of such language as that. Or to that effect P — No ; but I may have said I would have gone to some length to save my son. Sir Benjamin Kail, Bart., M.P.(u) — Examined by Sir F. Pollock. Have you known Mr. Frost at all ? — Yes, I have ; I first knew Mr. Frost in the year 1831, and I had frequent communications with Mr. Frost , and saw him frequently, I believe, down to the end of 1834. I believe he rendered some assistance to you in the course of an election ? — Yes, he did. What has been his general character for humanity and correct conduct ? — I stated that I first became acquainted with Mr. Frost ih 1831, when I stood for the borough of Newport ; and from the period when I first knew him, down to the period I have last mentioned, that is, down to 1834 (when my ( connexion with Newport almost ceased), Lnever heard anything whatever against him. Are you aware of the course of the post from Newport to Birmingham ? — I believe that letters from Newport to Birmingham go to Bristol, and are conveyed on by the mail, which leaves Bristol at the arrival of the Newport mail. Are you aware that the coach is changed at the Passage ? — I am. And it is again changed at Bristol ? — Yes. Then it is almost a matter of form to ask you whether, if the bag arrived from Trial of John Frost, 1839. (a) Afterwards Lord Llanover. 373 ] Trial of John Frost, 1839 . [374 Newport or not, tho mail would, go from Bristol to Birmingham just the same P — I do not know that. Cross-examined by the Attorney General . You have known nothing of Mr. Frost since the year 1834 P — No ; when I say from the year 1834, there was a petition presented against my return in the spring of 1835 (I was abroad at my election in 1834), and I believe that I saw Mr. Frost in 1835, at the time of that petition ; but in consequence of an affliction in my own family I attended very little to my own business at that time, and I cannot say that I have seen much of Mr. Frost since the commencement of 1835. Kelly : We will not trouble your Lord ships with any further evidence to-night, and I will endeavour to shorten the re- maining evidence as much as possible. Tindal, C.J. : You will prove the addi- tional fact about the bill, and then be ready to sum up the evidence ? j Kelly: Yes, my Lord. It is possible one witness as to character may arrive, and, if he should arrive, we would beg your Lordships to hear that evidence. Tindal, C.J. : Certainly. Kelly : It will will be exceedingly short. Tuesday, January 7, 1840. [William Morgan, book-keeper to Par- sons and Hurles, linen-drapers at Bristol, deposed that a bill for 57 1. drawn by the firm on Mr. Frost, and accepted by him, and becoming due on November 4, was paid at maturity. John Williams, cashier of Shajpland and Wreford, Bristol, spoke to dealings with Frost, and to a bill for 119?. 11s. due October 24, being duly paid. Frost was remarkably punctual in his payments.] Mary Jones sworn. — Examined by Kelly. Where do you live? — Just by Black- wood, the other side of the river; the next door to James Hodge. As you say you live next door to James Hodge, do you know James Hodge ? — I do know him by his face now about two years ago. Did you call at his house on Monday the 4th of November? — I suppose that was the day ; it was the day that the riot was at Newport. What time were you at his house that morning ? — Between eight and nine o’clock. Was he at home at that time ? — He was in bed. Cross-examined by thb Solicitor General. What time did you get up that morn- ing ? — I cannot tell exactly, because I was that month up almost every hour in the night ; I had a daughter very ill in a decline, and I was sometimes ten or twelve times up in the night. At what time had you breakfast P — I had breakfast after I was in James Hodge* 6 house, with my daughter. How long had you been up before you breakfasted that morning? — I cannot tell exactly to a minute. I do not ask you to a minute ; but had you been up for an hour, or two or three hours ? — I was up, I suppose, an hour before I had breakfast. I was every morning going to another house for milk for my daughter, and I was exactly at eight o’clock in that house for milk, and when I came back, I did see James Hodge’s door open, and after I had taken my milk to my own house and spoken a word or two to my daughter, I turned in to James Hodge’s house, and asked his wife, — “ Mary,” says I, “do you hear something from the people that went down to New- port last night ?'” Without going through what you said to his wife, did you talk to James Hodge? — She did not answer me at first. Did you talk to Hodge ? — No, I did not ; she did draw me to the bedroom by my hand, and pulled the clothes down, and there I did see James Hodge in bed from about here up ( from the waist). “ Here is my old man, thank God,” she said. Can you tell me whether James Hodge had been out that night ? — I cannot say, be- cause I could not go out from my daughter. Had you seen James Hodge at all that morning before that time that you saw him in bed P — I had not. As you were up a good many times that night, can you tell me whether his wife was up that night P — I cannot say that ; I suppose she was in bed. You do not know P — Not to my know- ledge. Was there anybody else in James Hodge’ s house besides himself and his wife that you saw ? — I did not see no one but the little children. Was anybody in your own house besides yourself and your daughter? — Nobody living there ; one was turning in now and then, and my other daughter was there very often. Sir F. Pollock : I must crave your Lord- ships’ indulgence to allow me to call another witness ; I hope it will not take more than a moment ; it is to the same purpose as the evidence given last night ; it relates to the expression used in the front of the inn about the prisoners. 375 ] Henry Williams. — Examined by Sir F. Pollock. £1 am an ironmonger. I saw the people coming down Stowe Hill on the 4th of November. I was at the “Westgate.”] Whereabouts were you at the “West- gate P — At the door, when they came to the door. Were you there as a special constable P — I was. Did you hear what was said by anyone ? — I did. What was said P — The men who first came up to the door said, “ Surrender up your prisoners. ’ ’ I do not know whether you have made any deposition or not ? — I have not. Cross-examined by the Attorney General. When did you first seen any of the mob coming ? — I had the honour of acting as the mayor’s aide-de-camp on the occasion, and I went out very early in the morning, and saw them, and met them just after daybreak. Where ? — About two miles out, I think it is ; about two or two and a half. Can you name the place where you first saw them ? — At Pye Corner. That is beyond Tredegar Park ? — It is. Was it daylight then ? — -Yes. Did you see a great number ? — I did. How were they armed? — In various ways ; some with pikes, guns, mandrils, hatchets, and all kinds of weapons. Can you judge of the number that you saw? — I saw one party consisting, I should imagine, of about four or five hundred. Did you see them come through Tre- degar Park ? — No, I did not ; I saw them going towards Tredegar Park. Did you then return to Newport ? — I did. And came to the * ‘ Westgate ” ? — I came to the “ Westgate.” Where the mayor and the magistrates were assembed P — Yes. Did you remain at the “ Westgate ” till the mob came into Newport ? — No, I did not. Where did you go to? — I went out again to meet them. Where did you see them the second time ? — At Bellevue. Where is that? — About a mile from Newport, at the machine. Near Court-y-Bella machine ? — Yes. What were they doing then ? — Cheer- ing; at the time I saw them they were standing. They were halting ? — They were halting. Did you see them advance ? — No, I did not; as soon as I saw the body, 1 im- [376 mediately returned and reported to the mayor what I had seen. You left them when they were halting ? —I did. Near Court-y-Bella machine ? — Near Court-y-Bella machine. Did you observe whether they divided ? — I did not. When you returned the second time, where were you stationed ? — At the “ Westgate ” door. Did you remain there till the mob came down Stowe Hill ? — I did. Did you observe what they did when they came down Stowe Hill ? — They came and fronted the “Westgate,” and fired before the “ Westgate” house. Before the front door ? — Before the front door. Did you observe them go and try to get into the gates ? — I did not see them endeavour to go in ; they went towards the gates, but I did not observe whether they endeavoured to get in at the gates. You observed them go towards the gates ? — I did ; they passed the front door. Were the constables stationed at the front door at that time ? — They were. They passed the constables and went towards the gates ? — They did. And then they returned ? — They re- turned, led by the man who spoke to me, who said, “ Surrender up your prisoners.” What had he in his hand ?— -It appeared to me like a carpenter’s axe stuck at the top of a pole. Were you wounded P — I was. When ? — A couple of minutes after the attack commenced. Where were you wounded P — I received two stabs in my body, a gun-shot wound in my head, and a wound in the leg. From whom did you receive those wounds? — From the Chartists. What were you doing when you received those wounds; were you standing in front of the door ? — Yes ; I was standing at the door, acting as a special constable. Did the mob try to get in at the door ? — They did. Did you and the other special constables do what you could to prevent them ?— We did. Was it while you were trying to prevent them that you received those wounds ?— ■ Yes, it was. Did you hear any groan from the special constables P — Not at all ; I am convinced there was no groan. What became of you when you were wounded? — I fell senseless after being shot. Were you wounded outside P — Inside. In the hall ? — In the lobby. At that time had there been any firing** Trial of John Frost, 1839 . 377 ] Trial of John Frost, 1839 . [378 from within tho “ Westgate ” ? — I really do not know ; a great many shots had been fired from the insurgents. How far were you inside the door when you received that gunshot wound P — About three or four feet inside. Had you seen Oliver at the door? — Yes, he stood next to me. Acting as a special constable P — Yes. Did you see a gentleman of the name of O'Dwyer there, acting as a special con- stable P — I did. Did you observe what use the insur- gents made of their pikes P — Yes, they thrust at us — they thrust at everything in the way ; they broke the windows, and did all the damage they possibly could ; they broke everything in their way that they could get at. When did you recover your senses ? — Hot until the row was over; not until after the insurgents had retreated. Had any of them forced their way into the hall before you fell ? — Yes, I think several. Do you mean into the hall, or into the passage beyond the hall ? What you call the lobby. You imme- diately enter into the lobby from the outer door ? — Yes. Had any of them forced their way into the lobby before you fell ? — Yes, it was full of the insurgents. I was left there alone ; my friends, the rest of the con- stables, were driven in, and I unfor- tunately could not get to them. And you were left there in the midst of the insurgents P — In the midst of them. Had those that were in the lobby pikes P Guns ?— Yes. Mandrils ? — Pikes and guns I am sure of. Had any of them forced their way into the passage that leads to the room where the soldiers were stationed? — I am not quite certain ; I think they had. Did the constables make any attack ? — Ho. Or any attempt to seize any of the pikes ? — Ho. Did they remain entirely on the de- fensive? — Quite ; the mayor had par- ticularly ordered that we should not attack. How long do you think the struggle had been going on to force the “ Westgate ” before you fell? — I should think about two minutes before I was shot. Had the frout door been shut at all ? — I did not see it shut ; it was not shut while I was stationed there. About how many special constables were there stationed there? — Do you mean in the lobby, or in the house alto- gether ? First, in the house altogether ? — I have no idea ; 1 should think there must have been a hundred altogether, there might have been about twenty in the lobby. You think there were twenty in the lobby P — I think there must have been twenty in the lobby, it was pretty full. What weapons had the special con- stables? — Clubs, merely sticks. Do you moan a staff of office ? — Merely a constable’s club. Before you were shot could you observe in what direction the firing was coming ? — Yes ; from the street door I saw the guns pointed, and saw them fired off several times. They came from the street ? Sir F. Pollock : From the street door ? — From the street and the street door. Attorney General: Against whom were they directed? — Against the special con- stables. About how many shots do you think you saw fired off, from the street and the street door, against the special constables ? -^-Eight or ten. Did that firing continue till you fell P — Yes. Did the special constables do all in their power to guard the “Westgate”? — I think so. Till they were overpowered p — Till they were overpowered, and driven in by an armed body. Did you see the soldiers arrive from the barracks ? — I did. Did they come down Stowe Hill ? — Yes. Sir F. Pollock : Did you see them come down Stowe Hill ? — I saw them come round the corner. Attorney General : As from Stowe Hill ? — As from Stowe Hill. Would that be the natural and most convenient road from the barracks to the “ Westgate ” ? — Decidedly. Sir F. Pollock : That appears upon the plan . Attorney General: Were there a good many persons going about at that time ? — A great many persons. Who must have seen the soldiers coming down Stowe Hill ? — They could not avoid seeing them. What time elapsed between the time when you say the man spoke to you and the first shot that was fired? — Hot a quarter of a minute; they fired instantly. Be- examined by Sir F. Pollock. You say “ when the person spoke ” ; do you mean when he said that which you mentioned before, “ Surrender your pri- soners ” ? — Yes. Have you any doubt about that being the expression ? — Hot the slightest I believe, in . consequence of your wounds, you have received a pension from 379 ] the Government? — I am to do so, I believe. It has been intimated to you that you are to have a pension ? — Tes. Is this a correct description of yourself as a witness: “ Henry Williams, of the parish of St. Woollos, in the borough of Newport, in the county of Monmonth, ironmonger is that you ? — It is. Tindal, C.J. : You have said you had not the slightest doubt that the expression was, “Surrender your prisoners”? — Not the slightest. Was there any answer made by any- body? — I answered, “ What prisoners.” Was anything said then? — Nothing; the attack immediately commenced after my reply. You did not hear the words, “No, never,” as coming from the special con- stables ? — I did not hear those words. The Eight Hon. Lord Granville Somerset , M.P.(a) — Examined by Sir F. Follock. I believe you are one of the members for this county ? — I am. And have been so for many years ? — Twenty-three. Were you candidate about the time that the Eeform Bill was in agitation ? — I was a candidate in the spring of 1831. Do you remember any interference on the part of Mr. Frost to protect you from violence? — I must state that I have a very indistinct recollection of what took place during that canvass at Newport; but understanding that I was to be exa- mined here, I have done my best to recol- lect the circumstances connected with those transactions. They did not make much impression upon me at the time, because I considered them a mere ebulli- tion of public feeling, and cared very little about them; but my impression is that there was a very considerable tumult, and a great disposition to personal violence on the part of the mob which was then col- lected. I believe the violence was more manifested against my brother, who was at that moment canvassing for the borough of Newport, than against myself ; I was not with him at the moment when the disturbance, or rather I should say the violence, commenced, having gone to another part of the town; but upon my rejoining him I was informed that he had been insulted very much, if not assaulted. Attorney General: My Lord, I am ex- tremely loth to interpose Sir F. Follock : Will your Lordship have the kindness to state not what was told you, but what occurred afterwards ? (a) Afterwards Chancellor of the Duchy of Lancaster in Sir Robert Peel’s Administration. [380 Attorney General: What your Lordship saw. Lord Granville Somerset : It is very much connected with what I did see after- wards, and therefore I stated it. Sir F. Follock: There is an objection to it. Lord Granville Somerset : Upon joining my brother the mob still continued, but I then saw Mr. Frost doing his best to pre- vent heir committing violence. Sir F. Follock: And he succeeded, did not he ? — I believe he succeeded, as far as my recollection serves me ; certainly my belief is, that his object was that no vio- lence should be committed. The Duke of Beaufort , your brother, is, I believe, absent, in consequence of some mistake in the delivery of a letter ? — I can state from my own knowledge that there was some misunderstanding upon the sub- ject. There is no blame whatever either upon him or you, but the misdelivery of some letter has occasioned him not to be present here? — I believe the misdelivery of an answer to a letter which he received has been the cause of his not being present here, supposing it to be the wish of the prisoner that he should be present. Sir F. Follock : My Lord, that is the evidence on the part of the prisoner. Attorney General : My Lord, I will call Thomas Watts, a witness, in reply to some evidence on the part of the prisoner. Solicitor General : It is to give an answer to Mary Jones. Kelly : I understand he has been exa- mined before. Evidence in Reply. Thomas Watts called again. — Examined by the Attorney General. Do you live at Gellygroes ?— Yes. How far is that from Newport ? — Thir- teen miles. Is it on the road to Blackwood ? — Yes. How far do you think it is from Black- wood ? — About a mile and a quarter from the top of Blackwood ; it is about three- quarters of a mile to the commencement of Blackwood. Did you leave your house at Gellygroes at any time in the morning of Monday the 4th of November ? — I did. At what hour? — About ten minutes before eight by my clock and watch ; I consider by the morning about half-past seven, because we keep the clock too fast, for the servants to get up. In what direction did you go? — I went along the tram-road towards Newport. [I know James Hodge. He lives at Woodfield, near Blackwood. I . met him by the “ Welch Oak,” which is about a Trial of John Frost , 1839 . 38 ]] Trial of John Frost, 1839 . [382 mile below Eisca, on the way to Newport. It was about five miles and a half from Eisca, and three miles and a half from Pye Corner.] Attorney General: How far would that be from Blackwood ? — About eight, miles at the furthest. At what o’clock was it when you met James Hodge at the “ Welch Oak”? — As far as I can judge, I think it must have been from half-past eight to twenty minutes before nine, as far as I can judge from the rate that I rode. I came down very fast ; I was anxious to know what was going on ; my team was gone on, and I wanted to stop it. You started at half-past seven ? — Yes. How many miles had you travelled before you met Hodge ? — About seven miles and a half, from that to eight. In what direction was James Hodge then coming ? — He was walking very fast, coming up by the “ Welch Oak.” Which way was he going? — Towards his own home ; he was coming up from Newport, towards Blackwood ; coming up towards Eisca, at least. Which leads towards his own home ? — Yes. Cross-examined by Sir F. Pollock. When did you first mention that you saw Hodge, on the road, in that way ? — Yesterday morning. At what time in the day? — I think about nine o’clock, between eight and nine. Whom did you mention it to ? — To Mr. Phelps. 1 was not aware that there was any objection made to anything of the kind till I heard it. You were not aware of what ? — I told Mr. Phelps, yesterday morning, that I met James Hodge on the road. How came you to tell him you met James Hodge on the road? — I was asked the question. Mr. Phelps asked you ? — Yes. Tell us what he said to you ; what was the question ? — I told him in the morning before that that I had met James Hodge ; and Mr. Phelps asked me where. There was a conversation about James Hodge ? — Nothing particular. If it was nothing very particular, I suppose it was nothing very long ? — No. Then tell us what it was ? — He asked me if I had seen James Hodge, and I said I had. When was it that he asked you when you saw him? — I told you before, about nine o’clock yesterday morning. When was it he put the question, whether you had see him at all ? — He did not ask me that ; he had no occasion to ask me that. Hid all this pass at the same time ? — Yes, in the common routine of conversa- tion. How came the common routine of con- versation to turn upon James Hodge ? — Talking about others as well as him, I merely told him I saw him that morning. You told me that he asked you if you had see James Hodge ? — I told you before that Mr. Phelps said to me, “ Did you see Hodge;” and I said I did, and I am here upon my oath to state that I did see him. We all know that you are upon your oath perfectly well ; he asked you when you saw him ? — Yes. And where you saw him ? — Yes. You say that you saw Hodge by the “ Eoyal Oak”? — I did by the “Welch Oak.” You said first the ‘ 4 Eoyal Oak ” ; it is the “ Welch Oak” ? — It is. Is it a large conspicuous oak, or is it a public-house ? — It is a public-house where the tram-road comes in. The time you fixed upon for seeing him was half-past eight ? — I will not swear as to a minute ; I should imagine it was thereabouts ; I should say from half- past eight to twenty minutes before nine. Upon your oath, do you believe it was within those limits ? — I do. How far is the “Welch Oak” from Pye Corner ? — As near as I can say, I should think about three miles. Parke, B. : He said three miles and a half. Kelly : He said three miles and a half before, and another witness said two miles and a half. Sir F. Pollock: You have been some, what serviceable in the course of this prosecution ? — I have, and I intend to be again if I can. Ee-examined by the Attorney General. Are you a constable ? — I am. For what place ? — For the county. For the county of Monmouth ? — Yes, and for the borough of Monmouth. You are sworn in as a special constable ? — I am. What do you mean when you say that you have been serviceable upon this occa- sion ? — I have taken twenty-three of the prisoners myself. Sir F. Pollock .- No ; my question re- ferred to this prosecution. "if you ask me what I meant, I meant running in and out with notes, and carrying messages. That is so, is it not, Mr. Watts ? — Yes. A sort of fetch and carry man. Attorney General: Have you had the custody of any of the pikes ? — Yes. You apprehended twenty-three of the prisoners ? — Yes. 383 ] Trial of John Frost , 1839 . [384 Edward Hopkins called. Sir F. Pollock : What is this witness coming for ? Solicitor General : Gould swore that Hopkins asked a certain question, and got a certain answer. Sir F. Pollock : Has he been called be- fore P Solicitor General : He was called during the time of Sir Thomas Phillips’s exami- nation. Sir F. Pollock : My Lord, I do not know what my learned friend is about to call this witness for. Solicitor General : Benjamin Gould stated that when the men came up to the “ Westgate ” Hopkins was at the door, and that Hopkins asked the men what they wanted, and that the men said, “We want our prisoners.” I am going to ask Hopkins whether he was asked any such question, and received any such answer. Sir F. Pollock : I submit that my learned friends cannot do this. In the first in- stance they had a right to make any state- ment, and to give in evidence any proof as to the whole transaction that occurred in front of the “ Westgate” Inn, and they professed to do so. They called, out of a list of above two hundred witnesses, such persons as they thought fit, aud among the seventy witnesses on the back of the bill there is this very Edward Hopkins, whom they might have called, but they did not. Tindal, 0. J. : He was examined, I be- lieve. Sir F. Pollock : Merely to produce some arms. Kelly : I do not think he was examined ; I do not think a question was put to him. Sir F. Pollock : He was called, and he produced a number of weapons. Kelly : If he was sworn I venture to say that a question was not put to him. Sir F. Pollock : I remember this person being in the box, but I have no recollec- tion of his being examined; I certainly have no note of his examination. Attorney General : It may be considered as if he had not been examined ; I do not at all put it upon the footing of his having been examined before. Mallion (the crier) : He was sworn in the first instance to produce the weapons. Parke, B. : He was produced in the middle of Sir Thomas Phillips's examina- tion. Sir F. Pollock : He was ; but beyond his producing the weapons, and identifying them as the very weapons that were picked up about there, no question was put to him as to the transaction itself. How, my Lord, I submit this, that they have no right to call him to contradict our wit- nesses, merely because they give a diffe- rent statement of the transaction from that which the witnesses on the part of the Crown give. The circumstance of one of the witnesses having named Hop- kins as the person who took a certain part in the transaction will not, I submit to your Lordships, entitle the counsel for the Crown to call Hopkins to give any substantive contradiction, merely because he is supposed to have taken a part in what occurred. I apprehend, my Lord, that the right to call witnesses to con- tradict is merely in respect Tindal, C.J. (to the Solicitor General) : You do not wish to examine him as to the whole transaction P Solicitor General: Hot at all; simply as to what I stated to your Lordship. Parke, B. : We had better hear the question, and then see whether the ob- jection arises. Sir F. Pollock : If your Lordship pleases. (The witness was sworn.) Sir F. Pollock (to the witness ) : You are not to answer the question till the Court decides it is to be put. Perhaps the better way will be to state the question to the Court. Solicitor General : The questions I wish to ask of the witness are these : Were you at the door of the “Westgate” on the 4th of Hovember ? Did you ask any of the. insurgents what they wanted? Did anyone ever answer you, “We want our prisoners ” ? That is all. Sir F. Pollock : My Lord, that brings it to precisely this question, whether, be- cause our witnesses give a different ac- count of the transaction, the whole of which the counsel for the Crown professed to prove ; and because in the course of giving their account, one of our witnesses has named a particular man who was a witness for the Crown, whether that en- titles the counsel for the Crown to reeall that witness to contradict the statement made by the witnesses for the defence. How, my Lords, I will put this case : sup- pose in the course of a conversation, at which three or four individuals were present, certain matters are supposed to have passed, and it becomes material to prove that conversation. On the one side, one, two, or three persons are called to prove what passed, and they proved what passed, according to their view of what had taken place. Then, on the other side, one or two persons are called to give a different complexion to the conversation ; and in the course of the cross-examination or the examination in chief (for I believe it would make no difference) one of the witnesses called to give a different com,- 385 ] Trial of John Frost, 1839 . [386 plexion to tho conversation introduces into the narrative a statement made by John Nohes, one of the persons who was present, and one of the persons who has been called as a witness, but who has not been examined to any part of tho conver- sation ; and suppose the witness should say, “ Yes, I remember so and so that took place, and I recollect at that period of the conversation John Nohes made such a remark”: I submit that you could not recall John Nohes to say that he did not make that remark, still less could you re- call him to disprove something stated by another witness, where you have already had an opportunity of stating and of proving the whole transaction. I appre- hend that this would be the strictly true and correct rule, even in a civil case. I admit that there is no distinction between the rules of evidence for one purpose and for another; there is, however, generally less disposition in a criminal case to use every possible opportunity or right that you may possess ; there is an indisposition in general, if there is the slightest doubt, to press hardly against a prisoner in a case of life and death. We then call witnesses to give our view of the trans- action ; and, if I mistake not, it was in the course of their cross-examination that they got out the fact. I think it was no part of our case. Tindal, 0 . J. : It was in your case : “ They went up the steps; Hopkins, the head of the police, w r as there ; he asked them what was it they wanted.” That is the evidence of Gould in the examination in chief, (a) Sir F. Pollock : You cannot call a par- ticular witness back again to contradict something stated on the part of the de- fence merely because that man’s name happens to have been mentioned. If you could, there is no reason why you should not call him to contradict other matters that are quite new, as, for instance, suppose they had proved nothing about some particular fact, and we had on the part of tbe prisoner proved a particular new fact, as part of the transaction, I submit they could not have called their witnesses back to negative the fact. IKelly followed.] The life of the pri- soner depends on this question, and the Crown were bound to produce all their evidence in the first instance ; the witness here was called up before, and might have been sworn and examined in chief. Parke, B. : I cannot see that it makes any difference whether it is a former witness called to be re-examined or a new witness ; that is an immaterial circum- stance. (a) Above, 355. o G7432. Attorney General: My Lords, I shall argue this very shortly indeed, and strictly confine myself to the point that your Lordships have to decide, which is, whether this be evidence in reply. Unless it be evidence in reply we have no right to adduce it, but I submit to your Lord- ships that it is strictly evidence in reply. Now what is the question that we propose to put — to ask the witness whether ho asked the insurgents what they wanted ? That is the question. Did you ask the insurgents what they wanted ? May that question now be put to Edward Hopkins ? Parke, B. : It is not exactly that, but whether he got an answer to it. Attorney General : That is the first question. Parke, B. : The next is, whether he got an answer. Tindal, C. J. : That is the only question you wish to put, as I understand. Attorney General: We should be con- tent with merely asking that question. Tindal, C. J. : There is no doubt that the general rule is that where the Crown begins its case like a plaintiff in a civil suit, they cannot afterwards support their case by calling fresh witnesses, because they are met by certain evidence that con- tradicts it. They stand or fall by the evi- dence they have given. They must close their case before the defence begins ; but if any matter arises ex improviso, which no human ingenuity can foresee, on the part of a defendant in a civil suit, or a prisoner in a criminal case, there seems to me no reason why that matter which so arose ex improviso may not be answered by contrary evidence on the part of the Crown. How was it possible for the Crown to forsee that Gould would fix upon Hopkins a particular conversation ? If they had examined Hopkins through the whole transaction it never could have occurred to them to put that precise ques- tion ; but when the fact comes out on the other side it appears to me that they may call Hopkins to prove whether it is a true statement. Parke, B. : It is plain that the Crown could not foresee that any witness for the prisoner would state this particular fact with regard to Hopkins. If that could have been foreseen this evidence ought to have been given in chief. But this is a matter that may be considered as coming upon the Crown by surprise, and there- fore I think they may be permitted to ask this particular fact. All that is expected of them is, that they should give the general body of evidence relating to the transaction, and if they omit any part of that they cannot supply it afterwards ; but where a particular fact is stated, and a particular person mentioned by name, X 387 ] Trial of John Frost, 1839 . [388 which they could not possibly have for- seen, I think the Crown have a right to call that particular person with reference to that particular fact, which the Crown could not possibly be prepared for in their examination in chief. Williams, J. : I am of the same opinion. I think the examination should be con- fined precisely to the question that has been mentioned, because I have no doubt that the whole transaction as to its general circumstances might have been gone into, and was gone into originally. It is as to that expression alone that it seems to me they are entitled to ask. Solicitor General (to Edward Hopkins) : Did you ask any of the mob on the 4th of November what they wanted ? — I did not. Sir F. Pollock : That is all that the Court has allowed to be asked. Solicitor General : I understand I am not at liberty to ask him whether any such answer was given. Attorney General : That is enough. Paeke, B. : If he did not ask the ques- tion no answer could be given. Solicitor General : Of course not. Sir F. Pollock : I presume, if my learned friend Mr. Kelly is to comment upon the whole case, the ordinary privilege of re- plying upon evidence called in contra- diction does not belong to me, but would rather devolve upon my learned friend. I mention it because I am not aware that the case ever occurred before. Ordinarily, in the common course of a criminal or a civil suit, I should now have the right to make a few observations to the jury merely upon this evidence given on the other side. My learned friend’s office, however, is to sum up our case and not to comment upon this evidence. I mention it merely be- cause I am anxious not to surrender any right that may belong to a prisoner. Tindal, C. J. : It is rather a question of convenience than anything else. It would be more convenient that the learned counsel who is summing up the whole case should take this in as part of that which relates to the case than that it should be made the subject of a separate reply. Sir F. Pollock : Truly ; but though I do not mean to use the privilege, I am anxious that in my person acting here no right shall be surrendered of any kind that any pri- soner by law enjoys. If your Lordship thinks I am entitled I will merely say a word to the jury. Tindal, C.J. : I think, perhaps, in strictness you would be entitled. Sir F. Pollock : Then, gentlemen, I have but one word to say. It is for the sole purpose of preserving the right which belongs to a prisoner in respect of evi- dence called in reply. My learned friend Mr. Kelly will, I am sure, do justice to all the topics that can arise both upon this part of the case and upon all the rest ; and I am sure I should abuse the indul- gence which I received from their Lord- ships, and from you yesterday, in the very long, and I am afraid too long, ad- dress that I delivered to you, if I occupied your time more than by saying that it is simply from an anxiety that no part of a de- fence shall hereafter be prevented by any- thing that may have occurred to-day that I make this single remark, that Hopkins and most of the other persons might have been called, but they were not called. Williams was in the list of the witnesses but he was not examined ; and you may on all occasions judge of the value or the truth of any testimony as much by the evidence that might have been called and is not called as by examining the value and the truth of that which actually is given. Summing up toe the Defence. Kelly: May it please your Lordships, Gentlemen of the Jury, the time has at length arrived when the duty devolves upon me of addressing you in defence of the life of the prisoner at the bar— for 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 upon to discharge. Gentle- men, if I had felt that the fate of the prisoner could have depended upon my ability duly 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 constitution of his country ; by enlightened, learned, patient and impartial judges ; and above all, under Providence, by that mighty and impregnable rampart which encom- passes and covers every subject of this realm, guarding him in the enjoyment of his rights, his liberty, his property, his character and his life — a jury of his fellow countrymen. Gentlemen, my learned friend the At- torney General in his opening seemed to anticipate that we might deviate from the straight and honourable course before us, in defending the prisoner, into some- thing like an attempt to induce you to depart from the strict letter of the law. So far from, this, it is in the law, in the strict undeviating performance of the law, that I place my hope, my only trust. It is my prayer, therefore, that you should follow it — that you should be guided and governed by it — that you should attend and adhere to the law, and to the law alone, because I feel that by 389 ] Trial of John Frost, 1839 . [390 that law I shall prove to you, clearly and satisfactorily, that the prisoner, whatever may have been his misconduct in other respects, however high the crimes and misdemeanors for which in another form he might have been indicted or punished — I feel that by the law of high treason he is as guiltless as any one of you whose duty I hope it will soon be so to pro- nounce him. Gentlemen, let us take for our guide the law itself. The question hero is, not whether a great and alarming riot has been committed ; the question is not whether blood has been shed, whether crimes, which are, as they ought to be, punishable by law, have been perpetrated by many who may be the subjects of this indictment ; but the question is, whether the prisoner at the bar has, by competent legal proof, been proved, beyond all rea- sonable doubt in the mind of any one of you, to have levied war against Her Ma- jesty with the treasonable intent which is stated in this indictment. The Grown must satisfy you that the prisoner at the bar has levied war ; that must be first shown ; that he has levied war against Her Ma- jesty ; that is, that he has conducted these armed multitudes and committed, if he has committed, outrages with them, and concerted with them or engaged them t© commit them ; and not merely that he has done all these acts, but that he has done them against the Queen — that he has levied war against the Queen and her Government. And then, further, it must be proved to you that that was done with the intent, with the design which is stated in this indictment. These three things, then, must be established, not, I mean, so as to call upon the prisoner to disprove them, but they must be affirmatively, positively and perfectly proved on the part of the Crown, or the prisoner is clearly entitled to your acquittal. That he levied war ; that he levied war against Her Majesty; and that he did so with the intent stated in this indictment, which you will find is by force tc alter the law and to subvert and overturn the constitution of this realm. These are the three points which the Grown must establish. How, gentlemen, it is exceedingly im- portant that you should bear in mind that this law of high treason, more than any other law, is to be watched with jealousy and guarded caution, not merely by judges, but more especially by juries, because it is only to them that the subject can look for protection against the great and other- wise irresistible and overwhelming power of the Crown. I venture to say that, under Providence, it is to juries composed of honest, bold, loyal, uncompromising Eng- lishmen, that we are all at this blessed hour indebted for all the freedom that we enjoy. All that 1 shall ask of you will be to dis- charge your duty — I join with the Crown in saying, to discharge it fearlessly, firmly, and impartially; I ask you only to dis- charge your duty as your predecessors have discharged theirs in former times, so as to confer honour upon your country, and safety and liberty upon your country- men. Gentlemen, my learned friend the At- torney General has very correctly, and, as became his high character and his station, fairly and honourably, declared the law to you upon this subject. Gentlemen, my learned friend fairly and correctly told you, that under the statute of Edward 3. all past, undefined, constructive treasons were put an end to. Gentlemen, in all respects I believe that statute has been strictly observed, except unfortunately in that very part of it upon which the question before you now arises, namely, that part of it which relates to the levying of war. Gentlemen, you will find that Lord Hale, after commenting in terms of high praise upon the statute of Ed- ward 3., after dealing with that part of the statute upon which no question arises now, namely, the compassing and imagin- ing the death of the sovereign, which is not imputed to Mr. Frost, proceeds to con- sider that which you now have under your consideration, namely, the question of tho levying of war. And Lord Hale, with that caution which became an author of his learning and humanity in a matter of this transcendent importance, there distin- guishes, in a way to which I will call your attention, between the mere levying of war, that is, going and attacking Her Majesty’s subjects with armed forces, with discipline, with all, in fact, that forms a military array or army, and the further crime of levying war against Her Majesty ; because he says, (a) in the fourteenth chapter, page 130 : — “ To make a treason within this clause of this statute there must he three things concurring : first, it must be a levying of war ; secondly, it must be a levying of war against the King ; thirdly, it must be a levying of war against the King in his realm.” So that, although war may be levied, although a man go at the head of ten thousand or one hundred thousand men and march across the country, and seize, imprison, or even put to death the Queen’s subjects, that is not high treason. It must go further ; it must be a levying of war against the sovereign. And now, gentlemen, we come to the question, What is a levying of war against (a) 1 Hale, P.C. 130. N 2 391] Tmal of John Frost, 1839. [392 the sovereign P And here I undoubtedly have to lament that almost from the time of the passing of this statute, whereas all other treasons were held strictly to be only treasons when they came within the pre- cise and definite words of the statute ; from causes to which I may, perhaps, briefly advert, cases arose in which from the power of the Crown, from the corrup- tion of judges, from the weakness and the servility sometimes (I grieve to say it) of juries, and from the helpless condition of prisoners, what is called a “constructive levying of war,” crept in and grew up at last so as to become a part of our law. Gentlemen, I lament and deplore it ; but it is not my purpose to struggle with the law as I find it. I believe, that if those learned judges who for the safety and deliverance of the prisoner sit here to-day, had been the judges in the time of Henry 8., when the first case arose in which the statute was, as I say, grossly and mis- chievously perverted, and the doctrine of “ constructive ” levying of war as a “ con- structive ” treason first arose ; if they had been the judges sitting there to try that cause, that doctrine never would have existed. Gentlemen, you will be surprised to hear the construction which has been put upon this statute ; for all of you are capa- ble of understanding the common language of your country ; all of you can under- stand that to levy war against the King of the country is not a riot. It must be a marching of armed bands in military array, and with discipline of regular forces, to make war against Her Majesty and Her Majesty’s forces, as a foreign enemy might do ; as, in fact, in the time of the Rebellion of 1745, or the Rebellion of 171 5, or at any other period of acknow- ledged open civil war, forces then opposed to the Grown have done. That is the ordinary, fair and plain meaning of levy- ing war against the King ; that is the construction which a jury would have put upon it ; and I say it ought always to have been left to juries to say, as a mere bare, simple question of fact, whether the acts proved upon the indictment did amount in their judgment to levying war against the sovereign. But, gentlemen, unhappily, in the reign of Henry 8. a number of misguided people rose up and combined together against a statute which had been passed, regulating the wages of labour ; they thought, I suppose, they were not sufficiently paid, and wished to have that law repealed ; they rose up, I will not say into open rebellion, though it was afterwards found so ; they rose up into open tumult, and committed a riot and a disturbance, in order to compel the con- stituted authorities of the realm, to alter the law, to repeal that statute, to give them, in fact, higher wages ; and that case, gentlemen, which, I believe, if it arose now for the first time, their Lord- ships, and, I am sure, you, would no more call a levying of war than any assault upon a constable that may take place in a moment of heat or anger, was by the judges of those days held to be a levying of war against the sovereign,' and to amount to the crime of high treason, (a) Thus was the foundation laid for this doctrine of constructive and interpretative treason. It shows the danger, gentlemen, a danger which in this case I know you will avoid, of ever stepping one hair’s breadth beyond the strict boundary of the law of reason and of justice. The judges strained, they perverted, they distorted the facts of the case into what no man of common, plain sense, understanding the English language, would ever have called a levying of war against the sovereign. The judges of that day held it to be a levying of war. What then was fact has now become doctrine, and has laid the foundation for the body of law which now exists upon the subject, and so you are guided and must be governed by it as a precedent. I will not, gentlemen, go through the history of the other decisions. I believe in the next reign something else, some meeting to pull down inclosures was held to be a levying of war. In those days the judges were not independent, and they too often gave way, and humbled themselves before the Crown to gratify the Crown, upon whom then they were entirely de- pendent for the high offices which they held ; they yielded to the Crown, and the consequence was, that so often as the Crown required it (and the Crown very often privately consulted the judges before the case was brought publicly before the court), the doctrine of constructive levying of war was extended, and a meeting to break down inclosures was held to be a levying of war against the Crown, and so became high treason. Gentlemen, I have referred to these cases for two purposes ; first, for the pur- pose of urging upon your calm, dispas- sionate attention the grievous danger to life and liberty of overstraining the law or the fact in a case of this mighty and dreadful nature. Gentlemen, having said that, I will now proceed to the second purpose I have in view ; I will call your attention to what is observed by the great and venerable Lord Hale upon those de- cisions, many hundred years after the statute had been passed, and some reigns (a) Co. P.C. 10. 393] Trial of John Frost , 1839. [394 had elapsed since those decisions. He says(a) : — “ The first resolution that I find of this inter- pretative levying of war, is a resolution cited by my Lord Coke (Pleas of the Crown, page 10), in the time of Henry 8. for enhancing servants’ wages ; and the next in time was that of Bur- ton, 39th Elizabeth (Coke’s Pleas of the Crown, page 10), for raising an armed force to pull down inclosures generally.” Those are the two cases to which I have adverted. “ This is now settled by these instances, and some of the like kind hereafter mentioned. The proceeding against Burton and his com- panions was not upon the statute of 25th Ed- ward 3., which required that, in new cases, the Parliament should be first consulted ; but upon the statute of the 13th of Elizabeth, for con- spiring to levy war, which hath not that clause of consulting the Parliament in new cases, and therefore seems to leave a latitude to the judges to make construction greater than that was left by the statute of 25th Edward 3.” How, gentlemen, hear the remark of that judge upon these decisions: — “ 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 in point, nor are expressly within the words of the 25th of Ed- ward 3., though they may seem to have a parity of reason, it is the safest way and most agree- able to the wisdom of the great Act of 25th Edward 3. first to consult the Parliament, and have their declaration, and to be very wary in multiplying constructive and interpretative trea- sons, for we know not where it will end.” That, gentlemen, is not my language ; I would to God I could express myself as emphatically. It is the language of one of the most illustrious men that ever adorned the bench of justice, written nearly two hundred years before the day on which we are now here assembled. He says, as the learned judges sitting here must say, “ Whatever we might have done, if these cases had arisen before us for the first time, we must, as they are settled, acquiesce in them.” But he warns his successors, he warns juries, he warns the country and the people against ever coming to such decisions again, or going one inch beyond the law ; he says, you are “ to be very wary in multiplying constructive and interpretative treasons, for we know not where it will end.” Gentlemen, those words apply emphati- cally to the case before you. If you are to magnify and distort, and exaggerate a riot, however wicked, however dangerous, into high treason, how do you know that any one of yourselves may not in some unhappy moment of excitement, in a moment of heat and intemperance, give utterance to expressions which will excite the passions of the multitude to break out into open violence ; and instead of your being subject to the punishment which you would deserve for a misdemeanour, to fine, to imprisonment, to anything that the law will inflict upon a man guilty of that offence, find yourselves, upon the very precedent which you may have laid down to-day, indicted by the Attorney General for high treason, and your lives and your children’s, and your children’s children’s names, property, character, and welfare placed in danger and in jeopardy ? Gentlemen, beware of establishing that precedent. Remember the language of Lord Hale, “We know not where it will end.” Be not you parties here to carry- ing the law one point beyond the limits where you find it. How, gentlemen, in order to see how, in earlier times, great men have often fared better than the humble and the helpless, not before the trial by jury was known, but before it was that effective shelter and protection which it is at this day for the liberty and the properties of the people, I am going to show you that there may be disturbances, marches of bodies of armed men, much more manifestly and palpably dangerous, aye, and more destructive, than any that is proved before you to-day, which yet, under this very statute of Edward, which you have now to construe, under their Lordships sanction and direction, have been held not to amount to treason — not to be a levying of war against the Sovereign. Gentlemen, I will read to you now what stands recorded upon this very subject, in order to show how serious a riot and disturbance, with a marching in military array there may be, and yet not amount to a levying of war against the Crown — not treason. I am reading from Lord Hale, {a) who gives this account of two very remarkable cases. He says : — “ In the Parliament of the 20th of Edward 1 , now printed in Mr. Ryley, page 77, it appears there arose a private quarrel between the Earls of Gloucester and Hereford, two great Lords’ marches, and hereupon divers of the Earl of Gloucester’s party, with his consent, with armed multitudes and banners displayed, broke into lands of the Earl of Hereford at Brecknock, and there committed great depredations, and killed many, and burnt houses, and committed divers outrages ; and the like was done by the Earl of Hereford and his party upon the Earl of Glouces- ter. They endeavoured to excuse themselves by certain customs between the Lords’ marches. By the judgment of the Lords in Parliament their royal franchises were seized as forfeited (or) 1 Hale, P.C. 132. («) 1 Hale, P.C. 135. S95] during their lives, and they committed to prison till ransomed at the King’s pleasure.” They did not escape punishment, you will observe. No man can commit these outrages with impunity under the law of England. “ Although,” — Lord Sale says, — “ here was really a war levied between these two earls ; yet, inasmuch as it was in a private quarrel between them, it was only a great riot and contempt, and no levying of war against the King ; and so neither at common law nor within the statute of 25th Edward 3, if it had been then made, was it high treason.” Gentlemen, I will show you in this very case, that the riot of which the witnesses have spoken was not so great as that complained of against the Earl of Sere- forcl ; and that, though not arising from a private quarrel, it was at all events for so limited a purpose that it cannot, without an overstraining of the statute, be called a levying of war against the Sovereign, and I know you will not call it so. I know you will find that it was a grievous offence ; but I know you will not be par- ties to overstraining the statute — the pro- tection, the safeguard of the people — by holding, upon the present occasion, that this was a levying of war against the Sovereign. Gentlemen, there is another case men- tioned, and perhaps a more important one(a) : — “ It appears by Walsingham, in the year 1403, a great rebellion was raised against Henry 4. by Henry Percy, son of the Earl of Northum- berland, and others. The earl gathered a great force, and actually took part with neither, but marched with his force, as some thought, to- wards his son, and, as others thought, towards the King pro redintegrando pads negotio ; he was hindered in his march by the Earl of West- moreland, and returned to his house at Werk- worth ; the Kincr had the victory. The earl petitioned the King ; the whole fact was exa- mined in Parliament ; the King demanded the opinions of the judges and his council touching it ; the Lords protest the judgment belongs in this case to them.” Gentlemen, if there were at this day, as there would be with such judges as we have now the happiness to live under, as there would have been but for those deci- sions in the time of Senry 8. and Eliza- beth , an equal law for any helpless prisoner at the bar, and a mode of administering the law as favourable to the prisoner as that which existed for this nobleman in the time of Senry 4.. I say, gentlemen, that no deci- sion of the kind I have referred to ever would have arisen, and there would have been no levying of war held to have taken [396 place unless there had really been an at-* tempt directly to dethrone or to put to death the Sovereign of the realm. And, more- over, it would have been left as matter of fact to juries, and not have been treated as matter of law by the judges ; for here the Lords of Parliament, who were the peers of the Earl of Northumberland, insisted that it should not be left to the judges to be dealt with as matter of law ; they in- sisted upon their constitutional right, and the right of the Earl of Northumberland to be tried by his peers, and, as a matter of fact, they decided it without receiving the law upon the subject from the judges : — “The Lords, by the King’s command, take the business into examination, and upon the view of the statute of 25 Edward 3. and the Statute of Liveries, adjudged that what was done by the earl is not treason nor felony, but only a trespass, for which the said earl ought to make fine and ransom at the will of the King ; but Henry the son was attaint of treason.” Lord Sale observes : — “ It apears not what the reason of that judg- ment was, whether they thought it only a com- passiDg to levy war, and no war actually levied by him, because not actually joined with his son ; or whether they thought his intention was only to come to the King to mediate peace and not to levy a war nor to do him any bodily harm ; that it was indeed an offence in him to raise an army without the King’s commission.” And I pray your attention to that ex- pression, because I find in the opening of my learned friend the Attorney General, in the only part of his opening in which he professes to give a direct object to this tumultuous assembly, he talks about super- seding the authority of the Crown ; a very vague and indefinite phrase ; but here you find that when an earl, in the days of the Senry s and the Edwards, did actually supersede the authority of the Crown by levying and raising a large, numerous, and powerful army, and marching it through the northern counties and across the coun- try; even that was held not to be high treason ; that was held merely a great mis- demeanor and a great offence, for which the earl, deeming himself mercifully dealt by, paid a very large fine by way of ran- som. Foreman of the Jury : But it appears that upon that occasion the father was not present, only the son. Kelly : I am aware that the father was not present at the battle of Shrewsbury. The son certainly was a rebel; the son who has been called the gallant Sotspur, arrayed and placed himself in arms, and opposed one of the most gallant of our monarchs, Senry 5., who was then Prince of Wales. But, gentlemen, what I have been reading to you relates not to the son, but to the father. What was said to be Trial of John Frost, 1839. (a) 1 Hale P.C. 135. 397] Trial of John Frost, 1839. [398 treason in the father was this : the father raised, in his own county of Northumber- land, a large and numerous army, and he marched at the head of that army across the northern counties, as everybody thought, to assist his son. The offence, however, though it was undoubtedly a levying of war, was not high treason, although no doubt, if he had joined the son and actually attacked the Prince of Wales in person at the head of the royal forces, that would have been high treason. I only referred to this, gentlemen, for the purpose of showing you that the mere levying of war, unless it be directly against the Sovereign, or against the royal autho- rity, does not amount to treason. If the gentleman who was kind enough to address that question to me supposed at the mo- ment that it was only the son who was at the head of this army, and not the father, the matter has been misunderstood. The father placed himself at the head of the army ; the father marched across the north of England, towards Shrewsbury, and was there met by the Earl of Westmoreland ; he was there present at the head of those bodies of armed men ; but the lenient con- struction was put upon this act which ought to be put, and must be put, upon every act upon which a doubt can arise where the charge is so great as that of high treason. At the battle of Shrewsbury no doubt the son, Hotspur, was present, and he fell, gallantly fighting against the Prince of Wales. The father happened, fortunately for him, to be stopped by the Earl of Westmoreland before he arrived at Shrewsbury. Although, therefore, he clearly did that which was a levying of war, that is marching across the country at the head of ten thousand armed men in battle array, still it was not treason. And why was not it treason ? It was because the Lords of Parliament, who were the jury to try the Earl of Northumberland , thought that perhaps he did not intend to attack the King’s forces Attorney General : Possibly to assist them. Kelly: Possibly, as my learned friend says, to assist them. Gentlemen, I can only say that, if there be a doubt in this case, and you deal as mercifully with the prisoner at the bar as the Lords of Parlia- ment dealt with their peer, the Earl of Northumberland, he will go free from that bar in perfect safety. For what was the case there ? Here was Hotspur, with an insufficient force, pressed and hemmed in by the most gallant warrior of the day, in danger of his life, which he shortly after- wards lost, falling in the field; his own father marches towards the spot, at the head of ten or twelve thousand armed men. The question of fact for the peers, who wero his jury, was, Did he march to assist the King, or did he march to assist his own son P Why, gentlemen, who can doubt that he marched to assist his own son — to save his son’s life P But being stopped and delayed by the Earl of Westmoreland, he arrived too late — his gallant son had fallen ; and when that question, which was a question of fact, like that which you have to try, when that question came before the peers of the Earl of Northumberland, they acquitted him of the treason ; although I should have supposed no man could doubt that when an earl marches at the head of ten or twelve thousand men, with- out lawful authority, towards his son, who was in rebellion, that he goes to assist his son, and not to support the Sovereign, who had already sufficient to support him. Gentlemen, this proves to you that where a doubt exists as to whether treason has been committed, whether it be a peer or a peasant, whether the jury who are to de- cide the question be the House of Lords or twelve gentlemen assembled like you in the jury box, they are bound to put the most lenient construction upon the case ; and if they can raise a doubt as to the in- tent of the party, they are to give to the accused the benefit of that doubt and to acquit him. Gentlemen, there is a still later case, in comparatively modern times, the case of Lord George Gordon.(a) Now here was a young nobleman of great talent, of great influence, and I believe of no small powers of eloquence, who had assem- bled no less than twenty thousand men in order to petition Parliament, and to make a strong demonstration of force and numbers to support the petition against an Act which had some little time before been passed for the relief of Roman Catho- lics, which was called Sir George Savile’s Act. In that case twenty thousand men marched from St. George’s Fields to the House of Commons; not, mind, as at Newport, at a distance from the seat of Government, but marched actually to the House of Commons, at the time when cer- tain resolutions with a view to the repeal of Sir George Savile’s Act were actually debating in that assembly. These twenty thousand men, convened, prompted, di- rected and encouraged by Lord George Gordon, appeared at the House of Commons to present that petition, and almost filled the lobby ; so that actually when the House was about to divide, they could not, from the arrangements then made, do so, in consequence of the lobby being filled by those petitioners. Gentlemen, the ques- tion arose there whether high treason had been committed by Lord George Gordon. (a) 21 St. Tr. 485. 399 ] Trial of John Frost, 1839 . [400 That multitude, having first proceeded to the House of Commons, and there at- tempted to intimidate and overawe the Legislature while actually discussing an important public measure, afterwards de- parted, and increased in their numbers, and committed such dreadful and flagrant outrages, that for some two or three days half London was in their hands. They burnt down the house with all that it con- tained, of the then learned and excellent Lord Chief Justice oi* the King’s Bench, (a) and I believe at one moment of time there were no less than thirty fires raging in the metropolis ; and all this with the direct, decided, and avowed object of changing the law— of causing the repeal of an Act for the relief of Roman Catholics. Gentlemen, Lord George Gordon was indicted for high treason. It was then clearly laid down by the Lord Chief Justice, and there can be no doubt that, as the law now stands, it was correctly laid down, that the acts done by that assembly did amount to a levying of war. That was so laid down. Therefore, gentlemen, there was — and it was admitted and conceded by the counsel for the prisoner — a levying of war. The question then arose, whether the object and intent in the mind of Lord George Gordon, the prisoner at the bar, was of a treasonable nature ; and evi- dence was brought with a view to satisfy the jury that he became a party to the proceedings of that assembly with a trea- sonable intent. Did he intend to com- pel by force the Legislature to alter the law ? Did he intend to subvert the constitution? That was the question of fact ; and there, though there was evidence against him incomparably stronger than any that has here appeared against the prisoner at the bar, yet, after an impartial trial before learned and enlightened judges, and before a bold and honest jury of Englishmen, Lord George Gordon was acquitted of the charge of high treason. It was held, no doubt, to be a grievous misdemeanour. Many persons were pun- ished in other ways who had been parties to that proceeding. Lord George Gordon himself, if he had been indicted for a riot and a tumult, would no doubt have suffered the punishment which he merited ; but as they had thought proper to indict him for high treason, though there was unques- tionably a levying of war, the question remained, whether that levying of war was with intent either to depose the King, or to overturn the Government, or by force to alter the law ; and there, in spite of all the outrages committed, Lord George Gordon was acquitted. Gentlemen, I will only now trouble you with a reference to what my Lord Mans- field said upon this very occasion to which I have adverted, because that case ex- tremely resembles in. many of its painful features the case which you have now to consider. In both these cases there had been multitudes of persons assembled to- gether ; in both cases there had been great outrages. I have described them in the case of Lord George Gordon — you but too well know them in the case which is now before you. Gentlemen, when the whole case had been gone through — when Lord Mansfield had laid down the law, in much the same way as I ventured humbly to state it to you under the correction of their Lord- ships, he proceeds in this way, in charging the jury who had to decide upon Lord George Gordon’s guilt or innocence — upon his life or death : — “ Having premised these several propositions and principles, the subject-matter for your con- sideration naturally resolves itself into two points. First: Whether this multitude did as- semble and commit acts of violence, 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 nega- tive, that makes an end of the whole, and 4 the prisoner ought to he acquitted. But, if your opinion should he that the intent of this multi- tude, and the violence they committed, was to force a repeal, there arises a second point, whether the prisoner at the bar incited, en- couraged, promoted or assisted in raising this insurrection, and the terror they carried with them, with the intent of forcing a repeal of this law.” (a) Gentlemen, I beseech your attention to this. You will see that there no doubt at all existed upon the fact that there had been a riot and an outrage, amounting, as the judges held, in point of law, to a levying of war ; it was so held by Lord Mansfield, and no doubt could exist upon the subject. But the two questions that Lord Mansfield left to the jury turned entirely upon the intent in the minds of the parties to the riots ; that is, first, whether the multitude acted with intent to terrify and compel the Legislature to repeal the Act; and then, if they did, whether the prisoner at the bar incited and encouraged them with the same intent. His Lordship referred at length to the whole of the evidence ; he then repeated this : — “ The points for you to determine are, whether this multitude were assembled and acted with an intent to force a repeal of this, called Sir George Savile’s Act ; and if you think such w r as (a) 21 St. Tr. 647. (a) Lord Mansfield. 401] Trial of John Frost, 183$. [402 the intent, whether the prisoner had the same intent, by the terror of an outrageous multitude, and the violences they committed and threatened, to force a repeal of this Act. If you think there was such an intent in the multitude, in- cited, promoted and encouraged by the prisoner, then you ought to find him guilty.” So that he again leaves two questions ; the one as to the intent of the multitude, the other as to the intent of the prisoner at the bar. And his Lordship adds that which the learned judges here will add to whatever direction they shall give to you, “ if the scale should hang doubtful,” — when you are considering what was the design and intent in the mind of the pri- soner at the bar — “ if the scale should hang doubtful, and you are not fully satisfied that he is guilty, you ought to lean on the favourable side, and acquit him.” That was the charge of my Lord Mans- field ; and, gentlemen, although in that case there had been tumults and outrages, and the multitude, twenty thousand in number, had been incited and encouraged to come together to the very doors of the Legislature, to overawe them in their deliberations, and, although you will find, if the case be referred to, that Lord George Gordon was so closely connected with them, that during the subsequent riots and out- rages which took place, he, like Mr. Frost, gave a protection to somebody who claimed that protection at his hands, showing the influence he had with the multitude, still Lord George Gordon was found by the jury, though he had done wrong, not to have the treasonable intent with which he was charged, and he was accordingly acquitted. It appeared, gentlemen, in evidence in that case, that, during the riots, a person named Fond , who heard that his house was to be next pulled down (they were pulling down and burning house after house throughout the metropolis), applied to the prisoner for a protection, which he presented to him in the following words, and which was signed by the prisoner : — “ All true friends to Protestants I hope will be particular, and do no injury to the property of any true Protestant, as 1 am well assured the proprietor of this house is a staunch and worthy friend to the cause. — G. Gordon.” He gave that protection to the man, declaring that he believed him to be a friend to the cause, in order that he might thus exercise his influence and power over the multitude who were committing those outrages, and under that protection the property, perhaps the life of the man, was saved, and yet the jury who tried Lord George Gordon, in a case where no doubt as to the facts could present itself to their minds, though he might have been guilty of riot, though he might have been guilty of sedition, though he might have been guilty of the most unpardonable and crimi- nal acts, were not satisfied, notwithstand- ing all this evidence, that he intended to subvert the Government, or injure the Sovereign, and they acquitted him of high treason. [Counsel referred to the form of the indictment, and continued :] Gentlemen, what was the intent of Mr. Frost, as disclosed by the evidence ? That my learned friend, in the statement that he has made, has intended to give you a fair account of what would be the result of the evidence, I do not at all doubt. But let me see in what manner it is that he who had previously considered the evidence looks at the case. I observe that after very elabo- rately referring to the law, and after also adverting slightly to the bearing of the law upon some of the facts, he says (and this is the first indication of any purpose which is stated in the opening), “ It will appear that there was an armed insurrec- tion of a public nature raised and made within the realm for the intention of superseding and destroying the authority of the Crown.” How, I must say, gen- tlemen, that I looked for something more explicit from my learned friend. I know of no statute which makes it high treason to “ supersede and destroy the authority of the Crown.” I know what is meant by superseding and destroying the authority of the Crown. Why, if you lay hands upon a single constable, and stop him for a mo- ment in the execution of his duty ; if you usurp the power of the Crown for a single moment by almost an innocent act, you su- persede and destroy for the time the power of the Crown . What did my learned friend mean by this ? I will only observe, gentle- men, that as that is the statement made by the Attorney General, I have felt bound to notice it. But it seems to me to leave the case just where the law was before, and that as it was absolutely necessary that the Crown should satisfy you of some specific intent in the parties, my learned friend need not have resorted to this very vague and indefinite mode of statement. Gentlemen, fortunately we find, some- what further on, what the real intent is. And I am now to entreat your attention to what it is that the Attorney General has brought before you as the case which is to affect the life of the prisoner ; I hope that I have satisfied you, and I am sure that my Lords will tell you, that the Crown has no right whatever to prove the commission of a number of illegal acts from which one purpose, or another pur- pose, or a third purpose, may possibly be inferrible, and then leave it to the counsel 403 ] Trial of John Frost , 1839 . [404 for the prisoner to show that some lawful purpose, or some purpose short of trea- son, was contemplated by the prisoner when he did those acts. The law is not that they are to prove the commission of a riot, the levying of war, the overpower- ing of the army, if you please, and then say to the prisoner’s counsel, “ Now, then, show that that is not treason, if you can.” They have no right to do that. They are bound by the law — ay, and they are bound by something stronger than the law — they are bound by moral duty and humanity, to state clearly and explicitly in the open- ing, what is the purpose which they pro- pose to prove — wbat is the treasonable purpose which they say the prisoner had in view when he did the illegal acts which are proved. This is the statement of the Attorney General — that arriving at Newport, they were to attack the troops, to break down the bridge which crosses the TJsk, to stop the mail, and the stopping of the mail was to be a signal, by its non-arrival for an hour and a half after its usual time at Birmingham, for a rising in that town, and a general rising throughout the north of England, and the law of the Charter was to be proclaimed at once throughout the land. That, gentlemen, is the trea- sonable purpose imputed to the prisoner ; and now, do not misunderstand me; I only pray to God I may not prejudice the prisoner by what I am going to say : I freely admit to you that if Mr. Frost did intend and design to attack the soldiery at Newport, to make himself master of the town, to stop the mails, to seize the post office, and make thereby a signal to other persons with whom he was in con- federacy at Birmingham, and that upon that signal being made they were to rise into rebellion in order that they might thereby proclaim the charter to be the law of the land — gentlemen, I admit that that was high treason, and he must go to an untimely grave for the offence which he has committed. But, as I ventured to say to you when I began the address I am now making, I will undertake to go step by step, sentence by sentence, word by word, through this statement, and show to you, upon the evidence, convincingly and clearly, beyond an approach to the shadow of a doubt, that it is impossible he ever could have designed either the one or the other. Upon some parts there is an entire failure of evidence, and the At- torney General might as well ask you to step forward and thrust a knife into the prisoner’s heart, and put him to death, as to find him guilty upon such evidence, or want of evidence, as now appears ; but as to the rest, I will show you that, if it were worthy of credit, which it is not, it is evidence of that which is absolutely impossible. Gentlemen, let us go by steps. [All these acts are said to have been done to make the Charter the law of the land.] Having paid an earnest and anxious attention to the whole of this evidence, I do believe that there is not one particle of evidence at all bearing, tending, or pointing to- wards this essential, indispensable portion of the opening of the Attorney General; not one particle of evidence pointing, in the remotest degree, to an intention to declare the Charter as the law of the land. My learned friends will be kind enough to correct me if I am wrong. I do not believe that throughout the whole of the evidence the word “Charter” was once introduced or mentioned ; and yet these men are being tried for high treason, to be sent to a bloody grave, because they have conspired to make the Charter the law of the land ! Out of the thirty-nine ^witnesses whom they have called, out of seventy whom they ought to have called, there is not one that has even pronounced this word “ Charter ” ; and yet this is said to be a treasonable conspiracy to make the Charter the law of the land ! Gentlemen, it is not thus that the pre- decessors of my learned friend have dealt with prisoners upon a trial for their lives on charges of high treason. The counsel for the prisoner, who successfully defended Lord George Gordon, knew what he had to deal with. He knew that he had to deal with a charge of treasonably conspiring and levying war, in order to compel one branch of the Legislature to repeal Sir George Savile’s Act, in favour of Roman Catho- lics ; he knew that that was the distinct, tangible charge he had to grapple with and to overcome. Again, if we refer to the cases of Hardy(a) and of Horne Toohe,(b ) we shall find that the charge was plain. The prisoners, one after the other, as the trials took place, were charged with a design to subvert the constitution and laws of the country, by setting aside the Parliament and establish- ing a convention. That was shortly after the French Revolution, when, among the numerous forms of government to which that unfortunate people then resorted, was a convention of the people ; and the pri- soners were charged with having, in imi- tation of their French brethren, designed to overturn the law and Government of England, and to establish in its place a convention similar to that which existed in France. That, again, was a plain and intelligible charge, and one which the prisoners- and their counsel could meet (а) 24 St. Tr. 400. (б) 25 St. Tr. 1. 405] Trial of John. Frost, 1839. [406 and deal with ; and the ovidencc produced for the prisoners, as well as the cross-ex- amination of the witnesses called on the part of the Crown, was all directed to show that the party had no such object as to establish a convention ; of their at- tempt to establish which there was, how- ever, so very forcible and cogent evidence. When we come to Watson's case, (a) we find that design was also to subvert the constitution of the country. He was charged with a design and intent to seduce the soldiery, and to establish a provisional government. Again, in Thistlewood's cas e,(&) the latest that I remember, when Thistlewood and his confederates were in- dicted for high treason, they were charged with a substantive act of treason, namely, with an attempt to murder the whole of the Cabinet Ministers on a particular day, when they were to be assembled at the Earl of Harrowby’s , in Grosvenor Square, at a Cabinet dinner ; after which they were to possess themselves of the barracks, set fire to London, and to establish them- selves as a provisional government at the Mansion House. Gentlemen, there proof was given, and proof which convinced the jury, even at the expense of the lives of the prisoners, that they did design to murder in cold blood the whole of the Cabinet Ministers ; that they did design to overturn the established Government of the country, and to erect in its place a provisional government of their own, which was to be established at the Man- sion House. Gentlemen, in all those cases, the effect, the object, the nature of the alteration of the law which was to be obtained by the illegal measures of the parties accused was fairly stated in the opening speech for the Crown ; and it was such, that the prisoner’s counsel had the means of deal- ing with it in evidence. But here, in a case in which the question of treason or no treason depends, not upon whether there was an armed and mischievous mul- titude, which I have admitted over and over again there was, but upon whether the prisoner at the bar and others de- signed to overturn the Government of the country, and to establish some other sys- tem in place of it, and where the Attorney General has opened what would no doubt amount to the crime of high treason, if it were proved, that the object was to over- turn the Government of the country, and to proclaim the Charter as the law of the land throughout the country, you have not one particle, one iota, one letter of proof from the beginning to the end of the cause, tending to, pointing at, or bear- ing upon, that subject. Well, then, gentlemen, if I thus get rid of the ultimate object, I have now only to deal with the means ; and I trust I shall show you that, though there is not the same failure of evidence with regard to the means, there is in this case a total failure of evidence to substantiate any one of the purposes which are said to have been entertained with a view to this ulti- mate object ; and that the evidence, as far as it goes, tends to show that those purposes were never entertained, and that it was impossible they ever could have been entertained. [No attempt was made to attack the military. The multitude carefully avoided the poor-house where the troops were sta- stationed. The intention to attack the military rests on the evidence of Harford and Harris. Harford only offered himself as a witness when he was himself in prison and in danger, and when he was told that he could regain his liberty by giving evidence against Mr. Frost. Harford's statement about attacking the soldiers is contradicted by another Crown witness, Hodge, whom the Solicitor General cannot refuse to be- lieve. Hodge says that on that very even- ing a man came into the room with a glazed hat, who said “he had just come from Newport, and that the soldiers were all Chartists.”] It may, perhaps, occur to some of your- selves that this was a false tale, and that it was used in order to delude those people. Why, then, that is open to this observation. If somebody came up and de- ceived the people with the idea that the military were going to join them then they at least did not go with the intention to attack the military. As far, therefore, as the attack upon the military is to be evi- dence of high treason, the multitude were not guilty of high treason. [Harris is sup- posed to have heard said, somewhere in the march to Newport, that they were enough to eat Newport. Harris is admittedly a per- jured witness. Before the magistrates he swore that he could not hear what Davies said, and he now comes and tells you that is false. He has also admitted that at one examination he was so drunk that he did not remember afterwards what he had sworn.] Gentlemen, I put, then, this to you: supposing you were trying the prisoner for his life, not upon the evidence that man gave here, but upon the evidence he gave before, upon an equally solemn oath, and you believed his evidence and convicted the prisoner, and sent him to an untimely grave, and you were afterwards to hear that the wretch had deluded and deceived you, and that upon his false tes- («) 32 St. Tr, 1. (6) 33 St. Tr. 481. 407] Trial of John Frost, 1839. [408 timony you had sent a man to the tomb ; what, I ask, would be the feelings of agony and remorse which you would endure? And this man, it appears, is one of the chosen, for there are seventy upon the hack of the bill; there are two hundred and thirty upon the list delivered to U3, out of those they select thirty-eight or thirty-nine ; and this monster, perjured as he is, is one whom they select in order to sacrifice the unfortunate man at the bar 1 [No attack on the military was intended, nor was any made in fact. Counsel again reviewed the evidence on this point. The mob could not have known that the military were in the “ Westgate” when they went up to it. Not a single shot was fired after the soldiers were unmasked. Sir Thomas Phillips and Sergeant Daily were wounded in the very act of opening the windows. If a single gun had been fired afterwards it must have taken effect. As to the evi- dence of the boys Pees and Coles, it is quite impossible that Frost could have asked them where the soldiers were, or that they should have been able to answer him. Mr. Frost's character and conduct, and the fact that he left his wife and chil- dren unprotected in the town, all prove that he cannot have meditated the scene of anarchy and mischief with which he is now charged.] Gentlemen, let me refer you to two or three other acts which the Attorney General opened, and which are alluded to in the indictment. It is said that five or ten thousand men went down to Newport ; that one object was to blow up the bridge. Why did they not do so ? They had powder, they had arms, at least such is the evidence, if you are to believe it. They had the means ; but there is not the least attempt made to do anything of the kind. Why did they not do it ? I do not exactly see what object was to be gained by blowing up the bridge ; for if that would stop the communication with other parts of the country by the mails, it would equally stop the communication with their friends if tney had any general design in view. But if that was one of their purposes, why did they not do it ? They came into the town of Newport with the means of doing it. My learned friend, perhaps, will an- swer that question. [Having referred to the alleged design to stop the mail as a signal to the Char- tists in Birmingham, counsel proceeded :] I have gone through this part of the case, because it is now the last shred, the last remnant, of the case for the Crown. They set out with telling you that this mob intended to establish Charter law throughout the land. I have already said that there is not to be found in the evi- dence of any one of the witnesses, given in either of the three long days, the word “ Charter ” introduced. So much for that purpose. They say next, they were to blow up the bridge. They never attempted it. They say. they were to attack the military. They passed by the station of the military, and never attempted to at- tack them, oi* insult them ; they went to the place where the military were, and the moment the military appeared, they received their fire, and dispersed. They were to seize the post office. They did not do so ; they never attempted it, and they could easily have done it, for a woman keeps it. And now, upon this last part of the evidence, they call upon you to sacrifice the life of a fellow creature, to send him to an untimely grave, because the signal was to be the non-arrival of the mail. There is no such mail ; and there could be no question whether the mail was to arrive, or not to arrive. The mail would have gone, whether Newport existed, or had been burnt to ashes. Gentlemen, what is there then in the case ? If you are to believe the witnesses, all these were idle declarations, which the parties never sought or attempted to carry into effect, and for this simple and plain reason, because it would have been im- possible to do so. If they had stopped the mail, if they had blown up the bridge, if they had seized the post office, if they had massacred the whole regiment of sol- diers, the Bristol mail would still have gone to Birmingham ; and if there had been Chartists on the look-out there, they would have seen it arrive at the usual time. That could have been no signal for any rising, and all these nefarious acts, which existed only iii the statement of my learned friend, even if they had been per- petrated, would have failed in proving any approach to a case of high treason, because there would have been no treasonable ob- ject proved, which those acts were in- tended to carry into effect. But, gentlemen, I do not entirely stop there, even on this point. You have at- tended to the evidence ; you, therefore, are now aware that this important part of the case all rests upon the evidence of those two witnesses, Harford and Hodge. There are some few casual expressions from some other witnesses, but the main, lengthened, detailed statement or expo- sition of the supposed plan rests upon the testimony of Harford and Hodge. Upon Harford I have already observed ; I will pass by him. [Counsel referred at length to the discre- pancy between Hodge's statement, that he spoke to Frost at Pye Corner and then hurried home, with the evidence of Watts , who saw Hodge at the “ Welch Oak ” only two and a half miles from Pye Corner, at.- 409 ] Trial of John Frost, 1830. [410 half-past eight, and of Bvougli and Wat- kins, who stated that they were parleying with Frost about their liberation at the “ Welch Oak ” at daybreak, and for some little time after.] Under these circumstances, I say they have not proved to you that which the law requires, that this levying a war (if it was a levying of war) was with intent to sub- vert the Government; because they have not proved any one of those acts to be done which they have brought forward, and seek to use as evidence that any such intent existed. It may be expected, before I sit down, that I should say something to you of what the real intent in the mind of Mr. Frost was. Gentlemen, I, once for all, enter my solemn protest, while pleading for the life of a fellow-creature, against such a task being imposed upon me. I say that the Crown are bound by sure, by certain evidence, by evidence that can ad- mit of no rational doubt in the mind of the most doubtful, to prove that intent them- selves, and that they cannot call upon me to explain or disprove it. But I do think there are materials in this case upon which I am bound to address a few words to you. Gentlemen, you find that great interest, very great excitement existed in consequence of the fate of Vincent; they talked of petitioning the Queen to liberate him, or to mitigate his punishment. You find that it is now proved that Mr. Frost himself, taking a stong interest in this man’s fate, wrote to several magistrates, so lately as the month of October, endea- vouring to procure some little ameliora- tion of his condition. You find that all these efforts failed ; nothing was done, nothing seemed likely to be done. Those men were likely to suffer the full term of their imprisonment ; the complaints of their friends and former companions were treated, if not with contempt, at least, with utter disregard. Gentlemen, it is perfectly clear that many of those unfortunate, misguided men had meditated an attempt to rescue Vincent from gaol, and many of them, perhaps a large number of them, would at any time have been ready to march down to Monmouth, or to the magistrates in any other part of the county, in order to compel, by force, the liberation of their friend and companion, and one who had been deemed — God help us ! I fear very erroneously — but whom they had been taught to think their adviser, their coun- sellor, and their instructor. I am here speaking again upon the evidence for the prosecution. I think it is the evidence of Saunders. He says, on this very night of the 3rd of November, or even, I believe, on the Monday morning, while they were in full march to Newport, he had his house full and his barn full of people, and he had been told by those people that they were going forward in order to liberate Vincent from gaol. It is quite clear, not only that some such design had been in agitation, but that it actually was believed by many, that those men were marching only to the rescue of Vincent. But, gentlemen, what was the answer of Zephaniah Wil- liams, when the witness Saunders said to him, “ Why, a great number of the men who had been taking refuge in my house from the wet, tell me you are marching upon Monmouth, and are going to liberate Vincent. Is that so ? ” What did he answer ? “No, we do not attempt that ; we are going to give a turn as far as Newport.” Does he answer, “Oh, no, our purpose goes far beyond that ; we are not thinking of poor Vincent now ; we are going to make ourselves masters of the town of Newport. We are going to stop the mail, and give a signal in the north, and throw the whole country into rebellion, and make the Charter the law of the land.” If he had answered that, gentlemen, and it had been proved by credible witnesses, the case might have gone hard with him. But what is his answer, as proved by the witness for the Crown ? His answer is, “We do not go so far as that. We are not going to attack Newport. We are not going to make a forcible attempt to rescue Vincent, but merely to take a turn to Newport to show ourselves ; that is all we are going to do.” And, gentlemen, in the face of that, can the Law Officers of the Crown ask you to believe this to be treason P But you find that is confirmed by other witnesses with respect to Frost. He does not say, “ Fire upon the inn ” ; he does not say, “ Fire upon the people ” ; he does not say,“ Blow up the bridge,” or, “ Seize the post office,” or “Attack the military”; “ confront and assail the soldiers ” ; he says nothing of the kind ; and when he goes up, with five thousand men at his back, to the “ Westgate” Inn, he says no more than this — I believe it is the only expression proved against him — “ Go, my men, turn round, and show your appear- ance in front.” Why, gentlemen, what is this ? It shows that there was an agita- tion ; that there was an excitement ; that there was a feeling of grievance or ill- usage on the part of these men. They were ready, no doubt, to embark in any enterprise for the rescue of their friends in prison, Vincent and the others. Some of them went forward with that intention ; but I call upon you as Englishmen, as fathers of families, as those who, like your predecessors, are to be the eternal safe- 411] Trial of John Frost, 1839. [412 guards of the liberties of our country, to put a more mild and lenient construction on their conduct, and to believe that they acted in this manner for the sake of making a demonstration of their force, in order to ensure a favourable reception of the application which they were about to make to rescue Vincent and their other friends. Are these things uncommon? Gentle- men, I shall not follow my learned friend, Sir Frederick Pollock, in referring to the history of the times ; but surely we all who have our eyes open, and who look at the passing events of the day, cannot but recollect in this kingdom, to say nothing of Ireland, that demonstrations have been made, not for particular objects, but for public and general objects. When one hundred thousand men were assembled at Birmingham, ready to march from Bir- mingham to London, in order by demon- stration of physical force to overawe the House of Lords, and compel them to pass the Beform Bill, I ask whether the minis- ters who have sent my learned friends here, indicted any of the one hundred thou- sand^) P Ho ; they felt that in times of excitement, under real or supposed grie- vances, agitation would prevail, and was best met by lenity and mildness. If there be a breach of law, if there be an injury to property, if there be still more, an at- tempt to take away life, punish it ; but punish it as it deserves ; do not inflict upon it the punishment due only to the crime of high treason ; do not make men traitors against their will, but foster and cherish their loyalty while it yet remains in their breasts. Hobody ever dreamed when that meeting assembled ready to march to London that they were guilty of treason. Ho ; and when a large body of men went at another time from “ White Conduit House” down to the House of Commons, if they had met in their path with resistance, if any person had at- tempted to turn them aside, or something else had raised their blood, and put them in a state of excitement, misery, mischief and bloodshed might have happened, for which they would justly have been pun- ished; but still it would be no treason. As here, if this was meant as a demon- stration of force, however dangerous, however criminal according to the law of the land, however it makes the parties responsible for all the consequences that occurred, you cannot fasten upon them the high and more aggravated crime of treason, unless you are satisfied that they did intend by this means to subvert the Government and Constitution ; and I have, I trust, shown you, that there is no evi- dence of, and no pretence for, that. Gentlemen, let us see what did actually lead to the unhappy outbreak and cala- mity which has led to this serious charge. The Crown say that when the multitude went to the door of the “ Westgate ” Inn, their cry was, ‘ ‘ Surrender yourselves our prisoners.” That is their case. I say they never made any such demand ; they never had any such purpose ; they sought to liberate their own friends and fellows ; and that which they demanded, and all that they demanded, was, “ Surrender, or give us up our prisoners.” That is my case. You shall judge between us. [On the part of the Crown Oliver is the only witness who deposes to the expression, “Surrender yourselves our prisoners.”] Why, then, gentlemen, if that evidence stood alone, I ask you whether there is any one among you could sleep in your beds at night, if you were to put a man to death upon the evidence of a single witness, trusting to his accuracy in speaking to a single word, who admits that he heard these words imperfectly, and that they were used in a scene of great confusion, danger, agitation, and alarm? Gentle- men, I feel that it would be really sup- posing that I was not addressing a British mry in a case of life and death, if I were to imagine you would doubt about it. Let me call your attention to the witnesses on the other side. We have called three or four ; we have called Wilton, Frost, Gould, Patten, and finally, to-day, Wil- liams, who all proved this, that the multi- tude as they were coming round to the “ Westgate ” Inn, and even a little before, declared that they were going to demand the release of their prisoners ; and two or three of them actually prove that they heard the foremost of the mob go forward and say, “Give us up our prisoners,” We have proved that by five different witnesses. \Williams, the witness for the Crown, whose name is in the list delivered to us under the Act, says the demand was, “ Give us up our prisoners.”] Williams must have been examined by some of those creatures who are getting up the evidence to shed the blood of their fellow-men ; and that witness’s evidence has been kept back from you, because, peradventure, it was discovered by somebody that if he was examined he could prove that the real de- mand was the release of the prisoners, and that would have gone far to disprove the charge of high treason. But, gentlemen, when I come back to the great question, Did the prisoner at the bar even for one moment contemplate the seizure of the town of Hewport, the break- ing out into open rebellion, a military con- flict or a bloody massacre on that 4th day (a) See above, p. 321(a). 413 ] Trial of John Frost, 1839 . [414 of November P I ask every one of you who has a human heart within his bosom, every father, every son, every brother among you, can it be credible or possible that he would have done so, leaving his helpless wife unprotected, exposed to all the fury, to all the danger, to all the bloodshed which would have surrounded them — his wife, his fi ve helpless daughters — I believe both his sons — and that without a word of warning to them, without a single line or syllable to say, “ Put yourselves for a time in some place of safety ” P Gentlemen, it is impossible ; he must be not only a traitor, he must be a monster in human form if he could do so. It may have occurred to some of you that there are some points of this case still involved in mystery, and mystery which might have been explained away by witnesses whom you might suppose it was in the power of the prisoner to call. Gentlemen, it is due to him to make one observation upon that point. If the Crown had indicted him for a high and aggravated misdemeanor, if they had treated this lamentable outbreak as an atrocious and criminal riot, highly punish- able, but not affecting the lives of those people who had been parties to it, he would have been able to bring forward, with a safe and easy conscience, his wit- nesses to prove his innocence, or even to explain or mitigate his guilt. But when the Crown have determined to proceed upon this charge of high treason, which involves the life and the dreadful death of everyone directly or indirectly engaged in it, Mr. Frost is in this situation : he can- not bring forward one witness to his con- duct upon any part of that unhappy day without making that witness himself liable to prosecution, possibly to conviction, without placing his life in imminent and dreadful danger. Mr. Frost, therefore, be it for good or for evil, is determined that if he is to die he will at least die alone ; that he will drag down no one after him. He has not called — we have not been per- mitted to call — a single witness engaged in any part of those proceedings, because the prisoner at the bar will not attempt to save his own life by even endangering that of any one of the unhappy men with whom it was his fate to be connected upon that unfortunate day. Gentlemen, in common charity, then, make some allowances if parts of the case are involved in mystery unexplained, where you may think wit- nesses and evidence might have explained it. I have no more to say, gentlemen ; the prisoner at the bar, who stands, I hope, not in danger of a dreadful and bloody death (for I believe the Jaw would even deny to him a grave), appeals not to your mere}', but he appeals to your justice. I know that, when you have considered the whole of this case, if you find, as I have feebly endeavoured to show to you, that the whole of tho evidence tending to prove a treasonable intent utterly and totally fails, then, gentlemen, by law he may de- mand your acquittal. But I go further, and the events of this cause have taught me a lesson which even I shall never for- get ; if I were a jurymen I should remem- ber and treasure it up as I would my heart’s blood. It is this, that a witness, without intending to deceive, may in a highly penal case, in a case of life and death, make a mistake ; a jury may act upon it, and a fellow-creature may be sacrificed, and, un- fortunately, when too late, the mistake may be discovered. Remember, that police- man who gave evidence, I think, two days ago, told you that he had been examined before the magistrates ; that he had made oath ; that one Turner, after he had made oath, was committed upon the charge of high treason. That man Turner might be on his trial now for his life or death, and upon such evidence as that policeman gave before the magistrates might be convicted. He believed it then, but now something has arisen, and he has a doubt. Gentle- men, some other witnesses less conscien- tious, less scrupulous, may have fallen into a similar mistake, and think, oh, think, what would be your reflections if, when this wretched man was consigned, not, as I said, to a grave, but to a dread- ful death, with scarcely time for repentance for his sins, you were to meet the wife whom you would have made a widow, and the children whom you had made orphans, and you were then to discover, when it was k too late, that by some such error as that policeman made, you had been mis- led, you had not given sufficient weight to some contradiction, you had disre- garded that which raised a doubt, think what would be your reflections ! Gentle- men, I have exhausted all the strength that I possess ; I can only now thank you for the kindness and attention with which you have listened to me; and may God Almighty guide you to a just and Christian verdict. Tindal, C.J. : John Frost , now is the proper time for you to be heard if you wish to address anything to the gentlemen of the jury beyond what your learned counsel have said. You will not be allowed to be heard after the Solicitor General has closed the case on the part of the prosecution. John Frost: My Lord, I am so well satisfied with what my counsel have said, that I decline saying anything upon this occasion. Attorney General : My Lord, before my 415 ] Trial of John Frost, 1839 . [416 learned friend the Solicitor General begins his reply, perhaps your Lordships would say how late you think it may be conve- nient to sit. The jury, as well as your Lordships, must no doubt be fatigued. I do not at all propose that your Lordships should now adjourn — by no means ; bat, perhaps, if my learned friend should not be able to complete his reply within the usual hour of adjournment, your Lord- ships would feel it convenient to adjourn over to-day, because it would be utterly impossible that the trial should be finished to-night. Tindal, C.J. : That will be impossible. The difficulty would be if we were to go on far into to-morrow before I begin summing up. Just see the inconvenience that the jury may be put to. We shall certainly sit some time later to give the Solicitor General an opportunity of making some progress in his reply. Reply. Solicitor General: May it please your Lordships, Gentlemen of the Jury, The duty which you have to discharge, the duty which the learned judges have to perform, and that which rests upon me, cannot be otherwise than a very pain- ful one, and one which, with a view to consult the public safety, to do jus- tice ito the country, to yourselves and to the prisoner, required, not that you should be driven to the discharge of it by appeals calculated to shake your under- standings — by addresses which, instead of being directed to your judgments, so as to enable you to perform that duty with satisfaction to yourselves, with usefulness to the country, and with justice to the prisoner, have been urged in a manner calculated to harrow your feelings, to dis- tract and embarrass you, and to deprive you of your understandings. Gentlemen, what is the task which is thus thrown upon me? I am here, not the enemy of that man — not here with one angry or unkind feeling towards him. God forbid that I should hurt a hair of his head, beyond what the law and justice require ; but, gentlemen, I have a high, and serious, and important duty to per- form, which I would perform, God knows, most religiously and forbearingly, but from which I dare not shrink. The eyes of the country are upon you and myself ; we have alike duties to perform ; I owe the country, I owe my Lords and you, a duty, and I owe the prisoner at the bar a duty. But the learned gentleman who has just addressed you has not only made that duty most distressing to me, but has almost incapacitated me from performing it. Why am I to be driven to repel appeals which ought never to have been made, which are inconsistent with justice, and destructive of safety. Gentlemen, ycu have been asked what would be your feelings if you should hereafter meet the wife whom you may have made a widow, or the children wandering as beggars in the streets whom your verdict will have made orphans. But, gentlemen, I would ask you, if you have not the manliness and firmness to do your duty in this hour of trial, are there no wives who may become widows, are there no children who may be left orphans, but those which the learned gentleman has thought fit to pre- sent to your notice ? — nay, you yourselves may leave widows, if you have not courage enough fairly to do your duty in this great hour of peril. I lament the course that has been taken. I own that I supposed at one time that their Lordships would have thought that the learned gentleman was proceed- ing in a tone, as it respected those who had the conduct of the prosecution, ex- ceeding any limits to which counsel are indulged. Gentlemen, I little thought when I appeared before you, under my learned friend the Attorney General, that either he or myself were to be supposed to do things which were almost asking you to pub a knife into that man’s heart — to call upon you to sacrifice him and thir- teen others. Language like that has been indulged in towards those who are not in the situation of the learned gentleman — who are here to perform an important duty, honourably to the public and fairly to the prisoner. We are here — not to hunt him down to destruction — we are here for the public safety — that safety is never better consulted than in securing justice to every individual who is called upon to answer for his acts. Gentlemen, it is’ said, and truly said, that this is a Crown prosecution. Gen- tlemen, my old and valued friend Sir Frederick Pollock in the course of the case made some observations which certainly excited my surprise ; but I knew well, from my knowledge of him, that they merely arose from the heat of expression excited by the deeply responsible duty he had to perform. In the course of his address to you he satisfied me upon that subject, for I was well persuaded that my learned friend, my earliest friend, my oldest friend, one from whom I never severed but in one respect — our politics did not quite accord ; but our friendship has remained undisturbed from the day of our boyhood — I therefore knew that by him justice would be done, and accord- ingly, in a manner suited to the cha- racter I have ever known to belong to him , he tells you that in this prosecution - I III 417] the Government have a duty to discharge, and he gave us the satisfaction of admit- ting that we had displayed that temper and disposition, which I am sure we felt, in conducting the prosecution, with as much mildness as was consistent with our public duty. But, gentlemen, while one of the learned counsel for the prisoner is constrained to admit that the transactions of this day, the 4th of November, called for a prosecution, and that the Crown had done its duty in instituting that prosecu- tion, the other learned gentleman treats us as if we were here to endeavour, at all events, to substantiate a charge, no mat- ter how, against the unfortunate man at the bar. A great deal is said upon this occasion, as is not unusul upon similar occasions, about this being a Crown pro- secution. The only difference to the prisoner is, that it gives him tenfold more advantages than any ether form of prose- cution would give him . The effect you have seen, that witness after witness has been rejected upon some such defect ; not a man could be called against the prisoner of whom he has not previous notice, not a man with regard to whom he cannot make inquiry, with whom he cannot communi- cate, with whom he cannot place himself in circumstances which belong to no other form of trial. In addition to which, have you not heard two learned counsel on behalf of the prisoner, an advantage that would belong to no other form of pro- ceeding than a prosecution for high treason. In this case the charge has been that of high treason, because the crimes which were imputed, the crimes which were supposed to have been committed, were crimes which went directly to the destruction of the Constitution, and the peace and safety of England. As to the power of the Crown, that is mere pretence. The Crown represents the public peace. The Crown represents the public safety. But, except so far as the Crown is neces- sarily mixed up with the safety, the pre- servation of the peace, and happiness of the community, the Crown has not the shade of interest in the prosecution. Let the case stand according to its real character. It is a prosecution on behalf of the public to investigate a charge arising out of what has been described, and cor- rectly described, as one of the most vio- lent outrages, — not a prosecution, as the last counsel for the prisoner so frequently styled it, for any bloody purpose ; it is a prosecution arising out of a most violent insurrection and tumult, attended with the greatest changes, calling, as my learned friend Sir Frederick Pollock admitted, for immediate judicial investigation and for punishment upon its authors. Our only desire is to place the case in a proper o 67432. [418 manner before you, and having done that, we shall feel no less sympathy with the prisoner than either of the learned coun- sel, and shall rejoice if, consistently with your public duty, you shall pronounce an acquittal. Such being the case, gentlemen, I pray you dismiss from your attention all mere appeals to your feelings ; do not let the prisoner suffer from the course that has been taken in the case by his counsel, and the weakness which such a course generally shows ; but give fair effect to those argu- ments which the learned counsel used, and do justice to the prisoner in spite of that manner of conducting the case, which, I say, necessarily indicated great want of confidence, while it was accom- panied with the most powerful expres- sions of it. Consider what the charge really is, and the importance of the present inquiry — an inquiry which, let it terminate how it may in regard to this particular case — will, I trust, be of great general benefit, not only to this country but to every part of the kingdom, and to those unfortunate and ignorant persons, with regard to some of whom the very object of the excursion was obliged to be translated into Welsh — persons who did not even understand our language, brought in immense masses to the spot, without knowing the object to which their attention was to be directed — told to bring arms in their hands, without knowing how or against whom they were to use them — brought for the purpose of being exhibited to the terror of the public — tools and instruments to more art- ful and wicked leaders. Gentlemen, I do not know that there is any material difference between my learned friend and myself as to the con- struction of the general law upon which this case must turn. The charge that it is my duty to make against the prisoner is, that prior to the 4th of November- last, he believed there were large bodies of men in different parts of the coun- try, w ho were inclined to rise and rebel against the Government ; that he raised a large body of armed men to march into Newport, intending, either by surprise or by terror, from the numbers of those men and their arms, to prevent resistance, or by force to overcome that resistance, and take possession of the town of Newport ; that he intended to supersede the magis- tracy and the law, and himself to exercise authority there ; and that he intended to make the taking of the town of Newport a signal to other parts of the country to rise into rebellion, and thereby to change the constitution. The charge is, that the prisoner, with a view to raise a general rebellion, to supersede the autho- 0 Trial of John Frost, 1»39. 419 ] Trial of John Frost, 1839 . [420 rity of the Government, to supersede the magistracy and the law, marched with an armed force down to the town of Newport, hoping to take it by surprise, or hoping it would yield to terror, or in- tending to take by force possession of that town ; that he meant to have possession of that town, and that he meant so to have possession for the purpose of raising rebel- lion, and of producing an alteration in the law. The object of the charge here is that of raising rebellion. The circumstance of his wishing to do this or that particular act in the course of it will not change its charac- ter. I therefore submit that it is perfectly immaterial whether or not he intended, when he went to the “ Westgate ” Inn, to release the prisoners. If in truth he meant to take the town of Newport — if in truth he meant to raise a rebellion, no doubt he would have discharged Vincent and the other prisoners, though their dis- charge was not his ultimate object; it might have been, and probably was, part of his purpose, not only to discharge Vin- cent, but every other prisoner who came within his power ; but still, I say, there must be no mistake between his contem- plating this in the course of executing a greater purpose, and those acts and in- tentions being the substance of his pur- pose in the course which he took. Gentlemen, it is also immaterial to this case whether or not he had the power to do all he intended. We need not talk of punishing successful rebellion — it is un- successful rebellion that comes under the cognizance of the law. I cannot restrain the expression of some surprise at the course of argument that was taken by the learned counsel who last addressed you. His course of argument was this : When the prisoner was interrupted in what he was doing — “ Look and see what he has done.” Where he has accom- plished his purpose — “ Do not believe the witnesses.” That was the result of his argument. The whole matter having been put an end to, for a time at least, at the “Westgate” Inn, the party having been dispersed by the soldiers, the learned gentleman says, “ See if they went to the post office ; see if they went to the bridge ; see if they went to the other places ” — knowing that they were stopped before they reached those places ; * ‘ but as to marching there with arms to take the town, that I dispose of by asking you not to believe the witnesses ; so that as re- gards what was prevented, I ask you to see what was done ; and as regards what was done, I ask you to disbelieve the wit- nesses, and there is an end of the charge.” Now, gentlemen, in order that I may be certain I am right in that which I have presumed to submit to you as the law, I beg to read a few lines only, the language of an eminent, a most excellent and learned judge. Before I do that in confirmation of the remark I just now made, I may mention that in the case of Brandreth,(a ) the conspirators had pro- posed to march to the town of Notting- ham ; they pressed people as they went, as we find that such persons always do ; almost every instance of the kind fur- nishes evidence of that, notwithstanding the supposed absurdity of' it — Brandreth marched towards Nottingham, pressing people as he went, seizing arms as he went; but, as in the present case., or rather at a more early period — for before they got to Nottingham they heard that some soldiers were coming against them — they all dispersed and ran home ; that was an end of the affair, except so far as criminal justice was concerned ; that was the termination of that conspiracy. Mur- der had been committed in the course of it ; and after hearing the evidence of the intention with which they had risen and armed, and with which they had marched towards Nottingham — for they never reached Nottingham, they never effectu- ated their purpose further than in the prosecution of mischief as they proceeded along — no doubt was entertained as to the character of the crime. That case will be found in many respects analogous to the present ; in the present, however, the party did get to Newport ; you know that blood was there shed ; you know what lives were put in peril, and un- fortunately you are not ignorant of what lives were actually lost. This case, there- fore, goes much further than that. Now I beg to read to you a portion of Lord Tenter den’s charge to the grand jury, in the case of Thistlewood,(b ) because it ap- pears to me that the language in which that learned judge expressed himself is language more applicable to the present case than any which I have been able to meet with. His Lordship says : — “ It has been settled by several cases actu- ally adjudged, and by the opinions of the text writers on this branch of the law, that all at- tempts to depose the King from his royal state and title, to restrain his person or to levy war against him, and all conspiracies, consultations, and agreements for the accomplishment of these objects, were overt acts of compassing and imagining the death of the King.” Then he proceeds to the subsequent statute, 36 Geo. 3. c. 7 . : — “ It may be proper for me to add that it has been established in the like manner that the (а) 32 St. Tr. 775. (б) 33 St. Tr. 684. 421] pomp and circumstances of military array, such as usually attend regular warfare, are by no means necessary to constitute an actual levying of war within the true meaning of the ancient statute. Insurrections and risings for the pur- pose of effecting by force and numbers, how- ever ill- arranged, provided or organised, any innovation of a public nature, or redress of sup- posed public grievances, in which the parties had no special or particular interest or concern, have been deemed instances of the actual levy- ing of war, and consequently to compass or imagine such an insurrection, in order by force and numbers to compel his Majesty to alter his measures or counsels, will be to compass or i magine the levying of war against his Majesty for that purpose within the just meaning of the modern statute. Rebellion at its first com- mencement is rarely found in discipline or array, although a little success may soon enable it to assume them ; ” and his Lordship proceeds — “ Any aet manifesting the criminal intention, and tending towards the accomplishment of the criminal object, is in the language of the law an evert act. It will be obvious that overt acts may be almost infinitely various ; but in cases where the criminal object has not been accom- plished, the overt acts have frequently consisted of meetings, consultations, and conferences about the object proposed, and the means of its accomplishment — agreements and promises of mutual support and assistance — incitement to others to become parties to, and engage in, the scheme, assent to proposed measures or the pre- paration of weapons, or other things deemed necessary to their fulfilment. All these and other matters of the like nature are competent overt acts of the particular kind of treason, of the particular compassing and imagining to which they may happen to apply.” He then goes on to state that all who engage themselves in an earlier or a later stage of the business are principals — “ But the act of each individual, in pursuance and prosecution of the general design, is con- sidered as the act of all who become privy and consenting to the design, although it may have taken place out of their presence, or even be- fore they have engaged themselves in the de- sign, because by their subsequent engagement they adopt all that may have been previously ■done towards the promotion of the object, which they ultimately engage to accomplish,” [Counsel again referred to the counts of the indictment.] Gentlemen, I now propose, with as much brevity as I can, to call to your attention the evidence which, I have to submit to their Lordships and to you, establishes this charge. My learned friend Sir Frederick Pollock correctly stated that we had en- deavoured to lay the charge before the Court in such a shape as that it might be most intelligible to their Lordships and to you, and afford the most convenient faci- lities to the prisoner to meet it. Instead, [422 therefore, of beginning with occurrences which took place in the preceding week at Blackwood, my learned friend thought it better to show what was done at the “Westgate,” and then he went back, in order to trace the creation and manage- ment, the origin and planning of this in- surrection ; and I will say that, notwith- standing there have been some objections taken, I believe there have been in this case fewer objections and fewer arguments than in any case of high treason that ever was tried. [Counsel again described the attack on the “ Westgate.”] How, gentlemen, finding the prisoner at the head of this mob, a mob calculated to effect a great deal by the force of terror, it has excited very general surprise how Captain Gray and his gallant little band of men were enabled to disperse so large a body. They did so by their effective ^nd steady fire ; and in my humble judg- ment, deeply as I deplore the lives that were lost upon that occasion, I consider that they saved hundreds of lives by the course which they took ; for had the mayor or Captain Gray, whose conduct cannot be too much praised, temporized but for a few moments, I believe the consequences - would have been most fearful. It was the decisive, it was the prompt, the well-called for execution of military power, which, in my humble judgment, saved that town and its inhabitants. The mischief that might have arisen is far beyond anything we can contemplate ; and had it not been for the prompt conduct of the military, I fear, gentlemen, we should have had to deplore many more widows than nine in Newport. Gentlemen, this mob being thus armed and calculated to inspire terror, and thereby to obtain the possession of the town, what must have been the conse- quence if those soldiers had not been there ? The special constables, you have heard, fled ; the mayor, in order to avoid any excess on their parts, allowing them only to be armed with their ordinary con- stables’ staves ; and if the military had not been there, the appearance of this mob would have been sufficient of itself to have secured possession of the “ Westgate,” aye, and of the whole town, and perhaps with- out the necessity of discharging a single gun. It is said by the learned counsel, that if possession of the “Westgate ” could have been peaceably obtained, there would have been no bloodshed, and that the prisoner had no intention of allowing any excess. But, gentlemen, he surely knows very little of the history of mobs who does not know that men, when engaged in numbers in attacks of this sort, seem to cnange their nature ; that they often be- O 2 Trial of John Frost, 1839. 423] Trial of John Frost, 1839. [424? come ferocious, and delight in shedding blood ; and even if quiet possession had been obtained of that town, no one can say to what excesses those unused to power and accustomed to yield obedience might have gone. Many a man like the prisoner can lead a mob quietly up to a certain point at which they gain posses- sion of power, but then (as in a case that I shall refer to presently, in order to show how distinguishable it is from the present, Lord George Gordon's case), whether he could restrain them after partial success is a very different matter ; and a part of that deep responsibility which rests upon everyone who first excites the angry pas- sions of men, and then brings them with arms in their hands into a peaceable tow r n, a great portion of his deep responsibility is the little chance that there is, that even if he is well disposed, if he is humane, his good disposition and his humanity will at all avail to protect those whom he has placed within the reach of such tremen-’ dous power. Mr. Frost said, “ Turn round and show yourselves in front.” What is the effect of showing yourselves in front to unarmed inhabitants ? Show yourselves to whom, for what? How are you armed ? With instruments of death. Are you prepared for action P Our guns are loaded, we have proved them through the night ; stormy and tempestuous as it has been, we are ready for action ; we have proved them in the intervals of the storm ; they are loaded and ready ; our pikes are ready, and we are ready. Do you doubt it P Before a word is said that can be pretended to give the slightest provocation, the pikes are dashed through the windows as the mob came down Stowe Hill ; a pretty broad hint to the inhabi- tants what was to be the effect of showing themselves in front. These men did show themselves ; with what intent ? Why had the guns been proved ? What was their determination when they dashed in the windows of the commercial room ? What were their objects P Wbat was the effect, but naturally to produce terror in the town P What would have been the effect if, according to Mr. Frost's intention, they had arrived on Sunday night at two o’clock, when the whole town would have been locked in sleep, and when they would have been roused from their beds, if not by guns, at least by the clamour of pikes and weapons. Gentlemen, my learned friend, as I think, not with much piety, frequently introduced the name of the Almighty ; he has talked of the Almighty exposing false- hood. The same Providence developes truth, exposes hidden guilt, and is not known to favour conspiracy and rebellion. It is a dangerous topic for my learned friend to allude to; for he must well know that Almighty Providence is the protector of peace and order against con- spiracy and rebellion. Two o’clock in the morning was the destined hour. What would have been the situation of the in- habitants, if this large number of men had entered the town, as they intended, at two o’clock in the morning? The sol- diers would have been asleep at the bar- racks, and the whole town would have been in a state of repose, and, according- to the prisoner’s notion, not a single ma- gistrate would have been upon the alert. Although, gentlemen, he would have been mistaken in supposing that, yet I fe&r he would not have been disappointed in his object. The mayor was vigilant enough to be at his post, discharging his public duty in an exemplary manner, aided by the other magistrates ; but what could, they have done in such a case ? Why, we find that the mob came down Stowe Hill, and dashed in the windows of the com- mercial room before the mayor could get- down stairs, and the inn was almost im- mediately full of the insurgents. The mayor tells you, that when he came down stairs the mob was in the passage, and with difficulty could he get to the sol- diers’ room. I say, although Mr. Frost- would have found himself mistaken, if he- had arrived at that hour, in believing that the magistrates were asleep in com- mon with the rest of the town, yet that all would have been at his mercy, and that he could have taken possession of the town, peaceable possession, as it is said,, with his numerous body of men, accord- ing to the statement in one place, to guard the town, that is, I presume, to guard it against Her Majesty’s lawful and peace- able subjects, and against the magistrates, the lawful authority. At that hour it would probably have been enough to have shown themselves in front ; the rest would have followed of course. For what can a peaceable town do in the face of five thousand or six thousand powerful men, of hardy habits, resolute in their minds, strong in their sinews, and with arms in their hands ? God forbid that such men should often appear in such a town. Gentlemen, what was meant by the order to show themselves in front P Look to their acts. They very soon rushed in at the doors. Then hear the command given by one of them, “In, my men!” or “In, my boys!” They are in directly; the guns are discharged ; the firing com- mences upon this room. After that Mr. Frost is not seen. What ! do you not stay to arrest, to restrain, to protect from this power that you have brought? Do you show them iu front, and set them on and then leave them ? Where is your 425] Trial of John Frost, 1839. [42G influence P Where is your restraint P Where is the protection to the town? You have brought them here. Where is the wife, and the daughters, and the sons that you love ? Do you go away and leave them thus P If you call upon others to feel for your children, and your wife, fihow your own love and regard by coming now to their protection from the jeopardy und danger in which you have placed them. If you flee — if you leave them in the greatest extremity — you who have brought them into that danger — how will jour counsel persuade a jury that you could never, from the strength of your own feelings of affection, bring them into •danger ? The mob remained, till a suffi- cient number, by showing themselves in front, as he desired them, had perished ; then they dispersed. Where was Mr. j Frost ? We find him afterwards consulting his own safety in entering into a wood in the neighbourhood of Tredegar Park ; that is the next we hear of him. What had be- come of that town — what had become of his wife and family — what had become of the inhabitants and his friends — he knew not. [Counsel described the gathering on the hills and the march to Newport.] They could not have raised these men with a view to relieve the prisoners at the “ Westgate,” because at the time they collected on the mountain they had not been taken. But had it any relation to Vincent ? What is their intention? We have been told again and again that Mr. Frost must not be supposed likely to do absurd things ; that he is a man of the world and a man of intelligence. What then, gentlemen, do you think of an at- tempt to induce the Monmouthshire ma- gistrates to relax the prison discipline in favour of a person who has been convicted of sedition or seditious libel, or something of that sort, by marching into Newport with ten thousand men armed? What do you think of a man of the world resort- ing to that mode of inducing the magis- trates to relax in favour of a prisoner ? What do yon. think of a man of the world and intelligence, and some acquaintance with courts of justice, imagining that Her Majesty could be advised to extend Her royal mercy by shortening the duration of imprisonment, in favour of a man who had so many friends in the world that he could muster ten thousand under arms at two o’clock in the morning at Newport P Is Mr. Frost a man of intelligence? Is he a man of the world ? Suppose he had been the worst foe that Vincent ever had, suppose that he had desired to procure additional restrictions to be put upon him, and had wished that he should sustain the last hour of the sentence which had been pronounced upon him, could he have resorted to a more maliciously effective mode than by showing that those who were connected with Vincent were persons so little acquainted with their duty, so little obedient to the law, so little to be depended upon for their peaceable con- duct, as that they would march at that hour of the night into a town, alarming and frightening everybody ? But suppose it be suggested that they wished to make a demonstration of num- bers, in order to show how safely the Chartists might be admitted to power, in order to show what peaceable sub- jects they were, can you conceive any- body of so little judgment, of so little knowledge, as tc seek to accomplish this object by displaying their num- bers under arms at two o’clock in the morning? Is there any object that any men in their senses — that any men fit to be trusted with the administration of justice, calculating upon their own personal safety, upon the personal safety of Her Majesty’s subjects, upon the safety of pro- perty ; is there any innocent purpose that can be ascribed to such an assembly as this, got together at such an hour P “ Oh, but I protest against being called upon to explain it — it may be a bloody outrage — it may be a most rebellious riot — it may subject the parties to the most severe punishment ; but I protest against the Crown calling upon us to explain any of our conduct. Do not fancy — do not think that we ought to call witnesses ; or, if we do, those witnesses will only be able to disclose what will subject them to punishment as well as Mr. Frost. If he is to die he will die alone ; he will not drag them down with him.” Ay, but if the purpose is innocent, instead of his drag- ging them down they will raise him up ; they will save him, not he condemn them. Your statement admits you have wit- nesses ; your statement admits you dare not call them, for they would involve your client and themselves in common guilt. You are right. You protest you will give no explanation ; your course is politic ; I will not say safe. Bur. can any man ascribe any innocent pnrpose to this meeting ? [We, also, prove the pressing of men, and the seizing of arms.] I ask, do you, Mr. Frost , mean to deny that you pressed men ? Why, man after man is called who was pressed. Mr. Brough and Mr. Wat- hins are pressed ; they are marched about for a considerable period. What is the part Mr. Frost takes ? Why, Mr. Frost, imme- diately he is applied to, of his own autho- rity, consulting nobody, says, “ You are discharged, and your friend is included with you.” 427 ] Trial of John Frost , 1839 . [428 My learned friend said Lord George Gordon gave a protection to a party. So he did, and I will tell yon the difference between the protection which Lord George Gordon gave and that which Mr. Frost gave. Lord George Gordon had been with the mob in St. George’s Fields ; he had gone to the House of Commons ; I think that was on the Friday ; I am not quite snre as to the day, but Lord George Gordon, after that, was no more at the head of the mob which was collected on subsequent days, and that mob appeared not to be the same mob; for no one person, it was remarked in the case, and Lord Frshine relied upon it, who was with the mob on the day that Lord George Gordon was at St. George’s Fields, could be identified with the mob that set fire to the houses. It was on subsequent days that that occurred. Lord George Gordon went to His Majesty at Buckingham House to express His regret at what had occurred, and if his Majesty thought he could be of any service he offered his services. His Majesty, of course, declined to see him ; a lord in waiting said, that if he were disposed for peace he would be somewhere else than at Buckingham House ; in con- sequence of that, he and Sheriff Pugh drove to the scene of riot. As he drove along with the sheriff who was a magis- trate, a man came to the carriage in great aistresss, and said, “ I pray you, my Lord, sign this paper for me ; I understand that my house is going to be burnt down.” “ I can do nothing,” says Lord Geoi’ge. “ Yes, my Lord, if you will but sign it, the rioters will not bum my house.” Upon which, he turned to Sheriff Pugh, and asked him if he should sign it ; and Lord George, without reading it, did sign it, and gave it to the man who was waiting in great distress ; and that was Lord George Gordon's protection. What do you think, gentlemen, of the analogy between the two cases ? You have here men pressed by a mob which Mr. Frost had raised, and of which he had the control ; he is dealing and acting with the mob in their unlawful practices. At the moment Mr. Brough is brought before him as a prisoner, he is there with these persons thus armed, marching towards Newport ; and upon an application being made to him as the head of that mob by Mr. Brough for release, he says, “ You are discharged; I hate your politics, but I have an affection | and regard for you, and you are discharged and your friend likewise.” Gentlemen, I own I always thought that the use of that ! protection by Lord George Gordon against 1 him was a very harsh step; it never brought to my mind evidence of anything, but that Lord George Gordon regretted that which he had done, and was desirous | of doing all that he could upon the prayer of the man who was in alarm and distress. It is a memorable circumstance, for it gave occasion to one of the strongest expressions (a) that ever counsel ventured to use of his opponent, in reference ta that particular piece of evidence. But with regard to Mr. Frost the case was very different. He says, ‘‘You are dis- charged.” Yes, but had he told the peo- ple to go home peaceably? Was he severed from the mob ? No, he 'was in his march to Newport ; he was with the mob ; he was at a place where he had appointed the bodies to meet, at the “ Welch Oak,” and there he is showing his control of that mob, showing his dominion over them, showing their obedience to him; he, upon Mr. Brough's application, at once discharges them. Those men, who had previously used Mr. Brough very harshly, by threatening him with personal violence when he had got upon the other side of the hedge, on a supposed assent on their part, did not venture to murmur or suggest a word when Mr. Frost said, “ You are discharged,” and away they went. [The night march to Newport, pressing people as they went, could not have been intended as a mere demonstration of numbers. J Now, having proved the meeting of such a large body of men, at such a time, not suddenly called together, look at their aims. You will find from the evidence, not that they all threw away their arms, as was said, but that a certain number threw down their arms, which were picked up. Yast numbers of them were armed. What account is given of them — of their possession, or of their intended use ? None. We show, therefore, a meeting called without notice — persons stopped upon the road that they might not give information of the meeting. We called some of the men who were pressed; and then my learned friend lays down a principle which, I own, strikes me with surprise, and which cannot but be a very alarming one in this district. What, if the Chartists come from the hills by thou- sands, and press men to go along with them, shall no one of those men be received as witnesses of what they do ? Do they become infamous by force of that pressing? Is it to be a means of protection to those who commit such illegal acts, that they prevent evidence being given against them, because they will compel every man they (rt) “ I say, by G , that man is a ruffian, who shall after this presume to build upon such honest, artless conduct as an evidence of guilt.” — Erskine’s Speech for (he Defence, 21 St. Tr. 615. 429 ] Trial of John Frost , 1889 [430 meet with to go with them, who, therefore, my learned friend says, shall be liable to be charged with treason P Let me see, then, how we follow this case up. Gentlemen, a man of the name of Harris was among the number. Harris is the man who proved a certain declara- tion of Davies in the presence of Frost ; he is the man who was cross-examined by one of my learned friends, who read a great part of a deposition which showed that he had been examined the day before, and had made some statements that he dis- avowed on the following day, and that he had been drinking with a soldier and a constable, upon which my learned friend Sir Frederick Pollock broke out into a most violent philippic, as though the soldier and the constable had anything to do with the present case. They had not the slightest connection with it. But, gentlemen, I beg to say that neither my learned friend the Attorney General nor either of my other learned friends had ever been acquainted with that deposition at ail ; and I beg leave to say that though I do myself believe the man when he states that he was afraid to speak out, I agree with Mr. Kelly that it is not fit that I should ask your verdict upon the evidence of a man who has once denied that which he asserts : and I beg to strike him out of the case. I know I have the concurrence of my learned friend the Attorney General when I say that every fact that you think is brought into reasonable doubt I shall . pray you to forget. A witness has been called respecting the demand of prisoners made by the insurgents on the special con- stables stationed before the t£ Westgate ” Inn. We called a witness in the first in- stance, who said that the insurgents ad- dressed him and said, “ Surrender your- selves prisoners.” Some witnesses have been called on the part of the prisoner who have said that the words were, “ Sur- render your prisoners.” A person was called to-day, of undoubted respectability, who says the words used were, “ Surrender your prisoners.” One says he heard the word “ selves,” the other did not. Gentle- men, I consider that much too doubtful a ground to stand upon. We have called a witness who swears he heard the word. The prisoner has called a respectable man, who swears to speak the truth, who says that all he heard was, “ Surrender your,” omitting the word “ selves.” It is too minute to warrant the Crown, in my opinion, presenting it to you as a ground for judgment. I therefore shall deal with the case, in the remaining part of it, as though no such evidence had been given on the part of the Crown as that to which I refer. ISTot that I surrender the witness as undeserving of credit — not that I im- peach the credit of the witness called for the prisoner Kelly : I beg to say, nor did I with respect to the other witnesses. Solicitor General : No, you did not; on the contrary ; I neither impeach the credit of the witness for the prisoner, nor surrender the credit of the witness for the Crown. But when it comes to a doubtful point like that, it is not fit matter, in my judgment, upon which the Crown should stand, representing the public interests, in so important a case as the present. I therefore shall meet the case as though no such evidence had been given. I do not know to what period your Lordships would like to sit ; I am going upon another part of the case, upon which it would be rather inconvenient to break off. Tindal, C.J. : Can you give us any probable assurance how much longer you will address the court ? Solicitor General : I think, about two hours, my Lord. Tindal, C.J. : Then we will adjourn now till to-morrow morning. Wednesday, January 8, 1840. [The Solicitor General again called the attention of the jury to the law as laid down by Lord Tenterden in Brandreth’s case, and proceeded :] I have thus called your attention to the law, in order that you might be better able to prosecute your investigation into that evidence, that this meeting was not sudden — that it did not arise out of any immediate occasion — that it must have been the result of long providing — long prepara- tion, not in furnishing the means of peace — not in presenting motives to influence either the Government or the magistrates to kindness and concession, but in the providing of arms which could have no other use than that of violence. A large body of men are found on a particular night ready prepared with arms — arms of the most fearful description — meeting in thousands — proposing to march into a peaceable town in the dead of the night, that night Sunday night, when persons would be more likely to have retired early and peacefully to rest than on any other day of the week ; and when they start, it being part of their plan to arrest persons who shall be found on the road, and a pass-word is established. You observe, that in the town of Newport there is a place called Beans Well. The name of that place was divided in order to form the pass- word. Tindal, C.J. : That was not proved. Solicitor General : I think it was stated. Kelly : It was not in evidence. 431] Trial of John Frost, 1839. [432 Tindal, C.J. : It is a new idea to my mind. Solicitor General: It is enough if your Lordship has it not upon your notes. It is of no importance ; the substance is, that there was a pass -word. What had a pass-word to do with a peaceable object ? What had the arrest of persons upon the road to do with any peaceable exhibition ? What had seizing of arms to do — what had the prevention of peaceable passengers upon the road to do with any innocent objects? This is proposed early in the evening ; this is acted upon. Why were Mr. Brough and Mr. Watkins to be arrested in the course of their lawful journey ? Wbat proper peaceable object required that ? What proper peaceable object could be promoted by that ? Why should they be marched for hours through the night ? Why should their lives be threatened if they attempted to escape ? Gentlemen, let me ask what would be the marks that would attend an insurrection intended to operate treasonably against the public peace? — Arrests, restraints, seizing of arms, making prisoners. What else could you have to mark the character of an in- surrection ? How shall you distinguish between that which is intended to be peaceable, and that which is intended to be violent ? By interference with the rights, the peace, the actions of others. WHhy did they meet at the hour I have mentioned ? Why meet in such numbers ? Why so much time and labour, in the preparation of such arms as you actually saw ? I have already called your attention to the fact, that Walker , having been sent out in consequence of some surmises or information, no matter which, is attempted to be arrested upon the road; he en- deavours to pass on ; he is seriously wounded, and a pistol fired at his com- panion. This is done to men who are opposing nobody — offering no resistance to any object, proper or improper. What does this indicate ? Gentlemen, such was the nature of that meeting; thousands assembled together on Sunday night, in the dead of the night, armed — with every precaution — arresting, pressing men, and seizing arms. Hot only so, but care taken to see that their arms were in a condition for instant use ; not merely loaded, but tried to see that they were not affected by the wet or other circumstances, to prevent their immediate execution ; they are tried during the night, so that their march into Newport at the destined hour was to be accompanied with the power of making severe execu- tion, should it be determined so to do. Gentlemen, it is for you to say what such a meeting of itself indicates. I ask you to pause here. Let that mass march to- wards Newport; see them in the acts which have been described to you; see them proving their guns ; see the men at the machine, with their hooks, to use the expression of the witness, “ planning it, showing how they were to be used ;” see them arresting persons upon the road. I ask you, what is the character of such a meeting? Let me now call your atten- tion to the evidence that has been given of the parties own declarations of their object and intention. Gentlemen, this prosecution for high treason is very dis- tinguishable from many others. No spies are produced before you here : no persons have mixed themselves up with this trea- son, either for the purpose of acquiring information, or for the doing of that which spies too often do, wbo are almost as dangerous as the mobs that they are put to watch, who seldom are employed but they exceed their commission, and assist in fabricating the mischief which they expect to be rewarded for afterwards disclosing. No such transaction has taken place here. Nor can the prisoner object to some of the witnesses because they are Chartists. Least of all can it on the part of the prisoner be imputed to those men that it is a mark of bad principle. He himself was among the foremost, and, as you are told, the most zealous. He, therefore, cannot challenge the respec- tability of a witness because he is a Chartist. Gentlemen, see whether the evidence produced is the result of a little assembly of persons associated together, who may have conspired, who may have had motives to combine together, and to misrepre- sent, or see whether they are persons altogether independent of each other. See whether they come to prove declarations made at one place, where heat, excitement, mistake or misapprehension may have mixed themselves up with the evidence given before you of the declarations made ; or whether the witnesses themselves, being independent of each other, speak to re- presentations by different persons en- gaged in the same object, made at different places and under different circumstances ; but. though made at different places and under different circumstances, yet all tending to one conclusion. I will class them. Williams , Hodge, Harford, Bees , and Coles speak to what took place in the presence of the prisoner. They apply to him. James , Howell, Saunders, and Haw- kins speak to what took place in the pre- sence of Zejphaniah Williams, another leading person. Kidner speaks to what took place with Jones. [Counsel referred at great length to the evidence of these witnesses and the grounds on which their credit had been impeached. 433 ] Trial of John Frost , 1839 , [434 The non-arrival at Birmingham of the letters from Newport and South Wales might well have been the signal for a general rising. If any man watching the arrival of the coach that brought the letters from this part of the world, and from Newport, had made inquiry whether they had brought the letters from Ireland or from South Wales, and the answer had been, “ No, we have come from Bristol; we waited past the usual time, but from some cause or other, we know not what, the letters from Newport did not arrive.” Whai, more certain information could any one of the conspirators at Birmingham want of the success of their enterprise than that the letters from Newport had not arrived ? Then, as to Hodge's evidence. According to Hodge, the man with the glazed hat said in Frost's presence, “ The soldiers are all Chartists.”] You are asked if it is true ; God forbid ! But does it follow that men who are engaged in an attempt to break the law, men who are seeking to stimulate others to hazard their persons in such an attempt, should not endeavour to encourage them by a state- ment that is not true ? [The grounds upon which Hodge's credit has been impeached are trifling and worth- less.] Strong expressions have been used ; and if strong expressions could get ac- quittals for prisoners, my learned friend would be a safe and admirable counsel. No man can utter them stronger. No man can utter them, as this instance will prove, upon less foundation. [It was first said that Hodge was home too early for his story to be true ; and when that was re- pelled, that he was home too late. To establish the contradiction the learned counsel put his own meaning upon the uncertain expressions of the witnesses about “ after break of day,” and “ about break of day,” though none of them spoke to any precise time.] Gentlemen, will you judge of the cri- minal intentions of persons engaged in an insurrection by the probability of their success ? If you do, you will judge of a mob by a rule that never was found cor- rect yet. They always imagine — and they would not begin if they did not imagine, though they always imagine wrong, but they never will learn wisdom — they always imagine that they can accomplish more than they can ; of course they begin, not with the idea of fastening a halter round their necks, but with the idea that they shall succeed, and by their success escape. With those thousands of men (you will see as I pass on what the number of the soldiers were), was it an unnatural thing that, coming at between one and two o’clock in the morning, they should sur- prise the poor-house ; that the soldiers, not being aware that they were coming, might not be prepared — might be taken by surprise — might be either overcome or murdered before they could put them- selves in a condition to defend them- selves ? Then it is said — here is inconsistency ! — what conspiracy ever was consistent? — you would indeed give the most perfect freedom to conspiracy, rebellion, and trea- son, if you disbelieved witnesses coming to prove declarations inconsistent if made at the same time, though not inconsistent when made at different times. They may at first think the soldiers to be Chartists and their friends, and in the next moment talk of attacking them in their barracks. But will you give a carte blanche to con- spirators and traitors by saying, that if witnesses prove inconsistent declarations they are not to believed? It is not, gentlemen, the inconsistency of the wit- nesses, but of those engaged in trans- actions, the conduct and management of which must vary from hour to hour according as circumstances arise ; and that which a man may contemplate one minute, may the following minute or the next hour be inconsistent with the views that had prevailed arising out of the then existing circumstances. How does the case go on ? It goes on by this third witness, Harford, making state- ments corresponding, as it is submitted to you, with the general intent and object to be inferred from the disputed facts, that they did not contemplate taking the town of Newport and there resting, but taking the town of Newport as the indication and as the signal for insurrection to arise gene- rally, which insurrection, by union, by the accumulation of numbers, by the dispersion of those numbers throughout the kingdom, from one part to the other, should tend to effect the ultimate object of revolution, with a view of either esta- blishing some particular form of govern- ment, or, what is generally the result of such proceedings, no government at all. My learned friend saj^s, “ Show that the Charter was intended to be established.” Show it ! Does any man believe that if the individual so marching an armed force could gain possession and dominion of this country, that he would establish any other law but that of his own tyran- nical feelings and opinions ? No. What Charter, good or bad, was ever obtained by treason, such as is imputed here, by a rebellious mob gaiuing power ? Talk of charters or of law ! What but confusion, bloodshed, and destruction would mark their course through the land. Let no man think that by encouraging such mobs as these, either that which he calls the charter, or any charter, would ever be 435] obtained. What man at the head of a mob, that obtained power, ever nsed it honestly, or used it in any other way than to the destruction probably of his own followers, but certainly of the rest of the public ; and nothing but anarchy could prevail, until the good sense and good feeling of the country should unite to expel such miscreants from the face of the earth. Talk of the Charter being esta- blished ! No man dreams that any Charter could be established. No ; the first thing is to destroy the existing Government. When such treason and conspiracy exists — I am not saying, gentlemen, that it existed here — I am presenting the ground for you to say whether it did or did not — but where it does exist, then the result to be anticipated is the destruction of peace, and order, and government; not the re- establishment of anything which can give peace or security to any man. I say, therefore, the success of such a mob would be the ruin of the individuals who composed it. Those who escaped death — the just punishment of their crimes — would be involved in beggary and distress for the rest of their lives. Such a mob, therefore are only working their own destruction ; their leaders might profit ; individuals might, for a short time, flourish out of the ruin which they pro- duced, but the great body, by whose power they accomplished it, would become the first sacrifice to those who had misled them. In this case, therefore, the question is not whether I can show an intention that I do not believe existed anywhere, of setting up any form of government — any state of order — it was to destroy the existing Government, the law and protection given to everybody, taking the chance of what good to in- dividuals might be accomplished for their own purposes out of the general con- fusion. [After commenting on Harford's evi- dence, counsel reviewed the evidence of the boys, Coles and Rees. ] It is said the mob did not know there were soldiers in the “ Westgate.” How long do you think it would remain secret that some soldiers had been marched from the barracks to the town ? Why, it would run speedily. Do you think it would be long before some one would run along the road, and, meet- ing some of their body, say, “ The soldiers are gone from the barracks : they are gone into the town”? What happens? Mr. Frost asks one of those boys, “ Where are the soldiers that are gone to the town ? ” The boy says, “ I had been told that about a dozen had gone to the * W est- gate.’ ” WTiat is the improbability, gentle- men ? My learned friend Sir Frederick Pollock says, “Oh, we would not ask how [436 he knew it ; that was not our place.” Yes, it was, if you doubted it. Witnesses are entitled to justice as well as prisoners ; and if a man tells you he knows a thing, and you mean to argue he does not, justice requires that you should not send a man out with those harsh observations about him without asking him this ques- tion : You say you know it ; how do you know it ? [Having reviewed the remaining evi- dence, counsel restated the charge.] I say that the charge against the prisoner is, that he, believing there was a body of men in this country ready to revolt and rebel, raised a large body of armed men, with the intention to take possession of the town of Newport, to supersede the law and the Government, and to give a signal for general insurrection through the kingdom ; that the object of that was to overturn the Government. What is the answer? My learned friend says, “ Evidence I have none, but I beg you to believe that the excitement for Vincent, that the intention to serve Vincent was the object.” Was it so? Where is the evidence ? At what lodge had it been discussed ? At what meeting had it been proposed to petition ? Where is the place that the excitement existed? It cannot be found. Gentlemen, my learned friend, I said, was unfortunate in his appeals to Providence ; he was unfortunate in calling upon you to watch and to see the manner in which falsehood was detected ; he did not watch his own case when he made that appeal. Does Mr. Frost know how to procure a relaxation of prison discipline for Mr. Vincent? Does Mr. Frost know the proper grounds upon which the Go- vernment can extend mercy, and magis- trates indulgence? Does he know that the moment of rebellion, riot, alarm, and confusion, is not the moment when mercy can be extended? He does. Does he know how long agitation for Vincent had lasted, and when it ceased ? He does. You are told to account for all this with- out evidence, upon the ground of agita- tion for Vincent ; dates not given to you ; men are asked, you may recollect, respect- ing conversations months ago ; asked gene- rally, without reference to time. It is said that the prisoner went in order to restrain the mob. Does it accord with any part of his conduct? Can you find who raised the mob, who told them to arm, who led them on. Avho proposed the hour at which they should enter Newport ? Can you find who did it besides Mr. Frost ? The learned counsel, doubtless, were not furnished with means, or they would anxiously have sought to lay before you the grounds upon which you might perceive his attempts to re- Trial of John Frost, 1839. ■ ^ **U^H*. 4 37] Trial of John Frost, 1839. [438 strain the mob. They could furnish none. The excuse, therefore, entirely fails. There is no evidence of agitation at all, or of any human being acting or inter- fering in reference to Vincent but Mr. Frost. Then as to the conflict at the “ West-gate,” it is said that the mob could not have fired after the soldiers fired, be- cause more lives were not destroyed, or rather, because no lives were destroyed, and more wounds were not inflicted. But, gentlemen, observe, the ground sloped considerably from the inn ; the guns of the mob would be elevated ; you know how slight an alteration of the angle will carry the ball above the object ; the mob would, no doubt, from the well- directed fire of the soldiers, retire to some distance ; and they would not, I dare say, take a very steady aim, not being used to loading their guns very correctly, and not being in a state of very good discipline ; that they therefore should not have hit the soldiers is not surprising, but you hear of the shots which are in the ceiling. You will also bear in mind the manner in which the soldiers were arranged ; as the windows were low, the soldiers stood along the room in that direction ; the shot, therefore, would glance across. It was not, as the argument on the part of the learned counsel supposed, that they were ranged opposite the window. Gentlemen, I have little more to say. I have touched upon Mr. Frost’s defence with regard to Vincent >• I cannot dwell upon it ; I can discover no topics that belong to it that are of service to him. What else is relied upon ? Mr. Frost’s character, and some other, circumstances. Gentlemen, it is a painful subject to touch upon. He has the character of a peaceable and quiet subject — a character which would make it inconsistent that a man should engage in rebellion. But we, un- fortunately, know how views of ambition and pride and impatience lead men to attempt objects illegal and violent, as well as useless. Mr. Frost has proved by a neighbour that he has the character of a generally humane man. I wish not to deprive him of that character. Let it be supposed not that one or two only, but that any number, will say the same of him. But it is said, Mr. Frost was at this time prosecuting his lawful concerns, was attending to his business, and therefore not likely to engage in revolution. I only wish the evidence had been stronger upon that subject. If he was engaged in arranging the meeting; if he was en- gaged in seeing that arms were pro- vided ; if he was engaged in communi- cating with people from a distance, who met from twelve to five o’clock on the Friday, and with the previous arrange- ments, it is difficult to imagine that his attention was very closely directed to his business. You are asked also to believe that the circumstance of his wife and family being in Newport at the time is evidence to show that he did not contemplate making the attempt which is charged. I only say, that when Mr. Frost took that mob into Newport, or proposed to take them into Newport, at two o’clock in the morning, I cannot discover that solicitude for his wife and family which I should have expected to have found ; and when riot, tumult and disorder stalked abroad, Mr. Frost’s footsteps were not bent to his home, to that wife and family, but to the wood at Tredegar Park. When the day had passed by, and Mr. Frost is discovered in the evening, he is not at his own house, nor does it appear by any evidence he had been there, he is found at another house. Whatever anxiety, therefore, he is supposed to have enter- tained for his wife and family, and no doubt did entertain, they do not appear to have operated upon his movements at that time. In the hour of peril and dan- ger he was not with them to succour and comfort and protect them ; he was with the mob, which mob he was not re- straining, while they were engaged in acts of mischief. Mr. Frost was apprehended, as I have mentioned to you, at another person’s house ; it is said he made no resistance. Gentlemen, what his ideas might be of the force that was brought to apprehend him, I know not. Give him the benefit of the circumstance that he did not use the three loaded pistols which he had about him. But I think, unfor- tunately, they speak much more strongly as indicating violent intentions when those pistols were provided, than they speak peaceable intentions when he was apprehended. Gentlemen, there is a fact which is in Mr. Frost’s favour, and of which he is entitled to the benefit ; Mr. Frost’s papers were seized ; no papers have been pro- duced against him containing any evidence of any traitorous conspiracy. Give him the fullest benefit of that ; I will not de- tract from it, except by a remark upon one fact, which I think justice calls for ; Mr. Frost’s attention was alive to his papers when the officers of justice were at the printer’s — a printer who, as my learned friend, Sir Frederick Pollock, nroved, was a printer much employed by Mr. Frost. Mr. Frost said, when they were searching for manuscripts, “You will not find my manuscripts here.” Had he withdrawn his manuscripts from his printer ? Where had he disposed of them ? What had been his motive for withdrawing 439 ] those manuscripts? His attention had been called to his papers ; he had taken care to leave none there in the possession of his printer. Yon will judge how far that may tend to render it probable that his papers had been taken care of before he left his house. The fact, however, is, that none were found — none are produced — give him the benefit of that. Gentlemen, I hope that I have honestly to the public, not unfairly to the prisoner, discharged my duty. I have only further to say, that the prisoner cannot be con- victed unless the evidence is clear and convincing : I heartily hope that you will arrive at a just conclusion upon this ^evidence, and be enabled to pronounce a verdict consistent with that evidence which shall do justice to the country and to the prisoner. Summing up. Tindal, C.J. : Orentlemen, the charge against the prisoner at the bar is, that, having broken the faith and true allegiance which he owed to his lawful Sovereign, he has levied war against her within her realm, that is, in one ; word, a charge of high treason. The indictment contains four counts, as they are called, each stating in a different manner the ground of accusa- tion against the prisoner ; but it appears to me that it would rather embarrass than enlighten your minds if I were to en- deavour to lay down to you, except in the most general manner, the distinctions with regard to the description of the offence in each count; for you must at last come to the decision of the question of which you have heard so much in the course of the discussion, namely, whether or no, under the circumstances that have been proved before you, the offence of levying war against the Queen within her realm has been committed by the prisoner at the bar. As to the first two counts of the indict- ment, they are founded upon the ancient statute of the 25 Edward 3., which statute contains within it the clause by which the levying war against the King is declared to be high treason. The remaining two counts of the indictment are framed upon a more modern statute, namely, the 36 Geo. 3. c. 7., which has been since made perpetual , and which has to a cer- tain extent expounded the former statute, and has made certain acts which before were considered to be no more than overt acts of the treason declared by the ancient statute, to constitute of themselves the offence of treason, when committed. Gentlemen, the ancient statute to which I refer, the 25 Edward 3., declares what shall be adjudged high treason, and, [440 amongst many other acts described, it declares that — “ when a man do levy war against our lord the King in his realm, or be adherent to the King’s enemies in his realm, giving to them aid and comfort in the realm, or elsewhere, and thereof he proveably attainted of open deed by the people of their condition,” that this shall be one ground upon which the party accused of the offence, and legally proved to have committed the offence, shall be held to be guilty of the crime of high treason. The same statute goes on shortly afterwards to declare, that — “ it is to he understood that in the cases above rehearsed, that ought to be judged treason which extends to our lord the King, and his royal majesty ; meaning thereby that the levying of war, though it be not directly aimed against the person of the King, or for the direct purpose of injuring his person, yet, if it be done against the royal authority, as established by law in the land, amounts equally to the crime of high treason within the statute. How, gentlemen, this being the law, if we look merely at the words that are contained in the Act of Parliament, “ a levying of war against the King in his realm,” they would seem at first sight to confine themselves to those instances in early history, in which war has been carried on between rivals contending for the possession of the throne. All those battles which took place during the quarrels and disputes between the houses of York and Lancaster were treated by the party who was successful and seated upon the throne as acts of treason against the lawful Sovereign. Such contests were “ a levying of war ” in the strictest sense of the word ; and agai n in more recent time, though not within the recollection of any now living, yet within the reach of report and traditior, those battles which took place by reason of the family of James 2. coming into the realm and waging war against the successive Sovereigns of the house of Hanover, would strictly and com- pletely fill up the description contained in the statute, “ of a levying of war against the King within his realm.” Gentlemen, if the statute were confined to a levying of war within that sense, so that unless there were armies advancing, with generals at their heads, and con- flicting with the Sovereign upon the throne for its possession, a case of the character and description of the present would be clearly not within the statute. The statute has, however, been expounded by learned judges from the time when it was introduced, down to the present, in a Trial of John Frost , 1839 . 411 ] Trial of John Frost, 1839 . [442 wider and a more comprehensive sense, so as to meet the attacks which have been made on the royal authority by armed multitudes in the course of many of the reigns of succeeding monarchs ; and it is obvious that it would have been pregnant with great public evil if such rebellious acts had not been repressed by the exer- cise of this law, although they did not amount to an actual levying of war in the more strict sense of the term. I cannot do better, I think, than read to you the exposition given by a very learned judge, whose authority has always been regarded with the greatest veneration, of the clause of the statute of levying war, so far as it can apply to the present case ; it is to be found in the discourse of Sir Michael Foster on high treason. That learned judge states, that — “ every insurrection which in judgment of law is intended against the person of the King, be it to dethrone or imprison him, or to oblige him to alter his measures of government, or to remove evil counsellors from about him, — th^se risings all amount to levying war within the statute, whether attended with the pomp and circumstances of open war or not ; and every conspiracy to levy war for these purposes, though not treason within the clause of levying war, is yet an overt act within the other clause of compassing the King’s death ; for these purposes cannot 'be effected by numbers and open lorce without manifest danger to his per- son.”^) Then he proceeds afterwards to dis- tinguish between insurrections of persons who are armed and in great numbers, and arrayed in a warlike manner, merely for some local or private purpose, and insur- rections for some general and open pur- pose affecting the state, and says : — “ Insurrections in order to throw down all enclosures, to alter the established law or change religion, to enhance the price of all labour, or to open all prisons — all risings in order to affect these innovations of a public and general con- cern by an armed force are, in construction of law, high treason within the clause of levying war ; for though they are not levelled at the person of the King, they are against his royal majesty ; and, besides, they have a direct tendency to dissolve all the bonds of society, and to destroy all property and all government too, by numbers and an armed force. In- surrections, likewise, for redressing national grievances, or for the expulsion of foreigners in general, or indeed of any single nation living here under the protection of the King ; or for the reformation of real or imaginary evils of a public nature, and in which the insurgents have no special interest — risings to effect these ends by force and numbers are, by construction of law, within the clause of levying war, for they are levelled at the King’s crown and royal dignity.” Gentlemen, I will trouble you with no further statement from any authority, except to call your attention to one passage in Sir Matthew Hale, (a) another highly venerated authority upon this subject, which I do, not only for the pur- pose of pointing out the same distinction, but, also, because upon one part of this case it may have some particular bearing, and, perhaps, as far as it goes, may offer a suggestion in favour of the prisoner at the bar. He says : — “ 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 ; but if it were to break prisons, or deliver persons gene- rally out of prison, this is treason.” So that I think the rule of law may be- laid down in a few words in this manner : to constitute high treason by levying war, there must be insurrection ; there must be force accompanying that insurrection - r and it must be for the accomplishment of an object of a general nature. But if all these circumstances are found to concur in any individual case that is brought under investigation, that is quite sufficient, to constitute a levying of war. The question , therefore, for your deter- mination will be, when the facts are brought more freshly to your recollection, which have in the course of this long in- vestigation been proved at the bar of this court, whether the acts proved to have been done by the prisoner amount to the offence of levying war within the meaning, of the statute, as explained by the high authorities to which I have referred ; or whether they fall short of that high crime* and amount to no more than evidence of an insurrection and riot of a very enor- mous character and description, and ac- companied with signal danger to the com- munity. For unless the evidence against the prisoner reaches the point to which I have first called your attention, it will not establish against the prisoner the guilt of high treason, but that of a grievous misdemeanour, and nothin^ more. I observe, gentlemen, that the learned. Attorney General stated the case on the part of the Crown against the prisoner to- be this — that the prisoner at the bar had brought down to the town of Newport a very large multitude of persons, armed and arrayed in a warlike manner, and that (a) Fost. 210, 211. (a) 1 Hale, P.C. 133. 443 ] Trial of John Frost, 1839 . [444 the plan was to get possession of the town of Newport, to break down the bridge, stop the mail, and that the mail not arriving at Birmingham for some time, it would be a signal for a general rising in Birmingham and Lancashire, and the charter law would become the law of the land. The learned Solicitor General, who has summed up the evidence, has stated the outline of the case which has been proved pretty nearly in the same form, omitting with great propriety that part of it upon which no evidence had been offered — namely, that which related to the general establishment of charter law. The Solicitor General stated that the plan of the prisoner was, to get together bands of armed men, with intent by surprise and terror, or by force, to take Newport, to exercise power there, to supersede the magistracy, and thereby raise a general rebellion within the kingdom. Now there can be no doubt whatever that if either of the propositions which have been so stated by the Law Officers of the Crown is made out to your satisfaction, there is full proof of the commission by the prisoner of the crime of high treason. It will therefore be your duty, carefully watching the evi- dence, to determine whether or no the evidence carries the acts of the prisoner and his guilty intention to the extent above stated by the learned counsel for the Crown. On the part of the prisoner, the learned counsel who appear for him state, and I think they are justified in so stating, that he is not bound to show what was the ob- ject or purpose or intent of the acts that were undoubtedly done by the prisoner at the bar. His counsel say the offence charged against him must be proved by those who make the charge ; that he stands only to hear the evidence that is given against him, and therefore he is not bound to show at all, or in any way whatever, what his real object or design was. Un- doubtedly the proof of the case against the prisoner must depend for its support, not upon the absence or want of any explana- tion on the part of the prisoner himself, but upon the positive affirmative evidence of his guilt that is given by the Crown. It is not, however, an unreasonable thing, and it daily occurs in investigations, both civil and criminal, that if there is a cer- tain appearance made out against a party, if he is involved by the evidence in a state of considerable suspicion, he is called upon for his own sake and his own safety to state and to bring forward the circum- stances, whatever they may be, which might reconcile such suspicious appear- ances with perfect innocence; and there- fore the learned counsel of the prisoner, although he entered his protest against his being necessarily required to make such a statement, proceeds to say that the case of the prisoner at the bar was one that was perfectly innocent, that is, per- fectly innocent so far as regards the crime of high treason. He stated that it was never intended by the prisoner either to- take the town or to attack the military, which latter act was purely accidental ; that all that was intended was to make a demonstration to the magistracy of New- port and the county of the strength of those persons who were called Chartists, for the single purpose and design of in- ducing the magistrates either to procure the liberation of one Vincent and three other persons who had been convicted of some political offences, and were then confined in Monmouth gaol, or at all events, to procure a mitigation in their mode of treatment whilst under imprison- ment. G-entlemen, if the outline which is made by the officers of the Crown is filled up by evidence, there is no doubt whatever that the guilt of the party accused amounts to high treason ; and, on the other hand, if falling short of that offence, it amounts to no more than the description which has been given of it by the counsel for the prisoner, although it would be a most grievous offence as a misdemeanour, in- volving the security of the property, and perhaps of the lives, of many persons in the town of Newport ; yet it would be deficient in the main ingredient of the offence of levying war against the Queen within her realm ; it would want the com- passing and designing to put down the authority and government of the Queen ; it would amount to no more than a very aggravated misdemeanour ; and upon that supposition and state of facts the prisoner would be entitled to an acquittal upon the present indictment. You are therefore, a? I said before, to weigh the evidence you have heard with especial care, and to say upon which side, taking these two different views into consideration, the scale of jus- tice ought to preponderate. Gentlemen, I had thought at one time to have broken the evidence into parts, and to have placed the different parts of it, as they related to distinct periods of this transaction, in juxta-position together, so as to have presented to you a clear and intelligible view of the whole of the case ; omitting the evidence as to those facts which are not in dispute between the par- ties ; but I have, upon reflection, thought it would be safer, in a case of such deep importance to the prisoner, as well as to the community, that I should rather fol- low the evidence in the course in which it has been given, and should offer such com- ments and observations upon it from time 445 ] Trial of John Frost 1839 . [446 to time as appear to me may by possibility be useful to yourselves. I shall, there- fore, now proceed at once to take up the evidence from my notes, and recapitulate it to you, accompanied with such observa- tions as occur to me ; and shall, in con- clusion, bring your minds back again to the exact question which you will have at last to determine upon this momentous occasion. [The learned judge then read his notes of the evidence to the jury. As to the ob- ject of the attack on the “ Westgate ” he observed : — 3 On the part of the prisoner it is alleged, that the object of this attack upon the “ Westgate ” Inn was entirely unconnected with any design upon the soldiers at all — nay, it is said that they never saw the soldiers till after the firing commenced, nor knew that they were there ; but that the object of the attack was simply for the purpose of rescuing certain persons who had been made prisoners by the ma- gistrates during the course of the night preceding the tumult. If there had been no other evidence against the prisoner at the bar, except the fact of the conflict that took place between the soldiers and the mob, who were led on by him, cer- tainly it would have been very important to see whether they had any knowledge that there were soldiers there at all; and to show that they had an object perfectly distinct from any wish to attack the sol- diers ; that they meant nothing but to rescue certain prisoners who were con- fined in the inn. But this is not the whole of the evidence that will be before you upon this point ; because you must take into your consideration, when you are determining upon the intent and pur- pose of the prisoner at the bar, not only what took place at the immediate moment of the conflict at the “ Westgate” Inn, but also the information which he had received just before from the witness Coles, that some of the soldiers had gone to the “Westgate” Inn; the conversation in Frost's presence on that occasion ; and still further, the general evidence relating to the bringing down so large a body of armed men into the town. This must have been done with some intent or other ; what that was you will have to determine upon the whole of the case. [As to the demand at the doors of the “ Westgate,” the learned judge ob- served : — 3 Gentlemen, the principal object of calling this witness {John Wilton), and some others, who state with great preci- sion what they heard upon the occasion, is to prove that the demand on the part of the prisoner, or the mob who accompa- nied the prisoner, was not that the sol- diers, or the magistrates, or the people at the “ Westgate ” Inn should surrender themselves prisoners, which, under the circumstances, would be a demand of a very hostile nature, in fact, amounting to treason, if it had been made against Her Majesty’s troops whilst they were under arms and acting in preservation of the peace ; that the witnesses for the prosecu- tion, who suppose it to have been a demand to surrender themselves as prisoners are mistaken ; that it was in reality a demand to surrender up the prisoners whom they had in custody in the inn at the time. Un- doubtedly that is a demand of a very different nature, capable of a much more favourable interpretation to the prisoner at the bar, with respect to the immediate proceedings at the “ Westgate ” Inn, and, therefore, it was very proper to call those witnesses, and set the matter right before you ; and it is now conceded on the part of the Crown, that the demand really was, as those witnesses on the part of the pri- soner state it to have been, a demand that they should give up those persons whom they had detained in custody during the interval between the Sunday night and the early part of the morning. So far, therefore, as regards the precise effect and consequences of this demand, as im- posing a demand on the soldiers to surrender themselves, the observation is entirely disproved by the evidence of those persons. [Commenting on the evidence of the witness Thomas, the learned judge dealt with the alleged design to stop the mail. It was urged that such a design would be senseless and inapplicable to the real state of things, because a coach would have gone from the other side of the Severn to Bristol all the same ; but, possibly, what may have been meant was to stop the let- ters from Newport, as the fact that com- munications from that quarter had been cut off must have become known at no distant period.3 Gentlemen, this is the whole of the evi- dence on the one side and the other, and it is for you to say whether you are satis- fied upon the evidence that has been brought before you, that the prisoner at the bar has been guilty of the offence of levying war against the Queen within her realm. That on the morning of the 4th of November, there was a very riotous and tumultuary proceeding, and that an attack was made in the town of Newport upon the magistrates and military who were at the “Westgate” Inn, is placed beyond all doubt. That a very large body of men came into the immediate neigh- bourhood of the town, at a very early and unusual hour of the morning, not from one single point, but people collected • X; 447] Trial of John Frost , 1839. [448 from different parts and united into one body before they came into the town, there is also no doubt. That many of these persons were armed with various weapons of offence, and all ranged and armed with something like military order is again beyond doubt. That the prisoner at the bar was the person who appeared to be at the head of this whole armed multitude is likewise placed beyond the reach of doubt. The question before you, as it relates to him, will turn upon his object, design, intention. The evidence upon which he is charged with this heavy offence, and upon which his treasonable purposes are alleged to rest, is the large share which he appears to have taken in the whole of the transaction, and the declarations which he made at the time, both of which you must bring into review before you in giving your verdict on the present occasion. And, gentlemen, the better to enable you to do this, I think it may not be unadvisable to call your atten- tion with a little more particularity to the evidence given before you of the exact share which Mr. Frost took during the preceding week, and up to the moment of the attack on the “Westgate” Inn, in the course of the violent and outrageous proceedings which took place, and at the same time to bring together the several declarations which he is alleged to have made, accompanying this statement with a reference to the objections urged on the part of the prisoner at the bar to the validity and sufficiency of the testimony, and to the weight due to the declarations themselves. [The learned judge reviewed the evi- dence as to Frost's movements.] That, gentlemen, is the outline of the evidence which applies to the acts in which the prisoner at the bar personally participated. You must next keep your minds attentive to that which is the most important point, namely, what was the intent and design of the prisoner in doing that which you are satisfied he is proved to have done. When he is found to be lending his aid and assistance in collect- ing together from distant points this armed multitude, with which to a certain extent he had been, beyond all doubt, interfering, when he accompanies this armed body to Newport under such cir- cumstances of command and authority over them on his part, as you may collect from the evidence, when he is present up to the very moment previous to their attack on the military and magistrates, what do you infer to have been his pur- pose and design ? Was it to march into Newport and take forcible and violent possession of it, so as to hold one of the Queen’s towns under his own authority and exempt from hers ; or was it a design to attack and master by armed force the Queen’s troops ; or was there any ulterior and more general purpose, such as a de- sign that a more extensive rebellion and insurrection should begin with what was done at Newport; or did all these pro- ceedings take place, as stated on the part of the prisoner himself by his learned counsel, for an object perfectly distinct from these, namely, merely to make a demonstration of their moral force (if one may use such a term), not for any purpose of violence or aggression, still less for the purpose of changing the law or the Govern- ment, but only to induce or move the magistrates either to release Vincent and his comrades from prison, or to procure their more favourable treatment during their confinement? If it is your judg- ment and opinion that the prisoner acted with any of the objects and designs in view, to which I have first called your attention, such acts on the part of the prisoner, proceeding from such intentions, do undoubtedly amount to the crime of high treason. If, on the other hand, you are satisfied upon the evidence, and the judgment you form upon it, that the motive alleged by the prisoner was that which really influenced him at the time, then the offence committed by him, al- though punishable by the law, and severely punishable as a riotous assemblage, pro- ductive of great danger tq the people in the neighbourhood, and attended with the most serious consequences, would steer clear of incurring either the guilt or the penalty of high treason. But, gentlemen, it is important to bear in mind the declarations which are stated to have been made by the prisoner, and to which your attention must also be directed. The first declaration is spoken to by the witness Simmons, when he says he heard Frost say, at the turnpike on Stowe Hill, at about nine o’clock on the Monday morning, “Let us go towards the town, and show ourselves to the town.” Upon this expression, certainly of an ambiguous character in itself, I have before offered you my observations at some length. Whether it is to be understood by you as importing no more than the going and making a peaceable demonstration of themselves to the town, or whether, when in connexion with what preceded and what immediately afterwards took place, it is to be considered as denoting a mind and intention of a very different character, you must determine for yourselves, having regard not only to the words themselves, but to the whole of the surrounding cir- cumstances that you have heard. Then come the two boys, Rees and Coles * who are standing by the Court-y-Bella 449] Trial of John machine. The boy Bees says, “ Whilst I was standing by the Court-y-Bella ma- chine, I heard Frost ask Coles where the soldiers were, and Coles said there were about a dozen gone down to the 4 West- gate.’ ” Now, it appears very clearly, that immediately after they had received this intimation, the mob go direct to the “Westgate”; they say, “Let us show ourselves in front of the ‘Westgate.’” One of the grounds upon which the crime of high treason is laid upon the prisoner at the bar is, that there was a premeditated design to attack the soldiers at Newport. You must weigh the matter on both sides, and say whether you are satisfied that such was the case. It has been argued, that if they had really intended to attack the soldiers at Newport, when they learnt from the boy that some of the soldiers had been marched away to the “Westgate” Inn, if would be more probable that they would have gone round to the union poor- house, where the number of soldiers must then have been diminished, and en- deavoured to have secured them in the first instance, before they attacked the “ Westgate ” Inn. The charge being that their intention was by preconcert and design to attack and take the soldiers who were at Newport, ask yourselves whether the course which they actually pursued is consistent with that intention or not. Not, gentlemen, that the question of treason or no treason is put at rest, even if you are satisfied in your own minds that the mob did not intend to attack and subdue the soldiers at Newport, or that you think they went to the “ Westgate ” Inn for the purpose of releasing their own prisoners, and nothing else. The single act of going to the “Westgate” Inn, and the conflict with the soldiers there, if only a sudden and unpremeditated ebullition, would not be in itself high treason ; but still remains the weightier question. What means this previous collecting of men together ; this marching and this arming of men before- hand, and this arraying of them in a war- like manner, and bringing them down to Newport at all ? Though they had not an intention by any preconcert between the parties to fire upon the Queen’s troops, and to take them prisoners, or to destroy them, still was there any ulterior purpose in the minds of those who were concerned in this transaction, of that general nature and character to which I referred more fully at the beginning of the observations which I have made to you, namely, a seeking by dint of numbers and by force to take possession of the town, and to usurp the Queen’s power within the same, or to form the beginning of the rebellion and revolt in the kingdom, which would undoubtedly amount to the offence of high o 67432. . Frost, 1839. * [450 treason against the majesty and sove- reignty of the Queen ; and in order to de- cide upon the fact of such or a similar intention you must bring before you the declarations (to which I shall presently call your attention), that this would be the signal for an insurrection in other parts of the kingdom. Gentlemen, the next declaration that you find is, that which is spoken of by Hodge, as to the character of whose evi- dence, and the weight due to it, I have already called your particular attention. He says, “ The man with the glazed hat was in the same room with Mr. Frost, and said, he had come up from Newport, and that the soldiers were all Chartists, their arms and ammunition were all packed up, and that they were ready to come up, ready for we to go down and fetch them ; and he asked if any person wanted ammunition, and it was said that the soldiers were in the barracks.” He then says, “ The man said, that the people ought to be out ready on the road with guns, to stop any person that might pass ; then he said, ‘ Come, brothers, it is time we were off, for our enemy is flying in all directions, and we ought to have been down these two hours.’ ” Then it was that Mr. Frost, there being a stagnation, as the witness says, put himself at their head and told them to follow him. Gen- tlemen, he goes on to say, that when he had reached Pye Corner, Frost said the guns should go first, and the pikes next, and so on. “ I asked him what he was going to do ; he said, he was going to attack Newport and take it, and to blow up or down the bridge, and to prevent the Welsh mail from proceeding to Birming- ham : that there would be three delegates there to wait for the coach an hour and a half after time, and that if the mail did not arrive then the attack was to commence at Birmingham, and from thence to the north of England and Scotland, and that was to be a signal for the whole nation.” Gentlemen, then comes the other wit- ness, Harford, upon whose character and the weight due to whose testimony you are the judges, and not myself ; and the account that he gives is, that he “ saw Frost on the Monday morning, between the “ Cefn ” and the “ Welch Oak ” ; the mob asked Mr. Frost when we met him, whether they had better not return, and Mr. Frost said no, they had better not return ; the mob asked Mr. Frost what he intended to do ; he said, first they should go to the new poor-house and take the soldiers and arms ; then, he said, there was a store house, where there was plenty of powder ; then they would blow up the bridge, that would step the Welsh mail which did run to the north, and that P 451 ] Trial of John Frost, 1839 . [452 would be tidings ; and they would com- mence then in the north on Monday night, and he should be able to see two or three of his friends or enemies at Newport.” Gentlemen, those are the several de- clarations that are alleged by the witnesses to have been made by the prisoner at the bar ; whether they were ma.de or not is a fact of which you are to be the judges ; if they were made, and made by him, with the meaning . that they naturally bear, it will be for you to say whether you infer from such declarations, and from the share which he had in the several pro- ceedings and transactions which have been laid before you in evidence, an intent and design on his part to effect any great and general movement among the people ; whether it was his object, by the terror which these bodies of armed men would inspire, by the force which he carried with him to seize possession of the town of Newport, which is one of the Queen’s towns, and either to keep .possession of it, or making this a beginning only, he in- tended and expected that there should be a further spread of an extensive rebellion through other parts of the kingdom ; gen- tlemen, you are to say whether you are satisfied or not, from the evidence which you have heard, that such intention can fairly be imputed to him. The object which the prisoner is stated to have had in view is . one, as I have before mentioned, of a much more mode- rate complexion and limited extent. All that he had in view is alleged to have been, that by showing, in the face of the magistrates of Newport, the large number of men that were of a particular opinion, and the physical power which they pos- sessed in the nation, he might be enabled to effect, at all events, the amelioration of the condition of Vincent and his com- panions in Monmouth gaol, if not their liberation. Gentlemen, you are not so much to consider whether he has esta- blished that his views and objects were of that limited nature, for such proof on his part is not imposed upon him by law ; you will, no doubt, look at the evidence with all possible candour and fairness, and will see whether such limited object and design can be made out consistently with the evidence that has been brought before you ; but you are not to put him upon proving the ground upon which he seeks to stand clear from this charge ; it lies upon tbe Crown to prove conclusively against him that the crime of high treason, with which he is now charged, has been made out by the proof brought against him. Therefore, if, upon looking at the evidence that has been brought before you, you are not satisfied that there is clear and conclusive testimony against him which brings the offence he has committed to a charge of high treason, you must by your verdict acquit him of that charge. It is only if the Crown have made it out so clearly and conclusively that you cannot entertain a just and reasonable doubt of the degree of his guilt that you are to find him guilty; but, if such should, un- fortunately, be the case ; if you are satis- fied that the Crown has produced such evidence as establishes with certainty to your mind the guilt of the prisoner, then, however painfal it must be to your own breasts, it will be your duty to yourselves and to your country to declare his guilt by your verdict. Gentlemen, the case is one entirely for your consideration ; i-t is a question for a jury ; the court cannot in any manner whatever interfere with your province ; and therefore I leave it in your hands, relying upon your judgment and your conscience, and quite certain that you will come to that conclusion which the truth and justice of the case require. You will now consider your verdict. Attorney General : My Lord, in these cases it has been usual to ask the jury whether they would wish to take any re- freshment before they leave the box. Kelly: My Lord, I should of course also desire that that should be done. Tindal, C.J. : Gentlemen, if you wish, before you retire, to take any refreshment, you can now do so. After you have once retired from the jury box you cannot be permitted by law to have any refreshment until you agree in your verdict. You will consider, therefore, whether you wish to take anything now. Foreman of the Jury : I am much obliged to your Lordship ; we will avail ourselves of the offer you have so kindly made to us. Clerk of Assize: Gentlemen, you can have your refreshment brought to you here before you retire. Foreman of the Jury : Some of the jury, my Lord, think it not necessary ; therefore we will retire at once. The jury retired at twenty-five minutes before six o’clock, and returned into court at five minutes past six, and found the prisoner guilty, but recommended him to the merciful consideration of the Court. Tindal, C.J. : We will forward your recommendation to the proper quarter. Upon the following day, the 9th of January, the Court proceeded with the trial of Zejphaniah Williams , which was concluded upon the 13th, when the jury returned a verdict of guilty, accompanied with a recommendation to mercy. The Court then proceeded with the trial . 453 ] of William Jones , which was concluded on the 15th, when the jury returned a verdict of guilty, accompanied wtth the same recommendation. On the same day, Stone having been assigned as counsel, together with Skinner, for Charles Walters, Jenkin Morgan, John Bees, Bichard Benfield and John Lovett, applied to the Court that they might be brought to the bar for the purpose of with- drawing their pleas of not guilty, and pleading guilty. Charles Walters, Jenkin Morgan, John Bees, Bichard Benfield and John Lovett were brought to the bar, and severally stated, in answer to a question from the Clerk of Arraigns, that they wish to with- draw their pleas of not guilty, and to plead guilty, after which the prisoners were removed from the bar. On the motion of the Attorney General, George Turner otherwise George Coles, Soloman Britan, James Aust and Edmund Edmunds were brought to the bar; and the jury having been charged with the prisoners, the Attorney General stated that he did not intend to press the prosecution against any of these prisoners, inasmuch as it appeared, with regard to Soloman Britan and George Turner that a question might arise with respect to their identity ; and that with regard to James Aust and Edmund Edmunds there was some reason to doubt whether, in joining with the in- surgents, they had acted voluntarily. Whereupon the jury, under the direction of the Court, found a verdict of not guilty. Thursday, January 16, 1840. The prisoners, John Frost, Zephaniah Williams, and William Jones, were placed at the bar, and John Frost was asked by the Clerk of Arraigns, “ What have you to say for yourself why the Court should not give you judgment to die according to law ? ” Geach: My Lords, in the absence of the counsel who have been assigned to Mr. Frost, I am obliged, under very peculiar circumstances, to apply to the Court. We were only this moment aware that Mr. Frost was to be brought up for judgment. The learned Attorney General before he left gave us distinctly to understand that the prisoner would not be brought up for judgment till the point of law which had been reserved had been decided. Tindal, C.J. : The Attorney General could have no authority to give that inti- mation, and I am quite certain you must have misunderstood him. Geach : The communication was made to the counsel, who are not now present. [454 But the circumstances under which I now apply to the Court are these : There is a ground upon which we intended to move in arrest of judgment. We are not pre- pared at this moment with affidavits in support of our motion, but we shall be in two or three hours. The ground is this : Upon the jury who tried Mr. Frost there was a juryman who answered to the name of Christopher John, No. 132 in the printed list. This juryman, whose summons I have here, was summoned in the name of Christopher John ; he answered to the name of Christopher John; he took his seat in that name, and returned a verdict accordingly. The real name of the jury- man, my Lord, is John Christopher. There is in the same list a person also of the name of John Christopher, who is numbered 38 ; the real name of each person being John Christopher. We had obtained in- formation of a very extraordinary descrip- tion in regard to a person of the name of Christopher; and we had arranged on be- half of the prisoner that anyone of the name of Christopher appearing was to have been challenged ; and in the list which had been prepared before the trial, we had set opposite the name of John Christopher, No. 38, an objection. We caused all possible inquiry to be made as to Christopher John, but we could succeed in obtaining no information; and as in the list, I believe, our objections extended to nearly one hundred and sixty, we did not and could not feel justified, when the name of Christopher John was called, in making any objection in respect of a per- son as to whom we could obtain no infor- mation. And my Lord, in the list which was prepared for our guidance before the trial, we have no observation at all oppo- site to the name of Christopher John, which is not the case, I believe, in five cases throughout the list. We are pre- pared to show that the list to which I have referred is precisely in the same state in which it was at the moment we had it in Court, and whilst the jury were being impanelled. I have this morning got the juryman to town, and he states distinctly that his name is John Chris- topher ; that he is the son of Thomas and Hannah Christopher ; that he was chris- tened, as he believes, at the parish church of the parish in which he now lives in the name of John Christopher; that he has never assumed any other name, and that he has lived in the same parish nearly all his life. Parke, B. : He does not say that he was not known by any other name. Geach : Yes, my Lord, be does. He states that he verily believes that if an application had been made in the parish for such a person as Christopher John, no P 2 Trial of John Frost , 1839 . 455] Trial of John Frost, 1839. [456 such application would have led to his being pointed out as the party. Tindal, C.J. : He answers to that name in the face of the whole county. He first of all takes the summons and makes no objection, and when called upon by the officer of the Court by that name, he comes forward in the face of the whole county ; he is asked as to his qualification, and be takes his seat in the box in that name. Geach : There is another strong fact ; he could neither read nor write. He states that he was unable to read the sum- mons, and he mentioned that fact to the bailiff who summoned him after he arrived in town, and the bailiff told him it made no difference ; that he would be justified in taking his seat in the box. Tindal, C.J. : It is at most only a cause of challenge ; there is a case in which this point was decided by all the judges. Geach : I am quite aware of the im- portance of the question, which I feel quite incompetent to deal with myself; but I trust that in the absence of the counsel who have been assigned to Mr. Frost , and it not being competent to any other counsel to appear for him Tindal, C.J. : That is by no means the case ; if there was anything in the point, we could directly appoint counsel to argue it ; but we think there is not. Parke, B. : There is a case directly in point in 12th Fast. (a) Tindal, C.J, : It is called the Juryman 1 s case. Parke, B.: This is the case: “j^fter the business on the Crown side at the summer assizes for the county of the town of Newcastle was finished, it was disco- vered that Robert Gurry, who served upon the jury, had answered to the name of Joseph Gurry in the sheriff’s panel, and had been sworn by that name. Upon further inquiry it appeared that there was a person of the name of Joseph Gurry belonging to Newcastle, but not at that time resident within the town or county ; that Robert Gurry was qualified to serve on juries, and had been summoned by the bailiffs to attend on the Crown side as a juryman at this assize. All this was men- tioned to Mr. Baron Fyre, who conceiving it to amount to nothing more than a mere misnomer in the panel of the juryman intended to be returned, and who did serve, and that it was but cause of chal- lenge, which on being stated would have been instantly removed by altering the panel, and that after judgment it could not be assigned as error, did not incline to interpose, upon the ground of a sup- posed irregularity in the proceedings; but Mr. Ghambre and Mr. Villiers (counsel) having afterwards in the Nisi Prius Court for the county of Northumberland stated these facts to the Baron, and pressed them as amounting to a mis-trial, the Baron thought fit to respite the execution of a convict for forgery, that he might have an opportunity of advising with the judges upon this occurrence. On the first day of Michaelmas term, 1783, the judges were unanimously of opinion that this was no ground of objection, even if a writ of error were brought, much less on a sum- mary application.” Geach : My Lord, I certainly have not had my attention directed to that case - T but that was not a trial for treason in which, in pursuance of an Act of Parlia- ment, the prisoner is to have a list of the jurymen. Parke, B. : It is perfectly clear that the only time that you can make the ob- jection is upon the juryman being sworn. Geach : I hope your Lordships will ex- cuse my making the application. Zephaniah Williams and William Jones were severally asked by the CJerk of Arraigns, ‘ e What have you to say for yourself why the Court should not give you judgment to die, according to law ? ” Sentence. Tindal, C.J. : John Frost, Zephaniah Williams , and William Jones , after the most anxious and careful investigation of your respective cases, before juries of great intelligence and almost unexampled patience, you stand at the bar of this Court to receive the last sentence of the law for the commission of a crime which, beyond all others, is the most pernicious in example, and the most injurious in its consequences, to the peace and happiness of human society — the crime of high trea- son against your Sovereign. You can have no just ground of complaint that your several cases have not met with the most full consideration, both from the jury and from the Court. But as the jury have, in each of those cases, pronounced you guilty of the crime with which you have been charged, I should be wanting in justice to them if I did not openly declare that the verdicts which they have found meet with the entire concurrence of my learned brethren and myself. In the case of all ordinary breaches of the law the mischief of the offence does, for the most part, terminate with the immediate injury sustained by the indi- vidual against whom it is levelled. The man who plunders the property, or lifts his hand against the life of his neighbour, does by his guilty act inflict, in that particular instance, and to that extent, a loss or injury on the sufferer or his sur- * (a) 12 East 231. 457] viving friends. But they who, by armed numbers, or by violence, or terror endea- vour to put down established institutions, and to introduce in their stead a new order of things, open wide the flood-gates of rapine and bloodshed, destroy all secu- rity of property and life, and do their utmost to involve a whole nation in anarchy and ruin. It has been proved, in your case, that you combined together to lead from the hills, at the dead hour of night, into the town of Newport many thousands of men, armed, in many instances, with weapons of a dangerous description, in order that they might take possession of the town, and supersede the lawful authority of the Queen, as a preliminary step to a more general insurrection throughout the king- dom. It is owing to the interposition of Pro- vidence alone that your wicked designs were frustrated. Your followers arrive by daylight, and after firing upon the eivil power, and upon the Queen’s troops, are, by the firmness of the magistrates, and the cool and determined bravery of a small body of soldiers, defeated and dis- persed. What would have been the fate of the peaceful and unoffending inhabi- tants of that town, if success had attended your rebellious designs, it is impossible to say. The invasion of a foreign foe w r ould, in all probability, have been less destruc- tive to property and life. It is for the crime of high treason, committed under these circumstances, that you are now called upon yourselves to answer ; and by the penalty which you are about to suffer, you hold out a warning to all your fellow subjects that the law of your coun- try is strong enough to repress and to punish all attempts to alter the established order of things by insurrection and armed force ; and that those who are found guilty of such treasonable attempts must expiate their crime by an ignominious death. I therefore most earnestly exhort you to employ the little time that remains to you in preparing for the great change that awaits you, by sincere penitence and by fervent prayer. For although we do not fail to forward to the proper quarter that recommendation which the jury have intrusted to us, we cannot hold out to you any hope of mercy on this side the grave. And now, nothing more remains than the duty imposed upon the Court— to all of us a most painful duty — to declare the last sentence of the law, which is that you, John Frost, and you, Zeplianiah Williams, and } 7 ou, William Jones, be taken hence to the place from whence you came, and be thence drawn on a hurdle to the place of execution, and that [458 each of you be there hanged by the neck until you bo dead, and that afterwards the head of each of you shall be severed from his body, and the body of each, divided into four quarters, shall be dis- posed of as Her Majesty shall think fit, and may Almighty God have mercy upon your souls. (a) The prisoners, Charles Walters, John Lovell, Richard Penfield, John Rees, and Jenldn Morgan were set to the bar, and were severally asked, “ What have you to say for yourself why the Court should not give you judgment to die, according to law p” Tindal, C. J. : Prisoners at the bar, you stand convicted, upon your own confession, of the crime of high treason — a crime which by the law of your country is punished, with unsparing severity, by the penalty of death. As your cases have not been inquired into before a jury, it has become our duty to look into the several depositions which were taken before the magistrates, in order that we might ascer- tain the facts and circumstances attending each of your particular cases. And, as we find upon that investigation that your cases are to be distinguished from those of the unhappy persons upon whom the sentence of the law has just been passed, inasmuch as you were not the leaders and contrivers, but rather the ignorant and deluded followers of them, so shall we become humble suitors to Her Majesty that your lives may be spared, and that you may escape the utmost punishment and severity of the law. But as it also appears that you have been taking a very foremost and prominent part in the com- mission of that treason of which you stand accused, and of which you properly con- fess yourselves to be guilty, we can go no further than to recommend that the pun- ishment of death shall be remitted, and advise- you to prepare yourselves for the necessity of leaving your native country, probably for the remainder of your lives. For the present I must, in order to obtain a mitigation of that sentence, pass it upon you ; and the sentence of the law is that you and each of you be taken hence to the place from whence you came, and from thence be drawn on a hurdle to the place of execution, and that each of you be there hanged by the neck until you be dead, and that afterwards the head of each of you shall be severed from his body, and the body of each, divided into four quar- ters, shall be disposed of as Her Majesty shall think fit. (a) The sentence for treason as modified by 54 Geo. 3. c. 146. s. 1 ; see now 33 & 34 Viet, c. 23. s. 31. Trial of John Frost , 1839. 459] Trial of John Frost , 1839. [4f>0 The following case was afterwards stated for the opinion of the fifteen judges : — The Queen v. John Frost and Eleven Others. The prisoners were indicted for high treason, the indictment containing two counts upon the statute 25 Edw. 3, for levying war against the Queen in her realm. The several prisoners were arraigned on this indictment upon Tuesday, December 31, 1839, and pleaded thereto not guilty ; and, having declared their intention of severing in their challenges, the Attorney General, on the part of the Crown, applied to the Court that John Frost might be first put upon his trial, which application was granted. The jury were thereupon called, and, after challenges made on the part of the prisoner and the Crown, a jury was sworn, and charged with the prisoner upon the said indictment. Upon the first witness being called, and before he was sworn, the prisoner’s counsel objected, that neither that witness nor any other could be examined, as the list of the witnesses had not been delivered according to the statute 7 Anne, c. 21. s. 11. By that section it is enacted, that, after the period of time therein mentioned, (which has long expired), — “ when any person is indicted for high trea- son, or misprision of treason, a list of the wit- nesses that shall be produced on the trial for proving the said indictment, and of the jury, mentioning the names, profession, and place of abode of the said witnesses and jurors, be also given at the same time that the copy of the indictment is delivered to the party indicted, and that copies of all indictments for the offences aforesaid, with such lists, shall be delivered to the party indicted ten days before the trial, and in presence of two or more credible witnesses, any law or statute to the contrary notwith- standing.” At the time of passing the statute above referred to, the law which required the delivery of a copy of the indictment and of the panel of the jurors returned for their trial, stood upon the statute 7 Will. 3. c. 3. by the first section whereof, it was enacted, “ that from and after the 25th of March, 1696, all : and every person and persons whatsoever that I shall be accused and indicted for high treason, i whereby any corruption of blood may or shall be made to any such offender or offenders or to j any the heir or heirs of any such offender or ' offendeifs, or for misprision of such treason, shall ; have a true copy of the whole indictment, but not the names of the witnesses, delivered unto them or any of them five days, at the least, before he or they shall be tried for the same, whereby to enable them and any of them respec- tively to advise with counsel thereupon to plead and make their defence, his or their attorney or attorneys, agent or agents, or any of them re- quiring the same, and paying,” as therein mentioned. And by section seven, the same persons indicted — “ shall have copies of the panels of the jurors, who are to try them, duly returned by the sheriff, and delivered unto them and every of them so accused and indicted respectively, two days, at the least, before he or they shall be tried for the same.” The only legislative provision which has taken place since the statute of 7 Anne, as to the delivery of the jury panel, is the 6 Geo. 4. c. 50. s. 21, by which it is enacted, “ that when any person is indicted for high treason or misprision of treason in any Court other than the Court of King’s Bench, a list of the petty jury , mentioning the names, profession, and place of abode of the jurors, shall be given at the same time that the copy of the indict- ment is delivered to the party indicted, which shall he ten days before the arraignment, and in the presence of two or more credible witnesses ; and when any person is indicted for high treason or misprision of treason in the Court of King’s Bench, a copy of the indictment shall be de- livered within the time and in the manner afore- said, but the list of the petty jury, made out as aforesaid, may be delivered to the party indicted at any time after the arraignment, so as the same be delivered ten days before the day of the trial: Provided always, that nothing herein contained shall any ways extend to any indict- ment for high treason in compassing and imagining the death of the King, or for mis- prision of such treason where the overt act or overt acts of such treason alleged in the indict- ment shall be assassination or killing of the King, or any direct attempt against his life, or any direct attempt against his person, whereby his life may be endangered, or his person may suffer bodily harm, or to any indictment of high treason. for counterfeiting his Majesty’s coin, the great or privy seal, his sign manual, or privy signet, or to any indictment of high treason, or to any proceedings thereupon against any offender or offenders who by any act or acts now in force is and are to be indicted, arraigned, tried, and convicted by such like evidence, and in such manner as is used and allowed against offenders for counterfeiting his Majesty’s coin.” And amongst the statutes and parts of statutes repealed by the 62nd section of the said last-mentioned Act, is “ so much ” of the 7 Anne, c. 21. s. 11, “ as relates to giving a list of the jury to the party indicted of high treason or misprision of treason.” The bill of indictment was found by the grand jury on the 11th of December, 1839. 461] Trial of John Frosty 1839. [462 On the 12th, a copy of the indictment and of the panel of the jury intended to be returned by the sheriff was served on each of the prisoners personally, in the pre- sence of two witnesses. And on the 17th of December, a list of the witnesses intended to be produced on the trial, mentioning their names, pro- fessions, and places of abode, was served in the same manner on each of the pri- soners. Upon these facts it was contended on the part of the Crown — first, that the ser- vice of the list of witnesses was a good service under the statute of 7 Anne , c. 21. And secondly, that at all events the appli- cation came too late. This point is reserved for the considera- tion of Her Majesty’s judges. (a,) (Signed) N. C. Tindal. January 25, 1840. Before Lord Denman, L.C.J. ; Tindal, C.J. ; Lord Abinger, C.B. ; Littledale, J. ; Parke, B. ; Bosanquet, J. ; Alderson, B. ; Patteson, J. ; Gurney, B. ; Wil- liams, J.; Coleridge, J. ; Coltman, J. ; Erskine, J. ; Maule, J. ; and Rolfe, B.(&) sitting in the Court of Exchequer. Campbell, A.G. (with whom were Wilde, S.G., Ludlow , and Talfourd, Serjeants Starkie, Wightman, and Talbot), suggested that some arrangement should be made as to what counsel should address the Court and in what order, and whether one coun- sel for each prisoner or two counsel for each (as it was a case of treason) should be heal’d. Sir F. Pollock stated that he was counsel for Frost, Kelly for Zephaniah Williams, and Sir W. Foilett(c ) for Jones. Lord Denman, L.C.J. : Sir F. Pollock called on me, and I then thought that we were not bound to hear more than one counsel on a side in each case, but that we must hear one counsel in each case, unless some other arrangement was made by consent. Gurney, B. : The counsel here are in the nature of amici curice. Tindal, C.J. ; If that were not so, we could not hear Sir W. Follett, as he was (а) As to the practice in reserving points for the consideration of the judges before the esta- blishment of the Court of Crown Cases Reserved by 1 1 & 12 Viet. c. 78., see letter of Tindal, C.J., below, p. 479n. It is stated by Lord Brougham (Hansard, vol. 51, p. 1159) that the consulta- tions used to be in the dining room of the judges, and that he had argued causes there before their Lordships after dinner. (б) Afterwards Lord Cranworth, L.C. (c) Afterwards Attorney General. not assigned as counsel for Jones, nor I could we hear Mr. Kelly in the case of Zeplianiah Williams , for the same reason. Kelly : I submit that Williams and Jones are each entitled to a reply on the whole case, independently of what is urged in reply for Frost. Lord Denman, C.J. : As you ask a sepa- rate reply for Williams and Jones , we think that each case must be heard quite separately. Sir F. Pollock, for the prisoner Frost : In this case two great questions arise : First, whether the delivery of a list of witnesses ten days before the trial, but five days after the delivery of the copy of the indictment and list of the jurors, is sufficient F And secondly, whether it was competent to take this objection at the time at which it was taken, namely, when the first wit- ness was called P I propose, in the first place, to consider the construction of the statute 7 Anne, c. 21. together with the other statutes ; and, secondly, those autho- rities that throw any light on the con- struction that ought to be put on Acts of Parliament ; and thirdly, the authorities of the Scotch law, with respect to the list of witnesses, as by the statute 7 Anne, c. 21. the English law of treason was in- troduced into Scotland, and by the same statute the law of Scotland was imported into England, as to the delivery of a list of witnesses, but not as to the period of ten days. As to the first point, by the statute 7 Will. 3. c. 3. persons accused of treason were to have a copy of the indictment, but not the names of the witnesses (which in this statute meant not a list of the wit- nesses to be called, but a copy of the names on the back of the indictment), and this copy of the indictment was to be delivered five days before the trial, on condition j of the attorney requiring and paying for i it ; and by section seven of the same i statute there is a positive direction to de- liver a list of the jury two days before the trial, and free of expense. By the statute 7 Anne, c. 21. s. 11, it is enacted, that when any person is indicted for treason or mis- prision of treason, a list of the witnesses to be produced on the trial, and of the jury, mentioning the names, &c., of both, “ be also given at the same time that the copy of the indictment is delivered to the party in- dicted, and that the copies of all indictments for the offences aforesaid with such lists ” shall be delivered to him ten days before the trial, in the presence of two or more credible witnesses. The first question is, whether the words, “ at the same time ” have a clear meaning ? I should say that they had, and as the Legislature have added the words “with such lists,” I 4G3] Trial of John Frost, 1839. [464 should submit that no doubt whatever can exist. The next enactment is the Jury Act, 6 Geo. 4. c. 50. s. 21. That Act pro- vides that the list of jurors and indictment shall he delivered ten days before the arraignment, but it leaves the list of wit- nesses as it stood on the statute of Anne, and I submit that the statute of Anne , is not, so far as it regards the list of wit- nesses, at all affected by the statute 6 Geo. 4. c. 50. s. 21. By that statute the words “ten days before arraignment” as to the list of jurors and the delivery of the indictment, are substituted for “ten days before trial,” which are the words of the statute of Anne. That, however, was merely adopting the true construction of the statute of Will. 3, because it had been decided on that statute, that the word trial meant arraignment. It is so laid down by Mr. Justice Foster. {a) and Mr. Justice JBlackstone{b) cites Mr. Justice Foster, and adopts what he says. The first case which occurred on the statute of Anne, was that of Lord George Gordon,{c) and there the Attorney General applied “ for a rule upon the sheriff to deliver to the prosecutor a list of the jurymen he intended to return on the panel, in order that the prosecutor might he enabled to deliver such list to the pri- soner, according to the provisions of the statute of Queen Anne at the same time with the copy of the indictment.” He said that this seemed to be the only method of complying with the statute, and the form of the rule is given in the note ; it states that the rule is made — “ in order that such list may be delivered to the prisoner at the same time that the copy of the indictment is delivered to him.” This was granted, and the form of the rule is given in a note both in the report in Douglas, and in the State Trials. Tindal, C.J. : That was not the list of witnesses ? Sir F. Pollock : The Attorney General knew who they were, and had no need of applying to the Court to aid him as to them; and I only cite the case to show that the copy of the indictment and the lists are to be delivered at the same time, and not at the same interval. Since the trial of Lord George Gordon, the copy of the indictment and the list of jurors and the list of witnesses have always been delivered all together, and at the same time. This was so in the case of Hardy, Horne Tooke, and others in 1794(d) ; in Crossfield' s (а) Lost. 249, 250. (б) 4 Com. 351. (c) 21 St. Tr. 648; Doug. 569, 1st ed., and 591, 2nd ed. (d) 24 St. Tr. 223. case in 1796(a) ; in W Leans case, tried at Quebec in 1797(&) ; in O’Coigley’s case, tried in 1798(c) ; in Watson’s case, tried in 1817(d) ; in Brandreth’s case, in the same year(e) ; and Thistlewood’s case, inl820(/) ; and in Col. Despard's case, in 1803(y) ; in all these the. delivery was simultaneous. It has been said that we can produce no authority to show that a delivery of the lists at different times is bad, but the reason is thal no one before now has thought that the words “at the same time ” meant, at a different time. There may be important points in which a pri- soner may be injured by the lists and the copy of the indictment not being delivered together. The list of the witnesses de- livered in this case was headed “A list of witnesses to be produced on the trial of John Frost, upon an indictment found against him and others for high treason, for proving the said indictment.” There might be two indictments, and there is nothing to show which indictment this list might refer to. Alderson, B. : Can the inconvenience alter the construction of the Act of Parlia- ment ? Are not all Acts of Parliament to be construed according to the exact mean- ing of the words, unless that construction would lead to some manifest absurdity ? Sir F. Pollock .* If a statute prescribes a state of things for the benefit of a prisoner, no one can deprive him of it. Two wit- nesses are required as to the delivery of the list of witnesses ; would the evidence of one witness be sufficient, coupled with finding the list on the prisoner, and an indorsement in his handwriting, that he had received it ten days before the trial? I should say that it would not, the words of the statute being express. I come now to the second head of my argument, as to the construction to be put on Acts of Parliament, and from the cases it appears, that where a statute has directed a particular mode of proceed- ing, or a particular form to be observed, that mode of proceeding, and that form must be observed, and no other will be sufficient. (In support of this part of his argument Sir F. Pollock cited the cases of Lovelace v. Gurry, (h) Taylor v. Fenwick, (i) Vaux v. Vollans,{j) Bex v. Harvey, (k) Spears (a) 26 St. Tr. 1. (5) 26 St. Tr. 722. (c) 26 St. Tr. 1198. ( d ) 32 St. Tr. 1. O) 32 St. Tr. 755. (/) 33 St. Tr. 68. (y) 28 St. Tr. 345. O) 7 T.R. 631. (i) 3 B. & P. 553n. ( ;) 1 N. & M. 307 ; 4 B. & Ad. 525. (A) 1 Wils. 164. 465] Trial of John Frost , 1839. [466 v. Smith, (a) Eicke v. Nokes,(b) Wadsworth v. Marshall, (c) Stunnel v. Toiver,(d) Ake- head v. Stocks, (e)) From the case of /owes v. Lake,{f ) it appears, that under the Statute of Frauds, 29 Ghas. 2. c. 3. it was not necessary that all the three wit- nesses to a will of lands should have been present at the same time ; but now by the statute 1 Viet. c. 26. it is necessary that the two witnesses to a will must be pre- sent “together”; but arguments equally strong may be invented to explain away “ the same time ” in that statute as in this. (Counsel also cited the cases of Goss v. Jack- son, {g) Bex v. Rickets. (h) Jones v. Smart, (i) Bex v. Inhabitants of Barham, (j) Notley v. Buck,(k) Brandling v. B ar ring ton, {l) Vaux v. Ansellfm) Bates v. Billing, (n) Waggett v. Shaw, (6) Richards v. Stuart. (p) Smith v. C rump, (q) Bex v. Justices of Kent, (r) Bex v. Justices of Cambridgeshire ,{s) and In the matter of Flounder s.(t)) I now come to the authorities on the the law of Scotland, from which it appears, that in that country the law respecting the list of witnesses and the copy of the indictment is at least as old as the reign of Charles 2 as by an Act of the Scottish Parliament, passed in the year 1672, re- gulations were made on this subject. Baron Fume, in his work on Crimes, (w) says, “In addition to the copy of the libel, (y) the statute of Charles 2 orders that the panel (zr) be at the same time served with a copy of the list of the witnesses to be called against him, and of the persons of assize(.r) who are to be cited for his trial.” These very expressions are copied into the statute of Anne, with the addition of ten days, and the words, being copied from the one statute into the other, must (а) 6 Esp. 138. (б) 1 Moo. & M. 303. (c) 3 Tyrw. 228. ( d ) 4 Tyrw. 862. (e) 1 M. & P. 346. (/) 2 Atk. 176?z ; 6 Cruise Dig. 69. (<7) 3 Esp. 198. (h) S A.E. 951 ; 1 N. & P- 680. (i) 1 T E. 44. (j) 8 B. & C. 99. (A) lb. 160 ; 2 Moo. &*R. 68. (/). 6 B. & C. 475. (m) 1 B. & P. 224. (n) 4 Tyrw. 231. (o) 3 Camp. 316. (p) 10 Bing. 319 ; 3 M. & S. 774. (//) 1 Dowl. P.R. 519 (r) 3 B. & Ad. 250. o) lb. 887. (0 4 B. & Ad. 865. ( u ) 2 Hume Com. 243. (y) The libel is the accusation. ( w ) The panel is the accused party. (x) The persons of assize are the jurors. have the same meaning in both ; and in the Scottish Act the words “ at the same time ” can bear no other meaning than that which I contend for, as in that Act no number of days is mentioned. In Scot- land the period of service of these docu- ments was not specified in the statute of Charles, but was regulated by an Act of adjournal, which is an order of Court isimilar to the acts of sederunt in civil cases, and to the recent general rules of practice in this country. They were equivalent to law, but would not contra- vene an Act of Parliament. (Counsel cited several cases from the same chapter of Fume on Crimes, in which for infor- malities in the list of witnesses the public prosecutor “ deserted the diet.”) Alderson, B. : Is not deserting the diet something similar to quashing the indict- ment P Campbell, A.G-. : I am speaking in the presence of the Lord Advocate(a ) and Sir William Rae : and I believe I am correct in saying, that if the public prosecutor deserts the diet, loco et tempore, he may begin again and commence another pro- secution for the same offence, but, if he deserts it simpliciter, he cannot. Sir F. Bollock : There are several cases referred to by Baron Fume. (He cited from the same chapter of Baron Fume’s work, the cases of David Stobo,(b ) Bhilip Mackenzie, (c) Gabriel Fighat,(c) and Mar- garet Buxstone{d) ; but in all these cases, except that of Fighat, the objection was taken before the jury were sworn. In Fighat' s case, the objection was, that the list of witnesses was not signed by the pub- lic prosecutor. The objection was taken after the jury were sworn, and it pre- vailed.) In Alison's Practice most of these cases will be found, and it is there stated that “ statutory provisions cannot be supplied by equipollents/ I am far from making an admission that the objection to the delivery of the copy of the indictment cannot be made after plea. The case of Bookvjood{e) does not go to that extent, it merely de- cides that a prisoner charged with high treason could not, under the statute of Will. 3, demand a copy of the indictment during his trial ; but, under that statute, he was only entitled to it, if he demanded it, and on paying for it. The good sense of the matter certainly seems to be, that (а) Andrew Rutherfurd, afterwards Lord Rutherfurd. (б) 2 Hume Com. 248. (c) lb. 251. (d) lb. 252. (e) 13 St. Tr. 154. 467] Trial of John Frosty 1839. [468 the prisoner should object to the non- delivery of the copy of the indictment, when he is called on to plead — to the non- delivery of the list of the jurors, when the jury is about to be called — and to the non- delivery of the list of witnesses when the first witness is called. A prisoner is not an actor in any of these proceedings. He is called from prison and told that an indictment has been found against him ; then he is visited by someone with a copy of the indictment, with or without the list of witnesses. He is then called out, and asked if he is guilty or not guilty, and that is the only question put to him. How was he to know that it would be any answer to that question to say that he had not had any list of witnesses ? There is not the remotest connection between the two things ; and yet is he to be called upon to decide, and to decide against him- self, a thing so difficult that learned judges have adjourned it from Monmouth to London ? Lord Abinger, C.B. : You are in the same situation as if the prisoner had just pleaded, and the jury had just been charged. Sir F. Pollock : There was a work pub- lished in 1709, which Mr. Justice Foster says (a) was published by order of the House of Lords, and which was referred to by Mr. Baron Gurney in Brandreth’s cas e.(b) This work is — “ A form and method of Trial of Commoners in cases of high treason and misprision of high treason ;”(c) (it has bound up with it a collection of statutes relating to high treason) and it is there laid down,(d) that the clerk of arraigns “ must call to the keeper of the prison to bring such prisoner for high treason to the bar of the Court, and the clerk of arraignments, to dis- tinguish his person, must hid him hold up his hand,” &c., “ and tell him, if he require a copy of the indictment (paying for it) he shall have it delivered to him five days at least before he be tried for the same, to advise with counsel to plead for him and make his defence and at another part of the same book(e) there is the following direction to the clerk of arraigns : — “ Ask the Court which prisoner they intend shall be tried first, and the keeper to set him to the bar and call to know if the witnesses against him are all ready, and take away the other prisoners from the bar. Ask him who is to be tried if he have had a copy of the panel of the (а) Fost. 230. (б) 32 St. Tr. 778. (e) There is a copy in Lincoln’s Inn Library, dated 1710. (d) At p. 17. (e) At p. 29. jury delivered two days (or more) since ? If he should deny it, some witness for the Queen, who delivered the copy to him, must prove the delivery thereof.”(a) Tindal, C.J. : The book from which you are citing was published by order of the House of Lords. (fe) Sir F. Pollock : This furnishes a power- ful argument that the time for objecting to the indictment is at the time of pleading, and that, therefore, the time for objecting to the list of witnesses is when the first witness is called. Indeed, where is the distinction between objecting to a single witness or to the whole list? It is con- ceded that the prisoner may object, after pleading, to a single witness for want of the statutory addition of his name, pro- fession, and place of abode. Alderson, B. : You will not suppose that I wish you to admit that the objection to the non-delivery of the indictment must be taken before plea, but if that be so, and the copy and the lists must be (а) In this work, at p. 20, will be found the following note : — “ A caption of an indictment for high treason or misprision of treason, with the true copy of the indictment itself as incident thereto, to be delivered to the party indicted five days at least before he plead, and a witness must attend the Court at the time of the pri- soner’s pleading to prove the delivery of the copy of the indictment to the prisoner if there should be occasion.” The entire caption, and so much of the indictment as is set out, are in the Latin language, with abbreviations. (б) At the commencement of the collection of statutes is the following order of the House of Lords : — “ Die Mercurii, 20 Aprilis, 1709. It is or- dered by the Lords spiritual and temporal in Parliament assembled, that when the several transcripts or collections of the statutes now in force relating to high treason and misprision of treason, and the methods of trial for those crimes shall be subscribed by all the judges, they shall be forthwith printed and published by her Majesty’s printers for the better in- formation of the people of Great Britain in relation to those laws. “ Matt. Johnson, “ Cler. Parliamentor.” And at the beginning of the forms to be ob- served on the trials is an approval in the fol- lowing form : — “ We do approve of this method of trials. “ J. Holt. “ Thos. Trevor. “ Edw. Ward. “ John Powell. “ Littleton Powys. “ Jo. Blencowe. “H. Goulde. “ R. Tracy. “ Thos. Bury. “ Ro. Price. “ Robert Dromer. “ S. Lovell. ” 469 ] Trial of Join delivered together, would not the waiv- ing of that objection by pleading also waive it as to the lists, as being an ad- mission that the copy of the indictment was duly delivered with the lists of jurors and witnesses F Paeke, B. : The answer to that question given at Monmouth was that, by pleading, the prisoner waived the objection so far as it related to the copy of the indictment ; and that he waived the objection so far as it related to the list of jurors, by not ob- jecting to the swearing of the jury ; but that he still might object to a want of a due delivery of the list of witnesses, when the first witness was called ; whether that is a good answer is another question. Sir F. Pollock: Upon what principle of law is it to be said, that a prisoner, by pleading to an indictment, admits the jury list to be correct P If in the list of witnesses the principal witness is mis- described, and if notwithstanding that the prisoner found him out, would it be enough to say that you found the witness and pleaded to the indictment P The law has said, that the prisoner shall have a correct list of witnesses, and he is entitled to it. If no list of witnesses is delivered, the prisoner may conclude that the Crown intends either to enter a nolle prosequi, or that he is to be admitted as a witness. Is the prisoner who is to be fired at, to be bound to inquire whether the guns are loaded with powder only, or with powder and ball ? Is he to send to the other party to know what their intentions are ? I say that it is the duty of the persons who conduct the prosecution to attend to these things ; and if there had been no list at all delivered, could the Crown have said, “We are free to do as we please, because you have pleaded to the indict- ment ?” Tindal, C. J. : If there had been no list at all, they could have called no witnesses. Sir F. Pollock : A list not according to the act is, in effect, no list at all. We had, in fact, three lists. Tindal, C.J. : An irregular list may be different from no list at all. Sir F. Pollock .- If a list were delivered only three days before the trial, would that irregularity be waived by the plea ? If the list was delivered the night before the trial, could it be said that the prisoner submitted to be tried, and had thereby waived the objection? How far is the life of a prisoner to be sported with by the blunders of the prosecutors P If the list had been delivered less than ten days, I should not now have been arguing .this case. I have been more than thirty years at the bar, and during the proceedings I have considered hour by hour when I ought to take the objection ; and yet, the At- , Frost , 1839 . [470 torney General knowing that the objection was to be taken, plays off a sort of nisi prius advantage over me, to get rid of it. I submit that the objection was taken at the proper time, and that the list of wit- nesses not being delivered according to the statute, the prisoner is in the same situation as if no list had been delivered at all. Campbell, A.G. : Ho one can doubt that Sir F. Pollock did well to keep back this objection till the jury were charged with the prisoner. He might have made it when the prisoner was brought up to plead, or when I moved that Mr. Frost should be first tried ; but if the objection had been taken at either of those times, the only effect of it, if it had prevailed, would have been to have caused the trial to be postponed for a few days. And whatever may be the result of these argu- ments Mr. Frost has already had an ad- vantage, as he has had a longer oppor- tunity of preparing for his trial than he was entitled to, and any irregularity that may have occurred was out of favour and indulgence to him. With respect to the construing of statutes, your Lordships are, as I apprehend, to ascertain the meaning of the Legislature, and having ascertained that, you are bound to it ; and, if a form of proceeding is prescribed by the Legislature, it must be followed, and the doctrine of equivalents and of equipollents must be entirely dismissed ; but, in ascertaining what is the meaning of the Legislature, it may be material to see what was their intention, and in that view it may be im- portant to consider what would, or what would not, be of advantage to the prisoner, as one way of arriving at their meaning. What was the object of the statutes of Will. 3. and Queen Anne? Was it for a prisoner to lie by and defeat the ends of justice? Ho; to enable him to meet the charge, and to know who were to be the jurors to try him and the witnesses to be called against him. The two statutes being in pari materia must be construed together, and the preamble of the statute of Will. 3. recites, that nothing is more reasonable than that persons prosecuted for high treason and misprision of treason “ should be justly and equally tried, and that persons accused as offenders therein should not be debarred of all just and equal means for defence of their innocencies in such cases.” The Scottish statute of 1672 requires simultaneous service, but the statute of Anne is framed in a different manner ; and, as I submit the words of it admit of two constructions — your Lordships will say which is the right. One construction is that the services must be simultaneous ; but if I show that that construction is calculated to defeat the ends of justice, 471] Trial of John Frost , 1839. [472 and that the other construction is calcu- lated to carry into effect the intention of the Legislature, your Lordships will not hesitate as to which construction you should adopt. By the statute of Anne it is enacted that when any person is indicted for high treason, “ a list of the witnesses that shall he produced on the trial for proving the said indictment and of the jury, mentioning the names, profession, and place of abode of the said jurors and wit- nesses, be also given at the same time that the copy of the indictment is delivered.” Sir F. Pollock wishes to stop there, but it proceeds, u and that copies of all indictments for the offences aforesaid, with such lists, shall he de- livered to the party indicted ten days before the trial ” in the presence of two credible witnesses. This gives the time, ten days, and the words, “ at the same time,” may mean at the same instant of time, or they may mean at the same interval of time ; and if the latter be the meaning, these words would designate that the same period of time should apply to the one and to the other, and would import, that the delivery was not to be at the same instant of time, but at the same interval of time. If the words admit of two constructions, your Lordships will put on them that con- struction which carries the intention of the Legislature into effect. There is no advantage in having all the three papers delivered together, and it is plain that the Legislature thought so, as by the statute 6 Geo. 4. c. 50. they are dissevered. Indeed, it is manifest, that it is better for the prisoner to have the copy of the indict- ment first, then the jury list, and then the list of witnesses — the last being ten days before the trial— than to have the whole of them together, only ten days before his trial; and if there can be no good service except it be simultaneous, prisoners will be pre- vented from having information which could otherwise be given to them. In the present case Mr. Frost would have lost five days on which to consult counsel on the indictment, and five days for his agents to make inquiries as to the jurors ; and his present objection, therefore, re- solves itself into this — that he was allowed too much time to make his defence — and a decision in his favour on this point would injure every person that is tried for high treason hereafter. Upon the statute of Anne , I submit, that the word “ with,” is used cumulatively. I may say A and B, with C and D and other letters, form the alphabet ; the word “ with ” there merely meaning that one is added to the other. Lord Abinger, C.B. : “ With ” may mean no more than “and.” Campbell , A.G-. : The word “ but ” sometimes means “without,” of which the saying, “ Touch not a cat but a glove,” meaning without a glove, is an example. Suppose that your Lordships decided that the services must be simultaneous, justice would be defeated in many cases. Mr. Justice Foster(a) gives instances where the challenges by the prisoners, both per- emptory and for cause, exhausted the jury panel; and the Court in each instance ordered a new panel, and adjourned for the fresh jurors to be summoned. If that were to occur now, and the service of the copy of the jury list must be simultaneous with the copy of the indictment, justice would be defeated, as the jury are not called till after the prisoner has pleaded to the inditcment. Parke, B. : That would be so, unless the plea were struck out. Campbell, A.G. : On the construction I contend for, nothing would be required but a postponement of the trial to give time to serve a copy of the new list of jurors. With respect to the construction of Acts of Parliament, I respectfully bow to the canon of construction laid down by one of your Lordships ; but I would add. that that does not apply to cases where the words admit of two constructions. If the statute of Anne were to be construed literally, it might be said, that if one wit- ness’s name or abode, or one juror’s name or abode, were without an addition, it would vitiate the whole list, because the list is to be a list of all, with abodes and additions; but it is well settled that an objection of that sort goes to the poll, and not to the array. The words of the statute of Anne are “ ten days.” It might be plausibly argued, that the service was bad, if it was made fifteen days before trial, instead of ten ; and the statute of Will. 3. might be called in aid, because the words there are “ five days, at the least,” and “ two days, at the least,” which words do not occur in the statute of Anne ; and it might be argued, that from this, it ap- peared that the Legislature meant fen days exactly. 8o the statute of Anne says, “ ten days before the trial.” On the mere words, the prisoner might be called on to plead to the indictment on the next day after that on which he received it ; but it has been held, that, on the correct con- struction of this act, the word “trial” means arraignment. In East's Pleas of the Orown(6) it is said, that, “though the words of the statute of Will, are, — “ that the prisoner shall have a copy of the panel duly returned by the sheriff ; yet, if the (а) Fost. 63. (б) P. 113. 473 ] Trial of John Frost, 1839 . [474 copy be delivered before the return of the pre- cept, it will be sufficient, within the words and intent of the Act, if the prisoner have the ad- vantage of it in the time allowed by law before his trial, the intent of which was to give him an opportunity of preparing his challenges and for this, Roohwood's case, (a) and Greg's cas e,(5) are cited. So it might be said, that a copy of the list of jurors could not be given till they were summoned ; and so in Fast's P.C.(c) it is said that certain formal objections, such as miswriting and false Latin, must be taken before plea ; “ and in the cases of Vaughan, Sullivan, and Layer, the Court refused to hear such objections after plea, though it is still open to the prisoner afterwards to move in arrest of judgment.” These are the various instances in which the Courts, to effectuate the real intentions of the Legislature, have put a construction different from the mere literal construction of the clauses of Acts of Parliament. Mr. Justice Foster , Mr. Justice Blackstone , and Mr. Serjeant Stephen, all say that the copy of the indictment and the two lists must be served ten days before the trial, but do not say that the service must be simultaneous. The cases of Lovelace v. Curry, Vaux v. Vollans , and many other cases, have been cited as to the construction of statutes. I do not impugn those deci- sions, or the doctrines contained in them ; neither do I dispute the cases which decide that service of an original subpoena at a different time is not a service at the same time, for, if in this case the service of the copy of the indictment, and the two lists must be simultaneouscadnf guestio; but I am contending that the other is the correct meaning of the statute. It is also said that your Lordships must construe the statute of Anne according to the Scotch Act of Charles 2, but on that I will observe, that the forms of the Scotch law are very different from ours. In Scot- land there is a public prosecutor and no grand jury. The libel is prepared by the public prosecutor. The accused, if not in custody, must be cited, and there must be fifteen days between the citation and the trial. In cases of high treason the Eng- lish law was by the statute of Anne intro- duced into Scotland, and not the Scotch law into England. In cases of treason in Scotland there is by that statute a grand jury, and the accused are tried under a royal commission, in the same way as in England(d) ; and this being so, it is sup- (а) 13 St. Tr. 154. (б) 1 East, P.C. 113. It is there laid down that, after pleading, it is too late to object either to the want of a copy of the indictment or to any insufficiency, for that admits it to be sufficient. (c) P. 110. (d) This is provided by the stat. 7 Anne c. 21. ss. 1 and 3. . posed that the bar of both countries might attend and plead there. If it had been intended to have introduced the Scotch law into England, the act of adjournal would have been introduced, by which it is ordained that the list of the witnesses shall be indorsed on the copy of the indictment. The Jury Act (6 Geo. 4. c. 50. s. 21) leaves the list of witnesses as it stood on the statute of Anne, and, on trials for treason in the Court of King's Bench, it points out different times for the delivery of the list of the jurors and the copy of the indictment. Was it intended that a per- son tried in the Court of King’s Bench should be in a worse situation than if he were tried elsewhere ? And yet in the King’s Bench the list of witnesses stands on the statute of Anne, the copy of the indictment is to be delivered ten days before the arraignment, and the list of witnesses ten days before the trial. I now come to the second point, which is that the objection came too late. It is not to be assumed that there was no list at all. A list de facto was served on the 17th of December, and was bond fide served in pursuance of the statute, the only ob- jection being, that it was not served at the same time as the copy of the indict- ment. Is that more than irregularity ? Is that a nullity ? I am now assuming that simultaneous service is directed by the act ; and the question is, whether, if it was irregularity only, it is an objection that can be brought forward as a substan- tive defence, even after all the evidence is gone through. The objection might have been taken before plea. When Mr. Frost was arraigned, why did he not take the objection ? Why not before the jury were charged with him P And can he after- wards make an objection to an irregularity which he might have made before P The objection might have been made earlier, and public justice required that it should be. It is a general rule, both in civil and criminal proceedings, that any objection to an irregularity must be taken in the earliest stage in which it can be taken, or it is waived. In this very case an ob- jection was taken in arrest of judgment by Mr. Geach (Mr. Frost's attorney) after the counsel were gone, that one of the jurors was mis-described, and the objection was overruled, as being too late. Alderson, B. : If by the statute certain things are to be done before trial, and the party is tried and does not object, can he object to them afterwards ? He might have prevented the trial if he had chosen, but he did not do so. (a) (a) If an indictment for felony he removed into the Queen’s Bench, and he tried as a nisi prius record, and the record be brought down 475] Trial of John Frost , 1839. [476 Campbell, A.G-. : Mr. Justice Foster(a) gives the following heads: — “What pri- vileges the prisoner is entitled to ; what is incumbent on him previous to his trial ; what during the trial and I take it to a well-established principle, that, if a party by plea or otherwise waives an ob- jection that he might have taken, he can- not take it afterwards. After plea a defendant cannot move to quash the in- dictment ; a prisoner could not, even before the statute 7 & 8 Geo. 4. c. 28, plead misnomer after pleading in bar. Where a prisoner challenges for cause, he must show all his causes together. (&) If a witness answer that which may criminate himself, he must answer throughout. In the case of Bex v. Stone(c) it was held, that the presence of a party at the time of a proceeding dispensed with a summons. So in the case of Bex v. Watson{d) for high treason, a witness was examined who was, in the list of witness, called Heyward. He was examined without objection. It was afterwards discovered that his name was Heywood, and it was sought to strike out his evidence, but the Court held, that the objection came too late, and ought to have been taken in the first instance. So in the case of Brunskill v. Giles, (e) the Court would not grant a new trial because the jury had been summoned by the partner of the plaintiff’s attorney, because the proper time for taking this objection was when the jury came to the book to be sworn. So in the case of Hill v. Yates, (f) where the son of a juryman answered for, and served instead of, his father, and the cases there cited of persons serving on juries under wrong names, the Courts have uniformly held, that if the objection is not made before the jury are sworn, it cannot be made afterwards. And with respect to witnesses in cases of high treason, the judges at Monmouth laid down this rule, that any objection to the description of any particular witness must be taken on the voir dire, and that it comes too late after the witness is sworn in chief; and if this objection to the list of witnesses might be taken when the first witness is called, it might equally be by the prosecutor, the accused party would he entitled to notice of trial. But if, when the case comes on at nisi prius, the accused party appear by counsel and call witnesses, it would seem that if convicted he would not be entitled to set aside the verdict, because the notice of trial was given too late, even if such were the fact. — ( Be- porter’s note.) (а) Fost. 227. (б) 2 Hale P.C. 175, 274. (c) 1 East, 649. ( d ) 2 Stark. N.P.C. 158. (e) 9 Bing. 13. (/)12 East, 229. taken when the tenth was called, or might be set up as a substantive defence ; and so might the objection, that one of the persons in whose presence the list was delivered was not a credible witness. I say, therefore, that if there is such an objection to be taken at all, it should be taken at such a time as to give the prisoner a postponement of the trial, if he wishes it, but not go to an acquittal. Gurnet, B. : In the case of Bex v. O’Coigley and others, (a) the prisoner’s coun- sel before the arraignment objected that there were several variations in the copies of the indictments which had been de- livered to the prisoners, and stated that they made the objection with a view to postpone the trials, but the Attorney General consenting to a postponement of the trials, the objections were waived. Campbell, A.G. : I will now draw your Lordship’s attention to the Scotch law. Lord Denman, L.G. J. : I now state the opinions of my learned brothers, that your observations on the Scotch law ought to be brought into a very narrow compass, its bearing on the present case being so very remote. Campbell, A.G. : I will only observe, that, in all the cases cited by Baron Hume, except Highat’s, the objection was taken before the jury were sworn, and that the authority of that case is a little doubtful, as Baron Hume appears to disapprove of it. There, indeed, there was no authen- ticated list, as it was unsigned, and all the other cases, which are those of lists irregularly served, go to show that the objection must be taken before the jury are sworn. Parke, B. : If the prisoner says that he has had no list at all, at what time do you say the Crown must prove the delivery of the list ? Campbell , A.G. : The Crown might be called on to prove it when the prisoner was tried. Tindal, C. J. : The book of 1709(&) says, that the witness is to be called to prove the service, under the statute of Will. 3, before the trial begins. Alderson, B. : If the prisoner by plead- ing admits a service of a contemporaneous list, how do you show that your list is the same as that which he must be taken to have admitted by his plea P Campbell, A.G. : I put it that pleading admits the delivery of a regular list, and the Crown must identify their list as the one served. We show the list that we served, and the plea admits that it was well served Sir F. Pollock, in reply : With respect (а) 26 St. Tr. 1198. (б) Above, 467n. 477] to the construction of statutes, I submit that your Lordship must look at what the statute has said ; and I have cited cases to show what have, in modern times, been the views of the judges in construing Acts of Parliament, and there has evidently been a feeling on the bench that too loose a construction should not creep in ; and I put it that even on the statute 6 Geo. 4. c. 50. s. 21, the delivery of the copy of the indictment and the list of jurors and wit- nesses must be simul et semel, in all cases of treason where the trial is not in the Court of Queen’s Bench, although where the trial is in that Court it is otherwise under the provisions of that statute. Mr. Petyt, in his jus Parliamentarium,(a) gives some rules of construction which are laid down by Lord J Ellesmere, who says that words are taken and construed sometimes by extension, sometimes by restriction, sometimes a disjunctive for a copulative, and the like; upon which it is observed, how easy it is to baffle and elude any law, and wrest it from its genuine and native sense. Lord Abinger, C.B.; I do not know whether you cite Lord Ellesmere as a re- flection upon the judges who construed the statutes, or on the legislators who made them. It is a very common error to blame judges for their construing of statutes, but some of the blame belongs to the framers of them. You say that we now construe them more literally than judges did formerly, and perhaps that is so ; but still some of them, if construed literally, would lead to much absurdity. Sir F. Pollock : I only say that judges do not now take those liberties with Acts of Parliament which they did more than a hundred years ago. Lord Abinger, C.B. : One reason for that is, that more than a hundred years (a) P. 66. The passage is as follows : — “ The Lord Chancellor Ellesmere’s rule, laid down for construction of words in that grand case of the post nati of Scotland in King James the First’s time, is this : ‘ Words are to be taken and construed, said he — '. Sometimes by ex- tension; 2. Sometimes by restriction ; 3. Some- times by implication ; 4. Sometimes a disjunc- tive for a copulative ; 5. A copulative for a disjunctive; 6. The present tense for the future; 7. The future for the present ; 8. Sometimes by equity out of the reach of the words ; 9 . Some- times words taken in a contrary sense ; 10. Some times figuratively, as continens pro contento ; 1 1 . And many other like.’ And of all these, he says, examples be infinite as well in the civil law as common law. Now any one that reads this will easily judge what the scope and con- sequence of the Chancellor’s rule may be, and be may as easily discern how far it is capable of improving, to baffle and elude any law whatso- ever, jind wrest it from its genuine and native sense to what you please.” — ( Reporter's Note.) [478 ago Acts of Parliament were very short, and were to be applied to a variety of cases ; bub now they are very long, and some of them are framed with all the beauties of style to be gathered from the office of the special pleader, and the office of the conveyancer also. Sir F. Pollock: The prisoner’s being willing to plead has nothing to do with the list of the jury or the lists of witnesses. In the book of 1709 there is a direction to have the prisoner asked if he has had the copy of the indictment. Here the officers of the Crown made a mistake, and lie by, in hopes that the prisoner may let it slip and pass over. If it was meant to insist that the objection should have been taken earlier, the prosecutors should, in the form given in the book of 1709, have asked the prisoner if he had got the copies of the indictment and the lists. Lord Abinger, C.B. : The old form was for the Court to do it. Campbell, A.G-. : It has not been done for half a century. Alderson, B. : There is a direction in the book of 1709 for asking the prisoner as to his name. Sir F. Pollock : That is probably altered by the statute 7 & 8 Geo A. c. 28. s. 1. On the whole case I have to contend, that when an Act of Parliament says the same time it means the same time, and that the proper time for objecting to the list of witnesses is when a witness is called, and that if some irregularities cannot be cured — none. Tindal, C.J., communicated the decision of the judges to the Marquis of Normanby , Secretary of State for the Home Depart- ment, in the following letter : — “Westminster Hall, “My Lord, 28th January, 1840. “ I have the honour to inform your Lord- ship that the argument upon the three cases of The Queen v. Frost, The Queen v. Williams, and The Queen v. Jones, closed this afternoon, and that the judges, after considering the sub- ject, have come to the following determination upon the two questions which have been argued before them, viz.: — “ First, a majority of the judges, in the pro- portion of nine to six, are of opinion that the delivery of the list of witnesses was not a good delivery in point of law. “ But, secondly, a majority of the judges, in the proportion of nine to six, are of opinion that the objection to the delivery of the list of witnesses was not taken in due time. (a) “ All the judges agreed that if the objection had been made in due time, the effect of it would have been a postponement of the trial, in order to give time for a proper delivery of the list.”(6) (а) See Reg. v. Burke 10 Cox, C.C. 519. (б) The names of the judges who divided, nine to six, that it was a good objection, were — Trial of John Frost, 1839. 4791 Trial of John Frost, 1839 . [480 In consequence of this difference of opinion, the sentence of death, was remitted, Ayes: Littledale, J., Parke, B., Alderson, B., Patteson, J., Williams, J., Coltman, J., Coleridge, J., Erskine, J., and Rolfe, B. Noes: Lord Denman, C.J., Tindal, C.J., Lord Abinger, C.B., Bosanquet, J., Gurney, B., and Maule, J. These last decided also that the objection was not taken in time, and Alderson, B., Rolfe, B., and Coltman, J., concurred with them in that opinion. Sir Frederick Pollock and Kelly having pre- sented a memorial claiming that the above result entitled the prisoners to a free pardon, the following letter was addressed to the Home Secretary by the judges who presided at the trial, and was afterwards read in both Houses of Parliament (Hansard, vol. 51, p. 1080, and vol. 52, p. 1140) “ Westminster Hall, “My Lord, January 31, 1840. “ We have perused and considered the memorial of Sir Frederick Pollock and Mr. Kelly, counsel for the prisoner, John Frost, who was tried under the late Special Commission, and beg to inform your Lordship that the memorial appears to us to be founded upon an entire mis- conception of the law relating to the course of proceeding in criminal cases, and, so far as we, the judges under the Special Commission, are concerned, an entire misapprehension of the fact. “ As to the law, the uniform practice has been, so far back as we have any means of knowledge, that if the judge upon the trial feels any serious doubt as to an objection that occurs in point of law, he decides the point against the prisoner and allows the trial to proceed, reserving such point of law in order that he may take the ad- vice of all the other judges thereon. After con- sulting them, and hearing argument thereon (if thought necessary), the opinion of the judges is taken, and that of the majority binds the judge who has reserved the question. If 4 that opinion should be against the prisoner the law is suffered to take its course, and the sentence which has been passed remains. If the opinion of the judges is in favour of the prisoner, the constant course is for the judge who tried the prisoner and passed the sentence to apply to the Secre- tary of State for a free pardon. And this course in no way depends on any consent, express or implied, on the part of the prisoner ; the judge pursues it at his own discretion, and decides the point against the prisoner, giving him the benefit of further consideration and advice with the other judges. And this course is pursued for the purpose of preventing a failure of justice, inasmuch as, if the judge decided under his im- mediate impression, supposing it to be in favour of the prisoner and directed an acquittal, there could be no new trial, although upon reference to the other judges his own opinion was held to be wrong. On the other hand, if the opinion of the judge is at the time unfavourable to the prisoner, it can be reserved by that course, and if erroneous set right. (But see now as to Court for Crown Cases Reserved 11 & 12 Viet, c. 78; 36 & 37 Viet. c. 66. s. 47 ; 38 & 39 Viet, c. 77. s. 19, and 44 & 45 Viet. c. 68. s. 15.) the three prisoners being transported for the term of their natural lives. (a) Materials made use of. — The above report has been abridged from Mr. Gurney’s published report of the trial. The report of the argument before all the- judges is taken from 9 C. & R. 129, the report in 2 Moo. C.C. 140 has also been made use of. “ With respect to the statement in the memorial of what took place at the trial, so far as relates to ourselves, we cannot but remark that the learned counsel labour under a complete mis- apprehension, at which we are the more sur- prised, as we expressly stated that no distinction would be made between this and other cases tried at the assizes, but that it must follow the ordinary course. (See above, pp. 155 and 156.) “ At the time of the discussion we all of us entertained serious doubts, more or less strong, on the objection that was raised before us. And if the law had obliged us to come to an imme- diate and final decision without the power of consulting the judges, which the law does not, we were not prepared, without much further consideration, nor without hearing the arguments on the part of the Crown concluded, to come to any determination on the point. We therefore, following the ordinary course, pursued on similar occasions, decided the point against the prisoner by allowing the trial to proceed, subject to the revision before referred to. “We beg to inform your Lordship that we think the circumstance stated and relied on in the memorial, viz., that two of the judges at the Special Commission ultimately declared their opinion in favour of the objection does, in our judgment, make no difference whatever, nor do we think that any inclination in their minds at the time of the trial ought to affect the ques- tion. The law is taken from the majority of the judges, when consulted. “ IJnder the circumstances above mentioned we beg leave to represent to your Lordship that, in our opinion, there is no ground whatever to entitle the prisoner to a free pardon. “ N. C. Tindal. “ J. Parke. “ J. Williams. “ To the Most Noble the Marquis of Normanby, &c.” (a) “ In March 1840 Leader moved an address to the Crown for a free pardon for Frost and his associates, and was beaten by 53 votes to 5. The minority consisted of Disraeli, Duncombe, Fielden, Hector, and Wakley. — Hansard, vol. 52, p. 1140. On the 25th of May 1841, Duncombe presented a petition signed by 1,300,000 persons praying for the liberation of the political prisoners, and for the recall of Frost from transportation. The House divided on the first part of his motion to give effect to the prayer, 58 to 58 ; and the Speaker gave his casting vote with the noes, on the ground that the motion interfered with the prerogative of the Crown.” — Note in Walpole’s History, vol! 4, 59. — Frost was transported to Van Diemen’s Land; in 1854 he was allowed to go to America, and in 1856 he obtained a free pardon and returned to England. He died in 1 877. 481] Calder against Halket, 1839-40. [482 CALDER against HALKET. John Calder ------ Appellant AND Robert Craigie Halket - ... Respondent. * Appeal from the Supreme Court of Judicature at Fort William, in Bengal, to the Judicial Committee of the Privy Council, December 5, 1839, and July 4 and 8, 1840, before Lord Brougham, Parke, B.,(a) Bosanquet, J., and Dr. Lushington. (Reported in 3 Moo. P.C.C. 28.) The respondent, the acting judge of a District Criminal Court in Bengal, caused the appellant, a British-born subject, to be arrested and detained on a charge of riot. The appellant, after some days’ detention, was held to bail, and bound by recognisance to appear when called upon. The respondent had no jurisdiction to deal with British-born subjects in this way. The appellant brought an action against the respondent in the Supreme Court at Fort William, and recovered damages, but the verdict was set aside by the Court. The appellant appealed to Her Majesty in Council. Held, affirming the judgment of the Court below — 1. Protection of Magistrates in India for Judicial Acts.(b ) The 21 Geo. 3. c. 70. s. 24, protecting provincial magistrates in India from actions for any wrong or injury done by them in the exercise of their judicial offices did not confer unlimited protection, but placed them upon the same footing as judges and magistrates of English courts of similar limited jurisdiction. 2. Trespass — Exceeding Jurisdiction. Trespass will not lie against a judge of limited jurisdiction, for acting judicially but without jurisdiction, unless he knew or had the means of knowing of the defect of jurisdiction, and it lies upon the plaintiff in every such case to prove that fact. (а) Afterwards Lord Wensleydale. (б) The protection of judges and magistrates in India is now regulated by Act xvm. of 1850, which provides as follows : — “ No judge, magistrate, justice of the peace, collector, or other person acting judicially shall be liable to be sued in any civil court for any act done or ordered to be done by him in the discharge of his judicial duty, whether or not within the limits of his jurisdic- tion, provided he at the time and in good faith believed himself to have jurisdiction to do or order the act complained of.” See Sinclair v. Broughton , 9 Ind. Ap. 152. o 67432. Q 483 ] Calder agamst Halket , 1839 - 40 . [484 This was an action of trespass, brought by the appellant Calder against the respon- dent Halket in the Supreme Court of Judi- cature, at Fort William in Bengal, to recover damages for the arrest and false imprison- ment of the appellant by, the respondent, in his character of judge and magistrate of the Foujdarry(a) Court of the District of Nuddeah, in Bengal. The appellant was the manager of a fac- tory at Bayadangah, in the same District, belonging to Mr. David Andrews. Both the appellant and the respondent were European British-born subjects. The pro- ceedings which gave rise to the imprison- ment complained of were as follows : — On the 29ch of July 1834 an affray took place in a village called Dutt Boahleah, within the District of Nuddeah. On the following day the police darogah of the adjoining thanah(b ) of Hanskolly, within which the village of Boahleah is situate, reported the particulars of the riot to the respondent, as acting magistrate of the Foujdarry Court of the District of Nud- deah, and transmitted the depositions of the wounded persons as well as of some of the witnesses of the affray. The respondent Halket being of opinion that the appellant was concerned in the riot, directed a robocarree (or order of in- structions for the mode of proceeding in the case) of the Foujdarry Court at Kish- naghur to be made and passed, by which it was ordered, amongst other things, that a jperwannah (or warrant) should be written and directed to the darogah, for the appre- hension of Calder. The robocarree was signed by the re- spondent, and a jperwannah was accord- ingly issued on the same day, and delivered to the darogah of the thanah of Hanskolly, under the authority of which the appel- lant was detained, and kept under surveil- lance of two burhurdanzes,{c ) within the boundaries of Mr. Andrews’ factory. The appellant was ultimately brought before Halket, the respondent, as acting judge of the Foujdarry Court at Kish- naghur, and after some days’ investiga- tion, admitted to bail ; and was eventually bound by recognisance, to appear when called upon. The greater part of the other prisoners charged with being con- cerned in the riot were convicted, and sentenced to different periods of imprison- ment ; but no further proceedings were taken against Calder. Upon the 6th of March in the following year, 1835, Calder commenced an action (a) Criminal. (b) Police station, (e) Matchlock men. of trespass, in the Supreme Court at Calcutta, against Halket, for assault and false imprisonment. The declaration con- tained three counts. The first alleged that the respondent assaulted and imprisoned the appellant for thirty-four days, at Bayadangah. The second, that the re- spondent had laid hold of the appellant, and compelled him to go from a house in Bayadangah to a place called Poolia, and from Poolia back to Bayadangah, and then to Kishnaghur, and there imprisoned him. for twenty-five days. And the third count alleged that the respondent had assaulted and imprisoned the appellant at Kish- naghur for thirty-four days. The respondent pleaded the general issue ; and also six special pleas, justify- ing the said several arrests and imprison- ments, as done by him as magistrate of the District of Nuddeah, in the province of Bengal, and of the Criminal Court of the same district. The appellant joined issue upon the first plea, and replied de injuria to the six special pleas ; upon which issue was joined. The cause came on for trial before the Supreme Court, on the 23rd of July 1835, when several witnesses were examined on both sides, and a verdict was given for the plaintiff on all the issues joined in the action, with damages to the amount of five hundred rupees, but with liberty for the respondent to move that the verdict should be set aside, and a nonsuit, or ver- dict for the respondent, entered instead thereof, upon three several points reserved, viz., 1st, that there was no proof of the arrest of the appellant by the respondent’s order ; 2ndly, that under the provisions of the statutes 21 Geo. 3. c. 70. s. 24, and 53 Geo. 3. c. 155. s. 105, and the Bengal Begu- lations in force in the Presidency, the re- spondent was not amenable to the Supreme Court in an action for damages ; the acts proved appearing in evidence to have been acts done by him as magistrate of the Provincial Court of Kishnaghur ; and, 3rdly, that under the general issue a suffi- cient justification was proved. A rule nisi to that effect was granted on the 2nd of November. On the 24th of November 1835 the several points reserved were argued before the Supreme Court, who were of opinion, that the arrest having taken place under the seal of the Foujdarry Court, and the ap- pellant being a British-born subject, and not amenable to the jurisdiction of the Foujdarry Court of the zillah, the respon- dent had failed to support his special pleas. They were, however, of opinion, that under the general issue, the respondent was en- titled to avail himself of the protection of 485 ] the 24th section of the statute 21 Geo. 3. c. 70, which precluded the Supreme Court from exercising jurisdiction in the action against the respondent, and accordingly adjudged that the verdict should be en- tered for the respondent on the general issue, with costs, and costs of motion. From this judgment the appellant ap- pealed to Her Majesty in Council. Hill, Q.C., and Buller for the appellant. The judgment of the Supreme Court cannot stand ; they admit the trespass, but say they have no jurisdiction to try the question, the respondent having acted in his magisterial capacity, and not being amenable to the Supreme Court. This is contrary to law, as well as against the true construction of the Acts 21 Geo. 3. c. 70, and 53 Geo. 3. c. 155. The rule at law is that, if an action be brought against a judge of record for an act done by him in his judicial capacity, he must plead that he did such act as a judge of record before he can avail himself of such justification. (a) The respondent pleaded the general issue. How supposing him to be a judge of record, that is clearly insufficient ; but he also pleaded specially that the acts were done by him in his magisterial capacity ; yet the Court held these pleas were not sup- ported, but they held the plea of the general issue sufficient, under the 21 Geo. 3. c. 70. ss. 2 and 24. That Act was passed to explain and amend the previous one of 13 Geo. 3. c. 63, under which the Supreme Court was first established ; by the second section it is provided that per- sons impleaded in the Supreme Court, for acts done by order of the Governor- General in Council, may plead the general issue. !But the trespass of the respondent was not an act so done. The respondent is a judge of the Foujdarry Court, and, accord- ing to the Bengal Regulation I. of 1772,(6) first establishing that Court, was only an officer of police, having no jurisdiction over any but natives ; and though ap- pointed by the Governor- General in Coun- cil, the acts done by him in his judicial capacity never can be construed to be acts done by the order of the Governor-General, so as to entitle him to plead the general issue. The 24th section of the Act re- cites — “ And whereas it is reasonable to render the provincial magistrates, as well native as British- born subjects, more safe in the execution of their office, it is enacted that no action for wrong or injury shall lie in the Supreme Court, against any person whatsoever exercising a judicial office in the country courts, for any (а) Lord Mansfield, in Mostyn v. Fabrigas, Cowp. 172. (б) Judicial Regs, of 1769 to 1792, para. 5. [486 judgment, decree, or order of the said court, nor against any person for any act done by or in virtue of the order of the said court.” Now, in the first place, this clause ap- plies to the orders of the court, and not to the individual acts of the judge ; hud, in the next place, the judgments, orders, or decrees, intended by the Legislature, are such as the judicial officer has autho- rity to exercise, viz., over natives, and not over British subjects, who are not subject or amenable to the jurisdiction of the pro- vincial magistrates. Here the respondent, a mofussil magistrate, issues a yerwannah for the arrest of the appellant, a British- born subject, without the oath of any party being taken, without any charge made, without any accusation, or even accuser, but solely on his own suspicion, drawn, it may be, from the report of the darogah, but of which the respondent is in utter ignorance. The Act of 21 Geo. 3. c. 70. was never intended for such a case as this, nor can it be strained to meet it. If the construction given by the Supreme Court to the 24th section be correct, the appel- lant will be without redress at law ; he cannot sue the respondent in the district in which the acts happened, and the native courts of Sudder and Nizamut are courts of appeal without original jurisdic- tion. The consequence will be that the local magistrates in India will enjoy a protection and immunity not possessed by a judge of the highest court of record in England. Then it is said that the respondent, being a justice of the peace, had jurisdic- tion under the 53 Geo. 3. c. 155. s. 105, which enacts : — “ it shall and may be lawful for any native of India, resident in the East Indies, and without the towns aforesaid (Calcutta, Madras, and Bombay)* in case of any assault, forcible entry, or other injury accompanied by force, alleged to have been done against his person or property by a British subject, to complain of such assault, forcible entry, or other injury, not being felony, to the magistrate of the Zillah or District where the alleged offender shall be resident, or in which such offence shall have been committed ; and such magistrate shall have power and authority, at the instance of the person so complaining, to take cognizance of such complaint, to hear par- ties, to examine witnesses, and having taken in writing the substance of the complaint and evi- dence, to acquit or convict the person accused ; and, in case of conviction, to inflict upon such person a suitable punishment by fine, not ex- ceeding five hundred rupees, to be levied, in case of non-payment, by -warrant under the nand of the said magistrate, and upon any pro- perty of the said person so convicted which may be found within the said District ; and if no such property shall be fouud within the said District, then it shall be lawful for the said magistrate Q 2 Colder against HalJcet, 1839 - 40 , 487] Colder against 1 "by warrant also under his hand, to commit such offender to some place of confinement within the said Zillah or District, which in the judgment of the said magistrate shall be fit for receiving such offender ; or, if there he no fit place of confinement, then to the gaol of the Presidency, to remain there for a period not exceeding two months, unless such fine he sooner paid,” &c., &c. But that clause only justifies the ar- rest of a party complained of, after the case has been heard and decided, and a fine imposed and not paid, and no property found within the district from which such fine could be levied. The question then is, whether the respondent, being, as it is admitted, a justice of the peace, and as such amenable to the Supreme Court, can be permitted to say that the act done by him was in his capacity as judge of the Fouj- darry Court, and not as a magistrate, and that as such judge he is entitled to plead the general issue, and to the protection of the 21 Geo. 3. c. 70. We do not contend that an action would lie against the re- spondent acting within his jurisdiction ; the statute 21 Geo. 3. c. 70 protects the judges of the native courts in India in the same manner as those of 7 Jac. 1. c. 5., 21 Jac. 1. c. 12. s. 15, and 42 Geo. 3. c. 85. s. 6, protect the judges of our own courts ; but if the act done be out of the jurisdic- tion of the judge, then he is not protected — Bushel's case, (a) Hamond v. Howell, (b) Miller v. Seare.(c) This doctrine was ad- mitted in Bicas v. Lord Brougham, (d) and formed the basis of the decision in Mostyn v. Fabrigas.{e) If an act is done by a judge as judge of record, in his judicial capacity, then no action will lie against him — Groen - velt v. Burwelljf) But the Foujdarry Court is not a court of record, it is the native criminal court, created under the Begula- tion of 1772, at the same period as the Sudder, which has been held, as we are instructed, by the Supreme Court of Cal- cutta, not to be a court of record. If a party, not being a judge of a court of record, improperly grants a warrant, on which another is imprisoned, an action lies — Beardmore v. Carrington, {g ) Burdett v. Ab- bott(h) — and he must plead specially. How though the warrant is sealed with the seal of the Foujdarry Court, the apt of granting it was a ministerial and not a judi- cial act, and being an excess of jurisdic- tion, an action will lie for it —Beaurain v. (а) 1 Mod. Rep. 119. (б) 1 Mod. Rep. 184, and 2 Mod. Rep. 218. (c) 2 W. Bl. 1141. (d) 3 St. Tr. N.S. 569 ; 6 C. & P. 249. (e) Cowp. 172. (/) 1 Ld. Raym. 454 ; 1 Salk. 200. <^) 2 Wils. 244. (A) 14 East, 1. lalJcet, 1839-40. [488 Scott.(a) The distinction between a minis- terial and a judicial act was taken and in- sisted on with great learning and ability in a case in the Court of Common Pleas in Ireland— Taaffe v. Bownes, Chief Justice of the King’s Bench.(5) The plaintiff having been arrested upon a warrant from the Chief Justice, brought an action of as- sault and for false imprisonment, to which the defendant pleaded that he was Chief Justice of the King’s Bench, and that as such, and in the course of his office of Chief Justice, he had issued his warrant. The plaintiff demurred, because the defendant did not justify by his plea the issuing of the warrant, by setting forth the causes for which, as well as the authority under which, it was issued. The case was elabo- rately argued by the most eminent men at the Irish bar, and though the Court gave judgment against the demurrer, one of the judges, Mr. Justice Fletcher, being dissentient, yet the distinction between the ministerial and judicial acts of a judge, which formed the ground of his dissent, was not controverted by the other judges, who only held that the act in question was • legal, and could not be questioned because it was a judicial act. The Chief Justice, however, was a judge of record ; even, therefore, admitting the case to have de- cided that a judge could not be questioned for an act ministerial, but in the nature of a judicial act, that decision cannot be relied on here, for there is no pretence for saying that the Foujdarry Court is a court of record, or its judges anything higher than our justices of the peace. In Tate v. Chambers, (c) where a magistrate committed a man under 39 & 40 Geo. 3. c. 99. s. 8 (the Pawnbrokers Act), for re-ex- amination upon a charge of embezzlement, instead of imposing the penalty provided b} r the Act, the magistrate was held liable to an action for exceediug his jurisdiction. The proceeding of the respondent was an act in pais and not of record, and he is amenable if he has exceeded his jurisdic- tion ; this, we maintain, he clearly has done ; the judgment therefore entered up by the Supreme Court for the respondent on the general issue must be reversed, and the cause remitted back to the Court to assess the damages due to the appel- lant for the wrong and injury he has sustained. Serjeant Spankie, Sir William Follett,(d) and Greenwood for the respondent. The action of trespass brought against the respondent by the appellant was not (a) 3 Camp. 388. ( b ) Reported in a note to the present case in 3 Moo. P.C.C. 36 ; 3 St. Tr. N.S. 1318. (c) 3 N. & M. 523. ( d ) Afterwards Attorney General. 489 ] Caldev against HalJcet , 1839-40 [490 sustainable in the Supreme Court, for two reasons : first, because the respondent, acting bond fide in the execution of his office as magistrate of the Foujdarry Court, in a case within the jurisdiction of that Court, is protected by the statutes 21 Geo. 3. c. 70. ss. 2 and 24, and 53 Geo. 3. c. 155. s. 105 ; and secondly, because it did not appear upon the trial, nor was there any ground for the Court to pre- sume, that the respondent had any notice of the fact, or any reason to suppose that the appellant was not a native, and as such amenable to the jurisdiction of the Foujdarry Court. The sections 2 and 24 of the 21 Geo. 3. c. 70. must be taken to- gether ; the latter provides that — “ no action shall lie in the Supreme Court against any person whatsoever exercising a ju- dicial office in the country courts for any judg- ment, decree, or order of the said court and by the former, any person impleaded in the Supreme Court for any act done by order of the Governor- General in Council, may plead the general issue. Now it is admitted that the parties engaged in the riot were natives, and as such amenable to the jurisdiction of the native courts. The appellant was the exception ; he, it seems, was an European and a British subject ; but how was Halket to know that circumstance.? His name would not neces- sarily impart the fact, he might be half- caste. It is clear that he was engaged with others, who were amenable to the jurisdiction of the Foujdarry Court, in a common breach of the law ; when, there- fore, he was apprehended, if he intended to avail himself of his privilege as a British subject, he should have moved for the warrant to be discharged ; that would have been the course here ; and if he had that remedy, can he lie by, and then bring his action ? But if a magistrate acts bond fide, he is protected against all unintentional errors ; that is the principle upon which all the Acts of Parliament for their protection are framed ; and the de- cisions of the courts are in accordance with that principle — Weller v. Poke, {a) Beechey v. Sides, (b) Price v. Messenger .(c) The 7 Jac. 1. c. 5., made perpetual by 21 Jac. 1. c. 12., first enabled an officer im- pleaded for the execution of his office, to plead the general issue. By the 42 Geo. 3. c. 85. s. 6, this provision was extended to all persons having, holding, or exercising public employment in or out of the king- dom, who by law are empowered to com- mit persons to safe custody ; so that, in- (а) 9 East, 264. (б) 9 B. & C. 806. (c) 2 Bos. & Pul. 158. dependently of the statute 21 Geo. 3. c. 70., the respondent, being a person having legal authority to commit, if sued in this Court, might have pleaded the general issue ; but it is said that this arrest of the appellant was not within the intent or meaning of 21 Geo. 3. c. 70. The instru- ment of arrest is a perwannah, which is something more than a warrant, for it sets forth the report of the darogaJi on which it is founded, and then proceeds to order the arrest of the parties implicated in the riot, who are to be detained until the arrival of the judge, and not brought, as would be the case here, immediately before him for examination. It is an order, and being sealed with the seal of the court, must be taken to be an order of the court, and as such is precisely within the 24th section of the Act 21 Geo. 3. c. 70. Then is Halket liable to an action of trespass for excess of jurisdiction in a matter over which he had already, as re- spected the natives, jurisdiction, without notice of the appellant’s character of a British subject ? That is contrary to the principle of all the cases. If a judge having jurisdiction exceed it by mistake, no ac- tion can be maintained against him — Gwynnx. Poole, [a) Truscott v. Carpenter, (b) Lowther v. Earl of Radnor. (ci) In Picas v. Lord Brougham ,{d) there was no special plea, the plea of the general issue was held sufficient. If there is a general law, as an Act of Parliament, the Court are bound to take notice of it ; it need not be pleaded in abatement ; that was settled in Parker v. Elding, (e) and has been followed in West v. Turner.if) The effect of re- versing the judgment of the Supreme Court would be to allow actions to be brought against individual judges for the acts of the court ; that is plainly contrary to every dictum and decision to be found. The judgment, therefore, of the court below must be affirmed, and the appeal dismissed with costs. Hill, in reply : The construction put upon the 21 Geo. 3. c. 70. is inconsistent with the provisions of the Act itself. It is contended that by the 24th section, judicial officers are indemnified from any proceedings in respect of acts done by them as such ; but the two succeeding sections provide for the case of informa- tions being brought against them for cor- rupt acts. The argument puts them too high ; they may be indicted ; is that coi> (а) Lut. 937. (б) Ld. Raym. 229. (c) 8 East, 113. (rf) 3 St. Tr. N.S. 569. (e) 1 East, 352. (/) 6 A. & E. 614. 491] Galder against Halket, 1839-40. [492 eistent with their being judges of record, and as such protected ? The judges of the courts of record here can only be proceeded against by impeachment ; they are amen- able to Parliament alone for their acts ; are the judges of the Foujdarry Court in India on the same footing ? In the 53 Geo. 3. C.T55..S. 105, the local courts are described as established by the East India Company ; they are not King’s courts in the sense of the superior courts here ; and if not King’s courts, then they have only a local and limited jurisdiction, and their judges must be accountable for any excess in the exercise of it. If a judge acts in a matter or subject in which he has no jurisdiction, he is liable to an action ; but if he has jurisdiction, though he proceed erroneously, no action will lie, — that was the distinction taken in the Marshalsea case, (a) and by Holt, C.J., in Groenvelt v. Burwell(b) ; by Powell, B., in Gwynn v. Poole(c) ; and by He Grey, C.J., in Miller v. Seare(d ) ; and was the foundation of the more modern case of Ackerley v. Parkin - son.(e ) The argument that the respondent had jurisdiction over natives cannot be carried to give him any over British sub- jects, who are expressly exempted from the operation of the native courts. The arrest of the appellant was not a judicial act, or founded on any judicial proceeding. The respondent had no right to do more than issue a summons ; and immediately he found that the appellant was a British subject, should have discharged him. He began by exceeding his authority as a ma- gistrate, acting judicially when he ought only to have acted ministerially, and pro- ceeding summarily when he ought first, at least, to have inquired and ascertained that he had jurisdiction to act at all ; he is, therefore, not entitled to any privilege, and ought not to be screened from the consequences of his own deliberate act. December 17, 1840. Parke, B. : The material question in this case is, whether the defendant, being a judge of the Foujdarry Court of the District of Nuddeah, was, in that character, entitled to the protection of the 21 Geo. 3. c. 70. s. 24, for issuing his order, or per- wannah and for what was done in obedience to it. This section is as follows : — “And whereas it is reasonable to render the provincial magistrates, as well natives as British (a) 10 Co. 69, 76, 2nd Res. (b) 1 Ld. Raym. 454. (c) Lut. 937. ( d ) 2 W. Bl. 1145. (0 3 M. & S. 411. subjects, more safe in the execution of their office, be it enacted, that no action for wrong or injury shall lie in the Supreme Court against any person whatsoever, exercising a judicial office in the country courts, for any judgment, decree, or order of the said court, nor against any person fo,r any act done by or in virtue of the order of the said court.” Three meanings may be attributed to this clause. First. It may mean that no action should lie against one exercising a judicial office in the country courts, for any judgment, decree, or order of the court, whether in a matter in which the court had a juris- diction or not, or whether the judge wil- fully and knowingly gave judgment or made an order in a matter out of his jurisdiction or not ; so that the fact of the existence of a judgment, decree, or order should preclude all inquiry. Secondly. It may mean to protect the judge only where he gives judgment, or makes an order, in the bond jide exercise of his office, and under the belief of his having jurisdiction, though he may not have any. Thirdly. The object may have been to put the judges of the native courts on the footing of judges of the superior courts of record, or other courts in this country having similar jurisdiction to the native courts, protecting them from actions for things done within their jurisdiction, though erroneously or irregularly done, but leaving them liable for things done wholly without jurisdiction. It seems to us, that the first of these constructions is inadmissible. It never could have been intended to give such un- limited power to the judges of the native courts, and reason points out that the general words of the clause must be qualified in the manner stated in one of the two latter modes of construction. We think that the third is the right mode, and that the true meaning of the section in question was to put the judges of native courts of justice on the same footing as those of English courts of similar jurisdiction. There seems no reason why they should be more or less protected than English judges of general or limited juris- diction under the like circumstances. To give them an exemption from liability, when acting bond jide in cases in which they had, though mistakenly, acted with- out jurisdiction, would be to place them on a better footing than English judges or magistrates, and to leave the injured in- dividual wholly without civil remedy ; for English judges, when they act wholly without jurisdiction, whether they may suppose they had it or not, have no pri- vilege ; and the justices of the peace, 493 ] C alder against . whether acting as such, or in their judi- cial character, in cases of summary con- viction, have no other privilege than that of having notice of action, a limitation of time for bringing it, a restriction as to venue, the power of tendering amends, and of pleading the general issue, with certain advantages as to costs. This construction is that contended for by the appellant, and to that extent we think that the appellant is right. But in applying that rule to the facts in evidence in the present case, we think that enough does not appear to make the defendant a trespasser. We must consider the defendant as being in the same situation as a criminal judge in this country, with the qualification, that he had no jurisdiction over one par- ticular class, viz., the European-born sub- jects of the British Crown ; and the question is, whether he is liable to an action of trespass, for causing the plaintiff to be arrested, he being, in reality, exempt from his jurisdiction. If the particular character of the plaintiff be not taken into consideration, and if the case be treated as if he had been a native subject, there is no doubt that the defen- dant would have been protected ; for it is not merely in respect of acts in court, acts sedente curia , that an English judge has an immunity, but in respect of all acts of a judicial nature, as was decided in the case of Taaffe v. Downes 1 ' a) ; and an order under the seal of the Foujdarry Court, to bring a native into that court, to be there dealt with on a criminal charge, is an act of a judicial nature, and whether there was any irregularity or error in it or not, would not be punishable by ordinary pro- cess at law. But the protection would clearly not extend to a judicial act done wholly without jurisdiction ; and it is con- tended that this order, with reference to a British-born person, is altogether without jurisdiction, because such person was not answerable to the general jurisdiction of the Court; and the special jurisdiction given by the 53 Geo. 3. c. 155. s. 105, did not warrant the mode of proceeding in this case, there being no information or complaint by a native ; nor did that sec- tion of the statute authorise imprisonment in the first instance. But the answer to the objection to the defendant’s jurisdiction founded on the European character of the plaintiff is, that it does not appear distinctly in the evidence, upon which alone we are to act, whatever our suspicions may be, that the defendant knew, or had such information, lalket, 1839 - 40 . [494 as that he ought to have known of that fact ; and it is well settled that a judge of a court of record in England, with limited jurisdiction, or a justice of the peace, acting judicially, with a special and limited authority, is not liable to an action of trespass for acting without jurisdiction, unless he had the knowledge or means of knowledge of which he ought to have availed himself, of that which consti- tutes the defect of jurisdiction. Thus in the elaborate judgment of Mr. Baron Powell, in Gwynn v. Poole, {a) it is laid down that a judge of a court of record in a borough was not responsible, as a trespasser, unless he was cognisant that the cause of action arose out of the juris- diction, or, at least, that he might have been cognisant, but for his own fault ; which last proposition Mr. Baron Powell illustrates by a reference to the case of the Marshalsea Court, which had jurisdic- tion only in certain cases where the King’s servants were parties, who being all en- rolled, the judge ought to have had a copy of the enrolment, and so would have known the character of the parties. It is true, says Mr. Baron Powell (speaking of the case of a borough court), that the cause of action does not arise within the jurisdiction of the court, as it ought to do ; but as the judge cannot know that, except by the plaintiff or defendant, until he knows it, the rule shall be in this case, as in others, “ ignorantia facti excusatP Mr. Baron Powell lays down the same rul& as to a party ; but his opinion in that re- spect is disapproved of by Lord Chief Justice Wittes, in Moravia v. Sloper(b) but not so far as it relates to a judge or- officer. The like rule has been followed in the case of magistrates acting under the special powers of acts of Parliament ; they are not liable as trespassers if they have jurisdic- tion to inquire into the facts stated before them, and nothing appears on one side or the other to show their want of jurisdic- tion — Pike v. Carter. (c) Lowther v. Earl of Radnor. {d) It is clear, therefore, that a judge is not liable in trespass for want of jurisdiction, unless he knew, or ought to have known, of the defect ; and ic lies on the plaintiff, in every such case, to prove that fact. In the case now under consideration, it does not appear from the evidence in the case, that the defendant was at any time informed of the European character of the (а) Lut. 1566. (б) Willes, 35. (c) 3 Bing. 78. (d) 8 East, 113. (a) 3 Moo. P.C.C. 36 ; 3 St. Tr. N.S. 1318. 495 ] Galder against Halket, 1839 - 40 . [496 paintiff, or knew it before, or had such information as to make it incumbent on him to ascertain that fact. The point, herefore, which is contended for by the paintiff, does not arise ; and it is unneces- sary to determine whether, if distinct notice had been given by the plaintiff to the defendant, or proof brought forward that the defendant was well acquainted with the fact of his being British-born, the defendant would have been protected in this case, as being in the nature of a judge of record acting irregularly within his general jurisdiction, or would have been liable to an action of trespass, as acting by virtue of a special and limited authority given by the statute, which was not complied with, and therefore altogether without jurisdiction. (a) The only doubt their Lordships have had in the consideration of this case is, whether the evidence was sufficient to ehow that the defendant knew, or ought to have known, that the plaintiff was a British- (a) See Spooner v. Juddow, 4 Moo. Ind. Ap. . 353 ; Willis v. M achlachlan, 7 Ex. D. 76. born subject. They have had none, that it was competent for the defendant to give his defence in evidence under the general issue, by force of the statute 42 Geo. 3. c. 85. s. 6, if not at common law.(a) Matekials made use of. — The above report is taken from 3 Moo. P.C.C. 28. The printed cases and appendices of the appellant and re- spondent have also been consulted in the collec- tion presented by Mr. Moore to the Middle Temple. (a) See also Gahan v. Lajitte , Appendix and 3 Moo. P.C.C. 382 ; Ferguson v. Kinnoull below, p. 785, and 9 Cl. & F. 251 ; Spooner v. Juddow, 4 Moo. Ind. Ap. 353 ; also, Houlden v. Smith (1850), 14 Q.B. 841 ; Galen v. Hall , 2 FI. & W. 379 ; Ward v. Freeman (1852), 2 Ir. C.L.JR. 460; Hamilton v. Anderson, 3 Macq. 378; Kemp v. Neville <1861), 10 C.B. N.S. 523 ; Fray v. Blackburn (1863), 3 B. & S. 576; Scott v. Stansfield , L.R. 3 Ex. 220; Willis v. Machlachlan, 7 Ex. D. 376 ; Sinclair v. Broughton, 9 Ind. Ap. 152 ; Haggard v. Pelicier Freres, 1892, A.C. 61. 497] The Queen against Oxford , 1840. [498 THE QUEEN against OXFORD. Trial of Edward Oxford for High Treason at the Central Criminal Court, before Lord Denman, L.C.J., Alderson, B., and Maule, J., July 9, 10, and 11, 1840. (Reported in 9 C. & P. 525.) On June 10, 1840, the Queen, whilst driving up Constitution Hill, was twice fired at by Edward Oxford, aged eighteen. Oxford was .indicted for high treason. Verdict, Not guilty, he being at the time insane.(a) Ruled by the Court per Lord Denman, L.C.J. — • Defence of Insanity. To acquit the prisoner on the ground of insanity, the jury must be satisfied that he was labouring under such a disease as rendered him quite unaware of the nature, character, and consequences of the act he was committing ; or, in other words, that he was under the influence of a diseased mind, and was really unconscious at the time he committed the act that it was a crime. (a) It is now provided by 46 & 47 Viet. c. 38. s. 2 (1) that where in any indictment or information any act or omission is charged against any person, and it is given in evidence on the trial of such person for that offence that he was insane, so as not to be responsible according to law for his actions at the time when the act was done or omission made, then, if it appears to the jury before whom such person is tried that the prisoner did the act or made the omission charged, but was insane as aforesaid at the time when he did or made the same, the jury shall return a special verdict to the effect that the accused was guilty of the act or omission charged against him, but was insane as aforesaid when he did the act or made the omission. The trial of Edward Oxford, for shooting at the Queen. (a.) At the Central Criminal Court. Thursday, July 9, 1840. Present : Lord Denman, L.C. J., Alder- son, B., and Maule, J. The prisoner was placed at the bar, and the judges having taken their seats, the clerk of arraigns read the indictment, which was as follows : — Indictment. Central Criminal Court 1 The jurors for our Lady to wit. J the Queen upon their oath present, that Edward Oxford, late of West- (a) Preliminary Proceedings. In the morning of June 11, Oxford was examined before the Marquis of Normanby, Home Secretary, at the Home Office. The Privy Council met at two o’clock in the after- noon, when the depositions taken in the morning were read over in presence of the prisoner and of the witnesses, -who were bound over to appear and give evidence at the trial. The prisoner was afterwards committed to Newgate by the Home Secretary under the following warrant : — “ The Right Hon. Henry Constantine, Marquis of Normanby, one of Her Majesty’s most Hon. Privy Council, and Principal Secre- tary of State for the Home Department, &c. “These are in Her Majesty’s name to authorise and require you to receive the body of minster, in the county of Middlesex, labourer, being a subject of our Lady the Queen, hereto- fore to wit, on the 10th of June, in the year of our Lord 1840, within the jurisdiction of the said Court, as a false traitor to our Lady the Queen, maliciously and traitorously, with force and arms, &c., did compass, imagine, and intend to bring and put our said Lady the Queen to death. EdAvard Oxford, sent you for high treason, and you are to keep him safe and close until he shall be delivered by due course of laAv, and for so doing this shall be your A\ r arrant. “ Given under my hand and seal at Whitehall the 11th day of June 1840. “ Normanby. “ To the Keeper of Her Majesty’s Gaol of Newgate.” June 22. The prisoner was arraigned at the Central Criminal Court before Tindal, C. J., and Parke, B., and pleaded Not Guilty. Sidney Taylor, for the prisoner, applied that the trial should be postponed to the next sessions, and read an affidavit by the prisoner’s solicitor, stating that the delay was required to procure evidence of the prisoner’s insanity, and also that the public mind had been much excited by untrue rumours and reports in the public press. The affidavit set out a letter addressed by O’Connell to the people of Ireland and published in the Slandaj'd of June 20, Avhich attributed “ the concoction of this horrible crime to some of the underlings of the Orange- Tory faction Avhich naturally detests the virtues of our beloved Queen, and sighs for the protection and countenance of a monarch whom they deem 499 ] The Queen against Oxford, 1840 . [500 And to fulfl, perfect, and bring to effect his most evil and wicked treason, and treasonable compassing and imagination as aforesaid, he the said Edward Oxford, as such false traitor as aforesaid, to wit, on the said 10th day of June in the year of our Lord 1840 aforesaid, and within the jurisdiction of the said Court, with force and arms, maliciously and traitorously did shoot off and discharge a certain pistol, the same then and there being loaded with gun- powder and a certain bullet, and which pistol he, the said Edward Oxford, then and there had and held in one of his hands, at the person of our said Lady the Queen, with intent thereby and therewith maliciously and traitorously to shoot, assassinate, kill, and put to death our said Lady the Queen. And, further, to fulfil, perfect, and bring to effect his most evil and wicked treason and treasonable compassing and imagination aforesaid, he the said Edward Oxford, as such false traitor as aforesaid, afterwards, to wit on the said 10th day of June in the year of our Lord 1840 aforesaid, and within the jurisdiction of the said Court, with force and arms mali- ciously and traitorously did shoot off and dis- charge a certain other pistol, the same then and there being loaded with gunpowder and a certain bullet, and which pistol he the said Edward Oxford then and there had and held in one of his hands, at the person of our Lady the Queen, with intent thereby and therewith maliciously and traitorously to shoot, assassinate, kill, and put to death our said Lady the Queen, and thereby then and there traitorously made a direct attempt against the life of our said Lady the Queen against the duty of the allegiance of him, the said Edward Oxford, against the form of the statute in that case made and provided, and against the peace of our said Lady the Queen, her Crown and dignity. The prisoner pleaded “ Not Guilty.” The jury were called and sworn without challenge on the part of the Crown or the prisoner : — John Palmer. Daniel Pretty. Richard Henry May. John Maxden. William Potter. Samuel Mitchell. Charles Arnistead. James Moore. Joseph Patrick. Joseph Miller. George- William Martin. Thomas John Peat. to possess opinions and qualities of an opposite character.” The Attorney General stated that he refrained from opposing the application on the sole ground that it had been sworn that the necessary evidence for the defence was not yet ready. He should be extremely sorry that it should be charged against the Attorney General of the day by a future historian that he had followed the example of the Attorney General who had hurried on the trial of Bellingham for shooting Counsel for the Crown : The Attorney General (Sir John Campbell), (a) the Solicitor General (Sir Thomas Wilde,{b) Sir Frede- rick, Pollock, (c) Wightman,(d) Adolphus, and Gurney. Counsel for the prisoner : Sidney Taylor and Bodkin. Gurney opened the indictment. Speech eor the Crown. Attorney General: May it please your Lordships, gentlemen of the Jury, — You have now to discharge a most important duty. We are now entering upon a most solemn investigation. Gentlemen, it is for you to do your duty between the Crown and the accused. Such confidence have the counsel on both sides in the jurors who have been summoned here this day, that there has nob been one challenge on the part of the Crown or on the part of the prisoner. Gentlemen, the prisoner stands charged with the crime of High Treason, the greatest crime known to the law, and he stands charged with that offence in its most aggravated form ; he is charged with having made a direct attempt on the life of the Sovereign. Gentlemen, that crime, according to the law of this country, and, indeed, of all other countries in which monarchy is the form of Government, must be considered very heinous. By an Act passed in the twenty-fifth year of the reign of King Fdward 3, by which the law of High Treason in this country was defined, it is enacted that, if any one shall imagine and compass the death of the Sovereign, and be guilty of any overt act to show the intention of such a crime, he shall be guilty of High Treason. The offence is imagining and compassing the death of the Sovereign, and that is to be proved by some overt act. It is upon this Act, which has constituted the great safeguard of the liberties of England ever since it passed, that the prisoner is now indicted. The mode of conducting the trial is regu- lated by an Act passed in the 40th year of King George 3,(e) which provides that where in a trial for High Treason the overt act to be proved shall be a direct attempt on the life of the Sovereign, the trial shall be conducted in the same manner as in cases of murder. The object of this Act was to Mr. Perceval, although it was stated on affidavit that conclusive evidence to prove that the pri- soner was insane would be forthcoming if the trial were postponed. (а) Afterwards Lord Campbell, L.C. (б) „ Lord Truro, L.C. (c) „ Lord Chief Baron. (d) „ a Justice of the Queen’s Bench. (e) 39 & 40 Geo. 3. c. 93. 501 ] The Queen against Oxford, 1840 . [502 give the life of the Sovereign the same protection as is afforded to the meanest subject of the land : because, before this statute, it was necessary on an indictment for High Treason, even where the life of the Sovereign was attempted, or where that life had fallen a sacrifice to the wicked attempt, to prove the overt act by the testimony of two witnesses ; and there were a number of other forms required, which are most salutary and proper, where the charge bears a political aspect, where the treason under consideration is allied to a rebellious conspiracy, where the cir- cumstances to be considered may consti- tute constructive treason, or, where the case presents a supposed difficulty in bringing the charge home to the prisoner, but which the law in its wisdom has not deemed necessary when the overt act was an attempt directly at the life of the Sovereign. Gentlemen, the party now accused will have ample opportunity for his defence ; on his own application his trial was postponed to afford him the best opportunity for defence, and he is now defended by my two learned friends oppo- site, of great ability and experience. From the affidavit which was made to found the application to the learned judge (Lord Chief Justice Tindal ) we are informed that two questions will be submitted to your consideration. The first is whether, sup- posing the prisoner to be accountable for his actions, he is guilty of the offence laid to his charge ; and the second will be, whether, at the time he committed the act, he was accountable for his actions. How, gentlemen, the burden of the first issue is entirely upon the prosecution. The prisoner is still presumed to be inno- cent, and, unless clear and satisfactory evidence be laid before you to establish the proof of his guilt, it will be your duty to acquit him ; but upon the evidence I am instructed to lay before you, if you should see no reason to disbelieve the witnesses, I cannot anticipate that any reasonable doubt can arise. The prisoner at the bar, is, as you perceive, a young man, about eighteen or nineteen years of age, although you would hardly suppose that he was that age. He was born, as I understand, at Bir- mingham. He came when very young to London, and was sent to school at Lam- beth. He afterwards served in many public-houses in the capacity of what is called a barman — not, as has been sug- gested, as a potboy, but superintending the business of the bar, and when I say “ sug- gested ” it has been so stated out of doors, and I mention it to beg you to dismiss from your recollection all that you have read or heard on the subject, and to be guided in your decision solely by the evidence that shall come before you. The prisoner, as I understand, superintended the business of the bar, at a public-house in Houndsditch, and then at one in High Street, Marylebone, and next at another in Oxford Street. It seems that he left that service about the end of April. He then went into lodgings at No. 6, West Place, West Square, Lambeth, and that lodging he made his home till the period when this offence was committed. Gentle- men, it would appear that he had formed and matured a plan to make an attempt on the life of the Sovereign. On May 4 in the present year, he bought a pair of pistols from a person named Hayes , living in Blackfriars Road, for the sum of 21. He bought at the same time a powder- flask. It will appear by the evidence that he practised shooting in shooting galleries. He was at a shooting gallery in Leicester Square, at a gallery in the Strand, and at another at the west end of the town. On Wednesday, June 3, a week before the day laid in the indictment, he went into the shop of a person named Gray, and bought fifty copper caps to be used for firing. He asked Gray at the same time where he could buy some bullets, and 3d. worth of gunpowder. On the evening of June 9, he showed a loaded pistol, and when asked what he meant to do with it refused to tell, but said that he had been firing at a target. I now come, gentlemen, to the day in question, the 10th of June. The Queen, since her union with Prince Albert, has been accustomed to take an airing in the parks in the afternoon or evening, without a military escort, and with the simplicity of private life — a cus- tom well known to all her subjects. On the evening of June 10th, curiosity and loyalty had led many to the spot, expect- ing the approach of the Queen. About six o’clock Her Majesty, accompanied by her royal consort, left the palace in a low open carriage, with four horses and two outriders. She was seated on the left. Her carriage drove up Constitution Hill. About one hundred and twenty yards in advance, or one third of the distance be- tween the palace and the Triumphal Arch nt Hyde I'ark Corner, was the prisoner, Edward Oxford, watching their progress. He was walking backwards and forwards, with his arms under the lappels of his coat. He was on the right-hand side of the road, opposite the iron railing which divides the road from the Green Park. When the carriage approached, he turned round, nodded his head, then drew a pistol from his breast, and, as the car- 503 ] The Queen against Oxford , 1840 . [504 riage was nearly opposite him, he dis- charged the pistol. The Providence of God averted that blow from Her Majesty. The ball whizzed by on the opposite side, and, in all probability Her Majesty was quite unconscious at the moment that any attempt had been made upon her life. The carriage proceeded. The prisoner then looked back, as if to see whether any erson was standing near enough to see im, and drew another pistol, but whe- ther with his right or left hand seems uncertain. He aimed it at Her Majesty. It would appear that the Queen saw him take aim, for she stooped down. Again the Providence of God preserved her from injury. The prisoner fired. The ball was heard to whiz along, but it missed its object. The Queen immediately drove on to allay any alarm that might arise in the breast of her august mother. There was a man named Lowe, whom I shall call as a witness, vdio immediately rushed across, seized Oxford, and took the pistols from him ; that person at first was believed to be the offender by the parties around who said“ You confounded rascal , how dare you shoot at our Queen ? ” On which Oxford said, “ It was I.” He was immediately taken into custody, and taken to the station house, where he voluntarily put the question, “ Is the Queen hurt ? ” and on being told the Queen was not hurt, he was asked whe- ther there were not bullets in the pistols, and he admitted at once there were bul- lets. When he had been secured, and when it had been ascertained that his lodgings were, as he had said, in West Place, West Square, a policeman was im- mediately despatched to search them. The prisoner occupied a room on the first pair back ; the door of the room was open. The policeman found a box which un- doubtedly belonged to the prisoner; the box was locked, but I shall show that he had in his pocket a key that fitted it, and that he acknowledged that it was his box, as were also the contents. The box was opened, and in it were found the follow- ing articles : a sword and scabbard, two pistol bags, some black crape, a powder flask, three ounces of powder, a bullet mould, five leaden bullets, and some per- cussion caps marked, and which had been bought by the prisoner from Gray, his schoolfellow. There was also found a pocket-book containing some papers. The box and its contents were brought to the station-house and shown to the prisoner, who stated that the papers belonged to him, and that he meant to have destroyed them in the morning before he went out. These papers I will now read. The first bears no date : it is headed “ Young Eng- land,” and the rules and regulations are eleven in number : — YOUNG ENGLAND. Rules and Regulations. “1. That every member shall be provided with a brace of pistols, a sword, a rifle, and a dagger ; the two latter to be kept at the com- mittee room. “2. That every member must, on entering, take the oath of allegiance, to be true to the cause he has joined. “ 3. That every member must, on entering the house, give a signal to the sentry. “ 4. That every officer shall have a factitious name ; his right name and address to be kept with the secretary. “ 5. That every member shall, when he is ordered to meet, be armed with a brace of pis- tols (loaded) and a sword, to repel any attack ; and also be provided with a black crape cap, to cover his face, with his marks of distinction outside. “ 6. That, whenever any member wishes to introduce any new member, he must give satis- factory accounts of him to their superiors, and from thence to the council. “ 7. Any member who can procure an hun- dred men shall be promoted to the rank of captain. “8. Any member holding communications with any country agents must instantly forward the intelligence to the secretary. “ 9. That whenever any member is ordered down the country, or abroad, he must take various disguises with him, as the labourer, the mechanic, and the gentleman ; all of which he can obtain at the committee room. “ 10. That any member wishing to absent himself for more than one month, must obtain leave from the commander-in-chief. “11. That no member will be allowed to speak during any debate, nor allowed to ask more than two questions. “ All the printed rules kept at the committee room.” “ List of principal members. — Factitious Names. President. — Gowrie. Council. J USTINIAN. Ernest. Alowan. Augustia. COLOMAN. Etheldred. Kenneth. Ferdinand. Godfrey. Nicholas. Hanibal. Gregory. Generals. Fredeni. Othoe. Augustus. Anthony. Captains. Oxonian. Louis. Mildon. Amadeus. 505 ] The Queen against Oxford, 1840 . [506 Lieutenants. Hercules. Maks. Neptune. Albert. Marks of Distinction. Council. — A large white cockade. President. — A black bow. General. — Three red bows. Captain. — Two red bows. Lieutenant. — One red bow. A. W. Smith, Secretary.” There were in the same pocket-book three letters, purporting to be addressed by the same secretary, Smith, to Oxford. “ Young England, “ Sir, Dated May 16, 1839. “ Our commander in-chief was very glad to find that you answered his questions in such a straightforward manner. You will be wanted to attend on the 21st of this month, as we expect one of the country agents to town on business of importance. Be sure and attend. “ A. W. Smith, Secretary. “ P.S. You must not take any notice of the boy, nor ask him any questions. “ Addressed, Mr. Oxford, at Mr. Minton’s, High Street, Marylebone.” “ Young England, “ Sir, November 14, 1839. “ I am very glad to hear that you improve so much in your speeches. Your speech the last time you were here was beautiful. There was another one introduced last night by Lieutenant Mars, a fine, tall, gentlemanly-looking fellow ; and it is said that he is a military officer, but his name has not yet transpired. Soon after he was introduced we were alarmed by a violent knocking at the door. In an instant our faces were covered, we cocked our pistols, and with drawn swords stood waiting to receive the enemy. While one stood over the fire with the papers, another stood with lighted torch to fire the house. We then sent the old woman to open the door, and it proved to be some little boys who knocked at the door and ran away. “You must attend on Wednesday next. “ A . W. Smith, Secretary. “ Addressed, Mr. Oxford, at Mr. Parr’s, ‘Hat and Feathers,’ Goswell Street.” “ Young England, “Sir, 3rd of April 1840. “ You are requested to attend to-night, as there is an extraordinary meeting to be holden in consequence of having received some com- munication of an important nature from Han- over. You must attend, and if your master will not give you leave you must come in de- fiance of him. “A. W. Smith, Secretary. “ Addressed, Mr. Oxford, at Mr. Robinson’s, ‘ Hog-in-the- Pound,’ Oxford Street.” Under these circumstances, gentlemen, if the prisoner is responsible for his acts, it -will be for you to say, if there is any reasonable doubt of his guilt. I must tell you, gentlemen, that the balls, after search had been made, could not be found. But I think nobody can entertain the slightest doubt that these pistois were loaded with ball. I under- stand that there were two marks on the wall discovered immediately afterwards, which some persons conceived must have been' made with the balls fired from the pistols. I shall lay that evidence before you, but I acknowledge in my own mind that it is not entitled to much weight. It seems to me much more probable that the balls went over the wall, and to a dis- tance within the gardens. The wall was only four or five feet higher than the top of the carriage. Oxford was an un- skilful shot with pistols, and the proba- bility is that in the flurry which he must have laboured under, and which anyone must have laboured under at such a mo- ment, he aimed the pistols in such a manner that the balls went over the wall into the garden. But, found or not, can there be the smallest doubt that these pistols were loaded with ball P He pur- chased bullets : he had them at his lodg- ings. There was a mould for casting bullets found in his box. He had been firing at a target and practising in a shooting-gallery: and at the time, what- ever he may have said since, after volun- tarily inquiring whether the Queen was hurt, in answer to a question put co him he said, “ that the pistols were loaded with ball.” Then will come the second question, whether the prisoner was insane at the time he did the act — whether he was unconscious of what he was doing, so that he did not know right from wrong. If he was. labouring under some delusion, and did not know the consequence of what he was doing — if he was insane at the time — then he is not an accountable agent. It is said that the law of England, in ancient times, was that insanity was not a defence to the charge of attempting the life of the Sovereign, and an Act passed in the reign of King Henry 8 seems to countenance that view of the subject(a) ; but that Act is wholly repealed. Still, however, in order to excuse the prisoner, it must be shown, not only that at times there was (a) 33 Hen 8. c. 20. rep. 1 & 2 Ph. and M. c. 10. “ It was further provided by the said Act of 33 H. 8. that, if a man attainted of treason became mad, that, notwithstanding, he should be executed, which cruel and inhuman law lived not long, but was repealed.” — Co. P.C. 6. 507] The Queen against Oxford a 1840. [508- eccentricity displayed, or violence com- mitted by him, but they must show that at the time he was unconscious he was committing an offence. It would be very dangerous if some degree of weakness of intellect, some degree of eccentricity, and even violence, at other times, should pre- vail as a defence, if the prisoner was not in a state of insanity at the time when the offence was committed. There must by the law of England be proof of a greater aberration of mind in criminal than in civil cases. In criminal cases the insanity must be connected with the particular act. I will call yoar attention to the authorities. It has been laid down by Lord Coke in words which, must not receive a strict interpretation, or we should exclude all cases except those of entire mental aber- ration, that — “ he that is not compos mentis , and totally deprived of all compassings and imaginations, cannot commit High Treason by compassing and imagining the death of the King, for furiosus furore solo punitur, but it must be an absolute madness and a total deprivation of memory ”(a) The words are not to be taken literally but with great latitude, as total absence of memory is not to be found even in a furious maniac. But though I mention this I rely on Lord Hale's opinion. He says(&) “ There is first a partial insanity of mind ; and second, a total insanity. The former is either in respect to things, quoad hoc vel illud insanire ; some persons that have a competent use of reason in respect of some subjects, are yet under a particular dementia in respect of some particular discourses, subjects, or applications ; or else it is partial in respect of degrees, and this is the condition of very many especially melancholy persons, who, for the most part, discover their defect in excessive fears and griefs, and yet are not wholly destitute of the use of reason ; and this partial insanity seems not to excuse them in the committing of any offence for its matter capital; for, doubtless, most persons that are felons of themselves, and others, are under a degree of partial insanity when they commit these offences ; it is very difficult to define the indivisible line that divides perfect and partial insanity ; but it must rest on circumstances duly to be weighed and con- sidered both by the judge and the jury.” In Alison's Principles of the Criminal Law of Scotland,(c)— (and there is no diffe- rence between the law of England and the law of Scotland with regard to insanity)— it is said — “ to amount to a complete bar of punishment, either at the time of committing the offence, or of the trial, the insanity must have been of such a kind as entirely to deprive the prisoner of the use of reason, as applied to the act in question, and the knowledge that he was doing wrong in committing it. If, though somewhat deranged, he is yet able to distinguish right from wrong in his own case, and to know that he was doing wrong in the act he committed, he is liable to the full punishment of his criminal acts.” In Arnold's case {a) Mr. Justice Tracey observed — “ that the defence of insanity must be clearly made out ; that it is not every idle or frantic humour of a man, or something unaccountable in his actions, which will show him to be such a madman as to exempt him from punishment.” In Lord Ferrers’ s cas e,(&) the prisoner was unanimously found guilty by the House of Peers, though many witnesses stated that they considered him insane, and it appeared that several of his relations had been confined as lunatics — it being contended on the part of the prosecution that the complete possession of reason was not necessary to render a man respon- sible for his acts, and that it was suffi- cient, if he could discriminate between good and evil. In Bowler’s case (c)’ Mr. Justice Le Blanc told the jury that it was for them to determine — “ whether the prisoner, when he committed the offence, was capable of distinguishing between right and wrong, or under the influence of any illusion in respect to the prosecutor, which rendered his mind at the moment insensible of the nature of the act which he was about to commit; since in that case he would not be legally responsible for his conduct. On the other hand, provided they should be of opinion that, when he committed the offence, he was capable of distinguishing right from wrong, and not under the influence of such an illusion as disabled him from discovering that he was doing a wrong act, he would be answerable to the justice of the country, and guilty in the eye of the law.” In that case Mr. Warburton, the keeper of a lunatic asylum, said he had no doubt of the prisoner’s insanity, and a com- mission of lunacy was produced, dated June 17, 1812, with a finding that the prisoner had been insane from the 30th of March. When the offence was committed does not appear from the report. The jury, after considerable deliberation, pro- nounced the prisoner guilty. Alderson, B. : Bowler was executed, I believe ; and very barbarous it was. Attoimey General: I will not refer to Bellingham’s case ( d ) as there are some doubts as to the correctness of the mode (а) 16 St. Tr. 764. (б) 19 St. Tr. 886. (c) Collinson, 673w. (d) lb. 636- 674. (a) Co. P. C. 6. (&) 1 P.C. 30. (c) P. 654. 509] in which that case was conducted ; but I will refer to Iladfield's case, (a) In that case the learned judge who tried the pri- soner said that — “ as the prisoner was deranged immediately before the offence was committed, it was impro- bable that he had recovered hi3 senses in the interim ; and although, were they to run into nicety, proof might be demanded of his insanity at the precise moment when the act was com- mitted, yet there being no reason for believing the prisoner to have been at that period a rational and accountable being, he ought to be acquitted.” And the Attorney General of that day (as I hope the party representing the Crown at any time would do) immediately yielded to the opinion of the judge, and the jury at once acquitted the prisoner. But in that case there were very extra- ordinary circumstances. The law as stated by Mr. Erskine for the defence, and approved by the Court, and acted on ever since, is that the prisoner — “ must appear to the jury to be non compos mentis , in the legal acceptation of the term, and that, not at any anterior period, which can have no bearing on any case whatsoever, but at the moment when the contract was entered into or the crime committed.” (6) Such being the law upon the subject, it will be for you to say whether Edward Oxford, at the time that he shot at Her Majesty, was in a state of insanity. For the honour of our country and our common nature, I wish it could be shown that the prisoner was beside himself when he dared to level a pistol at the head of Her Majesty, the young and gentle lady, who, seated by the side of her consort, required no guards, but placed full reli- ance in the loyal affection of her subjects. I wish he were insane. But I cannot shrink from the declaration of my opinion that I see no reason for that belief. He is not an idiot ; on the contrary, he is of rather quick intellect. He has not re- ceived any wound. It is said that it can be shown that his father was insane. That would most likely be considered as evi- dence by their Lordships, and I should not object. The father’s insanity will not excuse the son, unless they show that the son was, insane at the time the act was done. Suppose on that Wednesday, June 10th, the prisoner had entered into a contract, would it not have been valid ? Suppose he had exercised the elective franchise on that day, would his vote have been disputed ? If the prisoner had conducted himself before a lunacy commissioner, as he did [510 before the Privy Council, I cannot bring myself to believe that the jury, under the direction of the judge of the commission, would do otherwise than declare that the commission of lunacy could not be sup- ported. [The Attorney General read Oxford's statement before the Privy Council.] “ A great many witnesses against me. Some say I shot with my left, others with my right. They vary as to the distance. After I fired the first pistol, Prince Albert got up, as if he would jump out of the coach, and sat down again as if he thought better of it. Then I fired the second pistol. This is all 1 shall say at present. “ (Signed) Edward Oxford.” This, gentlemen, may be material in two points of view— first, because at the time he did not say there were no balls in the pistol ; he made no allegation of the kind, but to the contrary ; and next as showing that he was then fully sensible of of the act he had committed. Upon these circumstances it is for you to say whether at the time this act was done the prisoner was accountable for his actions. If his will would have stood good, if his contracts would have been binding, if he could have been entrusted with the management of his affairs as a reasonable being, a fortiori as a criminal he was responsible. Gentlemen, I am satisfied you will come to a right conclusion upon the evidence ; you will consider all the facts that are proved ; but, at the same time, you will consider that you have a great duty to perform ; you will form it with caution and conscientiousness ; you will come to your decision upon the evidence, and of that decision the country will have no reason to complain. Evidence for the Crown. Samuel Perks. — Examined by Sir F. Pollock. [I am a builder. About six o’clock in the evening of June 10, I was standing by the column under the portico of the north wing of Buckingham Palace. I saw Her Majesty come out of the wooden gate of the north wing, the garden gate, in a low open carriage, accompanied by Prince Albert. The carriage turned to the left up Constitution Hill. There was a postillion and four horses. I was on the left-hand side of the carriage. There were no military in attendance on the carriage, but there were four outriders, two in advance and two behind. I saw Oxford on the right side of the carriage, on the footpath next the iron railing on the off side. He was walking along very slowly, with his arms folded under his The Queen against Oxford , 1840. (а) Collinson, 438. (б) 27 St. Tr. 1312. 511] The Queen against Oxford , 1840, [512 breast, and bis coat buttoned ; he was in advance of the carriage. When the car- riage came on, he turned round and gave a nod with his head. The singular way he nodded attracted my attention. When the carriage had advanced I ran in the direction of it, and the prisoner drew a pistol with his right hand from his left breast pocket, presented it at their Ma- jesties, and fired. The prisoner was about five or six yards from the carriage when he discharged the pistol. The report of the pistol attracted my attention, and I had a distinct whizzing or buzzing be- fore my eyes, between my face and the carriage. The moment he fired the pistol, he turned round as if to see if anyone was behind him ; he then set himself back again, drew a second pistol with his left hand from his right breast, presented it across the one he had already fired, which he had in his right hand, and fired again, taking very deliberate aim both times. The carriage was then about three or four yards in advance of where he fired first. After the second pistol was fired, the two witnesses named Lowe immedi- ately ran up ; Joshua seized hold of the prisoner by the two arms, and Albert Lowe caught hold of the two pistols, and wrenched them from the hands of the prisoner. A man named Clayton came behind Albert Lowe , and seeing the pistols in his bands, thought he was the person who committed the act, and said to him, “You confounded scoundrel,” and wrenched one of the pistols from Lowe, upon which the prisoner exclaimed, “It was me, I did it.” The carriage pro- ceeded. We took the prisoner along the road, and delivered him into the hands of two policemen. Cross-examined by Taylor. The pathway is very little elevated from the carriage road. I suppose the footpath is about the height of the centre of the road. By the Court: Her Majesty was sitting above the line of the carriage. I suppose the line of the carriage was about the centre of her back. She could be seen by anyone behind the carriage. Prince Albert was nearest to the prisoner. The top of my head was about level with the top of the back of the carriage. Joshua Loive. — Examined by Sir F. Pollock. I am a spectacle maker. I was in the park on the evening of June 10 last, and my attention was attracted by Her Majesty’s carriage. She was sitting on the left side with Prince Albert on the right. I was running along on the left side, the side on which the Queen sat, and heard the re- port of firearms. I was then about three yards from the carriage side. The noise attracted my attention, and I saw the smoke ascend. The carriage passed on a short way, and I then saw the prisoner with a pistol in his left hand ; he appeared to me to point the second pistol across his right hand, and fired it towards the car- riage. I said to my nephew, “ Look out, Albert, I daresay he has some friends.” 'The prisoner turned round and said, “ You are right, I have.” Cross-examined by Bodkin. There was a general rush. I was on the left-hand side. The garden wall of the palace is on that side. It is not very high, about eight feet, or more than that.] About what distance do you judge the prisoner to have stood from the carriage at the time you saw the smoke? — About , three yards — the carriage was quite open and was going at a slow pace ; that three yards -would be shortened, I think, about three quarters of a yard by his stretching, out his arm. Then the muzzle of the pistol would be within little more than two yafds of the carriage? — I should say so. [He appeared to take a deliberate aim. The railing is quite open, so as to afford an opportunity for a person to fire from the park side if he had chosen.] Albert Lowe. — Examined by Adolphus. [Nephew of the last witness. Confirmed the previous evidence.] Can you tell how far the carriage had proceeded from Buckingham Palace when the first shot was fired ? — I thought about thirty yards at first, but I have since been to see the place, and it is one hundred. I did not see the prisoner fire the first shot, but when he fired the last, he was about five yards from the carriage, I should think. Elizabeth Stokely. — Examined by Wightman. [I am housekeeper to Lord Bexley ; I saw the flash of the pistol come almost imme- diately over the Queen’s head : the Queen was crouching ; she rather crouched, and the Prince stood. I think, to the best of my knowledge, the Queen first rose, and by what I observed, the Prince rather pressed her down. It was immediately before the second flash that Her Majesty crouched. It was the second flash which appeared to come over the Queen’s head, and it came close past me, the flash did — it seemed that something whizzed past my ear, as I stood ; it seemed like some- thing quick passing my ear, but what, I 513 ] The Quean against Oxford, 1840 . [514 could not say. At the time the second pistol was fired I was very near to the Queen’s carriage, within a yard. The prisoner was very near, but more behind the carriage. William Clayton . — Examined by Wightman. I am a cabinet maker. I was about twenty-eight or thirty yards in advance of the carriage when I heard a pistol fired. I ran and came abreast of the horses. I heard a second report. The horses stopped, and Her Majesty arose in the carriage and looked round, with no fear on her counte- nance neither. I seized Albert Lowe. I said, “You confounded rascal, how dare you shoot at our Queen ? ” I spoke in a loud voice. The prisoner said, ££ I did it ; I give myself up ; I will go quietly.” 1 took hold of his coat ; the mob rushed in, and seized me, and knocked the pistol out of my hand on the ground. The police took me to the station-house, where I was locked up in a cell and searched. When I was brought from the cell I saw the prisoner in the inspector’s office ; he turned round and said, “Is the Queen hurt?” I said to him, “What did you put in the barrels ? ” He said, “ I have answered a dozen questions ; there have been a dozen persons asking me questions, and I shall answer no more.” By the Court : I should say the second pistol was fired at a distance of full eight or ten yards from the carriage. Charles Brown .— Examined by Gurney. Policeman. Spoke to arresting the prisoner. On my coming up several voices said, “ This is the man,” and I laid hold of him. The prisoner said, “You have no occasion to use violence. I am the person; I will go quietly.” I proceeded with him to the station-house. Shortly afterwards some person remarked, “ Perhaps there might be more of them.” The prisoner replied, “I have friends.” Opposite Wellington Barracks someone said, “I wonder whether there was any ball in the pistols or no.” The prisoner made answer, “ If the ball had come in contact with your head, if it was between the carriage, you would have known it.” I took him to the station, and searched him. I found a piece of wadding in his trousers’ pocket. I looked at it, and saw the mark of the hammer on one side, and the cap on the other. I asked him what it was for. He said, “To prevent the pistol going off,” as he did not wish to hurt himself. He said the other piece of wadding would be found in the park. While I was in the inspector’s room seve- ral gentlemen came in, and a question was put (I cannot say whether it was to o 67432. the prisoner) whether there were any balls in the pistols. The prisoner said there were balls in the pistols. Next day I made search in the garden, on the other side of the wall, but was not able to find anything.] Cross-examined by Taylor. Now when the question was put, as to whether there were balls in the pistols, how many policemen were in the room ? — I cannot say ; I do not think there was anybody but the inspector and myself ; there wpre a number of gentlemen. Had various persons been asking the prisoner questions? — Not asking the prisoner questions, but asking one another as they came in. Do you mean to say that questions were not put to the prisoner himself? — Not by the parties while I was there. I did not hear anyone put questions to him except the inspector. He asked him his name, and where he came from. I believe he asked him something about the pistols. Is it the practice of the police to whom you belong to interrogate prisoners as to the fact of any crime with which they are charged ? — I believe not ; he was not in- terrogated in my presence as to where he got the pistols from ; the question about the balls was not put to the prisoner ; he was in custody at the time. You say he stated there were balls in the pistols: what were his words? — As near as I can recollect, his words were, “ The pistols were loaded.” He did not say there were balls in them, but the pistols were loaded ? — There were balls in the pistols. “ The pistols were loaded,” were those his words ? — No, not exactly ; he dis- tinctly said there were balls in the pistols. He said, “They were loaded”; were those his words ? — £ £ The pistols were loaded with balls,” those were the words as near as I can judge. I will not swear to the exact words. [I cannot tell the exact height of the wall of the garden. I should say it was eighteen or twenty feet high. By the Court : There were about twelve people in the room ; they were talking as to whether there were balls. One said, “ I wonder whether there was one,” and he said, “ There was.” William Smith and Charles Smith, po- licemen, spoke to seeing the incident from a distance. Frederick Garrett. — Examined by Adolphus . I am a salesman in the Blackfriars Road. About three weeks or a month before the Queen was fired at, I saw the prisoner in ic 515] The Queen against Oxford , 1840. [516 ' our shop ; he bought a powder-flask and a pair of pistols. These are the pistols that were parted with to the prisoner. I asked him two guineas for them. He said he wanted to know what distance they would carry. I said about twenty or thirty yards. He said if I would take two sove- reigns he would have them, and I sold them to him. I gave him two bags for the pistols; I also sold him a powder- flask for 2s. These are the bags and this the flask {produced). William Sampson Hayes confirmed the last witness. John Joseph Gray. — Examined by Gurney. My father keeps a shop at 10, Bridge Boad, Lambeth. I remember the prisoner calling at our shop on either Tuesday or Wednes- day, the 3rd of June last. He bought half a hundred of caps of me. He asked if I kept bullets. I told him no, but recom- mended him to a gunsmith in the Borough. He wanted to know if I had any small canisters of powder. I showed him our half pound canisters ; he said they were not small enough. I had been to school with him, but for how long I cannot say. To the best of my recollection it was eight or nine years ago. When he came into the shop I feigned not to know him. He asked if my name was not John Gray. I told him it was. “ Well,” he said, “ don’t you remember anyone of the name of Ox- ford ?” I said, “Yes, I certainly do ; I went tp school with a person of that name.” He said, “Well, lam the same.” I asked him what he had been doing with himself. He said he had lately come from Birmingham, but he had been in the public line.] By the Court : You say you feigned not to know him when he came in ; what was your reason for that P — I did not wish to make up the acquaintance again with him. I did not observe anything odd in his appearance, not the least. Sir Henry Wheatley. — Examined by the Attorney General. I am keeper of Her Majesty’s privy purse. I saw the prisoner in the cell. He came forward when the door was opened, and asked me, “Is the Queen hurt ? ” Those were the first words that were spoken. We asked him in what situation he w T as. He stated he was a bar- boy, and had been out of place about ten days. That was about half-past six on the same day. The Earl of Uxbridge. — Examined by the Solicitor General. I saw the prisoner on June 10. The prisoner, from the opening of the cell- door where I found him, addressed me by saying, “Is the Queen hurt?” I said, “How dare you ask such a question?” He said he had been shooting a great deal lately, and was a very good shot with a pis- tol, but a better shot with a rifle. He said the pistols had been given him on the 3rd of May, and something else also, which he went on to inform us was money, and he could have as much of it as he pleased. I then said to him, “You have now ful- filled your engagement.” He replied, “Ho, I have not.” I said, “ You have, sir, as far as the attempt goes.” To that he was silent. Cross-examined by Bodkin. I did not mention who I' was, nor did Sir Henry Wheatley in my hearing. There was no reluctance whatever to answer the questions I put. Samuel Taylor. — Examined by Sir F. Pollock. I am acquainted with the prisoner. I have known him about twelve months. I recollect the rumour of the Queen being fired at. I saw the prisoner the evening before that ; he showed me a pistol, and said he had been firing at a target. I asked whether it was loaded ; he replied that it was loaded. Thomas Greenwood Lawrence. — Examined by Adolphus. I know the prisoner. He was bar-man to Mr. Robinson at a public-house in Oxford Street called the “Hog in the Pound,” at the corner of South Molton Street. One evening I heard him say he had lost a half sovereign oji a bet respecting the shot at the bull’s-eye at the shooting gallery in Leicester Square. He showed me a flattened ball. I heard a person named Poach remark that he was more fit to shoot at a hay-stack than at a target. The Hon. John Oliver Murray. — Examined by the Attorney General. I was riding in Constitution Hill when the prisoner fired. I was the first person that went to the wall. I noticed a mark, which I supposed to be the mark of the bullet ; it was a white mark oh the dark wall as large as the palm of my hand; the mark was about five feet from the ground, and rather in a slanting direction from where the prisoner stood.] Cross-examined by Bodkin. Did you not observe any other mark on the wall ? — There was a kind of angular mark on the wall, but a very old one ; it was near this mark. I took notice of that to mark the spot. 517] The Queen against Oxford , 1840. [518 Have the goodness to describe what kind of mark this was P — It was a white, round mark on the wall, such as a bullet would make. It was much larger than a bullet. It was as if a piece of the brick was knocked out by the force of the bullet. I looked about for the bullet, but found none. Did you find any piece of brick P — I did not look for any : I was looking for the bullet. Re-examined by the Attorney General. [I have frequently seen marks made on a wall by firing a bullet against it. The first shot was fired in a slanting direction, the second shot was straight over me; the carriage never stopped ; it went straight on in the direction of Grosvenor Place. The Hon. William Owen Stanley. — Exa- mined by Sir F. Pollock. I was in the Park about two hundred yards from the spot when my attention was attracted by the report. I got to the wall about ten minutes afterwards as I could not get over the railings on account of the spikes. I have had frequent expe- rience in the mark that a ball would make going against a wall. I saw a mark which in my opinion was decidedly such as might have been made by a bullet. Cross-examined by Taylor. I could see the part where the bullet had struck, and a chipped brick which had broken off about an inch and a half ; where the bullet struck it appeared to be circular. I examined other parts of the wall, and there appeared to me to be another mark about fourteen yards from that, nob quite a similar mark. It ap- peared to me to be fresh, and such a mark as might have been caused by a bullet. I looked down on the ground close to the marks, but found no bullet there : there were three little chimney sweepers there. Re-examined by Sir F. Pollock. It appeared to me to have been an angular strike. I have no doubt whatever in my own mind that the mark was pro- duced by a bullet fired from a pistol. J. W. Linton. — Examined by the Solicitor General. I was a playmate of the prisoner’s. The Monday before the Queen was shot at, the prisoner called on me. About a month before that, I had been to the Strand shooting gallery with him. He then showed me his pistols ; they were very handsome ; he said a friend had lent him them. I almost think these are the pis- tols ( looking at the pistols produced) but I could not swear to them. He had five or six shots at the shooting gallery in the Strand ; the people at the gallery pro- vided the ball. The Monday before the Queen was shot at he showed me the pistols, and said he had been to a much better shooting gallery than the one we first went to ; he did not say where it was. Sarah Packman. — Examined by the Attorney General. The prisoner lodged with me at Ho. 6, West Place, West Square, and had done so for some six weeks before the Queen was shot at. The night the Queen was fired at, some police officers came to my house and took a box away from the prisoner’s room. Samuel Hughes. — Examined by the Attorney General. I am an inspector of the metropolitan police. On Tune 10 1 went to Ho. 6, West Place, and found in the prisoner’s box this sword and scabbard ( producing them), a black crape cap with two red bows, a powder flask containing about three ounces of gunpowder, a razor, a memo- randum book containing four papers, a bullet mould, five bullets, and twelve or fourteen percussion caps ( producing these articles). The bullets that were cast by that mould fitted the pistols. I took the box and articles to the station-house, and the prisoner said they were his. He said he intended to have destroyed them in the morning before he went out, but he had forgotten them. The papers were folded up in the pocket book as they are now ; the three letters were folded up as let- ters. (These documents were put in and read by the Attorney General.){a) Tierney. — Examined by the Attorney General. I am a police sergeant. I have this morn- ing measured the wall on Constitution Hill. The height from the foot of the wall is nine feet four inches ; it is twenty-two yards from the wall to the railing opposite, in rather a slanting direction. By the Court: The foot of the wall is lower than the road. It would make about a foot difference ; that would be about eight feet four inches from the road. I saw a mark on the wall, that is exactly six feet from the foot of the wall, or about five above the level of the road. (a) See above, p. 504. Jt 2 519 ] The Queen against Oxford , 1840 . [520 James Brown . — Examined by the Attorney General. I am an ontrider behind the Queen’s carriage. My horse’s head was not a yard from, the carriage, when the first shot was fired. When the last shot was fired I was close by the side of the prisoner. As I looked round from the report of the first pistol, he was just firing the next. I was close to it, within about a yard of it. Two or three men got hold of the prisoner, and I followed on with Her Majesty to the Duchess of Kent’s. Cross-examined by Bodkin. Two equerries usually attend Her Ma- jesty. On this occasion they went through the garden to join the carriage at the top of Constitution Hill. They usually ride one on each side of the carriage, close to the hind-wheel. In this small carriage Her Majesty usually sat on the left side. Ke-examined by the Attorney General. In the larger carriage Her Majesty sometimes sits on the right side, usually so, I believe. Hon. Fox Maule . — Examined by the Attorney General. I am Under Secretary of State for the Home Department. I was present when the prisoner was before the Privy Council and examined. When the examination closed, the Secretary of State informed him he was at liberty to make any observation he chose, but at the same time warned him that anything he said would be taken down in writing. The prisoner volun- tarily made and signed the following statement. {Statement read, as in Attor- ney General’s speech.) The witnesses were examined in the prisoner’s presence, and he put questions to them. Cross-examined by Bodkin. I have seen the prisoner twice in New- gate. I do not know whether I put ques- tions to him. On one occasion, when I saw him, I was given to understand it was at his own request. He then made a statement, which the Governor of New- gate took down with his consent. I may have put several questions to him. I found no reluctance to answer any ques- tions I put.] Speech for the Defence. Taylor : Gentlemen of the jury, — It now devolves upon me to address you on behalf of the prisoner who stands at the bar, and to remark on the evidence which the Crown has produced in order to sustain the averments of the indictment ; and also, if you should think that that evidence leaves no reasonable doubt on your minds that the prisoner discharged two pistols'- against the Queen, in order to take Her Majesty’s life, it will be my duty to show you that he was not in a rational state of mind, so as to be accountable for his actions. But there is first this one im- portant issue to be determined before the necessity arises for substituting the plea of unsound mind, there is that which in every case must be proved to your satis- faction, namely, that the prisoner has committed the crime charged against him. That crime is the highest known to the law, and involves the heaviest punishment, and you will consider every point with the most anxious care before you consign any . of your fellow creatures — let alone a boy like this — to a fate so terrible. The Attor- ney General, I willingly admit, has opened the case with a calmness and moderation worthy of the high position he holds at the head of the English bar, and as the representative of Her Majesty. Gentlemen, this is the first instance in which a British subject has stood in such peril before a British tribunal on ’a charge of compassing or imagining the death of the Sovereign, in which he is bereft of all the forms with which the subject was- invested formerly by the wisdom of the law of England. Gentlemen, it was the proud boast of that eloquent advocate, to whom the learned Attorney General al- luded, when exercising his splendid abili- ties in the defence of Hadjield for firing at the grandfather of the present Sovereign, it was the proud boast of Mr. Frskine that- the prisoner stood covered under those forms of the constitution, or, as he ex- pressed it, covered by the whole armour of the law. Gentlemen, my client has not this protection, the panoply has been removed, I will not say whether wisely or not. Lord Frskine, on that occasion, spoke of the wisdom of the law, and, if so, I cannot understand why it was thought necessary by the executive wisdom of the nation to repeal that law. The learned Attorney General stated in the course of his address that, with regard to the offences of insurrection and rebellion and constructive treason, these forms of law still remain — and so they do — but that in the case of an individual making a direct attempt upon the life of the Sovereign, they have been repealed because the Sovereign ought not be delayed in jus- tice in such a case, or less protected than any of her subjects. This remark at first seems incontrovertible, but when we come to look at the circumstances under which the prisoner is arraigned for at- tempting the life of Her Majesty, does the 621] The Queen against Oxford , 1840. [522 Attorney General mean to say that a per- son so charged stands in the same position as if he attempted the life of the subject P Their situations are extremely different. When the life of the Sovereign is supposed to be assailed by the hand of violence, the natural emotions of loyalty in the breasts of Englishmen, lead them to prejudge the case, and addresses pour in to the Crown, founded on the presumption that a sane assassin has deliberately attempted the life of the Sovereign. I trust the day will never come when Englishmen will not rally round the throne at the bare thought of danger, and express their loyal feelings ; but these exuberant manifesta- tions of loyalty, it must be admitted, are most prejudicial to the accused, and, therefore, I say it might have been better if the former safeguards had been pre- served. I mention this that you may divest your minds of all prejudice, and of all outside influence, and not allow your minds to be swayed unconsciously by the general opinion of society. Gentlemen, if you are not satisfied that the overt acts have been proved, you can- not convict the prisoner of the treason charged in the indictment. That the prisoner did discharge two pistols on this occasion is placed beyond all doubt, but you must consider his intention. If it was not done with the intention of taking the Queen’s life, as charged in the indict- ment, there is an end of the case. An in- tention to do Her Majesty some grievous bodily harm would not suffice — it is not a direct attempt upon the life of the Queen, and would be entitled to the protection of the statutes, (a) You must be satisfied that the pistols were pointed at the Queen, and that they were loaded with ball. Gentlemen, it is impossible that any man in his senses could have imagined such a crime. This was a low carriage. The pri- soner stood on the footway somewhat ele- vated above the level of the road. If he had fired at the Queen, he would not have had occasion to raise the pistol at all. In that case, the ball must have struck the oppo- site wall or lodged in the ground ; because, the wall being fourteen or fifteen feet high, it is quite impossible that the ball could have gone over it. If there had (a) The statute of 39 & 40 Geo. 3. c. 93. is limited to cases of high treason, “ where the overt act or acts alleged in the indictment shall be the assassination of His Majesty, or any direct attempt against his life or against his person, whereby his life may be endangered or his person suffer bodily harm.” 5 & 6 Viet. c. 51. s. 1. extends the provisions of the above Act to all cases where the alleged overt act or acts shall be “ an attempt to injure in any manner what- soever the person of the Queen.” been any ball it must have been found ; because every exertion was made to find it, and these exertions have utterly failed. According to one witness, the man was only two yards from the carriage, another thought eight or ten yards off. If such mistakes are made as to distance, may there not be a mistake also as to the pistols being pointed at the Queen ? The hypothesis of the Attorney General, that the balls went over the wall, is totally destroyed. If these marks on the wall were made by a ball, why has not the flattened ball been found and produced ? Is it not likely that, in an idle, silly frolic, the prisoner discharged those pistols loaded with powder ; unquestionably a great outrage, and perfectly indefensible, but still that is not the treason charged. There is no direct evidence that there were any balls. In the case of Blake v. Bernard, {a) tried before Lord Abinger yes- terday, the declaration stated an assault with a pistol loaded with powder, ball, and shot ; and the plea, as to the assault, was not guilty. Lord Abinger held that it lay on the plaintiff to show that the pistol was loaded; for, if it was not loaded, there was no assault. So, if in this case the pistols were loaded with powder and wad- ding only, the prisoner must be 'acquitted. As to the prisoner’s declarations you must take into account the circumstances under which they were made in answer to ques- tions improperly put by the police, and perhaps incorrectly remembered owing to the excitement and confusion of the time. And here I cannot help calling attention to a practice which appears to be grow- ing up among the police of questioning prisoners who are taken into custody, thus establishing a rule equally at vari- ance with the ancient mode of proceed- ing and the existing law of the land. Suppose this had been a plot against the Government, and that the prisoner had been employed as an agent to effect the murder of the Queen, and suppose that such questions had been put to him, would not the public at once say that it was done to entrap him into a Crown prosecution. Numerous questions, it appears, were asked him at the police station, and one of the constables states that the prisoner admitted that ihere were balls in the pis- tols ; but on being questioned more closely in cross-examination the witness declared that he would not undertake to say that the prisoner made use of this expression, but that he believed the prisoner said so, and that he was repeating his words as nearly as he could. Setting aside any supposed attempt or desire to bear hardly (a) 9 C. & P. 626. 523 ] The Queen against Oxford , 1840 . [524 on the prisoner, nothing is more likely than that a mistake may have occurred in the station-house, where it appears several persons were assembled together in a crowded room, all naturally anxious to know how the transaction occurred. Then there is another statement brought for- ward against the prisoner which does not appeal’ to have arisen from any question put to him. When two of the witnesses went to the door of his cell he asked them, “ Is the Queen hurt?” Kow, although an inference unfavourable to the prisoner has been drawn from that fact, the question may very well have been innocently put. Suppose there was only powder and wad- ding in the pistols, may not the prisoner have been under a mental delusion at the time he fired them, and have afterwards asked the question in the same state of mind, believing they were loaded ? There was a somewhat similar case to the prisoners in 1786 — Rex v. EUiot.(a) The culprit in that case came behind a young woman whom he had known, who was then walking with another person, and discharged two pistols at her back. There were two slight contusions dis- covered on examination, and the prisoner, when arrested and searched, was found to have two other pistols loaded to the muzzle in his possession, with which it was sup- posed he intended to have killed himself after he had killed his victim. Yet, not- withstanding all this, notwithstanding that the prisoner expressed his satisfac- tion at the idea of his having slain the young woman, and his regret on learning her escape, the jury acquitted him of the intention to murder, on the ground that the pistols were not loaded with ball. Is not this a stronger case ? Is the evi- dence here sufficient to show that the prisoner loaded the pistols with ball, and pointed them at the Queen to take her life? Gentlemen, if you should be of opinion that the pistols were loaded, it then be- comes my duty to present to you that de- fence which is principally relied upon, on the part of the prisoner, and I entreat your solemn and earnest attention to this most important part of the case. I hope to convince you that the prisoner is not a j person who would wilfully and in posses- sion of his senses be guilty of this crime ; and I am sure that, if you can conscien- tiously come to this conclusion, you will willingly free the subjects of this realm ; from the imputation of having one among 1 them who would wilfully dye his hands in the blood of the Sovereign. Gentlemen, this would not be the first instance in which the life of the Sovereign has been attempted, but never, I rejoice to say, has such an act been done by a person possess- ing a sane mind. [Counsel referred to the circumstances of Margaret Nicholson ’s(a) attempt against George 3. in 1786. That case exhibited all the premeditation and contrivance shown in this instance, yet turned out to be so clearly the act of a maniac, that the authorities refused to institute pro- ceedings and sent her straight to Bedlam. The opinion of Lord Coke has been re- ferred to, but if that learned person had written at a time when cases of this kind had been made the subject of medical description, he would never have put forward the doctrines that have been quoted. In 1790 Lieutenant Firth threw a stone at the King’s carriage, and though there was a certain degree of coherency in the man, he was placed in a lunatic asylum and confined for life. (b) In 1800 Hcidfield fired a pistol at George 3. in Drury Lane. There, too, there was contrivance and pre- meditation, yet the offender was found insane, though a motive was to be found in the supposed neglect of his services in saving’the Duke of York’s life. Here there is a great offence, and it is important to consider whether there was any motive. j Certain papers have been found in the possession of the prisoner, but this fact, which was opened by the learned At- torney General, as an important feature in the case, is only an additional proof of the prisoner’s insanity, and shows in him a mind diseased. That no such society ever existed may be taken for granted ; because, if in truth there had been any such in existence, beyond all question its members and its proceedings would have been discovered. The prisoner must be taken to have believed that he belonged to such a society ; but to show the utter i absurdity of such a belief, it will be proved that the rules, as well as the letters and papers which bad been found, were all in his own handwriting. This in itself is a striking and cogent proof of his insanity. Every effort" has been made to trace the real existence of such a society, but in vain ; and the only inference which can be drawn from the existence of these papers, is that the mind of the prisoner had been worked upon by his own absurd fancy. Then as to his assertion about being a good pistol shot, the evidence for (а) Ann Reg. 1786, 233. (б) 22 St. Tr. 307. Frith ■was brought up for trial before Lord Kenyon, C.J., who directed a jury to be impannelled to find whether the prisoner was in a fit state of mind to plead. The jury, in spite of his protests, found that he was not. (a) Old Bailey Sessions Papers, 1786. 525] The Queen against Oxford 1840. [520 the Crown perfectly disproves that. He fired at the carriage, and not only was no injury sustained by the Sovereign and her illustrious consort, but no traces of injury were found in or about the carriage. With regard to the probability of his being selected to put into operation such a plan as that of the assassination of her Majesty, is it likely that any political society would have employed a boy of his years and want of discretion to complete a scheme so important and yet so horrible ? How was the act itself committed ? The pri- soner amongst a number of other persons in the open day, depriving himself of every chance of escape, was voluntarily guilty of an offence which subjected him to condign punishment. Did he then attempt to escape ? He did not ; and, even when another person was taken by mistake he immediately came forward with the declaration that he was the man, as if courting publicity and apprehension. What but insanity can be inferred from these circumstances ? Might he not well have dreaded his destruction by a mob inflamed and excited against the perpe- trator of an attack so dreadful upon our young Queen P Yet, with a feeling which can be deemed nothing but insanity, he persisted in forcing himself into a situation in which he could hope for nothing but punishment. After his arrest, he was teazed and excited, and gave answers which must not be taken into account as admissions that there were balls in the pistols. Since that time he has been the subject of great curiosity, and various statements, many of them false, have been made concerning him ; but you will be forced to the conclusion, that he was of unsound mind at the time of the commis- sion of the act ; and it would be as cruel as the assassination itself to deliver him up to the same doom as a sane criminal. Evidence will be given to show the tendency of the boy’s mind to insanity. His age was just that at which such a failing would be likely to develop itself. His paternal grandfather was insane, and died in a lunatic asylum. His father was guilty of acts which clearly proved that he ought not to have been permitted to be at large. In the opinion of the most eminent medical men the great proportion of cases admitted into lunatic asylums are cases of hereditary insanity; and, if you should refuse to consider the case of the prisoner in this light, you will be proving the truth of the words of a celebrated physician, that man’s vengeance follows God’s visi- tation. Bear in mind that no ill conse- quence has followed this attempt. Her Majesty the next day entertained a party at dinner, and went the evening after to a concert. That shows that her Majesty feels that this must have been tne act of an isolated madman and that she has nothing to fear from the machinations of any secret society. When one of the most glorious predecessors of the Queen was told by some officious courtiers that there was a plot of her subjects against her life, she exclaimed, “I will not believe that of my people a mother would not believe of her children,” and such, I am con- vinced, are the sentiments of our pre- sent gracious Sovereign. [Counsel quoted Fsquirol, a French physician, to show that all crimes committed without a motive might reasonably be supposed to be caused by insanity, and that this might more par- ticularly be considered to be the case when the person committing the crime made no attempt to escape. The papers found in the prisoner’s box seemed to be the com- mencement of the insanity, and the attempt itself the consummation of the insanity. The whole of the persons mentioned in the papers found in his box were creatures of his imagination, and the crape with the bows, the sword, and documents show that he is the victim of pitiable mental delusion, and an object rather of compassion than of vengeance. There is this difference between the present case and that of Earl Ferrers — that Earl Ferrers was operated upon by a most malignant and implacable feeling of revenge which was a motive suffi- cient to account for the crime in a sane person.] What motive for revenge had the prisoner against the Queen ? Has he ever been traced to the haunts of the disaffected, or been seen speaking at political societies ? The only companion of the prisoner who has been produced is an innocent little boy. Did he look like a political leader, or one who would incite him to entertain a deadly antipathy to his sovereign ? In the case of the attempt on the life of Lord Onsloiv, there was a political motive, but nothing of the sort is proved in the pre- sent case. You can adopt no better course than to acquit the prisoner, and I feel confident that while you thus assure the public that no one exists among us who could harbour so base a project as that suggested by this indictment, her Majesty herself will feel relieved by your decision, that in this instance the attack which has been made on her life was that of no sane assassin. The evidence which I shall lay before you on behalf of the prisoner will enable you to give to the charge, and to the national disgrace and dishonour it would entail, a refutation as lasting and imperish- able as the records of history upon -which hereafter your verdict shall be entered.] Sandham Kent . — Examined by Bodkin. [I am a carpenter. I was acquainted with John Oxford, the grandfather of the 527] The Queen against Oxford, 1840. [528 prisoner. His wife was my sister. He was a sailor about 1799, and raving mad. I was obliged to put cords on him. He was put in Petworth Bridewell, and kept there for a fortnight. We took him to the ma- gistrate, and he sent him there. He was very queer at times in his conduct. Once he ran after me with a spit ; I had not given him any provocation. At the time he was confined he broke the windows, and smashed everything in the house. The things were not his own, but my father’s. I did not see him for three years after he came out of the Bridewell. He went to sea for two years and then came home. While he was in town, he used to be always laughing and jumping about, like anybody quite gone. He was after that admitted into Greenwich Hos- pital. I never saw him in the infirmary. Cross-examined by the Attorney General. He used to drink a good deal. I believe it was after those drunken bouts that he displayed a violent turn. I took him before the magistrate at Petworth, for throwing down and breaking the things in the house, and threatening our lives. He was allowed to go at liberty from Bridewell on promising to go to London. I saw no more of him for some years ; he continued his habit of drinking. He went about Greenwich Hospital, like any other of the pensioners, five years or more. Sophia Oxford. — Examined by Taylor. I am the widow of the prisoner’s grand- father. I had been married to him thirty- five years. He was a sea-faring man and went abroad occasionally, I generally saw him when he came to England. He was generally in a very unsettled state of mind when he came to see me. He was addicted to drink. He was not so much unsettled when he had not been taking liquor as when he had. I once sayv a strait waist- coat put on him, in 1821. It was necessary to have two men with him. 1 did not know him to be labouring under any de- lusion at any time while in the hospital. He had high notions, and he thought they ought to have paid him more homage. He thought they did not behave well to him. In consequence of that he broke the things. They sent him to Bridewell. He was about four years in Greenwich Hos- pital. For the last twelve months his intellect appeared very steady, when he kept from liquor. Sophia Bartlett. — Examined by Bodkin. I am the daughter of the last witness. I remember the strait waistcoat being put on my father. He was confined to bed for about a fortnight, and afterwards re- covered and went to sea. I next saw him at Greenwich College. He was not altogether insane, more of an eccentric character at that time. He told me he was the Pope of Rome; and he would hoist his halbert over his shoulder. His duty while on guard at Greenwich College was to open and shut the gate. He would sometimes say he was St. Paul ; that was both when at the gate and when he came home too. Cross-examined by Sir F. Pollock. I never mentioned it to a doctor. He was perfectly harm leas. Sarah Kitchen. — Examined by Taylor. Aged seventy-four, cousin to the pri- soner’s grandmother, confirmed the last witnesses. I also knew prisoner’s father when he was a little boy at school. One time I saw him go to the top of the house, get out of the window, and hang by his hands. A person came and told me of it. His mother was sitting in the bar with me, and she and the woman went up • stairs, and pulled him in. He was hanging by the sash at the bottom part of the window. I cannot say what height the window was from the ground ; it was on the first floor. He was hanging over the street in that way. He was about twelve or thirteen years old. Hannah Oxford. — Examined by Bodkin. I am the prisoner’s mother. I was twenty years of age when I married his father ; he was also twenty. I was ac- quainted with him about six months be- fore I married him. He was singular altogether, not like any other man I was acquainted with. I did not marry him with the consent of my friends. I refused to marry him a great many times : on those occasions he would pull a razor out of his side pocket, and bare his throat, and say he would cut his throat in my presence if I refused him. I have at other times seen him with pistols and poison. He would show me a paper with oxalic acid. At the time the Princess Charlotte was lying dead the followed me out of the house with a double-barrelled pistol loaded with slugs, and said if I refused to have him he would blow out his brains before my face, and I promised him then. We were married on the 28th of April in the following year, 1818. The day before we were married, a person had written to his master to inquire his character, and it was not satisfactory ; it arrived that day. I then told him I would not be married to him. On my telling him that, he went into a violent rage, pulled out a roll of bank-notes and the licence, and burnt the 529 ] The Queen against Oxford, 1840 . [530 notes. I then said I would be married. The notes were entirely consumed. He lighted them, threw them on the ground, and watched them burn out. They were bank-notes of his own ; a very large roll of notes. . He was earning on the average, I should say, 20Z. a week at that time. He was very skilful as a workman, and very quick. He was a gold chaser, which at that time was a very lucrative employment. He was considered the best in Birmingham. We had seven children. The prisoner was the third child. The first child is living. At the time I was pregnant of the second child, my husband’s conduct was dreadful, brutal ; he neglected me so that I fainted three or four times a day for want of food. He once broke a jug and threw a piece at me. I have the wound now. He annoyed me dreadfully by grimaces, while I was pregnant of my second child : and by jumping about like a baboon, and imita- ting their grimaces. That continued during the whole period of my pregnancy of the second child. That child was barely born alive. It was a confirmed idiot, and its countenance was precisely as the father looked when he made those grimaces. It put its tongue out like he did. It lived about two years and four months. During all that time it had not the least appearance of reason. It never spoke or walked. It was very voracious. My husband’s conduct was much the same during my pregnancy of the prisoner ; grimaces, and so on. He once struck a file into my breast, and the milk flew out from the wound. That was before the birth of the prisoner. He kept a horse at one time, and I have seen him bring the horse into the house. He led it in by the bridle, and he seemed, like a child with a toy, amused at his own folly. He brought it into the sitting-room, and led it about. I have frequently applied to him for money for the support of the family, which he has refused, and abused me, and he once knocked me down and fractured my head.] Was your mind at all affected by any violence done to you by your husband ? — When asleep I screamed, and I was obliged to be woke up in my dreams. [I remember one day walking with my husband, he left me, saying he had a box to go off by to-morrow, and he must go and finish it. He left me at my mother’s on telling me that. After that I went home with the servant and child and found the house locked up. It was after- wards opened, and part of the goods found to be removed, the house in confusion, and my husband gone. He was taken by the authorities of the town next morning, in the act of leaving Birmingham for London. I had not had any quarrel with him at that time, not a word or sentence of anger. He then went to Dublin, where he stopped four months, leaving me and my children. He did not appear capable of seeing the folly and wickedness of which he was guilty. He would laugh in the most triumphant manner, and he had, I should say, an almost supernatural look with him when he had done wrong, and when I was distressed. The day I was put to bed with the first child he kicked me violently because I did not agree to something which he proposed to me to do. I have known him take poison twice. He took laudanum once, and Dr. Birt Davis was called in in consequence. He died on the 10th of June, 1829. The prisoner was born on the 19th of April, 1822. For the first seven years of his life he was under my care. He would burst out crying when there was no one near him, and no one speaking to him, and he was always very troublesome. It was very different to the mere waywardness of childhood. He had a great many other very singular habits. He would get into a violent rage without any cause. He would deliberately break anything, and wilfully destroy anything that he took in his hand. He once pointed a pistol at me. That was the first day he brought them home. I should have told you that my husband, during my pregnancy with the prisoner, pointed a gun at my head. The prisoner was particularly fond of fire- arms and gunpowder. I have frequently beaten him for laughing when he was much younger. I once shut him up in the cellar, when my customers complained of him. That habit was continued up to the present time. He would laugh hys- terically after gloomy fits, and fits of violent passion. It was an involuntary laugh. "Wfhen at home, he was in the habit of going on the roof of the house and throwing at people as they passed. He was brought home one night by a policeman, who informed me he had been taken to the station-house. He had got behind a carriage and frightened a lady who was in it by making a great noise, and she was pregnant, and her husband, who was a solicitor, was exceedingly alarmed and angry. That was stated in his presence. I went next morning to inquire after the lady’s health, and apolo- gised. He took no notice when he heard this account. I knew of his having no companion but Master Linton, who has been examined. He never to my know- ledge belonged to any club or any meet- ing. He was always talking of Macbeth, and repeating parts of plays, from a very little boy, and we used to imitate him because he said it so badly. He wanted to 531 ] The Queen against Oxford, 1840 . [532 go to sea last -winter. He wanted me to go to Birmingham for 50 1. to provide him as a midshipman. I told him of the folly of his going to sea when he knew nothing about nautical affairs. He said he should have nothing to do but to walk about the deck and give orders. I said, “But you must first learn navigation.” He said hie would allow me half his pay, and how proud I should be of my son when I saw his name in the papers, Admiral Sir Ed- ward Oxford ! When he brought the pis- tols home, I said, “How could he think of laying his money out in such folly ” ? and he said, “ They were not his, he was saving them for a young man.” I know his handwriting. (The witness proved the papers found in the prisoner’s box to be in his handwriting.) Cross-examined by the Solicitor General. Walters, I think, was his first school- master’s name. He next went to Mr. Robinson's, in the Hew Cut, Lambeth. Mr. Robinson used to come and complain of his inattention. He next went to a . school at Camberwell ; there was the same complaints then of inattention and wild- ness. Four years ago he went to his aunt’s at Hounslow. He went to Mr. , Minton's from his aunt’s. He was in the same situation there, as barman ; he lived there twice. He lived about four or five | months with Mr. Minton the first time. ' He then came to my honse for a short time, and Mr. Minton had him back again. He had 20 1. a year there. His next em- ploy was at Mr. Farr's, in Wilderness Bow. Mr. Farr left the house. He then came home for a short time, and then went to Mr. Robinson’s, in Oxford Street. He gave Mr. Robinson notice. Mrs. Robinson said he gave satisfaction in everything but laughing. I desired he would look out for another place. He said nothing was stirring, and he should rather wait till a good place offered itself than answer I advertisements. I got him his first place, and he got himself the others. Mary Sumner spoke to seeing the pri- j soner’s father once ride into his own par- ; lour on horseback ; the general opinion ' was that he was out of his mind. Charles MarHew, Mrs. Oxford’s brother, ■ spoke to seeing the prisoner’s father once j swallow a bottle of laudanum ; he always considered him in a mad state. John Birt Davis.— Examined by Bodkin. A physician residing at Birmingham, a magistrate for the county and coroner for the borough. I remember attending Mrs. Oxford’s husband on one occasion. He was labouring under symptoms of poisoning by laudanum. I heard at the time of his odd conduct to his wife. I have been in Court during this trial.] Assuming the facts given in evidence to be true Attorney General: My Lords, the witness being a scientific person, I shall not object to their putting any hypothesis to him, or referring to the evidence given, but he cannot, I submit, be allowed to state in- ferences drawn from all he has heard. Alderson, B. : It is putting him in the place of the jury. It sometimes is put, but always by permission on the other side, as a compendious mode of examining. Bodkin : From the evidence you have heard, are you enabled to form any judg- ment as to the sanity of the prisoner ? Lord Denman, L.C.J. : That is the worst- mode of putting the question. If you ask the symptoms of madness, the jury will apply their minds to the facts proved, but we cannot suppose all the facts proved, and that he is to give a verdict of sanity or insanity in place of the jury. Bodkin : I submit I may ask the witness as a medical man what is his opinion of the prisoner’s state of mind, assuming the whole of the evidence to be time ? Lord Denman, L.C.J. : It clearly cannot be done. I am not aware of a case in which it has been contested or permitted. I will never permit it in any case in which I am judge. It is asking the witness to find the prisoner guilty or not guilty. Alderson, B. : The proper question is. If the prisoner is labouring under such and such symptoms, is that madness (a) ? Bodkin : Have you formed any opinion of the sanity or insanity of the prisoner ? — I have formed an opinion. Lord Denman, L.C.J. : You cannot ask the witness’s opinion of the prisoner’s sanity, he never having seen him. Bodkin : Supposing a person in the mid- dle of the day, without any suggested mo- tive, to fire a loaded pistol at Her Majesty passing along the road in a carriage, to re- main on the spot, to declare he was the per- son who did it — to take pains to have that known, and afterwards to enter freely into discussion, and answer any questions ! put to him on the subject, would ycu j refer such conduct to a sound or unsound state of mind ? — If to that hypothesis : were added what I deem a proof of hallu- cination — By the Court : The question is, whether upon those facts alone you should judge a person to be insane ? — I should judge him to be insane upon those facts alone, but I should be stronger in that opinion if I was permitted Bodkin : You mean to state, upon your oath, that if you heard those facts stated, you should conclude that the party must be mad ? — I do. (a) See the answer'of the judges to the fifth question in M‘Naughton’s case, below, p. 932. 533] The Queen against Oxford , 1840. [534 Without making any other inquiry P — Yes ; taking this into consideration, the absence of motive, the absence of precau- tion, tho deliberate owning, and the free discussion afterwards of his own conduct, criminating himself in that way imme- diately afterwards, with the danger staring him in the face. .Suppose, in addition to those circum- stances, it was shown, that just before the transaction the party had written these papers which you have heard read, would that conduct strengthen, or other- wise, the inference that you have already told us you draw ? — It would greatly strengthen the inference. Cross-examined by Sir F. Pollock. You have answered some hypothetical questions put by my learned friend oppo- site. I beg to ask you whether you give give that answer from your knowledge as a physician, or from your experience as a coroner or as a magistrate, or merely as a member of society P — I answer as a phy- sician. I think the circumstances which have been supposed have, medically speak- ing. a tendency to prove insanity. By the Court : We do not exactly under- stand what you mean when you say medi- cally ? — If, as a physician, I was employed to ascertain whether an individual in whom I found those facts, was sane or insane, I should undoubtedly give my opinion that he was insane. As a physician, you think every crime that is plainly committed to be committed by a madman P — Nothing of the kind ; but a crime committed under all the circum- stances of the hypothesis. What are the circumstances in the crime itself which you think show madness ? — The crime is committed in open day, it being obviously of great magnitude and danger ; of great atrocity ; it is committed without any precaution , without any look- ing out for the means of escape ; it is afterwards spoken of openly, so far from concealing the criminating facts — facts which might afford a chance of escape — the existence of the balls is acknowledged; the free discussion of the circumstances, the absence of motive — by the free discus- sion, I mean a free respondence to the questions put to him immediately after- wards in the cell — the questions which ' Lord Uxbridge i stated yesterday he did put — he said, on JLiord Uxbridge entering the door, “ I did it.” John Wright. — Examined by Taylor. II am a police sergeant at Birmingham. I was articled to the prisoner’s father to learn gold-chasing. He was a man having wild and mad ways with him, and a great brute to his wife ; I should think he was not right in his head half bis time. Cross-examined by the Attorney General. Oxford neglected his work and gambled and drank a good deal. On one occasion he presented a gun at his wife, when in the family -way with the prisoner. I had been out shooting, and I presented Mrs. Oxford with some of the birds, and he took the gun up and presented it at her. I took it from him and told him it was loaded, and she was very much frightened: she was then pregnant with this boy. When I took the gun from him and said it was loaded, he began to pull faces at her. Robert Mead gave similar evidence as to the prisoner’s father. William Henry Partridge, surgeon, spoke to attending Mrs. Oxford for injury to the head. It was said to be inflicted by her husband. George Sandon. — Examined by Bodkin. A tailor, with whom the prisoner lived a twelvemonth when he was eight years old, spoke to the singularity of his ways and impish tricks. Cross-examined by the Solicitor General. When he was out with other children playing, he would get nettles and beat them very severely, and make them blister on their arms, which is something more than common with children ; and at other times he would get up to the I room window and throw things out: at other times, he wai very much addicted to laughing and crying both at a time, and when I asked him why he did it, he would say (in fact he would give me no straightforward answer) he did not know. Sometimes I would give him a box on the ear, and instead of crying he would make a very peculiar laugh. Not being a child of my own I did not like to be very harsh with him : he was always up to some sin- gular trick, always mischievous, more than other boys generally are. Benjamin Walters. — Examined by Taylor. I am a schoolmaster at Birmingham. The prisoner was under my care a year and a half. His conduct was very peculiar, and different to that of other boys ; I always found him very different to any boy I ever bad to do with. I thought there must be something in him contrary to other boys ; his behaviour was different. Cross-examined by the Attorney General. He was quick at learning when I could get him to attend. He was a mischievous boy, and idly inclined. I have punished him for mischievous tricks to other boys ; and so it went on all the time he was with me. 535 ] Clarinda Powell. — Examined by Bodkin. I am the prisoner’s aunt. I employed him as barman at the “ King’s Head,” Hounslow, two years, and considered him in an unsound state of mind. Cross-examined by the Solicitor General. One night in particular he put out the lights when the house was full of com- pany at ten o’clock ; the hour of closing was twelve o’clock. There were five gas lights burning. He could not account why he did so. We were likely to have a disturbance, all the company being in the dark. I was obliged, at the risk of my life, to come down stairs, being ill in bed at the time, and he was then going on violently. I was obliged to come down to soothe him. He read very much while he was at my house ; generally sea voyages, that was the principal. He used to talk in a random way. 1 never asked why he left me. He left me of his own accord. He was treated with every kindness. Be-examined by Bodkin. He talked of becoming a great man. He used to talk of going to sea ; that he should come to be very great, and things not very likely to take place. Joseph Bay. — Examined by Taylor. I am a greengrocer. In 1837 I was a corporal in the G-uards, and quartered at Hounslow. I frequently saw the prisoner. It was my opinion that he was of an unsound state of mind. Cross-examined by the Solicitor General. One morning I left the house to call the roll of men and I was brutally knocked down with a poker, and brought back. The following morning I was in conversa- tion with Mrs. Powell, and the Prisoner said, ‘ * Should you know the man if you saw him ? was he short, thick, thin, or a tall man ? ” and ran over various things — his height, age, and so on. He said nothing more about my knowing the man at that time. I thought he was unsound in that and other instances. I had occa- sion to go to the house a week or fortnight after, and he was still laughing and jeer- ing, and making very curious remarks, and said, “ I would rather be put to the mouth of a cannon-ball than be served as you was.” It was jeering me, and he seemed pleased at the injury I received. Mary Anne Taylor. — Examined by Bodkin. I was in service at Mr. Minton’s for about eighteen months when the prisoner was there. From my observation I should say he was of an unsound state of mind. [536 Cross-examined by the Attorney General. He was only full of his laughing and nonsense, and strange ways about him. Mr. Minton gave him a good character as a man that might be trusted ; he thought he might be more steady. WiUiamHazlewood, barman, and Thomas Parr , and Newman Robinson of the “ Hog in the Pound,” publican, confirmed the last witnesses. Hazelwood said, “ I have frequently observed his strange habit of laughing and crying.” Parr said, “ From my ob- servation of him while he was with me I considered him of sound mind, but he was subject to fits of laughter which at times were uncontrollable.” Robinson said, “ If he let anything fall, or if I did, he would burst out laughing. He said he could not help it. He was very correct in his conduct in all other respects. When fie took money he had just to put it into the till.” John Tedman. — Examined by Taylor. I am an inspector of police. I knew the prisoner at Mr. Minton’s ; from my obser- vations of his condact I considered him unsound. Cross-examined by the Attorney General. I have gone into Mr. Minton’s of a morning and found him crying very much, with his apron before his face and his hands up. I saw that frequently. I j have asked him what was the matter. ; He said, “ Nothing now, it is all over.” : I asked him if anyone had ill-used him. He said, “No.” At other times I have found him laughing very much. I have asked him why he was laughing. He said the old women drank so much gin it would make any one laugh. I said, “There are no old women here now.” I took Mr. Minton’s children to see the Queen open Parliament in 1839. The prisoner com- plained and said, “ Why did not you let me go?” I said, “I did not know you wanted to go.” He said, “ Oh, yes, I did ; I want to see the Queen particularly, and I am determined that I will see her some- how or other.” I advised his master to part with him. Susannah Phelps. — Examined by Taylor. I am the prisoner’s sister. He was living in the same house with me when the cir- cumstance occurred. There was always something extraordinary and strange in his conduct when he was living there. He was always firing pistols out of the win- dow, and in the yard at the back, and pointing them at me. I do not know whether they were loaded. I never saw him load them. I saw no one coming to see him except Linton. He • never received any letters. The Queen against Oxford , 1840 . 537 ] The Queen against Oxford , 1840 . [538 Cross-examined by the Solicitor General. I only saw one pair of pistols. He read a good deal ; he used to have books from the library. Once he read the “ Black Pirate,” and “ Jack Sheppard,” and “ Oliver Twist.” I knew of his going to the shooting gallery. On the day he fired in the Park he left home with the intention of going to the shooting gallery. He left home about ten minutes after three o’clock that day. He told me he was going to the shooting gallery, and to buy some linen for me to make him some shirts ; and he told me he would bring some tea home from Twining’ s, in the Strand. I never heard him talk about “ Young England,” or of any society that he belonged to or said he belonged to. Emily Chittenden. — Examined by Bodkin. I am a nursery-maid at the “ Hog in the Pound.” I was there three months with the prisoner. His conduct was very strange at times. I considered him sound but very eccentric. I have received a letter from him since he left the house. As far as I can recollect it was addressed — “ Ely postmau, with this letter bound To a public-house, the ‘ Hog-in-the-Pound,’ To Miss Chittenden there convey, With speedility obey ; Remember, my blade, The postage is paid.” To this was added the number of the house and name of the street ; it reached me by the post. Christopher Bay spoke to seeing the prisoner fire at the Queen. He thought the prisoner fired rather up Constitution Hill. Bichard Macdonald. — Examined by Bodkin. I am a corporal in the 90th Regiment. I saw the Queen fired at from about a hun- dred yards off. I afterwards looked at the garden wall. A gentleman on horse- back pointed out the place where he thought the balls had struck the wall. I observed a mark there. In my judgment it was not a mark that had been made by a ball. Cross-examined by the Attorney General. I saw two marks — three I saw, one lower down still. Two of them seemed to have been recently made. Re-examined by Bodkin. They might have been two and a half or three yards apart. By the Court: I also saw one about fourteen yards off. I saw three marks. I think the one fourteen yards off was also recent. It seemed to be quite newly done. It might be by a scraping with a stick by anyone who was loitering about. Ilodykin. — Examined by Taylor. [[ have been a physician about four- teen years. I have been lecturer on mor- bid anatomy, and have written some works : lectures on pathological anatomy, and lectures on the promotion of health. Upon all the circumstances of heredi- tary insanity in the family, supposing a crime is committed without a motive, that the party committing the crime is subject, in consequence of that crime (if brought home to him), to lose his life, and that on the commission of that crime, instead of attempting to escape from justice, he delivers himself up to the law and seems reckless of the consequences, are you as a medical man prepared to say whether those circumstances taken together with the commission of the crime, indicate a sane or unsound state of mind in the criminal? — By themselves I should con- sider they were circumstances of strong suspicion, but other facts should be sought before one could be warranted in giving a positive opinion. Those would be facts leading to a strong suspicion that the party was insane. If it should also appear that there was a previous delusion, that would certainly strengthen the case. Supposing there was inherent insanity in the family, my opinion, grounded on cases which have occurred, would be strengthened that the individual was in- sane ; striking cases are on record. Are there instances on record of per- sons becoming suddenly insane, whose conduct has been previously only eccen- tric? — Certainly there are. Supposing, in addition, that there was previous delu- sion in the mind, my opinion would be that he was unsound. Such a form of in- sanity exists and is recognised. Cross-examined by Sir F. Pollock. What form of insanity do you call it ? — Lesion of the will it has been called by Le Marc, insanity connected with the development of the will. I should not consider a headstrong person to be under such an influence. I mention lesion of the will as a term under which a highly re- puted writer on insanity has chosen to designate a form of insanity, in which flagitious acts, sometimes only eccentric acts, are committed. It means more than a loss of control over the conduct. It means morbid propensity. Moral irregu- larity is the result of that disease. I do not think I ever met with a case where the only apparent symptom was moral irregularity, where I had no medical in- dication of physical disease. I think that committing a crime without any apparent 539] The Queen against Oxford, 1840. [540 motive is an indication of insanity ; doing anything of any sort without any motive is not an indication of unsoundness of mind in every instance. Ee-examined by Taylor. Do you not make a difference when a man has to suffer the penalty of death for the act? — Certainly. The species of in- sanity which Le Marc calls lesion of the will is a well-recognised species of in- sanity. By the Court : Do you conceive that this is really a medical question at all which has been put to you? — I do. I think medical men have more means of forming an opinion on that subject than other persons. I am supported in that opinion by writers on the subject, by Lour a and Le Marc, whom I have alluded to, who is a particularly eminent writer. My reason for thinking so is because it is so stated by those writers. "Why could not any person form an opinion whether a person was sane or in- sane from the circumstances which have been referred to ? — Because it seems to require a careful comparison of particular cases, more likely to be looked to by medical men, who are especially expe- rienced in cases of unsoundness of mind. What is the limit of responsibility a medical man would draw ? — That is a very difficult point. It is scarcely a medical question. I should not be able to draw the line where soundness ends and un- soundness begins. It is very difficult to draw the line between eccentricity and insanity. John Conolly. — Examined by Bodhin. [I am physician to the Hanwell Luna- tic Asylum. I have eight hundred and fifty patients under my care. I have had some experience in the treatment of dis- orders of the mind. I have seen and conversed with the prisoner. In my opinion he is of unsound mind.] Cross-examined by the Attorney General. When did you see him ? — The day be- fore yesterday for the first time. I saw him on *that occasion, and I have been in Court the whole of yesterday and this morning. I never saw him in private more than once : that interview lasted per- haps half an hour. A person who is un- sound need not, in all cases, be under the care of some person ; it depends on the character of the insanity. There may be individuals who may be at large, and associate with others, and still be of un- sound mind. Do you consider there is any danger in the unsoundness you have discovered in the prisoner? — Certainly I do. He did not exhibit any violence. He replied willingly to the questions I put to him, but his answers were very unsatisfactory. He seemed to have a very indistinct im- pression of the circumstances. He knew he was to be tried. When 1 spoke to him of his trial, wishing to see what impression it made upon him, on two occasions he said, 4 4 What trial ; when ? ” and subse- quently he seemed to know the trial was about to take place the next day, and what it was. I asked him if he was not conscious that he had committed a great offence in shooting at such a young and interesting person as the Queen. He said, 44 Oh, I might as well shoot at her as any- body else.” I examined the prisoner’s head. It appeared to me that the forma- tion of the anterior part of the head would indicate an imperfect development of a certain portion of the brain. I frequently find that form of head in insane persons. There are many persons of that form of head who are not insane. My notes were written as soon afterwards as I could pos- sibly write them. They are very brief. They were not made with any intention of being read. {Beads.) 44 A deficient understanding ; shape of the anterior part of the head, that which is gene- rally seen when there has been some disease of the brain in the early period of life. An occa- sional appearance of acuteness, hut a total inability to reason. A singular insensibility as regards the affections. An apparent incapacity to comprehend moral obligations, to distinguish right from wrong. An absolute insensibility to the heinousness of his offence, and to the peril of his situation. A total indifference to the issue of the trial ; acquittal will give him no particular pleasure, and he seems unable to comprehend the alternative of his condemna- tion and execution ; bis offence, like that of other imbeciles who set fire to buildings, & g., without motive, except a vague pleasure in mischief. Appears unable to conceive anything of future responsibility.” By the Court : Of course in that conver- sation you had with him you were watching his manner as well as what he said ? — Cer- tainly. My judgment is formed in part by his manner as well as by what he said. Did you try to ascertain whether he was acting a part with you or not? — I tried to ascertain it as well as I possibly could; my judgment is formed upon all the circumstances together.. Chowne. — Examined by Taylor. [I am a physician of Charing Cross Hospital. I have been a physician twelve or thirteen years. I am lecturer in that hospital on medical jurisprudence.] If you heard of a person committing a crime without the ordinary inducements 541] The Queen against Oxford , 1840. [542 to crime, either revenge or interest, and that crime exposes him to loss of life, and he seems reckless of consequences, and delivers himself into the hands of justice, and appears wholly exempt from anything like consciousness of responsibility for the act, what opinion should you form of that state of mind? — I should consider it an exceedingly strong indication of his being in an unsound state of mind; a propensity to commit acts without an apparent or adequate motive under such circumstances is recognised as a particular species of insanity called in medical jurisprudence lesion of the will. I do not know a better term. It is an old term. It has been called moral insanity. May I be allowed to give you an example P It is by no means an uncommon thing for me to have patients who complain to me that they are impelled with a strong disposition to commit suicide, of the madness of which act there can be no doubt, and yet there is no one symptom about those people in- dicating mental disease; there may be a slight degree of general indisposition, but no symptoms at all of any mental irregu- larity. These patients will say, “I have nothing to complain of, I have no unhappy news, I have no disappointment, I have no unsatisfied wish ; my husband (if the case be so) is kind to me ; I have nothing at all to impel me to the act but a strong impulse.” I have been asked to prescribe for such cases, not in one sex only, but both in men and women. Now, in that sort of mental disease, is it quite consistent with the person per- forming the functions of life and the duties of life with accuracy P — There is no doubt of it ; they can perform the duties of life with accuracy; I do not say with the same facility. I saw the prisoner in Newgate the day before yesterday, by permission of the Secretary of State, in company with Dr. Gonolly , Mr. Clarice, and Mr. Maule. I had some conversation with him. Now, from the conversation you had with him, and the opportunity you had of observing him, what is your opinion as to the state of his mind? — I should consider that his state of mind is essentially un- sound ; there seems a mixture of insanity with imbecility. I regard the incapacity of controlling laughing and crying as proofs of imbecility, not as positive proofs in themselves, but as assisting to form my opinion. Cross-examined by the Solicitor General. This propensity to suicide in the patients you speak of, were they persons perform- ing all the duties of social life? — They were persons proceeding with their duties of life, and in all their ordinary avoca- tions. Despondency of mind is very often connected with disorders of the stomach, but it very often happens that the physical cause has not been obvious, and has not developed itself at all ; it is not at all ne- cessary that the physical cause should be obvious. In such cases I prescribed for disease in the stomach ; I found those re- medies did operate on the mind. Laugh- ing and crying without control is con- nected with hysteria, and also with im- becility. Generally, when connected with hysteria, it is associated with the sensa- tions, there must be fainting and globus hystericus, which arises in the throat. [The questions put to the prisoner were not numerous ; some were put by one gentleman, and some by another. I en- deavoured to impress upon him that he was labouring under error when he con- sidered it was incapable of being proved there were balls in the pistols ; I assured him, in a manner I thought most likely to make him believe there really were ; that the fact of there being balls in the pistols would be proved against him ; that his responsibility was a terrible one, and in all likelihood it would end in capital punishment, and if he knew whether that was decapitation. He said he had been decapitated in fact a week before, for he had a cast taken of his head. I en- deavoured to make him understand it would be proved that there were balls in the pistols. I knew he had the impression that it could not be proved, from questions asked by myself. Something was said to that effect by him. He insisted that there were no balls there. The fact did not occur to me before. I do not remember his words, but the remark was to the effect that it was impossible. The ques- tion as to whether he was not concerned about his mother he treated with indiffe- rence, and seemed to be totally destitute of feeling, apprehension, or thought on the subject. During the whole time I was struck with a very peculiar manner. There was not an instant (though I believe it is partly habit) that he was not playing with a pencil and a piece of india-rubber, with which I found him drawing. When we went into the room he was quietly draw- ing, with a pencil on a piece of paper, something like a landscape. During the whole conversation he was leaning with his head on one hand, with the other flapping about with a piece of india-rubber, sometimes clapping one pencil against another ; in fact, a manner entirely with- out acute feeling or acute consciousness ; and in order to ascertain how far what I would call dulness of manner, that pe- culiar manner, might indicate idiocy even, I desired him to get up and walk ; and if I had supposed that he was acting when l 543 ] The Queen against Oxford , 1840 . [544 he was clapping the india-rubber about, that idea would entirely have been done away with by the manner in which he walked across the room, which he did with a great deal of lightness, liveliness, briskness, and smartness, not at all as if endeavouring to put on a peculiar manner. It occurred to me that it was perfectly natural, not as if he was acting or making the least pretence. The interview lasted, perhaps, about three quarters of an hour. I did not make any note of the conversation, either at the time or after.] Did you form any opinion at all from the prisoner’s manner during the trial ? — I did. I considered that manner was a continuation of the same kind of manner, but under some restraint here. [I have no observation to make as to the form of the head. I also subjected the prisoner to what is called the arithmetical test. I infer nothing from it. I merely mention it because it did occur. He was pretty ready in casting up, but not ready in sub- traction. I am not quite certain whether at the moment he was giving his attention to it ; indeed, I consider it is a fallacious test. James Fernandez Clarice . — Examined by Bodkin. I am a practising surgeon, and have been so between three and four years. I have had some experience in the treat- ment of insane persons, such as usually falls to the lot of the general practitioner, perhaps a little more, for having been so short a time in practice. I have been in the habit of attending the family of the prisoner. I have known him nearly two years. I accompanied Dr. Conolly and Dr. Chowne, in their visit to him, the day before yesterday. I have formed an opinion as to the state of his mind ; not from that alone, but from other circum- stances which I had had personal oppor- tunity of seeing.] What is the opinion you have formed as to the state of his mind? — That it is decidedly that of imbecility. I consider it more imbecility than anything. I do not like giving definitions. In my judg- ment he is decidedly of unsound mind. During the time I have been attending his mother and sister occasionally, I have had opportunities of seeing the prisoner, and his mother has frequently mentioned to me that she thought that there was something exceedingly peculiar about him, and asked what I thought. The chief thing that struck me was the laughing, which has been so much dwelt upon, the involuntary kind of laughing, with what perhaps we might call a kind of general hysterical tendency in him. He did not seem to me to have that sufficient control over the emotions which we generally find in sane individuals. Did you notice, at any time, any other symptom that is usually connected with hysteria ? — My interviews with him wefe not prolonged, and my attention was attracted to him chiefly by the desire of his mother, who said she was afraid he was getting in the way that his father was. I did not know his father. I put one or two questions to him, when I saw him in Hewgate. I heard questions put by the other medical men as well, and the answers which he gave. I watched his manner during the interview. Did it appear to you to correspond with his manner on former occasions on which you had seen him, or to differ? — Much the same character. Great insensibility to all the impressions which were at- tempted to be made upon him. On one occasion, some time ago, my attention was more particularly directed to him, from a circumstance which this occurrence has brought very strongly to my recollec- tion ; I think it is about five months since I was on a visit at his mother’s house. I called in my rounds to see her. She was very poorly at the time. If I recollect right, he was sitting at the fire reading a book. He took no notice of me when I entered, and seemed to be absorbed in what he was reading. His mother made some observation to him ; such as, ‘ ‘ How rude you are.” “ Why not take notice of Mr. Clarke?” “Why sit there and be- have in this kind of way?” He did not seem to notice the observation of his mother at all. He seemed still to be absorbed in the book, She put the ques- tion to him again, and there was still the same apparent reverie : and when she touched him, to put him in mind that some one was there, he jumped up in a fury, such as at the moment alarmed me, and swore that he would “stick her,” I think was the expression he made use of ; but certainly it was such an expression that at the moment I drew back, thinking he meditated some violence. After this transaction had occurred, the mother called on me in great trouble, and made a communication to me, upon which I wished to see the prisoner, accompanying that with some opinion of my own, which I had formed. I did not see the prisoner until the day before yesterday, when the permission of the Secretary of State was obtained. I had made application at the Home Office on the Monday. In cases of hereditary insanity is there any particular period of life at which medical writers consider it likely to break out, to appear ? — In that kind of insanity particularly, which is connected with acts 545 ] of violence, Esquirol says, in several ' cases which bear great analogy to the one which we might suppose to exist at pre- sent — in six of those cases I think — that three ofvthem took place at the age of puberty, between the ages perhaps of fourteen and twenty. Cross-examined by Sir F. Polloclc. [I never prescribed for the prisoner. I did not recommend any course of treat- ment. I considered that the disease was mental, one of those weak minds which, under little excitement, might become overthrown. I did not alarm the mother, for she is an exceedingly nervous woman. I recommended no course of conduct, diet, or treatment whatever.] In short, I am to understand that you never gave any advice on the subject, of any kind whatever, to his mother ? — Simply in conversation ; I gave my opinion rather as to his state than any advice, nothing further. I never gave any advice ; I was never asked my advice. I am not aware of any medical treatment likely to be useful in cases of hereditary insanity. I was told he lived a regular life ; no intemperance, no late hours. His bodily health appeared good. This closed the case for the defence. Reply. [The Solicitor General denied that there was any w’ish, on the part of the Crown, to press with undue severity on the prisoner, but the acquittal, to be satisfactory, must be founded on evidence. Violence, irre- gularity of conduct, nay, insanity itself, might exist without doing away with the responsibility of his conduct. I first ask, Was the Queen the object of attack? No other individual filled that station in society which could present such an object of attack as the Queen, whether to a sane or insane person. Had the prisoner aimed at anyone else, would his anxious inquiry have been about the Queen ? She was the sole object of his attention ; no other individual occurred to his mind. What was the object of firing ? — destruc- tion. Can any other be suggested ? One pistol was fired ; and if his object had been to create alarm merely, why dis- charge the second ? Suppose the two gentlemen were mistaken as to the marks on the wall. If you, gentlemen, have ever discharged guns or pistols and attempted to look for the balls you will know the difficulty, even in a limited space, of find- ing a ball. Consider the height of the wall. A very slight elevation of the muz- zle would be sufficient to carry the ball over. The second pistol was fired up the road ; and it was extremely difficult, of course, to o G7432. [546 see what direction it took. It would be a very dangerous doctrine to promulgate that, when a person fires a pistol at an- other, ho cannot be made amenable to the law because the bullet with which it was loaded happens not to be found. As to the case cited of JBlalce v. Barnard , it has no analogy with the present case because of the absence in that case of all evi- dence of the possession of the powder and balls. Here the pistols were dis- charged; and when the party who fired them off is proved to have had powder and bullets in his possession, no person can doubt the object. What was the motive for firing the pistol ? The intention of the prisoner could not have been merely to excite a laugh, to create mischief, and to cause a public excitement. The firing of the second pistol shows that the inten- tion was to produce death, and therefore that the pistols must have been loaded. The prisoner’s remark, “ If your head had come in contact with the ball you would have found that there was a ball in the pistol ” is a direct admission that they were loaded. The question, “Is the Queen hurt?” distinctly im- ports that an act had been committed by which the Queen could and might have been hurt. What would be the condition of society, exposed as we all are to such attacks, and the infliction of death by such means, if, with the evidence of pre- vious preparation of the means, the use of balls and pistols, inquiries as to the effect of their discharge, and whether the parties were hurt, coupled with admissions, inci- dental and direct, of the fact that balls were in the pistols — what would be the state of society if evidence like this were to leave an assassin the chance of escape, merely because the balls could not be found ? The doctrine of irresponsibility seems equally dangerous. The rule, as I under- stand it, is not subject to much ambiguity, and any difficulty that may arise will be in its application to the facts. Mr. Er- skine’s speech is considered by medical men as correct, and you may take the rule from what he said in defence of Had field — “ Delusion, therefore, when there is no phrenzy or raving madness, is the true character of in- sanity ; and where it cannot he predicated of a man standing for life or death for a crime, he ought not in my opinion to be acquitted ; and, if the courts of law were to be governed by any other principle, every departure from sober rational conduct would be an emancipation from criminal justice. ”(a) He goes on to say : — “ The connexion between the disease and the act should be apparent ; where the connexion is (a) 27 St. Tr. 1314. a The Queen against Oxford , 1840 . 547 ] doubtful, the judgment should certainly be I most indulgent from the difficulty of diving into the secret sources of a disordered mind ; but I still think that, as a doctrine of law, the delusion and the act should be connected.” The true principles of the law were laid down by Lord Lyndhurst in B. v. Offord.{a) In summing up he said : — “In order to acquit the prisoner you must be satisfied that he did not know when he com- mitted the act, what the effect of it would be with regard to the crime of murder with which he is charged. The question is : Did he know that he was committing an offence against the laws both of God and man ? ” The prisoner was traced at school, and from school into three distinct services, and never treated as mad. Was the prisoner capable of knowing that the consequence of his act might be the infliction of death, that he would thereby subject himself to punishment ? Where can you find any delusions existing, inducing the prisoner to commit the act? Evidence of insanity where the prisoner has not been confined should always be received with caution, especially where the persons giving evi- dence have invariably treated the person as sane. As to the hereditary taint, the grandfather behaved with violence. They treated him as a criminal, and the magis- trate sent him to Bridewell. If he were mad he should have been committed to an asylum, nob to gaol ; should have been soothed, not excited ; and those who treated him as a criminal come here to prove him mad. How was he released ? On his promise to leave the place — the promise of a madman. He was then ad- mitted into Greenwich Hospital. Is it likely a man observing all the regulations of Greenwich Hospital for five years could be considered mad? Would he have been excused if charged with forgery or fraud, on the ground of insanity ? We very frequently hear remarkable medical evidence ; and if these eccentric acts were proof of insanity many persons who ride over pavements, knock down watchmen, and commit similar freaks, are laying up a large stock of excuses for the commis- sion of crimes. I regret that the mother of the prisoner should have been called, but she spoke of the misconduct of hus- band and son with great firmness of nerve. Did she consent to marry a man she thought mad ? Take her judgment of his sanity from the fact of marriage. The father was not treated as a madman, nor was the son. It is most important to check the evidence given, especially when the witnesses were relatives, by the con- duct of the parties giving it. At school [548 I the prisoner was corrected ; his mother corrected him. Would the mother have confined her child in a cellar because he was insane ? She corrected him for the very faults now put forward as proofs of insanity. On not one occasion was he treated as a lunatic, and no evidence suf- ficient to make void a civil contract has been given. From the fact that Oxford was never known to talk about his conspiracy, I draw the inference that the existence of the society of Young England was not a delusion of the brain, but that the lad knew all ihe time it was a foolish fabri- cation. Oxford was trusted by his em- ployers, and did not leave one of them on account of mental incapacity. He laughed and cried frequently ; but it does not ap- pear that he laughed when he had his ears boxed or was beaten, or that he cried when he was pleased. Like other men his laughter was elicited by joy, and his tears flowed from sorrow. The trick of laughing suddenly with- out cause is so common that if this were a token of imbecility the lunatic asylum would overflow with gigglers. I do not wish to introduce anything ludiprous into such a case, but I believe a letter was once directed to Sir Frederick Pol- lock's brother thus : — “ This is for David Pollock, Esquire, For him in Elm Court enquire, Gn the first floor, look no higher, There you’ll catch him ; He’ll pay you twopence for this letter. He never paid it for a better, If he does not, like a setter, Watch him.” Doggerel poetry in the direction of a letter is no proof of insanity; for this address was actually written on a letter to Mr. Pollock by a celebrated literary character of the day. The prisoner having ail along displayed a morbid desire to be talked about, these letters written by him are referable to the same -feeling and object. Is his making no attempt to escape an indication of an unsound mind ? If he had made such an attempt it would have been a great proof of madness. He was surrounded on all sides by the multi- tude. He took such a reasonable view of his situation as to see that he had no chance of escape, and gave himself up quietly. There was an iron railing on one side and a wall on another, and on all sides the Queen was surrounded by her best guards, though not in red coats, her people, who, one and all, were ready to seize the assassin. His silly letters are mere waste paper. A criminal should not be per- mitted to write out for himself a certifi- cate of lunacy. They show that there was The Queen against Oxford , 1840 . («) 5 C. & P. 169. 549 ] no imbecility — no idiocy, whatever may be said of insanity. The prisoner may have been influenced by a morbid desire for distinction, but that will not relieve him from responsibility. Has he ever talked to anybody of any secret society P Has he told anybody of his beautiful speech or the orders of distinction he expected to obtain P If he was under a delusion on this point, he must have done so. Had- jield’s delusion was that he was a Redeemer commissioned by Heaven to make himself a sacrifice to public justice. He did not resort to crime for crime’s sake, but he thought that he must do an act to bring himself to justice, that he might become the second saviour of the world. This is the best instance of the kind of delusion which relieves a man from responsibility •; and the defence was that, though he shot in the direction of the King, yet he did not do so with an intention of killing him. Mark, therefore, the connection, as Mr. ErsTcine puts it, of the delusion with the act. If the prisoner in this case did the act, knowing it was a guilty act, for the sake of public notoriety, he is responsible and must be found guilty. It is evident that he knew that he was breaking the laws of God. Let us see whether he knew that he washable to punishment. His answers before the Privy Council show that there was no imbecility. You will have to say whether the prisoner was under any delu- sion when he committed the act, which alters the character of the act. If he thought that he was doing an innocent act, and did not know that he was doing an illegal act which would subject him to criminal puni shment, he must be acquitted, but otherwise not. It is no matter what delusion he laboured under, if it was not a delusion connected with the act. He was allowed the unrestrained use of fire-arms and powder, and was well acquainted with their fatal effects on human life. Would his mother have trusted a madman with them ? Would she have left her mad son in the same house with her daughter? She desired him to look for another place, and he made answer that there was nothing stirring just then, that he would wait till a good place turned up, and that he pre- ferred this to answering advertisements. Where was the imbecility or insanity there ? The medical men went to New- gate predisposed and predetermined to see a madman. Suppose that the prisoner was unfeeling, violent, indifferent to his own fate, and that he preferred notoriety to any other consideration, what evidence does that supply of his being in a state of moral irresponsibility ? You would not expect to find a man capable of commit- ' ting such an act endowed with very fine feelings of sensibility. There is nothing ' to alter the quality of the act, or to show [550 that the prisoner was incapacitated by disease from the exercise of his judgment' Criminal responsibility secures the very existence of society, and a jury must con- sider truth, and not the consequence of their verdict. Mercy is a great and valuable attribute, but justice is greater and more valuable, and I conclude by say- ing that mercy is but the second duty of a court of justice, justice is the first.] Summing up. Lord Denman, L.C.J., summed up nearly as follows : Gentlemen of the Jury, The prisoner at the bar, Edward Oxford , stands before you charged with the crime of high treason, and this is sought to be proved by two overt acts on the part of the individual, of two direct attacks made by him on the life of Her Majesty, and both are stated to be by firing at her a pistol loaded with a bullet. The ques- tions, therefore, for you to determine are whether the prisoner did fire the pistols or either of them at Her Majesty, and whether the pistols, both ■ or either of them, were loaded with a bullet. Sup- posing, gentlemen, that you should come to a satisfactory conclusion that the pis- tols, or either of them, were loaded, then you will likewise have to consider whether the prisoner at the time he committed the act was in the possession of his reason so as to be responsible for his actions. [The learned judge proceeded to read the evidence. As to whether the pistols were loaded, the prisoner’s question to Clayton, “ Is the Queen hurt ? ” would be strong evidence, if asked by a person of sane mind, but the jury must consider the prisoner’s condition. It was further sug- gested that he thought the wadding might have hurt the Queen. A most improper course was pursued in asking the prisoner, “ What did you put in the pistols ? ” It was not to enable them to find the bullets, but to get evidence ; and such a question would rather tend to defeat than to for- ward public justice. The first clear ad- mission that the pistols were loaded was made to Brown, but though Brown stated that other persons were present, no one else had been called who heard the pri- soner make this exact statement. The bullets certainly were not found, and it was left very much in doubt whether there were any bullet marks upon the wall. Two witnesses stated, no doubt, their honest conviction, that there was such a mark, but a third witness thought it was made by a stick.] Then as to whether the prisoner, owing to the state of his mind at the time, j was exempt from criminal punishment, every man is jprimd facie taken to be responsible for his acts until the con- The Queen against Oxford, 1 840 . 551] The Queen against Oxford, 1840. [552 trary is proved, but a man’s state of mind may make him irresponsible for an act in its nature the most criminal. If be was in that state of mind that yon cannot say be was a free agent, but that some con- trolling disease was the acting power which he could not resist, he would not be guilty, and would be entitled to bo ac- quitted. In cases where insanity is pleaded, it is difficult to decide upon the mark between occasional eccentricity and the delusion which leads to the commis- tion of an offence. It is not more im- portant than difficult to lay down the rule by which you are to be governed. Many cases have been referred to upon the subject, but it is a sort of matter in which you cannot expect any precedent to apply strictly. Every case must stand on its own circumstances. The question is as to the rule and principle on which you are to judge, and here it is the duty of the Court to lay down the rule of English law on the subject of exemption from responsibility by reason of a] disordered mind. Even that is not without its difficulty, because in every particular case the Court is dis- posed to lay down no more propositions than are necessary to it, and therefore what may have been said even by great and learned judges, or by learned men in writing their text-books, will only be often a description of the rule of law laid down without pretending to define the rule by which facts are to be judged by a j ury . The same remark may be made with still more force regarding the observa- tions of counsel, however eloquent, acute, and sagacious. In Hadfield’s case espe- cially Mr. Er shine would lose nothing by laying down a very wide rule of responsi- bility, because, if ever any human creature could be exempted from responsibility by a diseased mind, it was that unfortunate. When it was quite clear that on the day before committing the act for which he was tried he was a raving maniac, endea- vouring to destroy the child he loved, no one could suppose him to be of sound mind. However well the machinery for effecting his crime might be contrived, there was obviously an insane mind, and nobody can say when disease takes possession of the mind — there is no means of saying — to what extent it may affect the conduct ; and no man can hold an individual responsible for an act, though deliberate and calmly done, who a few hours before was in a hopeless state of miserable delusion, which left him without any moral control over his actions. The ancient law on this subject is laid down in Latin words which have become very familiar to us. That man charged as a criminal is not responsible for the act, who, in the language of our law, is non compos mentis, or not able to distin- guish between right and wrong. The meaning of it is that he, from a diseased state of mind, is wholly unconscious that it is wrong in him to do the act charged upon him. That is the law ; and you will have to compare the evidence in this case with what was laid down by the authori- ties on this subject, as they have been fully stated in the course of the trial. Many observations have been made as to what is to be wished, and what might be desired in deciding upon this matter. No doubt the most satisfactory end to the case would be to find that the prisoner was wholly deprived of reason, and not responsible for what he did. It is to be desired that there should be no man in this country capable of committing such a crime. It is also true that, if Her Ma- jesty were in Court herself, she would be anxious to place the prisoner in a situation where mercy might be extended to him. But we have a most important duty to perform ; we are laying down the rule by which the lives of all men in future times must be protected, and your verdict will be an example, which, like former verdicts and proceedings, may be quoted in Courts of Justice as defining the rule by which future cases are to be governed. It is, therefore, your duty to look minutely at the extraordinary circumstances of the case, which are certainly much nearer the boundary of insanity than have occurred in almost any other case, and therefore require that more careful definition of the law which I have endeavoured to give. The case of the prisoner begins with the life of the grandfather, and from the facts detailed by witnesses who knew him, the inference is drawn that the pri- soner at the bar may be affected with hereditary insanity. [The learned judge read the evidence relating to the alleged insanity of the grandfather, and observed that there was no proof as to the nature of the insanity — it might have been the result of some accident in the head which might not make it hereditary. In con- sequence of his violence he was On one occasion taken before a magistrate, but he was discharged on promising to leave the place and go to London. On another occasion he was heard talking about St. Paul and St. Peter : he was then on guard at the gate of the hospital, and it should be considered whether this expression may not be attributed to some ignorant notions he may have entertained, rather than to insanity. And it will also have to be taken into consideration that he was there five or six years, and that he was never visited by a surgeon. The learned judge read the evidence of Dr. Davis, and proceeded. With regard to 553 ] The Queen against Oxford , 1840 . [554 the medical evidence, the professional I skill of those gentlemen may enable them perhaps to judge in a great many matters with greater accuracy than other per- sons ; but, after all, in this case your common sense must be the arbiter of the circumstances. You may, however, place that weight upon the medical gen- tlemen which you conceive the whole circumstances warrant, and you may be guided in examining the facts by their testimony. There may be cases in which medical evidence as to physical symptoms is of the utmost consequence, but as for moral insanity I, for my own part, do not consider that a medical man is better able to judge than a person acquainted with the ordinary affairs of life, and bringing to the subject a wide experience. From the very facts of the case it has been said that insanity is to be inferred, and Dr. Davis has said that, supposing a person without any apparent motive should act, as it is proved the prisoner acted, he would consider him of unsound mind. It would be a dangerous thing to conclude from the high and dangerous character of a crime that the party, unless insane, could not be capable of committing it. It is dangerous to make the crime itself a proof that the party must be exempt from criminal punishment. Although there may be no motive — no adequate motive — it cannot be said that that shows insanity, for there can be no adequate motive for any crime whatever. If a party should be charged with killing his wife, or child, that is a great crime, and if no motive should appear, the jury would not con- clude he was mad. [The learned judge read the rest of the medical evidence, and told the jury to consider whether there was a real absence of the control of reason, or whether the conduct was that of a very violent and perhaps cruel disposition.] How I can conceive that Mr. Tedman suggested to the master very good advice to part with the boy, and in a sense he might have been insane ; but whether there is disease in the mind of the person to show him incapable of distinguishing between right and wrong, that is the point to which you are to apply your at- tention. Something has been said about the power to contract, and to make a will. But I think that these things do not supply any test. The object of the evi- dence laid before you is to show, in point of fact, that at the time he committed this act he was quite unaware of the nature and character and consequences of it, and therefore unconscious that in doing that particular act he was committing a crime ; if that is so, if you think he was so unconscious at the time, then undoubtedly you will be bound to say that he was in- sane and not responsible. (a) Take all the circumstances into your consideration. The papers may be brought forward upon either side of the question, because, supposing he deluded himself into the belief that he was a member of a non-existing society, with guns and swords and means of escape and conceal- ment, and so on, it would be a kind of de- lusion that would excuse a man from almost anything. If he could believe he was a member of that society, clearly proved not to have existed, it would be such strong proof as to affect every part of his conduct, and show him not re- sponsible for any act of his life — because you cannot know what act of folly a per- son of that kind may be guilty of. We do not know when they were written, or whether they were to be produced or not, but they show a contemplation of dange- rous objects likely to lead anybody with a wild imagination and a love of notoriety to commit such an act as this. The love of notoriety is the only motive imputed to him on this occasion, and upon this I have to observe that notoriety would be just as well reached by firing off a pistol without bullets as with them. On the other hand, if the love of notoriety compels him to commit acts of this sort, in order to be in the mouths of all men, put in all the newspapers, and even in his present con- dition an object of greater interest than he could ever hope to excite in any other condition whatever — if under the influence of that motive he performed this act, knowing he was levelling a pistol at the Queen with a great probability of de- stroying her life, but choosing to do it then because of this absurd love of noto- riety and of being discussed and thought of — if that motive acted upon him, and he well knew what he was about, in that case he. would be guilty of the act, however slight and inadequate the motive by which he may have been prompted. The jury retired for some time, and then brought in the following verdict, which the foreman read from a paper : — “ We find the prisoner, Edward Oxford, guilty of discharging the contents of two pistols at Her Majesty; but whether they were loaded with ball or not there is not satisfactory evidence, and that the prisoner was of unsound mind at the time of committing the offence.” (a) “The question is whether the prisoner was labouring under that species of insanity which satisfies you that he was quite unaware of the nature, character, and consequences of the act he was committing, whether he was under the influence of a diseased mind, and M as really unconscious at the time he committed the act thatitAvas a crime.” — Report in 9 C. & P. 525. 555] The Queen against Oxford , 1840. [556 Upon this a question arose as to whether the prisoner could be kept in custody or not, the Attorney General requiring that he should be detained, and the prisoner’s counsel contending that the verdict was a general acquittal, which entitled him to be discharged. Lord Denman, L.C.J., told the jury that, if they had not considered the question as to the loading of the pistols distinctly and separately, they had better retire again and consider it, and find the prisoner either guilty or not guilty. The foreman at first said they had so considered it, but one of the jurors dis- sented. Lord Denman, L.C.J. : You will consider whether the prisoner discharged a loaded pistol. One of the Jury : Loaded with a bullet ? Lord Denman, L.C. J. : Or a ball. Alderson, B. : Not with powder and wadding only. The jury retired to reconsider their verdict. Attorney General : The statute 39 & 40 Geo. 3, c. 94. s. 1 ,(a) provides that, if on a trial for treason, murder, or felony, insanity at the time of committing the offence is given in evidence, and the jury acquit, they must be required to find especially whether the prisoner was insane at the time of the commission of the offence, and whether he was acquitted on that account ; and, if they find in the affirmative, the Court must order him to be kept in custody till Her Majesty’s pleasure be known. How I will assume, for the purposes of argument, that the jury have acquitted the prisoner, still I contend that these questions must be asked by the Court. Alderson, B. : The statute speaks of the commission of the offence : now the jury say that there has been no offence committed. Attorney General: These words mean the act done. Alderson, B. : What act done ? Taylor: The act done in compassing the Queen’s death. The overt act is not the offence, it is only the evidence of it. Patteson, J. : The word “ offence ” cannot mean crime, because, if the party was insane, he cannot have committed a crime. Bodkin: Suppose the jury had found that the prisoner discharged the pistols, but not at the Queen at all P Alderson, B. : Suppose that they had found that he was not the person ? Lord Denman, L.C.J. : My view of the case is this : the statute must mean that (a) See above, 497a. the jury are to find, that that act has been done by the prisoner which fixes him as a criminal, unless he is a lunatic. Alderson, B. (to the Attorney General) : The construction you contend for would lead to this, that, if a man were charged with an offence, and the jury thought that no offence at all had been committed, yet he must be handed over to the mercy of the Crown perhaps for his life. Taylor : Suppose the charge were one subjecting the party to only six months’ imprisonment if convicted ? Attorney General: If no evidence of insanity had been given, then the pri- soner would have been entitled to his dis- charge ; but if the prisoner sets up the defence of insanity, he does it at the peril of the finding of the jury. Patteson, J. : Then the latter part of the clause is altogether useless. Alderson, B. : Tbe word “offence” must mean that which in a sane person would be an offence. Lord Denman, L.C.J. : That, it seems to me, must be the meaning. But none of us mean to be bound by what we now say ; it is too important a matter. [The jury returned into Court, and found the prisoner “ Hot guilty, he being at the time insane.” The prisoner was ordered to be detained during Her Majesty’s pleasure. J(a) Materials made use oe. — The summing up is abridged from Mr. Gurney’s shorthand note preserved at the Treasury; the evidence is abridged from the Sessions Papers. The speeches of counsel and the summing up are taken from the Morning Chronicle, the Morning Herald, and the Times. The reports in 9 C. & P. 525, and in Townsend’s Modern State Trials have also been made use of. (a) For the trials of Francis and Bean for shooting at the Queen, May 30 and July 3, 1841, see below. Appendix A. In consequence of these attempts 5 & 6 Viet. c. 51 entitled “ An Act for providing for the further security and protection of Her Majesty’s person,” was passed . As to section 1, see above, p. 521a. Section 2 provides that any person discharging or aiming firearms, or throwing or using any offensive matter or weapon with intent to injure or alarm Her Majesty shall be liable to be transported for seven years, or imprisoned with or without hard labour for any period not exceeding three years, and during such imprisonment to be publicly or privately whipped, as often and in such manner and form as the Court shall order and direct not exceeding thrice. In 1850 Robert Fate was convicted of assault- ing the Queen with a stick ; and in 1882 Rode- rick Maclean was tried for high treason by shooting at the Queen, but was acquitted on the ground of insanity. 557] Paddock against Forrester and another , 1840. [558 PADDOCK against FORRESTER AND ANOTHER. Judgment of the Court of Common Pleas on an Application by the Attorney General for a Trial at Bar, 1840. (Reported in 1 Man. & G. 583.) In an action of trespass for breaking and entering the plaintiff’s close and taking coals, the defendants pleaded a justification under a demise from the Crown. The Attorney General, inter- vening on behalf of the Crown, applied for a trial at bar. Held by the Court of Common Pleas — 1. Trial at Bar. — Interest of the Crown. The Crown may claim as of right a trial at bar in a case in which it has an interest.(a) 2. Court of Common Pleas — Attorney General — Right of Audience. The Attorney General (not being a serjeant) had a right of audience on behalf of the Crown in the Court of Common Pleas.(6) (a) As to trial at bar, see Crown Office Rules 1886, 160-165. R. 160 provides : “An application for a trial at bar shall be by motion for an order nisi except when made by the Attorney General on behalf of the Crown, when the order shall be absolute in the first instance as of course.” See also later cases cited in 2 St. Tr. N.S. 258. (a) ( b ) The Court of Common Pleas was thrown open by 9 & 10 Yict. c. 54. Paddock v. Forrester and Goodfellow, otherwise Brundred. This was an action of trespass arising in the county of Stafford for breaking and entering the plaintiff’s close and taking coals. The defendants pleaded : First, Not guilty. Secondly, That the coals were not the plaintiff’s. Thirdly, A justifica- tion under an immemorial right of mining in the Crown, and a demise by his late Majesty King George 3 to Lord Granville of the mines, &c., under the closes in question, and within the manor of New- castle-under-Lyne.(a) Ninthly, That the (a) “ The castle and the lordship or manor of Newcastle-under-Lyne are described as part of the Duchy of Lancaster in the conveyance made by Henry 6 iu Parliament to certain trustees to the use of his will ; 5 Rot. Pari. 1656., recognised, ib. 354) Co. Lit. 130 a . (c) 27 St. Tr. 1246. As to Lord Brougham’s criticism of this case, see Luby v. Wodehouse, 17 Ir. C. Law, 618, and Sullivan v. Lord Bigge , 1841 . [734 Lieutenant in his capacity as governor, and because there would be no safety in relying upon the report of the case ; it ascribes dicta to the Court which there is every reason to suppose must be inaccu- rately reported, dicta in some of which it is impossible to concur. The case of Fabrigas v. Mostyn, when it came by error into the King’s Bench, furnishes the only thing like authority for the contention of those who seek to im- peach the judgment under review, and it is not pretended that the decision is upon the point now in question. An action of trespass and false imprisonment having been brought against the Governor of Minorca, he pleaded first the general issue, and then a justification — that he had, as governor, and in the discharge of his duty, imprisoned and removed plaintiff, to pre- vent and put down a riot and mutiny in which he was engaged. To this special plea there was a replication de injuria, and both issues were found for the plaintiff, whereupon the defendant having tendered a bill of exceptions, on the ground that the learned judge who tried the cause ought to have directed the jury to find for the defendant, because he had acted as go- vernor of Minorca, and was not liable to be sued in the courts of England, for acts done in Minorca, a writ of error was brought in B. B., and the Court gave judgment for the defendant in error, holding it quite clear that an action will lie, and that the learned judge did right in not directing the jury as required by the defendant. There having been no evi- dence to support the plea of justification, there could be no objection taken to the finding of the jury, and a motion for a new trial in the Common Pleas had been refused, whether made against the verdict or against the judge’s directions does not distinctly appear. Nor indeed is it quite clear from the report in which way the governor’s counsel really meant to shape their case ; and this, though three elabo- rate arguments had been held, is observed upon by the Court in passing the judg- ment. This much, however, is quite certain, that the decision is not against the lia- bility of Governor Mostyn to be sued in the island during his government, even for acts of state done by him, much less for a private debt, contracted in his indi- vidual capacity, before his government commenced. It is only a decision that he was liable to be sued in England for per- Spencer, 6 Ir. B. C.L. 173, in both of which it has been followed by the Irish Courts ; see also on this passage Musgrave v. Pulido , 5 App. Ca. 112 ; and Anson’s Law and Custom of the Constitution, vol. 2, p. 455. 735] Hill against sonal wrongs done by him while Governor of Minorca. Nor does the decision thus given rest upon any doctrine denying his liability to be sued in the island. There is no doubt a dictum of Lord Mansfield in giving the judgment, that — “ the governor is in the nature of a viceroy, and that therefore locally during his government no civil or criminal action will lie against him.” And the reason, and the only reason, given for this position is, because upon process he would be subject to imprison- ment. With the most profound respect for the authority of that illustrious judge it must be observed that, as has been shown, the governor being liable to pro- cess during his government, would not of any necessity follow from his being liable to action, and that the same argument might be used to show that an action lies not against persons enjoying undoubted freedom from arrest by reason of privilege. But the decision in the case does not rest on this dictum ; on the contrary, Lord Mansfield goes on to say that another reason of a different kind ‘ { would alone be decisive,” and indeed the dictum itself is introduced as if the question had arisen upon a plea in abatement to the jurisdic- tion, whereas it arose not on the pleadings at all, as his Lordship more than once remarked. Nothing can.be more clear than that, the action being of a transitory nature, its being maintainable in Minorca would not have prevented it from lying in England also. It is a possibility that the expressions used may have been somewhat altered in the report. It certainly repre- sents Lord Mansfield to have treated the manner in which the Privy Council deals with colonial law as a similar case to that of courts having to examine questions of foreign law, which is proved as matter of fact. But supposing the report is quite accurate in all respects, the decision in no way supports the contention of the appel- lant. A case was decided in Parliament, at the end of Charles 2.’s reign — Dutton v. Howell{a)—~ which Governor Mostyn’s coun- sel relied much upon, and in which the judgment of all the judges (for it had been brought from the Exchequer Chamber and King’s Bench) was reversed, and a governor held not liable to be sued in England for imprisoning a person guilty of official de- linquency under his government. It is Bigge , 1841. [736 quite clear that this case afforded no precedent for Governor Mostyn’s, much less for the defence ( to the present action. It went on the ground of the governor and his council having acted judicially ; and, though the counsel for the plaintiff in error before the House of Lords, urged, among other things, that governors of Scotland and Ireland could not be sued, so did they also contend that it would be equally dangerous to sue privy council- lors^) ; a position probably as much dis- regarded by the House of Lords, who reversed the judgment, as it certainly had been, with the other arguments of the same caste, by the judges of the three courts who had pronounced it. It is unnecessary to say anything re- specting the statutory provisions of 11 & 12 Will. 3. c. 12, which in one view makes rather more against the appellant than it does for him ; or respecting the alleged judicial powers of the Governor of Trini- dad, as he appears not to stand in the situation which has been supposed. It cannot be alleged that the process runs in his name ; and even if he were (which he is not) the Court of Error, that would not decide that he cannot be sued. The judges of courts in this country, which have the most unquestionable jurisdiction in certain actions, are themselves liable to be sued in such courts ; and cases might easily be figured, in which great difficulty would arise how to try suits brought against them in consequence of their official position ; but the possibility of such difficulties, whatever legislative en- actments it might give rise to upon its nearer approach, can never surely be urged as a reason for denying what all men know to be the law, namely, that those parties are liable to be sued. The judgment appealed from must, therefore, be affirmed, and their Lordships see no reason for varying from the general rule. It must, therefore, be affirmed with costs, (b) Materials made use of. — The above re- port is taken from 3 Moo. B.C.C. 465. The printed cases of the appellant and respondent have also been consulted. (а) Show. P.C. 35. (б) See also Musgrave v. Pulido , 5 App. Ca. 112 ; Luby v. Wodehouse , 17 Ir. C. Law, 618 ; Sullivan v. Lord Spencer , 6 I.R.C.L. 173 ; Phillips v. Pyre, L.R. 6 Q.B. 215 ; also cases collected in Notes to Forsyth’s Cases and Opinions, chapter 3. (a) Show. P.C. 31. [737 The Lord Advocate against Lord Dunglas, 1842. [738 THE LORD AD‘V OCATE against LORD DUNGLAS. LORD DUNGLAS against THE OFFICERS OF STATE FOR SCOTLAND. The Lord Advocate of Scotland, in the Name and^i on Behalf of Her Majesty and of the Commis- Appellant sioners of Woods and Forests - - - J and The Hon. Cospatrick Alexander Home, Lord Dunglas,! _ , , and Captain Robert Cunningham - - . Respondents. (First Appeal.) The said Lord Dunglas and Robert Cunningham - Appellants AND Her Majesty’s Officers of State for Scotland, and! the Lord Advocate on Behalf of the Commis- > Respondents. sioners of Woods and Forests -J (Second Appeal.) Judgments of the House of Lords on Appeal from the Court of Session, February 28, 1842. (Reported in 9 Cl. & F. 173 ; 1 Bell, App. 537.) In 1827 George 4 conferred upon Lord Dunglas for life the office of chamberlain and collector of the rents, revenues, &c. of the lands and lordship of Ettrick Forest, at a salary exceeding the annual value of such rents and revenues, and charged the deficiency on another part of the hereditary revenues of the Crown of Scotland. In actions commenced in the subsequent reign to reduce or rescind the grant — Held by the House of Lords on appeal from the Court of Session — 1 . Prerogative — Grant of Pension under colour of Office. That such grant, though purporting to be the grant of an office, 'was, in fact, the grant of a pension to endure beyond the life of the Royal grantor, and was so far an illegal alienation of the Crown property. 2 . Civil List Acts — Surrender of hereditary Revenues to Parliament. Per Lord Campbell: The surrender of the hereditary revenues to the use of the public at the beginning of a new reign does not operate beyond the life of the sovereign making the surrender. 3. Attorney General, Right of Reply. Where the Crown is respondent on an appeal to the House of Lords it is not the usage of the House for the Attorney General to have a general reply on the part of the Crown. 4. Liability of Crown for Costs — Recognisances — Appeal for Costs. The Lord Advocate or other officer suing on behalf of the Crown was not liable for costs even where the suit was improperly instituted. (a) The Lord Advocate, or other officer appealing to the House of Lords on behalf of the Crown, is not required to enter into recognisances to meet the costs of the appeal. An appeal will lie from a judgment awarding such costs in spite of the rule against appeals for costs. (a) 18 & 19 Viet. c. 90. ss. 1 and 2, and 22 & 23 Viet. c. 56. s. 24, as regards England, and 19 & 20 Viet. c. 56, as regards Scotland, provide that costs may be given against the Crown in certain cases'; but see Mews v. Reg. 8 App. Ca. 353?*. o 67432, A A 739] The Lord Advocate against Lord Dunglas, 1842. [740 These appeals were brought against several interlocutors of the Court of Ses- sion in Scotland in two actions instituted there in different forms, but with the same purpose, namely, to rescind a grant made to Lord Dunglas “ of the office of chamber- lain and collector of rents, revenues, feu duties, and other casualties of superiority payable to the Crown out of the lands and lordship of Ettrick Forest, in the shire of Selkirk, part of the hereditary revenues of the Crown of Scotland.” The office having become vacant in 1827 was granted to Lord Dunglas by King George 4. by commission under the Cfreat Seal of Scotland, issuing on a warrant under His Majesty’s sign manual dated July 27, 1827. The warrant em- powered Lord Dunglas to appoint a deputy or deputies to collect the said revenues, and recited that — “his said Majesty as well iu consideration of the said office as out of his royal bounty ” was pleased to grant to Lord Dunglas a yearly salary of 300?. and 20?. to his deputy, both salaries to be payable “ out of the moneys of the said collection, and wherein they come short, out of the first and readiest of the rents, revenues,” &c. payable to the Crown out of the lands and lordship of Dunbar. Lord Dunglas entered on the office under this commission, and appointed Captain Robert Cunningham his deputy. The annual amount of the rents and revenues of Ettrick Forest which they collected amounted to 235?., and the difference be- tween that sum and 320?., the amount of their salaries, was paid to them out of the revenues of the lordship of Dunbar according to the terms of the grant. After the passing of the Act 3 & 4 Will. 4. c. 69., by which the administration of the hereditary revenues of the Crown of Scotland w as transferred to the Commis- sioners of Woods and Forests, the atten- tion of the House of Commons was called to the subject of the grant to Lord Dun- glas, and a resolution was passed, direct- ing the Law Officers of the Crown in Scotland to institute proceedings to set aside the grant. The Lord Advocate having raised an action in May 1824 in the Court of Ses- sion in the name and on behalf of the King and of the Commissioners of Woods and Forests against Lord Dunglas and his deputy Captain Cunningham for the reduc- tion of the grant, the Lords of the Second Division, on the 24th of December 1836, pronounced the following interlocutor, dismissing the suit on a preliminary* de- fence taken by the defenders to the title of the pursuers : — “ The Lords, See. sustain the objection to the title of the pursuers to insist in their actions ; dismiss the same accordingly, and decern ; find the Commissioners of Woods and Forests liable to the defenders in the expenses of the process ; allow the accounts to he given in, and therefore remit to the auditor to tax the same and re- port.” On February 10, 1837, their Lordships pronounced a final interlocutor for pay- ment to the defenders of 284?. 14s. 8 d. of expenses of process. From these interlocutors the Lord Ad- vocate presented a petition of appeal to the House of Lords on February 18, 1839. In the meantime, and on the 6th of February 1837, a new action was instituted in the Court of Session against the same defenders and for the same purpose — “ at the instance of Our well-beloved cousins, Sec., William, Duke of Argyll, Keeper of Our Great Seal of Scotland ; Robert, Viscount Mel- ville, Keeper of Our Privy Seal of Scotland ; the Right Hon. William Dundas, Our Clerk Register; David Boyle, Our Justice Clerk ; and J ohn Archibald Murray, Our Advocate ; Our Officers of State for Scotland, for Our interest ; and the said Right Hon. j. A. Murray, Our Advocate, for and on behalf of Our Commis- sioners of Woods and Forests, See., in the terms of an Act passed in trie third ana fourih years of Our reign, c. 69, and Acts therein recited for any interest they have in the pre- mises — pursuers.” In this action, by which the validity of the grant was finally determined, the reasons assigned' for reducing or rescind- ing the grant, after the first or formal one, were as follows : — “ Secundo. That George the Fourth had no power or authority to make, give, or grant the same, at least to the effect of the said warrant, commission, grant, or letters patent enduring or having effect beyond the period of His said late Majesty’s demise. “ Tertio. The said warrant, commission, grant, or letters patent, under the narrative and disguise of a grant of office of chamberlain or collector of the rents and revenues of Ettrick Forest was and is unwarrantable, illegal, and inept, as an alienation, and for a period exceed- ing the reign of His Majesty, the granter thereof, of the whole revenues of the lands and lordships specified in the said grant, and also of a large part of the rents and revenues of the land and loidship of Dunbar. “ Quarto. The said warrant, and the said commission, grant, or letters patent in so far as they* purport to give and grant to the said Honourable Cospatrick Alexander Home, com- monly called Lord Dunglas for all the days of his natural life, an annuity or yearly salary out of the rents, revenues, feu duties, and other casualties of superiority of the lands and lord- ships of Ettrick Forest and Dunbar, forming parts and portions of the hereditary revenue of the Crown in Scotland were ultra vires of his 741] The Lord Advocate against Lord, Dunglas, 1842. [742 said late Majesty King George IV., inasmuch as the said hereditary revenue having been sur- rendered without reserve to the disposal of Parliament on the accession of his said late Majesty, was afterwards settled upon his said late Majesty for his life only, whereby it was beyond the power of his said late Majesty to alienate, burden, or affect the same in anyway by grants to have effect or be operative beyond the period of his demise. “ Quinto. The settlement of the said here- ditary revenue made at the accession of his said late Majesty, for the period of his natural life having come to an end upon his demise, such hereditary revenue was upon Our accession again placed by Us at the disposal of Parliament and by Parliament thereafter made part of the Consolidated Funds, subsequently vested in the Commissioners of Our woods, forests, lands, revenues, works, and buildings in terms of, and for the purposes expressed in, the said Act of the third and fourth years of Our reign above referred to, and the Acts therein recited, whereby the said Commissioners have now the sole and undoubted right to the whole hereditary and land revenues of the Crown in Scotland whereof the rents, revenues, feu duties, and other casu- alties of the superiority’ of the lands and lord- ships of Ettrick Forest and Dunbar form parts and portions ; and, further, by the said illegal grant We are prevented for an indefinite period, from fulfilling the surrender made by us to Parliament of Our royal revenues in Scotland at the commencement of Our reign, as above set forth.” The summons concluded for the reduc- tion of the said warrant and commission, with all deputations founded thereon, and contained subsidiary conclusions for inter- dict and repetition against the defenders of the moneys received by them since the accession of King William 4. to the Crown. The defenders, Lord Dunglas and Cap- tain Cunningham, his deputy, stated a preliminary defence of the previous action for the same purpose. They were met with the statement that the judgment in the previous suit was final, and that that was no longer a pending action. There was not then any intima- tion of an appeal against the judgment in that suit. The Lord Ordinary, by an interlocutor of the 20th of May 1837, re- served to the defenders the benefit of the objection, and ordered defences on the merits. Such defences were lodged ac- cordingly, and the defenders submitted that they ought to be assoilzied from the conclusions of the action, on the following, among other, grounds : — 1. It was not beyond the powers of his late Majesty Geo. 4. to appoint the de- fender (Lord Dunglas), chamberlain of Ettrick Forest, during the whole period of his life for the purposes of collecting the revenues of the forest, with a salary for the performance of that duty. 2. The reasons of reduction, in so far as they rested on the supposition of the here- ditary revenue of the Crown of Scotland having been surrendered to the disposal of Parliament by his said late Majesty, are ill-founded, inasmuch as no surrender was ever made, his late Majesty having en- joyed and possessed the income of his hereditary revenue in Scotland until his demise. 3. The defenders’ appointments are effectually protected by the provisions of the statutes passed during the present reign (of Will. 4.), in respect that they expressly declare: 1st. That the here- ditary revenues shall only be surrendered under the burden of ail such grants as those in favour of the defender ; 2nd. That they shall only be transferred to the Con- solidated Fund under burden of the annual sums or pensions charged upon them ; and 3rd. That no appointment of chamberlain or collector shall be made void by the passing of the Act ; but that every such chamberlain or collector shall continue in office until his death or resignation. 4. As the defender, Lord Dunglas' 1 s ap- pointment has been recognised and sanc- tioned by the Crown since the demise of his late Majesty {Geo. 4.), in full know- ledge of the provisions contained in the grant, the pursuers are barred from reduc- ing it, by acquiescence and homologation. 5. The conclusions of the summons for repetition are groundless. The defenders have discharged the duties, in considera- tion of which their salaries were granted. 6. At all events, as the defenders’ sala- ries were paid in the full knowledge of the terms of their appointments, they are protected from all claim of repetition on the plea of their salaries having been bond fide per cepti et consum'pti. A record was afterwards made up and closed upon revised condescendences and answers, with notes of pleas in law for each party. The pleas for the defenders consisted of their said grounds of defence ; and those for the pursuers, of the grounds of reduction and conclusions of the sum- mons before stated ; and they further in- sisted that the appointments of the de- fenders, and their salaries, expired by the demise of King George 4., and that from that time they were bound to repay to the pursuers all the moneys received and re- tained by them in virtue of their appoint- ments ; and added, in answer to the defenders’ said fourth plea, that there were no grounds on which a plea of ac- quiescence and homologation could be maintained in the circumstances of the case ; and that the interests of the Crown could not be injured by any neglect of its officers. These pleas on both sides, and the whole cause, were afterwards elaborately argued A A 2 743] The Lord Advocate against Lord Dunglas, 1842, [744 in the cases given in by the parties, pur- suant to the Lord Ordinary’s appointment. The cases having been reported by his Lordship, with the cause, to the Second Division of the Court, the Lords of that Division directed revised cases and other proceedings to be laid before the Lords of the First Division and the permanent Lords Ordinary. On the 21st of December 1838, after the return of the cause, with the opinions of the consulted judges, the Lords of the Second Division pronounced this inter- locutor : — • “ The Lords having resumed consideration of this process, with the opinions of the consulted judges, in respect of the opinions of a majority of the whole judges, reduce the grant and other writs under challenge, and decern, and declare accordingly, repelling in so far the defences against the conclusions of the libel. Quoad ultra, appoint parties to he further heard at the bar.” (a) The Lord Advocate, finding that it was the opinion of the Court that the conclu- sion of the action as to repetition was incompetent in that Court, asked leave, on behalf of the pursuers, to abandon that conclusion, reserving the right to insist on it before a competent court. The Court allowed a minute to that effect to be given in, and, on again advising the cause with a view to dispose thereof, and of the re- maining conclusions of the libel, pro- nounced this interlocutor : — “ The Lords having resumed consideration of this process, with the minute for .the pursuers, assoilzie the defenders from the conclusion of the summons for repetition, and payment, and decern, reserving to the pursuers and all con- cerned to insist upon the same before a competent court, as they shall be advised, and reserving to the defenders their answers and defences.” The second appeal was against the two last-mentioned interlocutors. The petition of appeal in the first ac- tion (The Lord Advocate against Lord (a) The opinions cf the nine consulted judges and of the four judges of the Second Division — all, except Lord Meadowbank and the Lord Justice Clerk, agreeing that the grant of the office to Lord DuDglas for his life was ultra vires of King George 4. — are set out at length in the report of the case in Dunl., B., and M., N.S. 314. That report also states the old Scotch Acts annexing the lordships of Ettriclc Forest and Dunbar to the Crown, and the statutes since the Union regulating the civil lists of the successive Kings, particularly the Acts 1 Will. 4. c. 25. 2 & 3 Will. 4. c. 112, and 3 & 4 Will. 4. c. 69. by which last two Acts the management of the King’s hereditary revenues in Scotland was transferred to the Commissioners of Woods and Forests. — (Reporter’s note.l Dunglas ) having been served upon the respondents, Lord Dunglas and Captain Cunningham, they required the usual re- cognisances to be entered into. The Lord Advocate thereupon presented a further petition to the House objecting that the Crown being virtually the appellant in this case, he ought not to be called on to enter into recognisances to pay costs. The respondents also presented a fur- ther petition against the reception of the appeal, on the grounds that the House would not entertain an appeal merely or chiefly as to costs, and that all the points at issue were embraced in the second action raised by the Officers of State, to which the Lord Advocate was a party. In accordance with a report of the- Appeal Committee, to whom the peti- tions on both sides had been referred, the two points regarding the competency of the appeal and the recognisances were- ordered to be argued at the Bar by one counsel on each side. The argument came on in May, 1841, when at the suggestion of Lord Cottenham, L.C., the following order was made and agreed to by the parties : — “It is ordered that the appeal of The Lord Advocate v. Lord Dunglas be received, without entering into the usual recogni- sances, reserving the questions raised on these petitions respecting the competency of the appeal, and the obligation of the Lord Advocate to enter into recognisances, until the hearing of the said appeal on the- merits; and that the said appeal, when ready for hearing, shall be heard with that of Lord Dunglas v. The Duke of Argyll and others, Officers of State.” The second appeal (Lord Dunglas against The Officers of State) came to be heard first, (a) Pemberton, Q.C .,(&) and Hope for the appellants argued in favour of the validity of the grant. The lordship of Ettric.k Forest, among various other lordships and castles, was annexed to the Crown of Scotland by sta- tute, of the year 1455, c. 41, and from that period continued to be part of its heredi- tary revenue. It was one of the preroga- tives of the Crown to appoint collectors of the revenues of these different estates, who in some of the grants were designated King’s chamberlains, in others rangers of the forest or keepers of the castle. The- appointments to these offices in former times were generally conferred for life, and sometimes even in fee. That is mani- fest from the 20th Article of the Treaty. of Union. However, since the union of the (а) Present, Lords Lyndhurst,L.C., Brougham,, Cottenham, and Campbell. - (б) Afterwards Lord Kingsdown. 745] The Lord Advocate against Lord \ Danglas, 1842. [746 two kingdoms the appointments of cham- berlains of Ettrick Forest appear, from a list produced by the respondents, to have been made during pleasure, until the joint •appointment of Mr. Hope Vere and Mr. Mark Pringle in 1786. To them the office was granted for their lives and the life of the survivor, with a reservation to any succeeding monarch of the right to revoke the grant. But whatever were the terms of the grants, even of those made during pleasure, there is no instance of any revo- cation, or other termination of them, than by the death of the grantee. Mr. Alexander Pringle, the last chamberlain, received his commission in 1812 for bis life, without any limitation, and he held the office until his death in 1827, notwithstanding the demise of George 3. in 1820. On Mr. Pringle's death the commission to Lord Dunglas was made out in the same terms, •except that the salary was reduced to 300L instead of 500 1 . , which all his predecessors in the office for a century had received ; nor was there any attempt made to dis- turb Lord Punglas on the demise of George 4., nor for several years after, until the Commissioners of Woods and Forests, to whom the administration of these hereditary revenues of the Crown was transferred after the accession of William 4. were urged to engage in this ungracious attempt. These hereditary revenues of the Crown in Scotland, being inconsiderable in amount, were not noticed in the articles of Union ; they were afterwards kept dis- tinct from those of England by special enactments ; were collected under their own regulations, and chargeable with their own burdens ; never forming any part of the English Civil List revenue, but being considered as the exclusive pro- perty of the monarchs, each having the free disposal of them for life, subject only to such disposition of them as his pre- decessors might have made. Accordingly no notice was taken of them in arranging the Civil List revenue of King Geo. l.(u) ; and by the Act of Parliament regulating the Civil List of Geo. 2., (6) it was expressly provided that the several duties and re- venues which were payable to his late Majesty in Scotland should be continued, levied, and paid in the same manner only, and subject to the same or like charges thereon as the same were liable or sub- ject to during his said late Majesty’s life. The right to the Crown gave the right to these revenues, as the Scotch Kings possessed them, and they were the patrimony of the Crown by its prero- (а) By 1 Geo. 1. stat. ]. c. 1., and 1 Geo. 1. stat. 2. c. 12. (б) 1 Geo. 2* c. 1. s. 6. gative, without any parliamentary grant of them. In 1 Geo. 3. c. 1., by which provision was made for the Civil List, it was stated in the preamble that His Majesty had signified his consent to the Commons that — “ such disposition might he made of His Ma- jesty’s interest in the hereditary revenues of the Crown, as might best conduce to the utility and satisfaction of the public,” and it was provided (section 3) that the produce of all the branches and revenues which stood settled and appointed for the support of his late Majesty King Geo. 2. and the honour and dignity of the Crown should — “ from and after the demise of his late Majesty, be, during his present Majesty’s life, carried to and made part of the general or aggregate fund established by 1st Geo. 1., and be during the said terms issued and applied in manner herein- after mentioned to the uses to which the said fund is or shall be made applicable.” But section 8 contained the following proviso relating to the Scotch revenues : — “ Provided nevertheless, and be it enacted by the authority aforesaid, that the several and re- spective duties and revenues which were pa} r able to his late Majesty King George II., in that part of Great Britain called Scotland, for and during his life, shall be continued, raised, levied, and paid from the demise of his said late Majesty during the life of his present Majesty in the same manner only, and subject to the same or the like charges thereon, as the same were liable or subject to during his said late Majesty’s life, saving always to all and every person or persons, bodies politic and corporate, their heirs, successors, executors, administrators, and assigns (other than to our said Sovereign Lord the King, his heirs and successors, and other than to such person or persons who do or may stand seised or possessed in trust for His Majesty, his heirs and successors), all such rights, titles, estates, customs, interests, claims, and demands whatever of, in, or to, or out of, the revenues, hereditaments, and others the pre- mises aforesaid, or any of them, as they or any of them had, or ought to have had, at the making of this Act as fully and effectually to all intents and purposes as if this Act had never been made, anything herein contained to the contrary notwithstanding.” The Act of 28 Geo. 3. c. 33., after a recital that certain doubts bad arisen whether under the 27th of the King, c. 13 (constituting the Consolidated Fund), the hereditary revenues of the Crown in Scot- land were sufficiently saved and reserved to His Majesty during his life by virtue of section 8 above recited of the 1st Geo. 3. c. 1. declared — “ that the hereditary revenues of the Crown in Scotland, and other revenues there granted to his late Majesty King George the Second during 747] The Lord Advocate against Lord Dunglas, 1842. [748 his life, and reserved to his present Majesty during his life, by an Act made in the first year of His Majesty’s reign, do belong to and are at His Majesty’s disposal, as provided for by the said Act ; and that the civil establishment in Scotland shall continue to be paid in future in like manner as it has been paid heretofore.” And so the hereditary revenue of Scot- land remained with that monarch as with his predecessors, subject and applicable to defraying the expenses of the Scotch civil establishment, and the other burdens with which he and they chose to charge it, either in the shape of grants of salaries annexed to offices, or in beneficial leases, or even in pensions, as appears from the Act of SO Geo. 3. c. 111. That statute provided that the amount of pensions on the Scotch Civil List granted in one year should not exceed 800?., or the pension to any one person 300?., until the whole pension list of Scot- land should be reduced to 25,000?. ; and that, after this reduction, it should not be lawful to exceed the sum of 25,000?. in the whole of all the grants, or to grant to any one person a pension exceeding 600?. The statute concluded with the following proviso (section 3) : — “ Provided always, and be it further enacted, that nothing in this Act contained shall extend, or be construed to extend, to prevent His Ma- jesty from making any such grants (other than and except pensions) for civil purposes in Scotland out of the moneys applied to the pay- ment of the Civil List of Scotland, as His Ma- jesty has heretofore been accustomed and autho- rised and empowered to make before the passing of this Act.” Again on the accession of King George 4. in the Act 1 Geo. 4. c. 1., it was set forth in the preamble that the 1 Geo. 3. c. 1. had enacted that — “ the hereditary rates and duties, and other duties and payments and the small branches of His Majesty’s revenues therein expressed,” should be levied and collected as before ; that these had subsequently been carried to the Consolidated Fund, and that His Majesty had been pleased to intimate to the Commons that he — “ would leave entirely at their disposal His Majesty’s interest in the said hereditary reve- nues ; ” and after reciting the previous Acts making provision as to the hereditary re- venues and stating the resolution of Par- liament that the produce of the ' said re- venues be made part of the Consolidated Fund during His Majesty’s life, it was enacted that the provisions of these Acts as to the hereditary revenues in England and Ireland should continue in force, and further (section 2) that the produce of the said hereditary revenues in England, which during his late Majesty’s life had been carried to the (consolidated Fund of Great Britain, and all the hereditary re- venues in Ireland which had been carried to the Consolidated Fund of that country during the life of his present Majesty, be carried to the Consolidated Fund of Great Britain and Ireland. By the 8th section a provision was made as to the hereditary revenues of Scotland in exactly the same terms as in the 8th section of the 1 Geo. 3. c. 1. above quoted. The 9th section refer- ring to the provisions of the 50 Geo.' 3. c. 111., as to transferring the surplus of the Scotch hereditary revenues, enacted that — “ any surplus or balance which may remain after defraying the whole of the charges inci- dent to the said fund shall during the lifetime of his present Majesty go and be carried to the account of the Consolidated Fund of the United Kingdom.” Doubts having again arisen as to whether 59 Geo. 3. c. 53. (An Act for granting cer- tain additional duties and consolidating the same with the former duties therein, <&c.) affected these Scotch revenues, it was enacted by 1 & 2 Geo. 4. c. 31. — “ that the said hereditary revenues so settled upon his said late Majesty King George the Third for his life by the said recited Act made in the first year of his reign do belong to, and are at the disposal of, his present Majesty in the same manner as they did belong to, and were at the disposal of, his late Majesty King George the Third before and at the time ot' passing the said recited Act, in the 59th year of his reign, and that the same and the civil establishment in Scotland payable out of the same shall continue to be paid in like manner as they were before and at the time of the passing of the said Act, in the 59th year of the reign of his late Majesty King George the Third, anything in the said Acts to the contrary notwithstanding. Provided always, that no- thing herein contained shall extend, or be con- strued to extend, to prevent the surplus or balance which may remain, after defraying the whole of the charges upon or incident to this said fund, recited in the said Act made in the first year of his present Majesty’s reign from going and being carried to the account of the Consolidated Fund of the United Kingdom as directed by the said Act.” It is quite clear from these Acts that the Legislature always intended a com- plete separation between the English and Scotch hereditary revenues, so far as re- garded their collection and their applica- tion ; the English revenues having been surrendered to Parliament and made part of the Consolidated Fund, while the Scotch revenue was kept on a distinct footing, and appropriated to its own objects. Then, as the statutes do not affect the grant of the commission to Lord Dunglas, 749] The Lord Advocate against Lords Dunglas, 1842. [750 what is there at common law to prevent it from being valid and effectual ? It was the gift of an office for the life of the grantee, with a salary attached, payable out of the heritable estate belonging to the Crown. Though the King may not grant an annuity chargeable on him per- sonally, he may, if it be charged on His Majesty’s possessions(a) ; and such grants bind the King’s successors, though they be not mentioned in the grants, (b) This grant was not, as some of the judges in Scotland seemed to suppose, an alienation of the estates of the Crown ; it was merely a grant of an office, and neither was, nor purported to be, in form or effect, a con- veyance or alienation of any property. The estates and casualties of superiority remained the property of the Crown, as they had been before the grant. The salary might be disproportioned to the duties of the office, as the words of the grant certainly indicated, being “as well in consideration of the office as out of royal bounty and favour ; ” but such dis- proportion — not at all uncommon in Eng- land or Scotland, does not affect the validity of the grant, while the salary was payable out of revenues vested in the Crown applicable to such burdens. Equally unfounded is the other suppo- sition of the judges in the court below, that this grant was only a cover for a pension. That suggestion originated with the judges ; it was not alleged in the summons as a ground of reduction, and consequently cannot be acted upon in this suit, nor could a court of justice take cognisance of it, being matter only for the consideration of the Crown or of the Legislature ; it was suggested, like the former allegation of alienation of the Crown property, by the disproportion between the salary and responsibility of the office ; and also probably by the terms of the grant. But on both points it should be remembered that the salary to Lord Dunglas was less by 200Z. than the salary received by his predecessors in the office for nearly a century. The only ground on which any argument for revoking this grant can be maintained, is the surrender and settlement of the revenues of the Crown on the accession of the late King, William 4. Until then, there wa 3 not any surrender of this revenue in Scotland, nor was it ever dealt with as the property of the State, nor is there any authority for holding that it was previously so treated or dealt with ; as is apparent from the Act 1 Will. 4. c. 25, which enacts that the produce of all the free hereditaments, rents, and revenues (а) Chitty’s Prerogative, 389. (б) 76. 400. in England. Ireland, and Scotland, be made part of the Consolidated Fund. But that Act contains provisions effectually protecting vested interests, by an express saving (in the 12th section) to all persons, of all grants whatever out of the revenues belonging to George 4. in Scotland, as fully to all intents and purposes as if that Act had never passed. That saving clause was not revoked by the subsequent Acts, 2 & 3 Will. 4. c. 112, and 3 & 4 Will 4. c. 69, relied on by the respondents ; which only transferred the management of these revenues in Scotland from the Barons of' the Exchequer there, to the Lords Commissioners of the Woods and Forests in England ; with an express proviso by the eighteenth section of the Tatter Act, that “this Act shall not vacate the appointment of chamberlain or collector of the revenues,” &c. of His Majesty’s lands ; and “ that every such chamberlain or collector, who shall be in office at the time of the passing of this Act, shall continue in office until his death,” or resignation, or removal. The Attorney General {a) and Anderson , for the respondents : The action in which this appeal arose was brought at common law, as well as on the statutes mentioned in the summons. The question now is whether the King had power to make the grant. The nominal duties of the office consist in the collection of feu duties within the lordship of Ettrick Forest, the annual amount of which never exceeds 235?. , while the yearly salary granted with the office is 300Z., with an allowance of20Z. more to a deputy ; all charged not only on the moneys collected, but, as they are evidently insufficient, on the revenues payable to the Crown out of the lordship of Dunbar. Under this grant Lord Dun- glas collects the revenues, not for the Crown, but for himself. The grant, there- fore, resolves itself into a direct alienation of that part of the hereditary land reve- nues of the Crown in Scotland, during the life of Lord Dunglas. No doubt the revenue is given in the name of a salary, and the grantee is called a chamberlain, but the substance is not the less an alienation of this part of the annexed property, and, therefore, void under the ancient statute law. This view was taken by the Barons of the Exchequer in regard to the chamberlainship of Boss in the year 1720. In that case they re- fused to pass a grant of the office during the life of the Earl of Sutherland , because (a) Sir Frederick Pollock. 751] The Lord Advocate against Lord Dunglas, 1842. [752 by the laws relating to the annexed pro- perty “ the sovereign can make no further grant tl ereof for any longer time than during his own life but they passed one for the Earl’s life, should His Majesty so long live. Barons Clerk and Scrope, who were on the Bench during these proceedings, afterwards pre- pared a treatise(u) on the Court of Ex- chequer, wherein under the word “ gifts ” they enforced the principles on which the signature to the Earl of Sutherland had not been allowed to pass. Lord Brougham : How had the Court of Exchequer jurisdiction? The opinions of the Barons must have been quite extra- judicial. Attorney General : What fell from them no doubt cannot have weight as a judicial opinion, but it is of great value as showing the opinions of those who had to administer the royal revenue. Lord Brougham : Ho better than any- thing that might fall from the Lord Chief Justice of the King’s Bench during a vacancy of the office of Chancellor of the Exchequer which the Chief Justice ex officio fills during that time. There has been no instance of such a grant produced. Erom the union of the two kingdoms down to the accession of George 4. the appointment of chamberlain or collector of the revenues of Ettrick Eorest was granted only during pleasure, with two exceptions : first, in 1786, when a commission was issued to two chamber- lains jointly, and to the survivor for life, if the grantor should so long live, and until the same should be re-called by any royal successor ; and secondly, in 1812, when George 4., then Prince Regent, issued a commission to Mr. A. Pringle for his life. He died in the lifetime of King George 4., and so the event in which the legality of the grant might be questioned did not occur in that case. That event has occurred in this case, the grantee having survived the grantor ; and it must appear quite plain to anyone paying the least attention to the question, that George 4. had. no power to grant a com- mission that was to have effect beyond his own life, so as to encroach on the rights and prerogatives of his royal successors. There can, therefore, be no doubt that Lord Dunglas’s right to the office and. salary expired on the demise of the grantor. This is the view which all the institutional lawyers of Scotland, and the (a) Forms and Powers of the Court of Exchequer in Scotland, by Sir John Clerk of Pennycuik, and John Scrope, Esq., Chapter “ Concerning Gifts which flow from the Crown.” Courts there, have taken of the common law, and of the old Acts of Parliament in Scotland, annexing these land revenues to the Crown — Lord Stair, b. 2, tit. 3, s. 35 ; Bankt. vol. i. p. 538; Brsk. b. 2, tit. 3, s. 19 ; Bell’s Prin. p. 178 (3rd edit.) ; the Bari of Sutherland’s case, in 1721 ; Sir Lawrence JDundas v. The Officers of State , in 1779. (a) But whatever was the power of former monarchs over these revenues, at all events King George 4. had no power to make such a grant as this to Lord Bunglas, inasmuch as the hereditary revenue having been, at his accession, surrendered without reserve to Parliament, was afterwards settled on him by statute for his life only ; and therefore it was incompetent to him to alienate or burden it by any grants to have effect beyond his life. Besides, the grant in question was not bond fide a grant of an office, but a dis- guised gift of a pension, involving an illegal alienation of part of the revenues of the Crown ; and on that ground also the grant was invalid. Assuming that, for the preceding rea- sons, the warrant and commission follow- ing thereon in favour of Lord Bunglas, are to be set aside as void, it follows by necessary consequence that the deputation granted by his Lordship to the other ap- pellant, Captain Cunningham, must also be reduced, as flowing a non habente potes - tatem. The commission and deputation being reduced and set aside, the respon- dents are entitled to a decree against the appellants, discharging them from con- tinuing to act as chamberlain and collec- tor of Ettrick Forest, and from collecting or intromitting with, or receiving, or re- taining for their own benefit any portion of the Crown revenues payable from the lands and lordship of Ettrick Forest, or from the lands and lordship of Dunbar. On Pemberton’ s rising to reply the At- torney General intimated to the House that he should claim, as of right, on behalf of the Crown to reply generally. Pemberton objected. The hearing of counsel is regulated by a standing order of the House. (5) The right now claimed has never been exercised, nor ever before been claimed in this House, as far as a diligent search in the journals shows. It was claimed by the Attorney General, for the Commissioners of Woods and Forests, in the case of Monde v. Huskisson,(c) in Chancery, but not granted. The Attorney General, as informant in ordinary cases, has the reply, of course. In the Troutbeck (а) Mor. Diet. 15, 103. (б) No. 119, see 6 Cl. & F. 976. (c) 1 Sim 280, and 4 Russ. 121w, not re- ported on this point. 753] case, before Lord Chancellor Brougham , no such claim was made. Lord Brougham : That case was twice before me ; once on appeal from the Vice- Chancellor, and afterwards on a motion for a new trial. (a) The Attorney General did not, on the appeal, claim a reply after the reply for the appellant ; on the motion he was not heard at all. Pemberton : Where the Crown prosecutes the Attorney General has a reply, although no witnesses are called on either side. Lord Cottenham : In the case of Bex v. Peto,{b ) in the Court of Exchequer, there was no general reply claimed by the At- torney General. Pemberton : In Wall v. The Attorney General, (c) which was brought to this House on appeal from the Court of Ex- chequer, and on the preliminary objection that the appeal did not lie, the Attorney General did not claim a reply. Lord Campbell : I do not remember any case in which the Attorney General replied on the reply of the counsel for the plain- tiffs or pursuers. Pemberton : The most diligent search has been made in the journals of the House for a precedent without success. The Attorney General admitted that they did not find any precedent ; at the same time he submitted that he had a right to a general reply. Lord Cottenham : The question having been raised by the Attorney General must be decided. The Lords, after having conferred to- gether on the point, informed the Attorney General “ that it was not the usage of this House for the Attorney General to have a general reply on the part of the Crown.” Pemberton having concluded his reply for the appellants, the case was adjourned for consideration, (d) The first appeal ( The Lord Advocate against Lord Dunglas) , and the preliminary questions as to its competency and the obligation of the appellant to enter into recognisances, came now to be further argued.(e) The Attorney General, Anderson with him, for the appellants : The merits of the principal question in the action out of (a) Monkton v. Attorney General, 2 Russ. & M. 147, ] 67. (b) 1 Y. & J. 37, 169. (c) 7 Cl. & F. 81 m. ( d ) See further O'Connell v. Beg . 11 Cl. & F. 185; Beg. v. Archbishop of Canterbury, 11 Q.B. 560n ; Reg. v. Lords of the Treasury, 16 Q.B. 357; and 2 St. Tr. N.S. 1020, Appen- dix E. (e) Above, p. 6. [754 which this appeal arose have been already fully discussed in the appeal brought by the present respondents. The only ques- tions which remain to be argued are, first, the title of the Lord Advocate and the Commissioners of Woods and Forests to sue in the form which was adopted ; secondly, the liability of the Crown and its officers to pay costs. The other ques- tions, as to the competency of the appeal and the recognisances, reserved by the House, are dependent on the question of liability for costs. These three questions, therefore, may be considered together ; the question of title to sue being matter for separate argument. Lord Chancellor : If the Lord Advo- cate be not liable to pay costs of suit whether he succeed or fail, it will not be necessary to enter at all into the question of title to sue. Attorney General: Except in the view that the question of liability to costs should be decided against the Lord Advo- cate. It is the admitted prerogative of the Crown, suing by its law officers, not to pay costs in any case. There is no dis- tinction in that respect between suits at the direct instance of the Crown, and suits by the officers of particular departments of the Government. This prerogative is not for the private benefit of the monarch, but appertains to him in his public capa- city, and for the public benefit. In every suit in which the Crown is concerned in England it is represented by the Attorney General, but in no case is the Attorney General liable to pay costs of the suit. Even in Exchequer cases, where the infor- mations are often by private parties or public officers in the name of the Attorney General, neither he nor the particular department of the Government which he for the time represents has ever been held liable to pay costs. This prerogative of the Crown is co -extensive in all parts of the kingdom ; and the exemption is recog- nised in Scotland as well as in England in all cases where the Lord Advocate sues on behalf of the Crown or any department of the executive Government. The rule is universal that the Crown or any person suing on behalf of the Crown, in civil as well as criminal suits, does not pay costs — 3 Bla. Com. p. 400 (15 edit.), per Lord Mansfield in Wilkinson qui tarn v. Allot, {a) The King v. Miles, (b) The King's Advocate v. The Magistrates of Kirkwall, (c) The Attorney General v. The Earl of Ashhurn- ham.(d) («) Cowp. 367. (6) 7 T. R. 367. (c) 10 S. 321. (d) 1 Sim. & Stu. 397. The Lord Advocate against Lord Danglas, 1842. 755] The Lord Advocate against Lord Dunglas, 1842. [750 King William 4. , on his accession to the throne, surrendered the hereditary re- venues of the Crown in Scotland to the disposal of Parliament ; and by the Act 1 Will. 4. c. 25. they were declared to form part of the Consolidated Fund. By another Act, 2 & 3 Will. 4. c. 112., the powers of the Commissioners of Woods and Forests were extended to the collection and management of the land revenues of the Crow'n in Scotland. The interest of that body is just like that of the Lords of the Treasury, or any of the other public boards for public purposes ; and this action is at their instance, in exercise of their public duty as officers of the Crown, representing the public. The Lord Advo- cate is on the record merely as the law officer through whom the Crown, either directly or by its public officers, institutes legal proceedings in Scotland. Lord Cottenham : The interlocutors now under appeal do not appear to affect the Lord Advocate, but the Commissioners of Woods and Forests. Lord Lyndhurst,L.C.: The first reason of appeal is, “ because the appellant, as Lord Advocate of Scotland, has an undoubted title to prosecute the present action in name and on behalf of the Crown/’ &c. Attorney General : If the Commissioners represent the Crown, how could the ordi- nary forms of law to enforce payment of the costs be adopted or made available practically P Or of what effects could sale be made of the Crown property for payment of costs ? The private effects of the Commissioners or the Lord Advocate could not be held liable. If the Commis- sioners or the Lord Advocate, whichever be the proper party to deal with on the record, represent the Crown, and, if the Crown as so represented be not liable for costs, that consideration disposes of the question as to the necessity for either to enter into recognisances ; for if the Crown is not liable to pay costs, what is the use of the representative of the Crown enter- ing into recognisances ? The practice is conformable to the principle ; for, with the exception of a short period after 1809 while Mr. Munclell held the office of agent for the Crown, there is no instance of recognisances being entered into for the Lord Advocate, or for the Crown repre- sented by its public officers. It appears by the returns(u) made by the officers of the House that Mr. Mundell on some occa- sions entered into recognisances, and on others omitted doing so ; but on no occa- sion dees the question of obligation to enter into them appear to have been at all made the subject of discussion. And here (a) These returns are printed in 9 Cl. & F. 185. again practical considerations support the argument on principle ; for the recogni- sances are taken to the Crown by the officer of the House ; and if the costs are not paid, the payment can only be en- forced by estreating the recognisances and issuing a writ of extent, not against the effects of the Commissioners or of the Lord Advocate, but of the Crown. The ab- surdity of compelling the Crown to enter into recognisances to itself is too glaring. It follows, as matter of course, from these considerations, that any judgment of any court awarding costs against the Crown or its officers is a proper subject of appeal on the point of costs only, whether the judgment was right or wrong on the merits. The law as to the com- petency of appeals upon costs is well understood. Where costs are matter in the discretion of the inferior court, no appeal lies against the judgment of that court for costs merely. But where the court has no discretion as to costs, as where they are given by statute, and the court refuses them, or where the court gives them out of a fund not properly chargeable, or against a . party not liable, as in this case ; in short, wherever the court has no power to give or refuse costs to a party, and yet gives a judgment awarding costs, as if it had such power, in all such cases an appeal lies — Owen v. Griffith, {a) Taylor v. Popham,(b) Tody. Tod,{c) Burkett v. Spray, {d) Angel v. D avis, (e) Anderson was proceeding on the same side, but was stopped by the Lords. Hope (in the absence of Pemberton), for the respondents : The Commissioners of Woods and Forests were the pursuers in this action, and not the Crown. Lord Brougham : There is no order upon the Crown ; the interlocutor is against the Commissioners of Woods and Forests. But what Commissioners? There is a new set. The body does not now exist against whom the interlocutor is directed. Lord Chancellor: Suppose the inter- locutor to be right, how could you proceed to recover the costs in Scotland against the Commissioners ? Hope : If they acted beyond their power, and tortiously, they must be personally liable. The law is different in Scotland from what it is in England. Lord Brougham : But how could you enforce that liability in England, the Com- missioners not being the same ? (а) 1 Yes. 249. (б) 15 Yes. 72, 78. (c) 2 W. & S. 542. (d) 1 Russ. & M. 113; see p. 115, and cases there mentioned. (e) 4 M. Sc C. 3P0. 757 ] The Lord Advocate against Lord Dungio.s, 1842. [758 Hope : Against the Commissioners per- sonally who did the act, and the represen- tatives of such of them as may be dead. This action was brought by the Lord Advocate originally without any warrant from the Crown, and was therefore in its inception incompetent, so far as it was at the instance of the Crown. Being so in- competent, it was not sustained by the warrant subsequently produced; but the Court below determined that the action was not at the instance of the Crown, but at the instance of the Commissioners of Woods and Forests alone, and that the Commissioners had no title to sue for a reduction of the respondent’s commis- sion. (u) The Commissioners, therefore, in raising this action, were not exercising the powers vested in them by the statute 10 Geo. 4. c. 50., extended by the statute 3 & 4 Will. 4. c. 69., but were proceeding in excess of these powers, and in so doing were wrongdoers and guilty of a tortious act, for which they must be personally responsible. The rights of the Crown are not communicated to them, Watt v. Mor- ris, (b) and if the Lord Advocate had no right by virtue of his office to bring the action, then he can have no right to main- tain the appeal ; and if he brings an ap- peal which he cannot maintain, there is no reason in law or in equity why he should not be subjected to the costs of the appeal as well as of the action so incom- petently brought. But passing over this view of the case, it is to be observed that exemption from costs is not part of the prerogative of the Crown. In England liability for costs was not known to the common law ; it was in- troduced by the statute of Gfloucester(c) ; and the exemption of the Crown, so far as it may have existed, arose from an omission, the Crown not having been mentioned in the statute. Mr. Justice Blackstone says, in the passage (3rd vol. p. 400) before referred to, that it is beneath the dignity of the Crown to receive costs. But there are many cases, under statutes, in which the Crown receives costs, which is certainly not more beneath its dignity than to pay them. So great is the hard- ship of the exemption of the Crown from costs in charity informations deemed to be, that relators are joined as parties with the officer of the Crown for the sole pur- pose of being answerable for costs to the opposite party. But in England and Ire- land there is a diversity of practice as to this prerogative — The King v. Hassell, {d) (а) lieported in 15 D. 314. (б) 2 Bing. N.C. 189 ; see p. 19 9. (c) 6 Edw. 1. c. 1. (d) 1 M‘Cle. 110. The Attorney General v. Joyce, (a) and in Scotland the liability of public officers suing on behalf of the Crown to pay costs was declared in the case of the Lord, Ad- vocate, on behalf of The Lords of the Trea- sury v. Campbell's Trustees, (b) which is, in other respects also, very similar to the present case. Attorney General : The costs in that case, iu fact, were never paid. Lord Cotteniiam : Because, I suppose, there was nobody against whom any pro- ceedings to recover them could be en- forced. The Court certainly awarded the costs against the Lords of the Treasury. The same rule was recognised by Lord Meadow - bank in the case of The King’s Advocate v. The Magistrates of Kirkwall, (c) before re- ferred to. Were the rule as contended for by the other side, public functionaries might take up any man’s estate, or do any tortious act, or bring actions ever so absurd, under shelter of the prerogative of exemption from costs. The rule in Scotland is, that where the Crown sues directly by the Lord Advocate, it is not liable for costs, but where the Lord Ad- vocate sues for a public board then costs may be given. The seventeenth section of the statute 10 Geo. 4. c. 50. shows that it was not considered that immunity from costs would attach to the powers conferred upon the Commissioners of Woods and Forests, for special provision is thereby made as to the fund out of which the costs of suits at law or in equity against the Commissioners are to be provided. Lord Chancellor : As the revenue was vested in the Commissioners it was neces- sary that they should be enabled to sue ; they are substituted for the Crown ; and the seventeenth section is to protect per- sons dealing with the Commissioners from personal liability. What do you say, Mr. Attorney , as to that case of Campbell Trustees ? Attorney General: The judgment of the Court in that case was against the Lords of the Treasury, contrary to the opinion of the Lord Ordinary. The expenses have not been paid. The Lord Chancellor, Lord Brougham, Lord Cottenham, and Lord Campbell, having referred to the report of that case, said they found it difficult to understand it. Pemberton (having now arrived) referred to the case of Monck v. Huskissonfd ) a suit for specific performance, against the Commissioners of Woods aud Forests. (а) Hayes (Irel.) 205. (б) 14 S. 657. (c) 10 S. 328. (d) 1 Sim. 280, and 4 Russ. 121?/. 759] The Commissioners excepted to the Mas- ter’s report on the title, and the exception was overruled; and the course of the Court in overruling exceptions is to give costs against the party excepting. If the rule had been departed from, the reporters would have mentioned the matter. Attorney General: In that case the Com- missioners had signed the contract in their own individual names, and the suit was against them in the same character. Pemberton : That could not make any difference. They were defending the suit for the Crown. Lord Chancellor: It does not appear to me that there is any invariable prac- tice upon this subject. I should hesitate before I could come to the conclusion that there is a settled practice, as it is said, in the Courts of Scotland in cases of this kind. It does not appear to me that that judgment, in that single case of Campbell’ s Trustees, is sufficient to justify this House in coming to the same conclusion in the present case. Hope : Such a practice is urged in the other case to which I have referred, the case of the Magistrates of Kirlcwall, and is admitted by the counsel on the other side. Lord Chancellor : I see nothing in the case to satisfy me that there is anything of the kind admitted by the Court in that case. Hope .* It is said that the officers of ord- nance, and excise, and customs are liable. Lord Chancellor : That is said at the bar ; but the Court say, How can you make them liable ? Lord Brougham : I do not see that there is any assent by anybody to what the counsel says. The Lord Justice Clerk says, “ I should like to know how you could make good such a claim of expenses. I think you are bound to point out the fund, and how you are to operate upon it.” Lord Chancellor: I certainly do not see that there is any settled rule applicable to this case, in the way conceived by the Court below. Pemberton: Then I should submit that the question of costs would be matter of discretion with the judge ; and if so, they could not be the subject of appeal to your Lordships’ House, according to the prin- ciple laid down in Owen v. Griffiths, Tod v. Tod, and the other cases already cited. If your Lordships find that there is no settled rule the costs must, of course, de- pend upon the discretion of the judge. Lord Brougham : What was intended by the Lord Chancellor was, that there was no settled practice to take the Scotch cases out of the general rule. Pemberton : I understand the Lord Chan - [760 cellor's observation to be, that there is no general rule of practice on the subject. Lord Campbell : It is quite impossible that the practice maintained in that case in Scotland (Campbell’s Trustees ) could be of any standing. Lord Chancellor : The only case cited to us is that which occurred in the same year with the present proceeding. Lord Brougham : And that case is not intelligible to us from the report. We cannot consider it as an authority. Lord Chancellor : I feel certainly what the Lord Justice Clerk says, that you are bound to show you can enforce the claim against some party. How can you pro- ceed to recover these costs in the court below in case we grant them. Pemberton: We can recover them by action on the judgment, in the usual way. We do not apprehend that the Crown or its officers will abscond to avoid service of process. We do not think it necessary to trouble the House on the question of re- cognisances ; because, if the appellants are not liable to costs, of course they are nob bound to enter into recognisances. Lord Brougham : 1 certainly agree with my noble and learned friend that the case of Campbell’ s Trustees, {a) cannot at all lead us to the conclusion that there is a different rule prevailing in Scotland, from that which is held to govern the question as often as it is raised here ; and the other case of the Magistrates of Kirlcwall, iff) appears to me, so far as it proves anything, to go the other way. I must beg to enter my protest against the distinction which has been taken in arguing this case, both here and below, as to the prerogatives of the Crown being different, where the Crown is supposed to be dealing with what is called its private and individual property, and the public property. The prerogative of the Crown is precisely the same as regards what is called the property of the Sovereign, and the property of the public. It is only within the last half century that any private property has been acknowledged to exist in the Crown at all(c) ; prior to that all lands descending on the Crown, even from ancestors or collateral relatives, were held jure coronas. All the property of the Crown is held for public purposes, and is Crown property, except that which the individual Sovereign has retained a right to deal with in his private and per- sonal capacity ; it is public property, which the Crown administers for the maintenance of the State. With respect to the Crown lands, they are as much (а) 14 S. 657. (б) 10 S. 328. (c) 39 & 40 Geo. 3. c. 88. The Lord Advocate against Lord Dunglas, 1842. 761] The Lord Advocate against Lord Dunglas , 1842. [762' public property as any other property con- nected with the Consolidated Fund, or connected with any other branch of the revenue ; those lands are vested in the Crown for public purposes, to maintain the dignity of the Crown ; and the prero- gative applies as much to them as it does to any other branch of the revenue appro- priated to other services. Lord Cottenham : I am entirely of the same opinion. I apprehend there is no difference — and it would be strange indeed if there could be a difference — between the prerogative of the Crown in Scotland upon this point, and the prerogative of the Crown in any other part of the kingdom. The Attorney General in this country, and the Lord Advocate in Scotland, equally represent the Crown ; they are only acting for the Crown, and are not liable for costs. Then is this, or is it not, a proceeding by the Lord Advocate on behalf of the public ? Beyond all doubt it is. Whether the particular property is under the management of the Lords of the Treasury, or under the management of the Commissioners of Woods and Forests, is quite immaterial; the suit is for the benefit of the public ; and whether the public revenue is subject to an arrange- ment which leaves it in particular officers, or in the hands of the Crown, the preroga- tive of the Crown is not altered by that arrangement. The public officer suing for certain property in Scotland, the great question is, whether he is liable for costs, because the Court is of opinion there was an informality in the mode in which the Crown instituted its suit. It would require a very strong practice to maintain such a point ; but when we come to look into the supposed authorities which have been referred to, it is clear they are no authorities at all. From the case of the Magistrates of Kirkwall it is clear that the rule did not exist prior to 1832 ; no case is referred to antecedent to that. If the principle cannot be recog- nised, that case cannot be authority for this House to sanction this interlocutor of December 1836, founded on a decision in the month of March in the same year. I consider the interlocutor ;of the Court of Session erroneous ; I think, therefore, your Lordships would do right in revers- ing it. Lord Campbell concurred. It was accordingly ordered, “That the prayer of the respondents’ petition, to dismiss the appeal as incompetent, be re- fused. And it was further ordered and declared, that according to the usage of this House the Lord Advocate for Scotland, when suing as such on behalf of the Crown, or in matters in which the Crown is inter- ested, upon presenting an appeal to this House, is not required to enter into re- cognisances to answer the costs of the said appeal. And it was further ordered and adjudged, that the said interlocutors complained of in the said appeal, so far as the same relate to the costs ordered to be paid by the appellants, the Commissioners of Her Majesty’s Woods, Forests, &c., be reversed. And this House does not, under the circumstances, think it necessary to give any opinion as to the objection to the title of the pursuer to insist in the action, nor as to the other matters contained in the said interlocutors complained of in the said appeal.” The other appeal. Lord Lunglas v. The Officers of State for Scotland , having been appointed to be further considered this day— Lord Brougham moved the judgment of the House : — In January 1827 a warrant under the sign manual, and in September of the same year a grant under the great seal of Scotland, were issued to the appellant, purporting to confer upon him for life, the office of chamberlain and collector of the rents, revenues, feu duties, and other casualties of superiority issuing and pay- able to the Crown out of the lands and lordship of Ettrick Forest, with power to appoint a deputy or deputies. There was added the further grant of an annuity or yearly salary of 300Z. to Lord Lunglas himself, and 20Z. to his deputy or deputies ; and this annuity or salary of 320/. a year is stated to be as well in consideration of the said office as out of His Majesty’s royal bounty and favour to the said grantee. The rents and feu duties are admitted upon the pleadings to consist of money payments, which amount to the fixed sum of 235/. Is. 7 id. and never have exceeded that sum. The warrant and grant provide, that if the annuity or salary of 320Z. can- not be obtained from the rents of Ettrick Forest, the difference shall be made good out of the Crown revenues in the lordship of Dunbar. An action of reduction of this grant was brought first by the Lord Advocate on be- half of the Crown, and of the Commis- sioners of Woods and Forests ; and upon the objection being taken to the com- petency of the parties, an action was after- wards brought by the Officers of State,, with the concurrence of the Lord Advocate , on behalf of the Commissioners. The Court of Session sustained the objection to the competency of the action as first brought; and the judgment formed the subject of an appeal. They also, by a majority of the consulted judges, sustained, in the second action, the reasons of re- duction and set aside the grant, discharg- ing the defendants from the conclusion of / 63] The Lord Advocate against Lord Dunglas, 1842. [764 the summons to make repayment of the sums received by them, as incompetent in that action. It does not seem necessary to go into many of the reasons upon which this de- cision proceeded ; one is sufficient to set aside this grant. There can be no ground whatever for treating it as the grant of an office ; it was to all intents and purposes the grant of a pension. This appears clearly enough even from the language of the grant; but the annexation of a salary of 320Z. for collecting a revenue of 235Z., at once shows that it was a pension out of the land revenues, which was granted under the colour or disguise of granting an office. Nor does this disparity appear to have been matter of any doubt when the grant was made ; for provision is ex- pressly made that, whenever the moneys of the said collection come short, that is, the moneys for collecting which the salaries were granted, payment shall be made out of the Crown rents of Dunbar. This grant, therefore, was merely colourable as the grant of an office ; it was a shift for the grant of a pension, which could not be granted to endure beyond the life of the Sove- reign granting it (a) ; and being charged on the land revenue, it was, in fact, an alienation of a portion of the revenue. If the Sovereign could grant 300Z. a year out of that revenue he might have granted the whole ; and if he could grant any portion of it during the life of the grantee, there is no conceivable reason why he might not in the like manner have granted the whole away from the Crown in perpetuity. It thus becomes unnecessary to consider what power the Crown has of granting the office of chamberlain for the life of the grantee ; because this was in truth no grant of the office. But it may be ob- served that a very strong opinion was given by the learned judges of the Exche- quer in Scotland in 1721, in a case in which a grant for life had been made of the chamber] ainship of Boss, and 500Z. per annum, to Lord Sutherland. Their Lordships remonstrated with the Treasury . on the ground, expressly stated by them, that no such grant could be made either for life or years. Although this may be said to be in some sort an extra-judicial opinion, it is yet entitled to great respect considering the quarter from which it comes. It is well known — to say nothing (a) Pensions on the English Civil List were granted only for the life of the Sovereign (1 Anne, st. 1, c. 7, ss. 5 & 7), but were invari- ably renewed by Parliament at the beginning of the new reign. See Sir Robert Peel’s speech in the debate on Pensions on the Civil List, December 8, 1837, and the precedents there cited. — Hansard, vol. 29, p. 862. of such opinions taken in ancient times — that there was ope of great celebrity taken early in the last century. An im- portant principle respecting the consti- tutional power of the King in this country rests upon the opinion taken in the time of George 1. ; the judges ( dissentientibus Baron Prince and Justice Lyre ) reporting their opinion that the care and disposal of the children of the royal family belong to the reigning sovereign. (a) The law on this point has ever been regarded as settled by that opinion. An objection has been taken by these appellants on the ground that the sum- mons gave no reason of reduction, to raise the question, whether the grant was a bond fide gift of the office, or only a pension under colour of such gift. But, supposing that it was necessary to specify all th« reasons in the summons, and that the general words at the conclusion could not cover the particular reason, and supposing that the second reason of the summons, denying the power of the King to make such a grant, was not sufficient, still there seem to be particular words quite sufficient for the purpose. The third reason of reduction in the summons at the instance of the officers of state, ex- pressly states the grant to be — “ illegal and inept, as an alienation, and for a period beyond the King’s life, under the narra- tive and disguise of the office of chamberlain.” This seems to be the very reason in question. It has become unnecessary to examine how far the surrender and enactments at the commencement of their reigns, have in recent times tied up the hands of the successive Sovereigns. There appears, however, no reason for coming to a differ- ent conclusion on this subject from that which several of the judges below have arrived at, particularly Lord Jeffrey , after a very able and careful examination of the Civil List Acts. (6) The grant of the pen- (a) 11 St. Tr. 1195. ( b ) “ When the surrender of the hereditary revenues of the Crown was finally resolved on at the accession of George 3, it appears to have been carried into effect as to both parts of the United Kingdom in the very way that was to have been expected from their relative situa- tions. The hereditary revenues of both, we think, were regularly surrendered; and the dis- posal of them assumed simultaneously by Par- liament ; but the difference in the mode of dis- posal was that those of England were carried at once to the Consolidated Fund, out of which the whole amount of the English Civil List Avas thereafter to be defrayed ; while those of Scot- land were necessarily left, but expressly under parliamentary direction, to answer the local charges in that country to which they had 765] The Lord Advocate against Lord Dunglas , 1842. [766 sion in this case appears to be wholly inconsistent with these provisions. The judgment, therefore, which is appealed from, on the reduction, must be affirmed. Lord Campbell: I would merely take notice of one point which arose, to which my noble and learned friend has referred, namely, the construction of the Civil List Acts. It seems to me that the learned judges below have thrown out some ex- pressions upon that subject which are hardly to be defended, because they sup- posed that the King, by his speech, surrendered all his land revenues for ever to the use of the public, and that there was only a re-grant by Act of Parliament for his own life. It seems to me that that is an erroneous view of the subject, because the King’s speech would operate nothing ; it was only an intention indicated gra- hitherto been appropriated ; and granted back to the Sovereign for the term of his life ex- pressly, under burden of all these charges, and with a reserved power to the Parliament of dis- posing of any accruing surplus ; which power was afterwards distinctly exercised by the Act of 50 Geo. 3. c. 111., in virtue of his original surrender ; and also by several Acts of his im- mediate successor It was not till the accession of his late Majesty William 4, when it had been determined to break up the separate or local treasury arrange- ments of this country, and to consolidate the whole in the London offices, that such a trans- ference” (to the Consolidated Fund) ‘ was directed, the terms of general surrender, in so far as they related to the hereditary revenues, being, however, precisely the same as in the two former reigns.” — Opinion of Lords Jeffrey, Fullerton, and Cunningham, 1 Dunl. B. & M. 2nd S., 317. See further as to Scotch pensions, May's Constitutional History (6th edit.) vol. 1. 257, 260, 261. ciously by the sovereign, that he was willing to enter into such an arrangement if Parliament should approve of it ; and all these Civil List arrangements are only for the life of the sovereign, and are carried into effect by Acts of Parliament. With this qualification I entirely agree with the views taken by the learned judges in the court below, who considered this as a mere disguise for granting a pension under the name of an office ; and I think that the third reason is quite apparent, and covers it most expressly, though I think one of the learned judges intimates his opinion that the objection is not raised. It seems to me that this is clearly the grant of an annuity under the name of an office, and that that annuity undoubtedly fell in upon the death of the sovereign who granted it. Lord Brougham : I ought to mention to your Lordships that my noble, and learned friend (Lord Cottenham) who is not now present, entirely agrees with my noble and learned friend and myself in our view of the case. The main ground upon which I wished to look into the case was to see that that very objection was raised; for with respect to the pleadings I thought that there must be some ground for the objection which was urged ; but when we came to look at them the word “ disguise ” put it out of question. I move that the interlocutors be affirmed. The second appeal was accordingly dis- missed, and the interlocutors therein complained of were affirmed. Materials made use or. — The above report is taken from 9 Cl. & F. 173. The separate report in 1 Bell, App. 537 has also been con- sulted. 767] Viscount Canterbury against The Queen , 1842. [768 VISCOUNT CANTERBURY against THE' QUEEN. Judgment of Lord Lyndhurst, L.C., on a General Demurrer to a Petition of Right, May 3 and 4; June 29, 1842; February 11, 1843. (Reported in 1 Ph. 306, 12 L.J. N.S. 281, and 7 Jur. 224.) In 1834 (4 Will. 4.) the Royal Palace of Westminster, including the Houses of Parliament and the residence assigned to the Speaker, was burnt down, owing, as was alleged, to the negligence of the servants of the Commissioners of Woods and Forests. In 1 840 (3 Viet.) the Speaker presented a Petition of Right claiming 10,000/. damages for the loss of his plate, furniture, &c. 1. Petition of Righted) — Negligence of Crown Servants— Demise of the Crown. A petition of right will not lie against the Crown for damages for injury occasioned by the negligence or misconduct of persons in the service of the Crown, however appointed. Quaere, whether, supposing such a petition to lie, a wrong committed in the reign of one Sovereign could be made the subject of a petition against his successors. 2. G Anne c. 31. — Accidental Fires — Negligence of Owners’ Servants. Quaere , whether in the case of a fire occasioned by the negligence of *his servants, the master is within the protection extended by 6 Anne, c. 31. to persons in whose house a fire shall accidentally begin. (6) (a) See now, as to procedure, 23 & 24 Viet. c. 34. ( b ) See Filliter v. Pliippard, 11 Q.B. 347. Viscount Canterbury against The Queen. This was a Petition of Right, in which the petitioner, the Right Honourable Charles Manners- Sutton, Viscount Canter- bury, (a) claimed compensation from the Crown for the loss of property sustained by him, whilst Speaker of the House of Commons, in the great fire which de- stroyed the Houses of Parliament in 1834. The petition was presented in the year 1840, and was delivered by Her Majesty to the Lord Chancellor (Lord Cottenharn) with the usual indorsement, “ Let right be done.” An application was then made to his Lordship that a commission might issue to inquire of the truth of the allega- tions in the petition. The Attorney Gene- ral (Sir Frederich Polloch)(b ) contended, on behalf of the Crown, that the issuing of such a commission was not a matter of right but of discretion ; and that, even if the facts stated in the petition should be found to be true, the claim of the petitioner was liable to various insu- perable objections in point of law. The case was, therefore, one in which the Lord Chancellor would be justified in stopping the proceedings in limine by refusing a commission. On the other side it was argued that the Queen’s mandate (а) Speaker of the House of Commons, 1817-1834. (б) Afterwards Lord Chief Baron. endorsed upon the petition had made it the duty of the Lord Chancellor to put the claim in a proper train of investigation, and, for that purpose, to give the peti- tioner a record upon which a writ of error would lie(6 Kinnoull, 1842 . [792 I Bench held that an, action does not lie | against individuals for acts erroneously done by them in a corporate capacity, I from which detriment happens .to the l plaintiff, without proof of malice ; and in a note to that case is reported the case of | Drewe v. Coulton,(a) where the same was 1 laid down with respect to a returning ! officer of a parliamentary borough. Beau- \ rain v. Sir W. Scott(b) will be cited on the | other side. There it was held that an J action on the case could be maintained against a judge of the Ecclesiastical Court. But that was where the judge excom- municated a party for refusing to obey an order which the Court had no authority to make, and which was irregular and void, even according to the practice of that Court itself. The judge therefore was not held liable as judge ; for what he had done was not within his jurisdiction. In the. subsequent case of Ackerley v. Parkin- . son,(c) the proceedings were likewise ir- regular and void, but the defendant, as vicar-general to the Bishop of Chester, i had jurisdiction in the matter, and was therefore held to be protected. Lord Lykdhurst, L.C. : I think we may take that principle for granted, that where a party has jurisdiction to do an act, no action will lie against him for doing it, unless malice is shown. Lord Campbell : The difficulty here is, not to show, as one of the defenders’ pleas alleges, that the party might have been rejected after the trial but to make out that the Presbytery had discretion to take the presentee on trial or not. Attorney General: The same sort of proceeding ought to be adopted here as in cases where the quarter sessions refuse to hear an appeal. No one will maintain that, if the sessions improperly refuse 'to hear an appeal, the party grieved, instead of applying for a mandamus, may main- tain an action against the individual mem- bers. It is doubtful whether an action would lie even on proof of malice ; it is certain that the action will not lie without such proof. Suppose that this House had remitted the case to the Court of Session with in- structions, and the Court of Session had said that this House was wrong, ami had disobeyed the instructions, would the pre- sent respondents have had a right to maintain an action against the individual members of the Court ? Certainly not. The punishment for the disobedience would have been of a very different kind. In Boswell v. lmpey,{d) commissioners of (u) 1 East, 563?/. (6) 3 Camp. 388. (c) 3 M. & S. 411. (cl) 1 B. & C. 163. 793] Ferguson against Kmnoull, 1842. [794 bankrupt were held not liable to an action of trespass for committing a person whose answers had not been satisfactory to the commissioners. Now suppose the party committed had obtained from another court his liberation, and then the com- missioners had sent for the man again and put the same questions, and receiving the same answers had again committed him, they would not have been liable to an action at his suit. Such conduct on their part might have rendered them liable to be instantly degraded from their office as commissioners, but would not have rendered them liable to an action. In Tinsley x.,Nassau{a ) this privilege from liability to action was extended to sheriffs ; and it was held that trespass would not lie against a sheriff, for the act of his bailiff* taking the goods of A., under a warrant from the sheriff against the goods of B., in execution of the judgment of the County Court — on the ground that the sheriff was a constituent part of that court. In Garnett v. Ferrandih) a coroner was held not liable in trespass for having turned a person out of his Court. Fawcett v. Fowlisfc ) Mills v. Collett, (d) and Ash- croft v. Bourne ,(e) are all cases in which the same principle is recognised. Try the matter again by the rules applicable to cases of mandamus. Generally speak- ing, a mandamus will not be granted where there is another remedy; as, for instance, an action. That shows the courts to act on the distinction already stated. But suppose the mandamus to be issued and to be disobeyed, the public body disobeying it will not be liable to an action on the case for the injury so in- flicted upon the person at whose desire it was issued ; and obedience to a peremp- tory mandamus is not secured by an action. Lord Lyndhurst, L.C. : Suppose a man is ordered by Act of Parliament to do a certain thing, he may be compelled by mandamus and attachment to do it, but he may also be indicted for not doing it. Then why may not an individual injured by his nonfeasance bring an action if the act ordered to be done is a ministerial act ? Attorney General: If the act is merely ministerial the action would probably lie. If the act is not merely ministerial no such action would lie. No such action has ever been thought of against a magis- trate for his vote at the quarter sessions in refusing to hear an appeal, or refusing (а) 1 Moo. & M. 52. (б) 6B. &C. 611. (c) 7 B. & C. 394. (d) 3 Moo. & P. 242. (e) 3 B. & Ad. 684. ' to enforce a penalty. There is even a total absence of actions in cases where : members of a court, not of record— such, J for instance, as a small-debt court — have j given votes on questions coming before l them. Now this is an action against Mr. Ferguson for voting in a matter lawfully referred to the decision of the body of which he was a member. His vote was on a matter judicially to be decided on. The circumstance of putting the question to the vote shows that it was not purely a ministerial act. If it had been so why could not the minority have done the act? On this part of the argument it is clearly established that the Presbytery is a court. If so, there cannot be any action against it, nor against any member of it, for its judicial decisions. It is shown by autho- rities on one side, and by the total absence of authorities on the other, first, that judicial acts of any sort are not the subject of private actions; secondly, that where the act complained of is the act of a body corporate— a court, for instance — no action can be maintained against the members of the corporation who dissent from the others, whether that dissent does or does not prevail ; and at all events no action can be maintained in the case of indi- viduals whose public duties are of a ministerial character ; if what is done is done in that character, though erroneous, it is not actionable. Then as to the form of these proceed- ings. The judgment of this house was not directed against the individual mem- bers of the Presbytery. There was no judgment assoilzing them, or declaring them liable. Lord Lyndhurst, L.C. : The judgment was that their refusal to take the presentee on his trials was illegal ; they have refused again. Lord Brougham : But the Attorney General means to say that they referred to another body for their directions. Lord Lyndhurst, L.C. : But, when the law says that persons are bound to do a certain thing, they are not entitled to avoid doing it, by referring the party who requires the performance of the act to another body. If they refuse to do it they subject themselves to an action. Every refusal or neglect of what a party is bound by the law to perform, if it works a wrong to another, is the subject of an action. If a magistrate refuses to take an examination after a robbery com- mitted he is liable. Attorney General ; That is a ministerial act. Lord Lyndhurst, L.C.: And the Presby- tery acts ministerially in taking or refusing a man on his trials. Lord Cottenham : To enter on his trials 795 ] Ferguson against Kinnoull , 1842 . [796 is a ministerial act ; the Presbytery after- wards exercises a judicial power in deter- mining whether, upon his trial, he has proved himself fit for the ministry. Attorney General : The objection seems to take this shape, that the persons com- posing the Presbytery are ministerial offi- cers for the purpose of meeting together •and judicial from the moment of doing so. Can this distinction be maintained ? Sup- pose a judge to direct a case to be struck out of his paper, or to refuse to allow it to be entered there, is that a judicial act ? If not, he would be liable to an action. Yet it never has been supposed that he would be so liable. But (if the rule of liability is adopted as to the Presbytery, it must be true of every other body, and be applicable to all similar cases ; and where ministerial functions end, and judicial functions begin, will then be the question of difficulty to be decided in all nases whatever. Suppose the members of the Presbytery had simply refused to meet, they would not have been liable to an action for that refusal. Then how would the distinction of ministerial and judicial apply in that instance ? Lord Brougham : Your argument now, if good for anything, would destroy your former argument. You seemed before to concede that an attachment or an indict- ment would lie, yet you now argue as if no process whatever would lie against these persons. Attorney General: A public proceeding might be had against them, but no in- dictment could be maintained. The broad proposition, however, is that where any part of a transaction is of a judicial character, that character affects the whole of it. Lord Campbell : Suppose there was a peremptory mandamus to a bishop to license a vicar, and the bishop merely refused without saying that he had exa- mined the presentee and found him un- fit, would not an action lie against the bishop P Attorney General : That would be a mere ministerial act. But where the right of judging and deciding existed, as it does here, no action would lie. Finally, it is clear that there is no cause of action here, for as to the patron he retains the temporalities of the living till after the induction of the incumbent, and the presentee can have no vested right to them till actual admission. The damnum here is, therefore, as to both these parties, a damnum absque injuria, and consequently cannot form the subject of compensation in damages. Pemberton, Q.C.,(a) followed : No action (a) Afterwards Lord Kingsdown. will lie against the individual members of a body which was not directed by this house to do an act, but was simply stated j to be liable by law to perform that act. Lord Brougham : Is not that the ordi- nary form of command when directed to those who are declared to be bound and ■ astricted to do a certain act ? Pemberton : The decree adopts the terms of the libel and cannot go beyond i them. Here there were no petitory con- clusions to the libel, and there must therefore be a new action to enforce the i declaratory conclusions. Then comes the ' question as to the rights and duties of this corporate body, the Presbytery. The patron has a right to the stipend of this vacant benefice. If the Presbytery should refuse to admit the presentee the remedy would be by appeal to the Synod, and thence to the (General Assembly, whose sentence is final. (a) Letters, of horning might in certain cases issue against a Presbytery as against a society or body of men, but they would be for debts and not for matters of this kind.(&) There is no instance whatever in which the remedy now sought to be enforced has been put in force on a claim like the present. Where the patron’s rights are invaded a specific remedy is by the law of Scotland, as by that of England provided for him. There is no authority to show that an in- dividual of a body is liable in an action •for the act of the majority of that body, the act being that of a corporation and not of the individual. Lord Campbell : That argument would affect the proceeding by letters of horning, the minority being willing to obey would not be liable. Pemberton : The minority would be liable if the whole body was civilly answerable. What has been done here is not the sub- ject of action, but if an action will lie it must be against the corporate body alone, for no individual of that body could do the act the omission to do which is the sub- ject of complaint there. The Presbytery here, having once pronounced, a decision, could not review that decision, but was compelled to send it before the superior court. To make individual members of the Presbytery liable under such circum- stances will be to introduce for the first time a precedent for which no authority is to be found in the principles or practice of the law of Scotland. And it is, besides, perfectly clear neither of the respondents has sustained such an injury as to found a claim for compensation in damages. . (а) Ersk. Inst. bk. i. tit. 5, s. 16. (б) Ersk. Inst. bk. iv. tit. 3, s. 11. 797] Solicitor General (Sir William Follett),(a) (Wortley and Cook with him) for the re- spondents : It is not necessary for the respondents to show that the present action rests on the judgment of this House, or of the court below, given in any previous suit. It is an action against these parties for being guilty of illegally refusing to admit Mr. Young to his trials. It is assumed, but without justification, that the Presbytery is a corporation. It is an assembly of ministers of the Church of Scotland entrusted with the perform- ance of certain public duties. For certain purposes the Presbytery is a court ; but, as far as respects the proceedings in the present action, its duty is simply to take on trial the presentee of a patron, and to examine whether he is, so far as respects learning and character, fit to be admitted to the benefice. Lord Lyndhurst, L.C. : The Presbytery stands in place of the Ordinary. He is considered a corporation. Solicitor General : The Presbytery may be a corporation for this purpose, but not in the proper sense of the term. Ac- cording to the statute of 1592, the Presby- tery is a body to take the presentee on trials ; it has no discretion whatever to re- fuse to do so. But if the Presbytery might be supposed to have a discretion before the judgment of this House was pronounced, it has had none since. That judgment did direct the Presbytery to take the presentee on trials. (Counsel referred to the form of the libel and of the judgment.) It was absolutely necessary here, according to the forms of the law of Scotland, that the individual members of the Presbytery should be made parties to the suit. This is said to be an action against the members of a court ; and it is argued that no action will lie for things done by mem- bers of a court in their judicial character. The answer is that this was not an act with respect to which the Presbytery had any discretion, or which was one of a judi- cial character. It was an act which, by the language of the law, the Presbytery was bound and astricted to perform. That language clearly describes a ministerial act. If an individual is injured by the non-performance of such an act, he clearly has a remedy against the persons who were so bound to perform it. Then where is the force of any distinction arising from the circumstance that the act ought to be performed by several persons, instead of by one ? The wrong of the non-perform- ance cannot be affected by the numbers who commit it, so as to deprive the in- jured person of his lawful remedy. In the cases cited on the other side the dis- [798 tinction here taken is plainly perceiv- able. Justices of the peace have a discretion in some cases ; in others they have not. In the latter, as, for instance, where they are bound to take an examination, if they do not take it they are liable to an action. The Presbytery in Scotland cannot stand in a higher or better situation than the bishops in England. If a bishop should refuse to examine a presentee, an action would lie against him for refusal. In the 2nd Institute(a) it is said — If a man be excommunicated and offer to obey and perform the sentence, and the bishop refaseth to accept it and to assoile him, he shall have a writ to the bishop requiring him, upon the performing of the sentence, to assoile him, &c. ; and the reason thereof is, for that by the excommunication, the party is disabled to sue any action, or to have any remedy for any wrong done unto him, so long as he shall remain excommunicate. And also the party grieved may have his action upon the case against the bishop, in like manner as he may when the bishop doth excommunicate him for a matter which belongeth not to the ecclesiastical conu- sance. Also, the bishop in those cases may be indicted at the suit of the King.” And in “Doctor and Student ”(&) it is said that — “ if the excommunication be of record, and the judge ecclesiastical will not assoile the party when he ought to do so, the King may write to the judge spiritual commanding him to grant letters of absolution upon pain of contempt ; and if the said excommunication be not of record in the King’s Court, then the party may in such case have his action against the judge spiritual, for that he wmuld not make him his letters of absolution.” Here, therefore, is the case of an action against a judge for what partakes at least largely of judicial functions. All the authorities upon this point will be found collected in the case of Ackerley v. Parkin- son. (c) Lord Brougham : It does not appear that in quare imjpedit, before the Statute of Westminster 2, (cl) any action could be maintained at common law against the bishop in respect of the revenue of the living : but since then the value of the church and the length of time during which it has been vacant, have always been given in evidence with a view to damages. Lord Chancellor : Perhaps damages were not given at common law, because they were deemed to savour of simony. Lord Brougham : In all probability that is the right explanation. (а) 623. (б) Dial. 3, c. 32. (c) 3 M. & S. 411. (d) 13 Edw. 1. c. 5. Ferguson against Kinnoull, 1842. (a) Afterwards Attorney General. 799] Ferguson against Kinnoull, 1842. [800 Solicitor General : It is, however, doubtful whether damages were not given at com- mon law; for it appears by Blachstone,(a) that after order to admit in quare impedit , if the bishop did not admit, the party might have a writ quare non admisit, and obtain ample compensation thereon ; and that was clearly a common-law writ. Comyn(b ) is to the same effect. The case of Beaurain v. Scott(c) was for an excess of jurisdiction, but there the judge himself was held clearly liable. The power to proceed cri- minally does not exclude the right to pro- ceed civilly. The last sentence of the quotation already made from Lord Coke(d ) shows that to be so. A man may be in- dicted for non-repair of a bridge. He may also have an action brought against him for a private injury occasioned thereby. This case does not resemble that of a judge in a case where he has jurisdiction, and acts according to the best of his dis- cretion. The case of the alehouse licence, Bassett v. Godschallfe ) does not apply to the present; for there the plaintiff had no antecedent right to a licence, from the enjoyment of which he was excluded by the act of the magistrates. But where he has an existing right, which the co-opera- tion of the magistrate can alone enable him to enforce, if that co-operation is re- fused, he may maintain an action to re- cover damages for the injury he thereby sustains. Thus in the case of Green v. BucTdechurcheSyif) where the party was entitled to claim damages against the Hundred after giving information on the Statute of Hue and Cry,(^) and the magis- trate refused to take such information, it was held that he might maintain an ac- tion against the magistrate for such re- fusal, by which he was prevented from enforcing his claim against the hundred. That case is exactly in point with the pre- sent. Here the party has a right, from the exercise of which he has been unduly prevented by the act of the appellants. In the cases of commissioners of bank- rupt, coroners and magistrates, there are certain circumstances where, when those persons are acting judicially, no action will lie against them for what they do. But there are other circumstances in which they are only acting ministerially, and then no doubt can be entertained that an action may be maintained against them. The law of Scotland is the same as that of England on this point — Innes v. The (а) 3 Cora. 249, 250. (б) Courts, B. 15. (c) 3 Camp. 388. (d) 2 Inst. 623. (e) 3 Wils. 121. ) 5 C. & P. 168. 859 ] The Queen against Daniel M'Naaghton , 1843 . [860 venience to give personal intimation, and then j remain in London till the eleven days’ notice , agreed upon had expired, I trust this will be considered sufficient. “ Yours, &c. “Daniel M‘Naugiiton.” 1 Well, upon that, gentlemen, the account was transferred to the Bank of Glasgow, and he received a deposit receipt from the Bank of Glasgow for the larger sum, spe- cified in the deposit receipt found upon him at the time of his apprehension. Another letter was written by him in July 1842, which will be read to you, as it will be proved that he went to the shop of a gunsmith in the neighbourhood of Glas- gow, where he bought the pistols, and bargained with the man for them, express- ing a wish to have them of the same size, and desiring the man, if he had not them himself, to get them for him. In that month he bought the pistols, and in that month he came to London, and again in the September following. But on the 19th of July he wrote the letter relating to his entering into some business or partner- ship in London, in consequence of an ad- vertisement published in a London news- paper — the Spectator — of the 16th of that month, as follows : — “Optional Partnership. — Any gentleman having 1,000/. may invest them, on the most advantageous terms, in a very genteel business in London, attended with no risk, with the option, within a given period, of becoming a partner, and of ultimately succeeding to the whole busi- ness. In the meantime, security and liberal in- terest will be given for the money. — Apply by letter to ‘ B. B.,’ Mr. Hilton’s, bookseller, Penton Street, Pentonville.” On the 21st of July the advertiser re- ceived from the prisoner the following letter : — “Sir, Glasgow, 19th July 1842. “ My attention has been attracted to your advertisement in the Spectator newspaper, and as I am unemployed at present, and very anxious to obtain some, I have been induced to write, requesting you to state some particulars regard- ing the nature of the business which you are engaged. If immediate employment can be given or otherwise, what sort of security will be given for the money, and how much interest ? I may mention that I have been engaged in business on my own account for a few years, am under 30 years of age, and of very active and sober habits. “ The capital which I possess has been ac- quired by the most vigilant industry, but unfor- tunately does not amount to the exact sum specified in your advertisement. If nothing less will do, I will be sorry for it, but cannot help it ; if otherwise, have the goodness to write me at your earliest convenience, and address ‘ D. M. M.,’ 90, Clyde Street, Anderton’s front- j land, top flat.” He then came to London in that same month, and I shall call before you some of his friends and acquaintances who had known him in Glasgow, and who met with him and had various conversations with him, and with whom he walked by the house of Sir Robert Peel ; particularly, evidence will be given with regard to a conversation with the prisoner in the month of November 1842. He remained in London from that time down to the time when he committed the offence, in the month of January, and still lodged in Mrs. Dutton’s house. Other persons at that time were acquainted with the pri- soner ; these persons I will put into the witness-box — persons conversant with his manners and habits, as well as his land- lady, in order that you may form an opinion whether or not the prisoner was a respon- sible agent at the time he committed the the offence. On the other side, no doubt evidence will be offered to prove his insanity; and certainly it is some con- solation to me, in the discharge of a pain- ful duty, to know that the interests of the prisoner will be most ably and powerfully attended to ; but it will be your duty, and no doubt your desire also, to most atten- tively listen to the evidence on both sides, and to weigh the one against the other. What the precise nature or the details of the evidence on the part of the prisoner may be, I cannot say. I know not the exact nature of it, nor its extent ; but when it is adduced, you will say, upon that evi- dence, are you or are you not satisfied that the prisoner was, at the time he committed this crime, a responsible agent, that he did know right from wrong, and that he was aware of the consequences of the act which he committed ? If you think he was not, he ought to be acquitted. If that should be the result of the evidence he will be entitled to your acquittal. But if it fall short of that, if you think he was a respon- sible agent, I need not say to you that public justice requires a different verdict. It is a painful duty, gentlemen, but it is a duty which must be faithfully discharged ; and I am perfectly satisfied that when you have heard the witnesses, when you have maturely deliberated upon and considered the evidence, your verdict will be one of justice between the public and the pir- soner. Evidence for the Crown. James Silver . — Examined by Waddington. [I am a police constable of the A Division. On Friday, January 20, I was on duty at Charing Cross, twenty minutes before four o’clock in the afternoon. I was on the right side of the street from Whitehall. I heard a report of a pistol on the opposite side of the street. I looked over and saw a gentleman stagger, with his hand pressed 861 ] The Queen against Daniel M* Naught on y 1848 . [862 against the left side of his back. I also saw the prisoner returning a pistol with his right hand into the left side of his breast. He was behind the gentleman. When I saw him put the pistol into his bosom. I perceived that he drew another pistol from his right breast, with his left hand, and changed it into his right hand. I ran across the street and seized his right arm, and tripped his feet from under him. He struggled very violently, and the pistol went off upon the pavement. When I seized him he tried to raise his right arm and turn upon me, but I secured him so that he could not. I then took the pistol from his right hand, and also the other from his left breast. On the way to the station-house he said either “ he ” or “ she ” (I cannot recollect which) shall not break my peace of mind any longer. That was all he said. At the station-house I found ten pistol caps on him, three hi. Bank of England notes, a receipt for 7h0l. of the Glasgow and Shipping Bank, four sove- reigns, four half-crowns, one shilling and fourpence, a knife, a key, and a small coin. I also found upon him an address, J‘ Daniel M‘Haughton, 7, Poplar Row, Hew Kent Road,” which was found to be correct. From being frequently on duty in the neighbourhood of Whitehall and Downing Street, I had often seen Mr. Drummond. I knew his person well, and he it was whom the prisoner shot. I had often seen Mr. Drummond coming out of Sir Robert Peel’s house, and the Treasury, and the Privy Council offices. I produce the pistols and other articles found upon the prisoner. The date of the receipt from the Glasgow Bank is June 2, 1842, for 750L (The receipt was put in and read.) I also produce a pistol ball which I received from Colonel Drummond, the brother of the deceased gentleman. Cross-examined by Cockburn. A few seconds only elapsed between the firing of the first pistol and my seizing the arm of the prisoner. When I seized him his right hand was elevated. Benjamin Weston . — Examined by Gurney. I am an office porter. On the afternoon of the 20th of January, shortly before four o’clock, I was in the neighbourhood of Charing Cross when I heard the report of a pistol ; on turning round I saw a gen- tleman pointing to the prisoner, who was standing about three paces behind him. I then observed the prisoner draw back a pace or two and draw a pistol from his breast ; he then placed the barrel of his pistol in his left hand and cocked it ; I then observed that the gentleman was reeling, and the prisoner was pointing the pistol at him. At that moment the witness Silver ran up and sprung upon him, seiz- ing him by the arms. A scuffle then took place, and in the scuffle the second pistol was discharged. Cross-examined by Clarkson. The prisoner drew the pistol very deli- berately, but at the same time very quickly. As far as I can judge, it was a very cool, deliberate act. I was about eight paces distant, and did not hear the cocking of the pistol, but from his motion 1 could distinctly discern what he was doing. There was no one between the gentleman and the prisoner. Richard Jackson . — Examined by the Solicitor General. I am an apothecary in Charles Street, St. James’, Westminster. I knew the de- ceased, Mr. Drummond. On the afternoon of the 20th of January I was sent for to attend him at the banking house, Charing Cross. I satisfied myself that he had been wounded. I recommended his immediate removal to his own residence, and accom- panied him there in his carriage. Mr. Guthrie, Mr. Bransby Cooper, and other medical gentlemen, were soon in attend- ance upon him, and the ball was extracted the same day within an hour alter the injury was received, and I was present at the time. Mr. Dr ummond lingered till the following Wednesday, when he died. George James Guthrie , surgeon, spoke to the nature of the wound. The ball passed through the body, but not in a direct line. It wounded the diaphragm, and that is a wound which never heals under such circumstances. George Walter Shaw, a policeman, spoke to searching the prisoner’s lodgings at Ho. 7, .Poplar Row, Kent Road, and finding a powder flask, percussion caps, five leaden bullets, and a pistol key. The bullets fitted the pistols used by the prisoner. John Massey Tierney . — Examined by the Solicitor General. I am an inspector of the A Division of police. On the evening of the 20th of January I went to the station-house in Gar- dener’s Lane, where I found the prisoner in custody. Between the hours of five and eleven o’clock I visited the prisoner in his cell several times, and conversed with him. When I first went to him, I gave him a caution that in any conversation we might have together he should say nothing to criminate nimself, as it might be used in evidence against him. I cautioned him in 863] The Queen against Daniel M f Naughton , 1843. [864 the same manner on other occasions, when he said I acted fairly towards him, and that fair play was the English character. He said that he had left Glasgow about three months ; that he stayed at Liverpool seven days, and then came to London, where he had remained ever since ; he then said that he was in business at Glas- gow as a turner, but left that and was going into another business, but was pre- vented. I observed that he had a good share of money, to which he replied that j he had wrought hard for it, and that he | generally did the work of three ordinary | men daily. I told him I had been in Glasgow three or four weeks before. He then asked the name of the ship I went in. I said I had forgotten, but thought it was the British Queen. He said I must have been mistaken, it must have been the Princess Bayed, and I then recollected that was the name of the vessel. I then asked him whether he knew Mr. Richardson , the superintendent of the Gorbals police. He said he did, and added that he was con- sidered a more clever man than Miller (another police officer). I then asked him whether he came over in the Princess Roycd. He said he did not ; he came over in the Fire King. I asked him whether there was a railway from Edinburgh to Glasgow ? He told me there was, and, as far as I recol- lect, said they were thirty or forty miles apart. He also mentioned the fares. I told him that when I was going to Glas- gow I went through Paisley. I asked him whether he had ever been there. He said he had. I remarked that it was a great place for shawls. He admitted that it was ; that nearly all the inhabitants were wea- vers, but .he was sorry to say there were a great many of them out of employ. I then asked him whether he would take any refreshment, when he expressed a wish to have some coffee, with which he was sup- plied. In the course of conversation I asked him whether Drummond was a Scotch name. He answered that it was ; that it was the family name of the Earl of Perth , but the title had become extinct. On the following morning I again saw the prisoner, between eight and nine o’clock. On entering his cell I asked him whether he had had his breakfast. He replied in the affirmative, and asked to have some water to wash himself with. I then sent the constable, who had been sitting up with him, for some water, and when he had left the cell, I said to the prisoner — “ I suppose you will assign some reason to the magistrate this morning for the crime you have committed?” He said, “ I shall give a reason — a short one.” I then said, “ You might have stated any- thing you thought proper to me last night after the caution I gave you.” He then | told me that he was an object of persecu- i tion by the Tories, that they followed him from place to place with their persecution. He seemed inclined to go on with his statement, when I said, “ I suppose you are aware who the gentleman is you shot at? ” He said, “It is Sir Robert Peel, is it not?” I at first said “No,” but in a moment recollecting myself, said, “We do not exactly know who the gentleman is yet.” Then, turning round, I said, “ Re- collect the caution I gave you last night, not to say anything to criminate yourself, as it may be used in evidence against you ; ” to which he immediately replied, “But you will not use this against me ? ” I said, “I make you no promise; I gave you the caution.” I then left the cell, and in the course of the same day took him to the police court, Bow Street. Cross-examined by Cochburn. It was my duty to visit all the cells in the course of the night. Is it your duty to put questions to the prisoners ? — As long as I do not interfere with the case in point I do not see any harm in putting questions to prisoners. Did anyone direct you to put such ques- tions ? — Certainly not. What was your object in putting them ? — I wanted to get all the information I could about his former life. In order to give it in evidence against him ? — I never intended to give in evi- dence against him anything he told me till he mentioned the name of Sir Robert Peel. What was your motive for wishing to get information respecting his former life ? — Nothing that I know of but the anxiety of human nature, under such revolting circumstances, to know who and what he was. Now, do you mean to swear that you ever intended to suppress the evidence you have given ? — Not to suppress it, but I had no intention to mention it till he mentioned the name of Sir Robert Peel. I cannot give you the precise conversation which took place at each interview, but I have stated the substance of them all. A con- stable, of the name of Edwards, was pre- sent when the conversation took place, but he is not here to-day. As I did not intend to mention the conversations I did not make any notes of them, but I did make a memorandum of the conversation in which Sir Robert Peel’s name was mentioned. WTiy did you not have the morning con- versation in the presence of the constable ? — I wish he had been present. I had no motive for the conversation taking place in his absence. I first mentioned the conversation at Bow Street. Do you mean to swear that you had no 865 ] The Queen against Daniel M‘Naughton, 1843 . motive lurking in your mind when you asked him whether he intended to make any statement before the magistrate ? — I had no particular motive, but I imagined the responsibility was off my shoulders after the caution I gave him on the previous night. Was not the object of that interview to induce him to make that statement P — I did it for the purpose of letting him know that I was ready to receive any communi- cation he thought proper to make. When did you first mention these cir- cumstances ? — I first mentioned them to Mr. Burnaby at Bow Street on the morn- ing of the prisoner’s first examination, before the examination took place ; and to Mr. Hall, the chief magistrate, afterwards ; but I believe he was aware of it before the examination. I was not examined on the first occasion. Did you mention the conversation to anyone else ? — Yes ; I mentioned it to the Commissioners of Police, but I cannot say whether I mentioned it to Colonel Bowan. I sent a private report in writing to the Commissioners. Now, perhaps, you will tell me upon your solemn oath, whether, when you made that observation to him, you did not do so with the intention of extorting a confession from him P — The remark was thoughtlessly made. I wanted to turn the conversation, as I thought he was going to make a full confession, and I did not wish to hear it. Be-examined by the Solicitor General. I was subsequently examined at Bow Street, and I then heard the prisoner make a statement. That statement was taken in writing by the clerk and signed by the prisoner (handing in a document). This is the statement p — It is. The clerk of arraigns then read the statement as follows : — “ The Tories in my native city have compelled me to do this. They follow and persecute me wherever I go, and have entirely destroyed my peace of mind. They followed me to France, into Scotland, and all over England ; in fact, they follow me wherever I go. I cannot get no rest for them night or day. I cannot sleep at night in consequence of the course they pursue towards me. I believe they have driven me into a consumption. I am sure I shall never be the man I formerly was. I used to have good health and strength, but I have not now. They have accused me of crimes of which I am not guilty ; they do everything in their power to harass and persecute me ; in fact, they wish to murder me. It can be proved by evidence. That’s all I have to say.” Edward Howe. — Examined by Waddington. I am office keeper at the office of the Board of Trade at Whitehall. I know the [866 prisoner at the bar. I first saw him about a fortnight before the 20th January last. He was then standing at the top of the steps of the Council Office, which is at the corner of Downing Street. Sir Robert Peel's residence is in Privy Gardens, which is nearly opposite the end of Downing Street. Sir Robert Peel , at times, walks up Downing Street to his official residence. I saw him almost daily after that time, either on the Council Office steps or in the neighbourhood of the Treasury ; some- times I have seen him twice in one day. On the 20th of January, between three and four o’clock, I again observed the prisoner standing on the Council Office steps, when I said, “ You will excuse my taking the liberty, sir, but I belong to the office next door ; you are a police officer, are you not ? ” to which he replied, “Yes,” and I said, “ I suppose, then, it is all right.” I then went away, leaving him on the steps. In less than an hour after- wards I saw him in custody in Gardener’s Lane station-house. Not cross-examined. James Partridge . — Examined by Gurney. A police constable of the A Division, on duty at Whitehall, confirmed the last wit- ness. IBave frequently noticed the pri- soner in the neighbourhood of the Council Office between the 5th and the 20th of January. On the 13th I spoke to him, and asked him whether he was waiting for any person, when he replied that he was wait- ing for a gentleman, and immediately walked away in the direction of the Horse Guards. On the 20th I again spoke to him, about ten o’clock in the morning; he was standing on the last step leading to the Council Office, where he remained for about twenty minutes. I asked him whether he had seen the gentleman he had previously told me he was waiting for? He quickly replied “ No,” and in^ stantly walked away. He did not appear inclined to answer any questions. About twelve o’clock the same day I again saw the prisoner standing near Lady Dover's, eating a piece of bread. Lady Dover's is opposite Gwydyr House, at the back of which is the residence of Sir Robert Peel ; but it cannot be seen from Lady Dover's. Not cross-examined. Richard Jones . — Examined by the Solicitor General. A recruiting sergeant. Spoke to see- ing the prisoner frequently in the neigh- bourhood of Whitehall, walking between Whitehall and Charing Cross. On one oc- casion I asked him to join Her Majesty’s service, if he felt inclined to enlist, but he E E o 67432, 867] The Queen against Daniel M'Naughton, 1843. [868 said he had something better in view. On a subsequent day I said, “ Oh, what here again ! is there any particular regiment you wish to join ? ” but his reply was, “T don’t wish to enter the service, I am only waiting to see a gentleman.” On the 20th I again saw the prisoner near Downing Street, about fifteen yards from the steps of the Privy Council Office, when I pointed him out to one of the police. The next time I saw him he was in custody. Hot cross-examined. William Bale confirmed the last wit- ness. Hot cross-examined. John Brake.— Examined by Gurney. A police constable. Spoke to seeing the prisoner near the corner of Downing Street, loitering about; on the 18th of January I said to him, “ Some of the gentlemen inside have been speaking to me about your standing on the steps.” He said, “ Tell them it is a notion I have taken.” I said, “ If you are waiting for anyone you had better wait on the pave- ment, as they do not appear to like your standing on these steps, unless they know your business.” He said, “You can tell them their property is quite safe.” On that same day I spoke to him again, at the corner of Downing Street ; he then asked me to take a glass of ale; I de- clined. Hot cross-examined. Eliza Button. — Examined by the Solicitor General. I live at Ho. 7, Poplar Row, Hewing- ton. The prisoner first came to lodge at my house about last July twelve months. He remained with me for three months ; he generally went out between eight and nine in the morning, and sometimes later ; sometimes he went out without having his breakfast; he returned home gene- rally about eight or nine in the evening. I used to wash for him, and he always paid me punctually for it, and also my rent. When he left his lodging he was absent about a fortnight or three weeks, and I think he said he had been to France. I never thought him unsettled in his mind. He came back and then remained with me about three weeks, when he again quitted until the September following, when he returned. In the beginning of December he was poorly, but I never did anything for him in the house ; he asked me to get him a little barley water, which I did ; he had no medical man to attend him. He said he was suffering under a bad cold from neglect: he continued ill about a fortnight. 1 never had any con- versation with him whatever about his friends. I recollect seeing the prisoner on the morning of the day Mr. Brummond was shot ; I asked him if he had got the brushes for his boots, and he said he had. I gave him the clothes brush, but he did not use it. I saw him again on that day, about a quarter to ten o’clock, when he went out. I did not observe, on that morning, anything about his manner. When he came back to me in September last, he said he had been to Scotland. I asked him if he had seen the Queen when she visited there, and he said he had not, for he was not in that part. I asked him if he thought the Queen’s visit had done trade good, and he said he thought it had. He was always very regular in his habits. I never knew him to stay out. Cross-examined by Clarkson. He appeared to me to be a man of very sober habits. He was very reserved in his manners. He avoided conversation with people. I never saw any companion with him. On the morning Mr. Brummond was shot he went out and returned ; he ran up stairs, and then went out again. When he was ill, I observed that his head appeared to be bad, and that he had much fever. When I spoke to him about the Queen’s visit to Scotland, he seemed to wish to avoid my questions. He was not in the habit of looking people in the face, but always hung his head down. He spoke quickly. His habits appeared to me to be very penurious ; he had but one change of linen. I had no idea whatever that he was possessed of such a large sum of money as 700Z. Ho person ever called upon the prisoner while he lodged at my house. Whenever he came home at night he went to bed immediately. He never had a fire in his bedroom. He had no sitting-room. I always considered the pri- soner very sullen and reserved. There were five other lodgers in my house. I sleep in the room adjoining the prisoner’s. I have heard him get out of his bed at night, moan repeatedly, but it did not attract my attention, as I had observed nothing peculiar about him. I never heard him pacing the room of a night, but I have known him get out of bed and smoke a pipe. I thought the prisoner was a person out of a situation with very small means. I attributed his sullenness to "his difficulty in obtaining a situation. Re-examined by the Solicitor General. The prisoner used to go out and stay out all day until the evening. He has returned occasionally during the day. He 869 ] did nofc take his meals in my house. He breakfasted out, except when he was ill. His room was never lockod ; there were three table drawers in his room which had no locks. I saw the police find the owder flask and bullets in the table rawer ; but I never knew that he had such things. Tindal, C.J. : When he came to lodge with me first he brought a portmanteau with him, which he kept in his bedroom. He took it away when he left me the second time, but did not bring it back on coming to lodge with me the third time. He then had nothing but what was about his person. The change of linen must •have been in his pockets. He had no books lying about his room. I gave him one religious book — “ Extracts from the Bible.” I gave it him because he asked me for it. His habits were just the same on Sunday as on other days. William Henry Stevenson . — Examined by the Solicitor General. I am private secretary to Sir Robert Peel. The late Mr. Edward Drummond was also private secretary to Sir Robert Peel. Both Mr. Drummond and Sir Robert Peel were very much in the habit of going from the private residence of the premier, in Privy Gardens, to the house in Down- ing Street. In doing so you pass by the steps leading to the Council Office ; you may also go through the Treasury. John Gordon . — Examined by Waddington. I have known M ( Naughton about six years. I never saw anything particular about his conduct on any occasion. I name to London in November last, when I met the prisoner in St. Martin’s Lane. Prisoner said, “ I am in search of em- ployment.” He asked me where I was •going, and I told him to Mr. Hedge's, in Great Peter Street. We then walked on together and passed by the Horse Guards and down Parliament Street. I know Sir Robert Peel's house. I mentioned to him that that (pointing to the house) was where Sir Robert Peel stopped. He said, “ D n him, sink him,” or something like that. When we passed the Treasury, he said, “ Look across the street, there is where all the treasure and worth of the world is,” or something like that. When we got to Westminster Hall, we entered some of the courts, and afterwards we went to the Abbey. He said, “ You see how time has affected that massive build- ing,” or something like that. We then went to Great Peter Street. Cross-examined by Bodkin. I have known the prisoner many years. He appeared to me to be carrying on a [870 prosperous business in Glasgow. So far as my intercourse with him allowed me to judge, he appeared to be a particularly mild and inoffensive person. He would sometimes speak roughly. His manner did not appear changed when I met him in St. Martin’s Lane. I did not have any idea that his mind was disordered. John Caldwell and James Thompson, from whom the prisoner had rented workshops, deposed that they had not noticed any- thing strange in his manner. Alexander Martin, gunmaker of Paisley, proved selling the two pistols produced, to the prisoner in the previous July, also a flask, powder, and balls. William Ambrose, writer to the signet, and William Swanstead, curator of the Mechanics’ Institution, Glasgow, spoke to seeing the prisoner frequently at the insti- tution. Swanstead said he spoke toler- ably fair, and made as respectable an appearance as the rest. Witness never observed anything remarkable in his con- versation or manner. James Douglas, M.D. — Examined by the Solicitor General. I am a surgeon, residing at Glasgow. I am in the habit of giving lectures on ana- tomy. I recognise the prisoner as having been a student of mine last summer. I had opportunities of speaking to him almost every day ; I merely spoke to him on the subject of anatomy. He seemed to under- stand it. I scarcely had any opportunity of judging of his knowledge, because he did not attend the examinations. He at- tended in the dissecting room an hour a day. He used to be reading there. I never observed anything to lead me to suppose his mind was disordered. I am in the habit of explaining in a familiar manner to the students the different parts of the body, independently of the lectures ; I did so to M‘Naughton as well as others. I had not seen him until he was in custody since the last day of July. When I saw him in custody he knew me. I expressed my surprise at seeing him there. He made some monosyllabic reply, but I could not tell what. Cross-examined by Cockburn. I went to the gaol to see the prisoner by the direction of Mr. Maule, the solici- tor, simply for the purpose of identifying him. I observed nothing particular about him, except his being a man of little edu- cation. There was a want of polish about him. I think he was capable of under- standing what was said to him. Now, sir, do you mean to say you had an opportunity of forming a judgment as to the man’s sanity or insanity? — No; I E E 2 The Queen against Daniel M l Naughton, 1843 . 871 ] The Queen against Daniel M‘N augliton, 1843 . [872 merely came to say that he appeared to understand what he heard of my lectures. Joseph Forrester. — Examined by Wad - dington. I am a hair dresser in Glasgow. I have known the prisoner for the last eighteen months. I never saw anything in his manner which led me to think he was not in his right senses, or that he was wrong in his intellect. I used to stay with him sometimes half an hour, sometimes two hours. Cross-examined by Clarkson. I never suspected there was anything wrong in the prisoner’s mind. It never occurred to me that I should like to come to London as a witness. I am not aware how the attorneys for the prosecution found me out. I never offered myself as a witness to anyone else. I never told Mrs. Patterson that I wished to come as a witness for the prisoner, neither did I ever tell Wilson, the baker, that M‘Naugh-- ton was a “ daft ” man. I have spoken to Mrs. Patterson on several occasions re- specting the prisoner. One night she told me she wondered I said he was right, as I had once said he was wrong, but I denied having said anything of the sort. She then said that I was tipsy. I am quite sober now. [Other witnesses proved the letters read by the Solicitor General. \ Solicitor General: That, my Lord, is the case on behalf of the Crown. Cockburn applied to the Court to be al- lowed till the next morning before he entered upon the defence. He was him- self labouring under very severe indispo- sition ; and from the length to which the evidence on behalf of the prisoner would run, it would be impossible to close the proceedings that night. Tindal, C.J., inquired whether, if they adjourned at once, it was quite certain the remainder of the case would come within the compass of to-morrow. Cockburn replied that he hoped it would, but that would depend mainly upon the course pursued by the counsel for the Crown. Tindal, C.J., said, if there was a pro- bability of its being concluded to-morrow, the Court would at once accede to the learned counsel’s request. Cockburn said, that rather than make any statement which might mislead the Court he would go on till a late hour to- night. Tindal, C.J., said, that whatever might be the consequences, the Court would at once adjourn the proceedings, as the learned counsel had intimated that he did not feel he could in his present state do justice to the prisoner. Cockburn assured the Court, that he not only spoke with great pain, but he felt that if he proceeded he should not be able to address the jury at the length the im- ’ portance of the case required. Saturday, March 4, 1843. Speech for the Defence. Cockburn: May it please your Lord- ships, Gentlemen of the Jury, — I rise to address you on behalf of the unfortunate prisoner at the bar, who stands charged with the awful crime of murder, under a feeling of anxiety so intense — of responsi- bility so overwhelming, that I feel almost borne down by the weight of my solemn and difficult task. Gentlemen, believe me when I assure you that I say this, not by way of idle or common-place exordium, but as expressing the deep emotions by which my mind is agitated. I believe that you — I know that the numerous pro- fessional brethren by whom I see myself surrounded — will understand me when I say that of all the positions in which, in the discharge of our various duties in the different relations of life, a man may be placed, none can be more painful or more paralysing to the energies of the mind than that of an advocate to whom is com- mitted the defence of a fellow being in a matter involving life and death, and who, while deeply convinced that the defence which he has to offer is founded in truth and justice, yet sees in the circumstances by which the case is surrounded, that which makes him look forward with ap- prehension and trembling to the result. Gentlemen, if this were an ordinary case — if you had heard of it for the first time since you entered into that box — if the individual who has fallen a victim had been some obscure and unknown person, instead of one whose character, whose excellence, and whose fate had com- manded the approbation, the love, and the sympathy of all, I should feel no anxiety as to the issue of this trial. But alas ! can I dare to hope that even among you, who are to pass in judgment on the accused, there can be one who has not brought to the judgment-seat a mind im- bued with preconceived notions on the case which is the subject of this important inquiry P In all classes of this great community — in every corner of this vast metropolis — from end to end, even to the remotest confines of this extensive empire — has this case been already canvassed, discussed, determined — and that, with re- 873 ] ference only to tho worth of the victim, and the nature of the crime — not with reference to the state or condition of him by whom that crime has been committed ; and hence there has arisen in men’s minds an insatiate desire of vengeance — there has gone forth a wild and merciless cry for blood, to which you are called upon this day to minister ! Yet do I not com- plain. When I bear in mind how deeply the horror of assassination is stamped on the hearts of men, above all, on the cha- racters of Englishmen — and believe me, there breathes no one on God’s earth by whom that crime is more abhorred than by him who now addresses you, and who, deeply deploring the loss, and acknow- ledging the goodness— dwelt upon with such touching eloquence by my learned friend — of him who in this instance has been its victim, would fain add, if it may be permitted, an humble tribute to the memory of him who has been taken from us — when I bear in mind, I say. these things — I will not give way to one single feeling, I will not breathe one single murmur of complaint or surprise at the passionate excitement which has pervaded the public mind on this unfortunate oc- casion. But I shall, I trust, be forgiven if I give utterance to the feelings of fear and dread by which, on approaching this case, I find my mind borne down, lest the fierce and passionate resentment to which this event has given rise may interfere with the due performance of those sacred functions which you are now called upon to discharge. Yet, gentlemen, will I not give way to feelings of despair, or address you in the language of despondency. I am not unmindful of the presence in which I am to plead for the life of my client. I have before me British judges, to whom I pay no idle compliment when I say that they are possessed of all the qualities which can adorn their exalted station, or ensure to the accused, a fair, a patient, and an impartial hearing — I am addressing a British jury, a tribunal to which truth has seldom been a suppliant in vain — I stand in a British court, where Justice, with Mercy for her handmaid, sits enthroned on the noblest of her altars, dispelling by the brightness of her presence the clouds which occa- sionally gather over human intelligence, and awing into silence by the holiness of her eternal majesty the angry passions which at times intrude beyond the thresh- old of her sanctuary, and force their way even to the very steps of her throne. In the name of that eternal justice — in the name of that God, whose great attribute we are taught that justice is, I call upon you to enter upon the consideration of this case with minds divested of every preju- [874 dice, of every passion, of every feeling of excitement. In the name of all that is sacred and holy, I call upon you calmly to weigh the evidence which will be brought before you, and to give your judgment according to that evidence. And if this appeal be not, as I know it will not be, made to you in vain, then, gentlemen, I know the result, and I shall look to the issue without fear or apprehension. Gentlemen, my learned friend the So- licitor General , in stating this case to you, anticipated, with his usual acuteness and accuracy, the nature of the defence which would be set up. The defence upon which I shall rely will turn, not upon the denial of the act with which the prisoner is charged, but upon the state of his mind at the time he committed the act. There is no doubt, gentlemen, that, according to the law of Englaud, insanity absolves a man from responsibility and from the legal consequences which would otherwise attach to the violation of the law. And in this respect, indeed, the law of England goes no further than the law of every other civilised community on the face of the earth. It goes no further than what rea- son strictly prescribes ; and, if it be not too presumptuous to scan the judgments of a higher tribunal, it may not be too much to believe and hope that Providence, when in its inscrutable wisdom and its unfathomable councils, it thinks fit to lay upon a human being the heaviest and most appalling of all calamities to which, in this world of trial and suffering, human nature can be subjected— the deprivation of that reason, which is man’s only light and guide in the intricate and slippery paths of life — will absolve him from his responsibility to the laws of God as well as to those of man. The law, then, takes cognisance of that disease which obscures the intellect and poisons the very sources of thought and feeling in the human being — which de- prives man of reason, and converts him into the similitude of the lower animal — which bears down all the motives which usually stand as barriers around his con- duct, and bring him within the operation of the Divine and human law — leaving the unhappy sufferer to the wild impulses which his frantic imagination engenders, and which urge him on with ungovernable fury to the commission of acts which his better reason, when yet unclouded, would have abhorred. The law, therefore, holds that a human being in such a state is exempt from legal responsibility and legal punishment ; to hold otherwise would be to violate every principle of justice and humanity. The principle of the English law, therefore, as a general proposition, admits of no doubt whatsoever. But, at the same time, it would be idle to contend The Queen against Daniel M'Naughton, 1843 . 875] The Queen against Daniel M l Naughton, 1843. [876 that, in the practical application of this great principle, difficulties do not occur. And therefore it is that I claim your utmost attention whilst I lay before you the considerations which present them- selves to my mind upon this most impor- tant subject. I have already stated to you that the defence of the accused will rest upon his mental condition at the time when the offence was committed. The evidence upon which that defence is founded wifi be deserving of your most serious attention. I will content myself in the present stage by briefly stating its general character. It will be of a two- fold description. It will not be such as that by which my learned friend the Solicitor General has sought to anticipate the defence, and to establish the sanity of the prisoner. It will not be of that naked, vague, indefinite, and uncertain character ; it will be testimony positive and precise, and I say, from the bottom of my heart, that I believe it will carry conviction to the mind of everyone who shall hear it. It will be the evidence of persons who have known the prisoner from his infancy — of parties who have been brought into close and intimate contact with him — it will be the evidence of his relations, his friends, and his connexions ; but as the evidence of near relations and connexions is always open to suspicion and distrust, 1 rejoice to say that it will consist also of the statements of persons whose testimony will be beyond the reach of all suspicion or dispute. Gentlemen, I will call before you the authorities of his native place, to one and all of whom this unfortunate calamity with which it has pleased Provi- dence to afflict the prisoner at the bar was distinctly known — to all of whom he has from time to time, and again and again, applied for protection from the fancied miseries which his disordered imagination produced ; all of them I will call, and their evidence will leave no doubt upon your minds that this man has been the victim of a fierce and fearful delusion, which, after the intellect had become diseased, the moral sense broken down, and self-control destroyed, has led him on to the perpetration of the crime with which he now stands charged. In addition to this evidence I shall call before you mem- bers of the medical profession — men of intelligence, experience, skill, and un- doubted probity — who will tell you upon their oaths that it is their belief, their deliberate opinion, their deep conviction, that this man is mad, that he is the crea- ture of delusion, and the victim of un- governable impulses, which wholly take away from him the character of a reason- able and responsible being. I need not point out to you the great importance and value of the latter description of testimony. You will not, I am sure, think that what I say is with the view, in the slightest degreee, of disparaging your capacity, or of doubting your judgment, when I ven- ture to suggest to you that, of all the questions which can possibly come before a tribunal of this kind, the question of insanity is one which (except in those few glaring cases where its effects pervade the' whole of a man’s mind) is the most diffi- cult upon which men not scientifically acquainted with the subject can be called upon to decide, and upon which the great- est deference should be paid to the opinions* of those who have made the subject their peculiar study. It is now, I believe, a matter placed - beyond doubt that madness is a disease- of the body operating upon the mind, a disease of the cerebral organisation ; and that a precise and accurate know- ledge of this disease can only be ac- quired by those who have made it the subject of attention and experience, of long reflection, and of diligent investiga- tion. The very nature of the disease necessitates the seclusion of those who are its victims from the rest of the world. How can we, then, who in the ordinary- course of life are brought into contact only with the sane, be competent to judge of the nice and shadowy distinctions which mark the boundary line between mental soundness and mental disease ? I do not ask you, gentlemen, to place your judg- ment at the mercy, or to surrender your minds and understanding to the opinions, of any set of men — for after all, it must be left to your consciences to decide, — I only- point out to you the value and importance of this testimony, and the necessity there is that you should listen with patient attention to the evidence of men of skill and science, who have made insanity the subject of their especial attention. My- learned friend the Solicitor General has- directed your attention to the legal autho- rities ; and, perhaps, when those authorities shall have been minutely examined, no great difference will be found to exist between my learned friend and myself. But lest any confusion should be produced in your minds to the detriment of justice, you will forgive me if I pray your atten- tion to the observations which I deem it my duty to make on this branch of the subject. I think it will be quite impossible for any person, who brings a sound judg- ment to bear upon this judgment, when viewed with the aid of the light which science has thrown upon it, to come to the opinion that the ancient maxims, which, in times gone by, have been laid down for our guidance, can be taken still to obtain in the full force of the terms in which they 877] The Queen against Daniel M'Naughton , 1843. [878 wore laid down. It must not be forgotten that the knowledge of this disease in all its various forms is a matter of very recent growth. I feel that I may appeal to the many medical gentlemen I see around me, whether the knowledge and pathology of this disease has not within a few recent years first acquired the character of a science ? It is known to all that it is but as yesterday that the system of treatment, which in past ages — to the eternal disgrace of those ages — was pursued towards those whom it had pleased Heaven to visit with the heaviest of all human afflictions, and who were therefore best entitled to the tenderest care and most watchful kindness of their Christian brethren — it is but as yesterday, I say, that that system has been changed for another, which, thank God, exists to our honour, and to the com- fort and better prospect of recovery of the unfortunate diseased in mind ! It is but as yesterday that darkness and solitude — cut off from the rest of mankind like the lepers of old— the dismal cell, the bed of straw, the iron chain, and the inhuman scourge, were the fearful lot of those who were best entitled to human pity and to human sympathy, as being the victims of the most dreadful of all mortal calamities. This state of things has passed, or is pass- ing fast away. But in former times when it did exist, you will not wonder that these unhappy persons were looked upon with a different eye. Thank God, at last — though but at last — humanity and wisdom have penetrated, hand in hand, into the dreary abodes of these miserable beings, and whilst the one has poured the balm of consolation into the bosoms of the afflicted, the other has held the light of science over our hitherto imperfect knowledge of this dire disease, has ascertained its varying character, and marked its shadowy boun- daries, and taught us how, in gentleness and mercy, best to minister to the relief and restoration of the sufferer ! You can easily understand, gentlemen, that when it was the practice to separate these un- happy beings from the rest of mankind and to subject them to this cruel treat- ment, the person whose reason was but partially obscured would ultimately, and perhaps speedily, in most cases, be con- verted into a raving madman. You can easily understand, too, that when thus immured and shut up from the inspection of public inquiry, neglected, abandoned, overlooked —all the peculiar forms, and characteristics, and changes of this malady were lost sight of and unknown, and kept from the knowledge of mankind at large, and therefore how difficult it was to judge correctly concerning it. Thus I am ena- bled to understand how it was that crude maxims and singular propositions founded upon the hitherto partial knowledge of this disease, have been put forward and received as authority, although utterly inapplicable to many of the cases arising under the varied forms of insanity. Sci- ence is ever on the advance; and, no doubt, science of this kind, like all other, is in advance of the generality of mankind. It is a matter of science altogether ; and we who have the ordinary duties of our several stations and the business of our respective avocations to occupy our full attention, cannot be so well informed upon it as those who have scientifically pursued the study and the treatment of the disease. I think, then, we shall be fully justified in turning to the doctrines of matured science rather than to the maxims put forth in times when neither knowledge, nor philan- thropy, nor philosophy, nor common jus- tice had their full operations in discussions of this nature. My learned friend the Solicitor General has read to you the authority of Lord Kale upon the subject- matter of this inquiry. I hold in my hand perhaps the most scientific treatise that the age has produced upon the subject of insanity in relation to jurisprudence — it is the work of Dr. Bay, an American writer on medical jurisprudence, and a professor in one of the great national establishments of that country. [Counsel quoted the criticisms of Drs_ Bay (a) and Prichard (6) on the test sug- gested by Lord Hale in cases of partial insanity(c) : — “ Such a person as labouring under melan- choly distempers hath yet ordinarily as great understanding as ordinarily a child of fourteen years hath, is such a person as may be guilty of treason or felony.” On this Dr. Bay observes : — “ In the time of this eminent jurist insanity was a much less frequent disease than it is now, and the popular notions concerning it were derived from the observation of those wretched inmates of the mad-houses whom chains and stripes, cold and filth, had reduced to the stupidity of the idiot, or exasperated to the fury of a demon. Those nice shades of the disease in which the mind, without being wholly driven from its propriety, pertinaciously clings to some absurd delusion, were either regarded as something very diffe- rent from real madness, or were too far re- moved from the common gaze, and too soon converted by bad management into the more active forms of the disease, to enter much into the general idea entertained of madness. Could Lord Hale have contemplated the scenes pre- (а) “ A Treatise on the Medical Jurisprudence of Insanity, by I. Ray, M.D. Boston, 1838.” (б) “ On the different Forms of Insanity in relation to Jurisprudence, by James Cowles Prichard, M.D. London, 1842.” (c) 1 Hale, P.C. 30. 879 ] sented by the lunatic asylums of our own times, we should undoubtedly have received from him a very different doctrine for the regulation of the decisions of after generations.” This is not the first time, gentlemen, that this doctrine of Lord Sale has been discussed, with the view to ascertain its true interpretation. One of those master minds whose imperishable productions form part of the intellectual treasure and birthright of their country — the great Lord Erskine, whose brilliant mind never shone forth more conspicuously than upon the occasion to which I am about to al- lude, and whose sentiments it would be presumption and profanation to give in other than the language which fell from his own gifted lips at the celebrated trial to which allusion was made by my learned friend, put the true interpretation upon the doctrine of Lord Hale. I will read the passage, and I know you will pardon me the time I occupy, for who would not gladly spare the time to listen to obser- vations coming from such a man on so momentous an inquiry p [Counsel read a passage from Erskine’s speech in defence of Sadjield, concluding as follows : — ] “ Delusion, therefore, when there is no frenzy or raving madness, is the true character of in- sanity ; and when it cannot be predicated of a man standing for life or death for a crime, he ought not, in my opinion, to be acquitted, and if courts of law were to be governed by any other principle, every departure from sober, rational conduct would be an emancipation from criminal justice. I shall place my claim to your verdict upon no such dangerous foun- dation. I must convince you, not only that the unhappy prisoner was a lunatic within my own definition of lunacy, but that the act in question was the immediate, unqualified off- spring of the disease. You perceive, therefore, gentlemen, that the prisoner, in naming me for his counsel, has not obtained the assistance of a person who is disposed to carry the doctrine of insanity in his defence so far as even the books would warrant me in carrying it. He alone can be so emancipated whose disease (call it what you will) consists not merely in seeing with a prejudiced eye, or with odd and absurd particularities, differing, in many respects, from the contemplations of sober sense upon the actual existence of things ; but he only whose whole reasoning and corresponding conduct, though governed by the ordinary dictates of reason, proceed upon something which has no foun- dation or existence, (a) Such, gentlemen, is the language of this great man, and in this doctrine is the true interpretation of the law to be found. Gentlemen, that argument pre- vailed with the Court and jury in the case of the person on behalf of whom [880 it was urged. Upon that argument I take my stand this day. I will bring this case within the scope of the incon- trovertible and unanswerable reasoning which it comprises, and I feel perfectly confident that upon you, gentlemen, this reasoning will not be lost, but that the same result will follow in this as did in that memorable case. My learned friend, the Solicitor General , has cited to you one or two other cases which I will dispose of in a very few words. A prominent case in his list is that of Earl Ferrers. Here, too, I am glad that my learned friend has referred to the celebrated case of Sadjield, because that case furnishes me with some valuable observations of Lord Erskine’s, made on Sadfield’s trial, which will enable me to show how that great authority dis- posed of two of the cases relied on by my learned friend. I prefer to read to you, gentlemen, those observations rather than trouble you with any of my own. After stating Lord Ferrers * case and drawing the distinction between the species of in- sane delusion which produces erratic acts, and that species of insanity which I trust I shall be able to prove to you possessed the prisoner now at the bar. Lord Erskine says : — “ I have now lying before me the case of Earl Ferrers. Unquestionably there could not be a shadow of doubt, and none appears to have been entertained, of his guilt. I wish, indeed, nothing more than to contrast the two cases ; and so far am I from disputing either the prin eiple of that condemnation, or the evidence that was the foundation of it, that I invite you to examine whether any two instances in the whole body of the criminal law are more dia- metrically opposite to each other than the case of Earl Ferrers and that now before you. Lord Ferrers was divorced from his wife by Act of Parliament; and the person of the name of Johnson, who had been his steward, had taken part with the lady in that proceeding, and had conducted the business in carrying the Act through the two Houses. Lord Ferrers con- sequently wished to turn him out of a farm which he occupied under him ; but his estate being in trust, Johnson was supported by the trustees in his possession. There were also some differences respecting coal mines, and in consequence of both transactions Lord Ferrers took up the most violent resentment against him. Let me here observe,” continues Lord Erskine , “ that this was not a resentment founded upon any illusion; not a resentment forced upon a distempered mind by fallacious images, but de- pending upon actual circumstances and real facts ; and acting like any other man under the influence of malignant passions, he repeatedly declared that he would be revenged on Mr. Johnson, particularly for the part he had taken in depriving him of a contract respecting the mines. Now, suppose that Lord Ferrers could The Queen against Daniel J\T Naught on, 1843 . (a) *27 St. Tr. 1314. 881 ] The Queen against Daniel M‘Naughton, 1843 . [882 have showed that no difference with Mr. John- son had ever existed regarding his wife at all, that Mr. Johnson had never been his steward, and that he had only, from delusion, believed so when his situation in life was quite different. Suppose, further, that an illusive imagination had alone suggested to him that he had been thwarted by Johnson in his contract with these coal mines, there never having been any con- tract at all for coal mines ; in short, that the whole basis of his enmity was without any foundation in nature, and had been shown to have been a morbid image imperiously fastened upon his mind. Such a case as that would have exhibited a character of insanity in Lord Ferrers, extremely different from that in which it was presented by the evidence of his peers. Before them he only appeared as a man of turbulent passions, whose mind was disturbed by no fallacious images of things without exis- tence, whose quarrel with Johnson was founded upon no illusions, but upon existing facts, and whose resentment proceeded to the fatal con- summation with all the ordinary indications of mischief and malice, and who conducted his own defence with the greatest dexterity and skill. Who then could doubt that Lord Ferrers was a murderer ? When the act was done, he said, ‘I am glad I have done it. He was a villain, and I am revenged ’ ; but when he afterwards saw that the wound was probably mortal, and that it involved consequences fatal to himself, he desired the surgeon to take all possible care of his patient ; and, conscious of his crime, kept at bay the men who came with arms to arrest him, showing, from the beginning to the end, nothing that does not generally ac- company the crime for which he was condemned. He was proved, to be sure, to be a man subject to unreasonable prejudices, addicted to absurd practices, and agitated by violent passions ; but the act was not done under the dominion of uncontrollable disease ; and whether the mis- chief and malice were substantive or marked in the mind of a man whose passions bordered upon, or even amounted to insanity, it did not convince the lords that, under all the circum- stances of the case, he was not a fit object of criminal justice.” Thus, gentlemen, Lord Er shine showed the greatest possible contrast between the two cases; and I shall, in the case now before you, do the same thing. [Counsel also quoted Ershine's reference to Arnold's case, and Dr. Bay's arguments, to show that Arnold was insane . (a) Though Arnold was convicted, Lord Onslow , at whom he fired, thought he was insane, and pro- cured a reprieve.] Gentlemen, I will now go on to another case cited by my learned friend the Solicitor General. I allude to the case of Bowler, which is reported in Collinson on Lunacy. (6) I trust, gentlemen, I shall not be considered (а) Ray’s Medical Jurisprudence of Insanity, s. 10, p. 18. (б) 673n. open to the imputation of arrogance, or as travelling out of the line of my duty on the present occasion, if I say that I cannot bring myself to look upon that case with- out a deep and profound sense of shame and sorrow that such a decision as was there come to should ever have been re- solved upon by a British jury, or sanc- tioned by a British judge. What, when I remember that in that case Mr. Warburton, the keeper of a lunatic asylum, was called and examined, and that he stated that the prisoner Bowler had, some months pre- viously, been brought home apparently lifeless, since which time he had perceived a great alteration in his conduct and de- meanour ; that he would frequently dine at nine o’clock in the morning, eat his meat almost raw, and lie on the grass ex- posed to rain ; that his spirits were so dejected that it was necessary to watch him lest he should destroy himself — when I remember that it was further proved in that case that it was characteristic of in- sanity occasioned by epilepsy for the pa- tients to imbibe violent antipathies against particular individuals, even their dearest friends, and a desire of taking vengeance upon them, from causes wholly imaginary, which no persuasion could remove, and yet the patient might be rational and col- lected upon every other subject — when I also recollect that a commission of lunacy had been issued and an inquisition taken upon it, whereby the prisoner was found to have been insane from a period ante- rior to the offence — when all these recol- lections cross my mind, I cannot help looking upon that case with feelings bor- dering upon indignation. But, gentle- men, I rejoice to say — because it absolves me from the imputation of presumption or arrogance in thus differing from the doctrines laid down in that case by the learned judge and adopted by the jury — that in the view which I have taken of it I am borne out by the authority of an English judge now living amongst us — a judge who is, and I trust will long con- tinue to be, one of the brightest orna- ments of a profession which has, through all times, furnished such shining examples to the world. I refer, gentlemen, to Mr. Baron Alderson, and che opinion that learned judge pronounced upon Bowler's case on the recent trial of Oxford in this Court (a.) ; and I must say that I think, if the attention of my learned friend the Solicitor General had been drawn to that case, if he had heard or read the observations made by Mr. Baron Alderson on that occa- sion, he would not not now have pressed Bowler's case upon your notice. The At- (a) Above, p. 508. 883] The Queen against Daniel M'Naughton , 1843. [884 torney General of that day, the present Lord Campbell, in conducting the prosecu- tion against Oxford for shooting at Her Majesty, had, in his address to the jury, cited the case of Bowler. When he came to the close of it, Mr. Baron Alderson interrupted him with this observation, “ Bowler, I believe, was executed, and very barbarous it was !” Such was the expression of Mr. Baron Alderson upon the mention of Bowler’s case, and I rejoice to be able to cite it. 1 reverence the strength of feeling which alone could have given rise to that strength of expression ; and I am sure that if the attention of my learned friend had been directed to such an obser- vation coming from so high an authority, I know my learned friend’s discretion and sense of propriety too well to think he would have cited Bowler’s case for your guidance. Gentlemen, you will therefore, I am sure, dismiss that case from your minds after so clear and decided an ex- position of the fallacious views which led to that decision. Let the error in that case, I implore you, operate as a warning to you not to be carried away headlong by antiquated maxims or delusive doctrines. God grant that never in future times may any authority, judicial or otherwise, have reason in this case to deplore the conse- quences of a similar error ; never may it be in the power of any man to say of you, gentlemen, that you agreed to a verdict which in itself, or in its execution, de- served to be designated as barbarous. I pass now, gentlemen, to the next case cited by my learned friend the Solicitor General — the case of Bellingham. All I can say of that case is, that I believe, in the opinion of the most scientific men who have considered it, there now exists no doubt at all that Bellingham was a mad- man. Few, I believe, at this period, un- biassed by the political prejudices of the times, and examining the event as a matter of history, will read the report of Belling- ham’s trial without being forced to the conclusion that he was really mad, or, at the very least, that the little evidence which did appear relative to the state of his mind was strong enough to have en- titled him to a deliberate and thorough investigation of his case. The eminent writer I have already quoted — I mean Dr. I lay — in speaking of Bellingham’ s case, says (a) : — “ It appeared from the history of the accused, from his own account of the transactions that led to the fatal act, and from the testimony of several witnesses, that he laboured under many of those strange delusions that find a place only in the brains of a madman. His fixed belief that his own private grievances were national wrongs ; that his country’s diplomatic agents in a foreign land neglected to bear his complaints and assist him in his troubles, though they had in reality done more than could have reasonably been ex- pected of them ; his conviction, in which he was firm almost to the last, that his losses would be made good by the Government, even after he bad been repeatedly told, in consequence of re- peated applications in various quarters, that the Government would not interfere in his affairs ; and his determination, on the failure of all other means to bring his affairs before the country, to effect this purpose by assassinating the head of the Government, by which he would have an opportunity of making a public statement of his grievances and obtaining a triumph, which he never doubted, over the Attorney General ; these were all delusions, as wild and strange as those of seven-eighths of the inmates of any lunatic asylum in the land. And so obvious were they, that though they had not the aid of an Erskine to press them upon the ’attention of the jury, and though he himself denied the im- putation of insanity, the Government, as if vir- tually acknowledging their existence, contended for his responsibility on very different grounds.” Gentlemen, it is a fact that Bellingham was hanged within one week after the commission of the fatal act, while persons were on their way to England who had known him for years, and who were pre- pared to give decisive evidence of his in- sanity. He was tried, he was executed, notwithstanding the earnest appeal of Mr. Alley, his counsel, that time might be afforded him to obtain evidence as to the nature and extent of the malady to which Bellingham was subject. Moreover, on the occasion of the trial of Oxford in this Court, the then Attorney General, Sir John Campbell, now Lord Campbell, after Bow- ler’s case had been disposed of by the emphatic observation of Mr. Baron Alder - son, expressed himself in these words : — “ I will not refer to Bellingham's case, as there are some doubts as to the correctness of the mode in which that case was conducted.” I would that my learned friend the Soli- citor General had taken on this occasion the same course, and had exercised the same wise forbearance ; because the doubts expressed by the late Attorney General as to the propriety of the conduct of that case are not confined to that learned per- son, it being notorious that very serious doubts as to the propriety of that trial are commonly entertained among the profes- sion at large. Under such circumstances, gentlemen, I feel that it would have been much better if your attention had not been directed to that trial as it has been. I turn now to a very recent treatise on criminal law, which I am the more entitled to cite as an authority, because its learned author, Mr. Boscoe, has been snatched from us by (a) Ray’s Medical Jurisprudence, p. 29, s. 15. 885] the hand of death, (a) while his career was full of that promise which his great attain- ments and varied learning held out to us. Referring to the rule laid down in the case of Bellingham, and which you have been told was adopted by Lord Lyndlmrst in Bex v. Offord, Mr. Boscoe says : — “The direction does not appear to make a sufficient allowance for the incapacity of judging between right and wrong upon the very matter in question, as in all cases of monomania. ”(&) Mr. Boscoe quotes some remarks by an eminent writer on the criminal law of Scotland. Now I may here observe, that I have the authority of the present Lord Campbell, when Attorney General, in Ox- ford’s case, for saying that there is no difference between the law of Scotland and that of England in this respect; so that all which I may have to cite with respect to the law of Scotland will be quite applicable to the case in hand. Gentle- men, Mr. Boscoe goes on to say : — “The following observations of an eminent writer on the criminal law of Scotland (Mr. Alison) are applicable to the subject : ‘ Although a prisoner understands perfectly the distinction between right and wrong, yet if he labours, as is generally the case, under an illusion and deception in his own particular case, and is thereby incapable of applying it correctly to his own conduct, he is in that state of mental aberration which renders him not criminally answerable for his actions. For example, a mad person may be perfectly aware that murder is a crime, and will admit it, if pressed on the subject; still he may conceive that the homi- cide he has committed was nowise blamable, because the deceased had engaged in a con- spiracy, with others, against his own life, or was his mortal enemy, who had wounded him in his dearest interests, or was the devil incarnate, whom it was the duty of every good Christian to meet with weapons of carnal warfare.’ ” These observations of Mr. Boscoe and Mr. Alison, when applied to the cases of Bellingham, of Arnold, and of Offord, show that they are not cases to be relied upon as perfect — that the doctrine laid down in them cannot be taken as an unerring criterion by a jury. Unless you attend to all the circumstances of the particular case, you may be led into disastrous results, which it must be your most anxious wish to avoid. [Counsel next referred to Offord’ s case, and read the re- port (c) to the jury.] The verdict was not guilty. I think my learned friend did not state to you the verdict. (а) Mr. Roscoe died March 25, 1836, in his 37th year. (б) Roscoe’s Criminal Evidence, p, 876. (c) 5 C. & P. 168 ; and see above, p. 547. [88G Solicitor General : I beg your pardon ; I did. Coclcburn : If so, I was in error, and on my learned friend’s statement, I with- draw at once the observation I made. I am sorry that I made it ; and here let me- take the opportunity of expressing my sense— and I am sure my learned friend will not object to receive such a tribute from me — of the forbearance and merciful consideration with which he opened ana has conducted this case. I am bound also to say, that whatever facilities could be- afforded to the defence, have been readily granted to the prisoner’s friends by those who represent the Crown on this occasion. But to resume. With respect, then, to Offord’ s case, I have only to remind you that Offord was acquitted on the ground of insanity. Here, gentlemen, I shall prove a much stronger case ; and when I have done so, you will, I feel confident, have no hesitation in following the prece- dent set you by the jury in that case. So much, gentlemen, for the legal authorities cited by my learned friend the Solicitor General; but, after all, as was observed by him, this is not so much a question of law as of fact. That which you have to determine is, whether the prisoner at the bar is guilty of the crime of wilful murder. Now, by “ wilful ” must be understood, not the mere will that makes a man raise his hand against another ; not a blind instinct that leads to the commission of an irrational act, because the brute creation, the beasts of the field, have, in that sense, a will ; but by will, with reference to human action, must be understood the necessary moral sense that guides and directs the volition, acting on it through the medium of reason. I quite agree with my learned friend, that it is a question — being, namely, whether this moral sense exists or not — of fact rather than of law. At the same time, whatever light legal authorities may afford on the one hand, or philosophy and science on the other, we ought to avail ourselves of either with grateful alacrity. This being premised, I will now take the liberty of making a few general observations upon what appears to .me to be the true view of the nature of this disease with reference to the applica- tion of the important principle of criminal responsibility. To the most superficial observer who has contemplated the mind of man, it must be perfectly obvious that the functions of the mind are of a twofold nature — those of the intellect or faculty of thought alone — such as perception, judg- ment, reasoning— and again, those of the moral faculties — the sentiments, affections, propensities, and passions, which it has- pleased Heaven, for its own wise purposes, to implant in the nature of man. It is The Queen against Daniel M l Naughton, 1843. 887] The Queen against Daniel M'Naughton , 1843. [888 now received as an admitted principle by- all inquirers, that the seat of the mental disease termed insanity is the cerebral organisation ; that is to say, the brain of man. Whatever and wherever may be the seat of the immaterial man, one thing appears perfectly clear to human observa- tion, namely — that the point which con- nects the immaterial and the material man — is the brain; and, furthermore, it is clear that all defects in the cerebral organisation, whether congenital — that is to say, born with a man — or supervening either by disease or by natural and gradual decay, have the effect of impairing and deranging the faculties and functions of the immaterial mind. The soul is there as when first the Maker breathed it into man ; but the exercise of the intellectual and moral faculties is vitiated and dis- ordered. Again, a further view of the subject is this — it is one which has only been perfectly understood and elucidated in its full extent by the inquiries of modern times. By any one of the legion of casualties by which the material organi- sation may be affected, any one or all of these various faculties of the mind may be disordered, — the perception, the judg- ment, the reason, the sentiments, the affections, the propensities, the passions — any one or all may become subject to insanity ; and the mistake existing in ancient times, which the light of modern science has dispelled, lay in supposing that in order that a man should be mad — incapable of judging between right and wrong, or of exercising that self-control and dominion, without which the know- ledge of right and wrong would become vague and useless — it was necessary that he should exhibit those symptoms which would amount to total prostration of the intellect; whereas modern science has incontrovertibly established that any one of these intellectual and moral functions of the mind may be subject to separate disease, and thereby man may be rendered the victim of the most fearful delusions, the slave of uncontrollable impulses im- pelling or rather compelling him to the commission of acts such as that which has given rise to the case now under your consideration. This is the view of the subject on which all scientific authorities are agreed — a view not only entertained by medical, but also by legal authorities. It is almost with a blush that I now turn from the authorities in our own books, to those which I find in the works of the Scottish writers on juris- prudence. I turn to the celebrated work of a profound and scientific jurist, I allude to Baron Hume. He treats on the very subject which is now, gentlemen, under your consideration — namely, the test of insanity as a defence with reference to criminal acts, and he says (a ) : — “ To serve the purpose, therefore, of an excuse in law, the disorder must amount to absolute alienation of reason, 4 ut continua mentis aliena- tione , omni intellectu car eat ’ — such a disease as deprives the patient of the knowledge of the true disposition of things about him, and of the discernment of friend from foe, and gives him up to the impulse of his own distempered fancy, divested of all self-government or control of his passions. Whether it should be added to the description that he must have lost all knowledge of good and evil, right and wrong, is a more delicate question, and fit, perhaps, to be resolved differently, according to the sense in which it is understood. If it be put in this sense in a case, for instance, of murder — Did the panel(6) know that murder was a crime ? Would he have answered on the question, that it is wrong to kill a neighbour ? This is hardly to be reputed a just criterion of such a state of soundness as ought to make a man accountable in law for his acts. Because it may happen to a person, to answer in this way, who yet is so absolutely mad as to have lost all true observation of facts, all understanding of the good or bad intention of those who are about him, or even the know- ledge of their persons. But if the question is put in this other and more special sense, as relative to the act done by the panel, and his understanding of the particular situation in which he conceived himself to stand. Did he at that moment understand the evil of what he did ? Was he impressed with the consciousness of guilt and fear of punishment ? it is then a pertinent and a material question, but which cannot, to any substantial purpose, be answered, without taking into consideration the whole circumstances of the situation. Every judg- ment in the matter of right and wrong supposes a case, or state of facts, to which it applies. And though the panel may have that vestige of reason which may enable him to answer in the general, that murder is a crime, yet if he cannot distinguish his friend from his enemy, or a benefit from an injury, but conceive everything about him to be the reverse of what it really is, and mistake the illusions of his fancy for reali- ties in respect of his own condition and that of others, those remains of intellect are of no use to him towards the government of his actions, nor in enabling him to form a judgment on any particular situation or conjunction of what is right or wrong with regard to it ; if he does not know the person of his friend or neighbour, or though he do know him, if he is possessed with the vain conceit that he is come there to destroy him, or that he has already done him the most cruel injuries, and that all about him are engaged in one foul conspiracy to abuse him, as well might he be utterly ignorant of the quality of murder. Proceeding as it does on a false case or conjuration of his own fancy, his judgment of right and wrong, as to any respon- (а) Hume’s Commentaries on the Law of Scotland, vol. i. 37. (б) The prisoner. 889 ] sibility that should attend it, is truly the same as none at all. It is, therefore, only in this com- plete and appropriated sense as relative to the particular thing done, and the situation of the panel’s feelings and consciousness on that occa- sion, that this inquiry concerning his intelligence of moral good or evil is material, and not in any other or larger sense.” This, gentlemen, I take to be the true interpretation and construction of the law. The question is not here, as my learned friend would have you think, whether this individual knew that he was killing another when he raised his hand to de- stroy him, although he might be under a delusion, but whether under that delusion of mind he did an act which he would not have done under any other circumstances, save under the impulse of the delusion which he could not control, and out of which delusion alone the act itself arose. Again, gentlemen, I must have recourse to the observations of that eminent man, Lord Ershine. I am anxious, most anxious on this difficult subject, feeling deeply my own incapacity, and that I am but- as the blind leading the blind (you will forgive me the expression) ; I am, I repeat, anxious to avail myself as much as possible of the great light which others have thrown upon the subject, and to avoid any obser- vations of my own by referring to the remarks of much greater minds. I turn again, therefore, to the remarks of Lord Ershine on the subject of delusion, in the case which has so often been mentioned. The case here is one of delusion — the act in question is connected with that delusion out of which, and out of which alone, it sprung. “ Delusion,” says Lord Ershine, “therefore, where there is no frenzy or raving madness, is the true character of insanity, and where it cannot he predicated of a man standing for life or death for a crime, he ought not, in my opinion, to he acquitted ; and if the courts of law were to he governed by any other prin- ciple, every departure from sober rational con- duct would he emancipation from criminal jus- tice. I shall place my claim to your verdict upon no such dangerous foundation.” And, gentlemen, I following at an im- measurable distance that great man, I, too, will place my claim to your verdict on no such dangerous foundation. “ I must convince you,” said Lord Ershine, “not only that the unhappy prisoner was a lunatic within my own definition of lunacy, hut that the act in question was the immediate unqualified offspring of this disease.” I accept this construction of the law : by that interpretation, coupled with and [890 qualified by the conditions annexed to it, I will abide. I am bound to show that the prisoner was acting under a delusion, and that the act sprung out of that delu- sion, and I will show it. I will show it by evidence irresistibly strong ; and when I have done so, I shall be entitled to your verdict. On the other hand, my learned friend the Solicitor General told you yes- terday that in the case before you the prisoner had some rationality, because in the ordinary relations of life he had mani- fested ordinary sagacity, and that on this account you must come to the conclusion that he was not insane on any point, and that the act with which he now stands charged was not the result of delusion. I had thought that the many occasions upon which this matter had been dis- cussed would have rendered such a doc- trine as obsolete and exploded in a court of law as it is everywhere else. Let my learned friend ask any of the medical gentlemen who surround him, and whose assistance he has on this occasion, if they will come forward and pledge their pro- fessional reputation, as well as their moral character, to the assertion that shall deny the proposition that a man may be a frenzied lunatic on one point, and yet on all others be capable of all the operations of the human mind, possessed of a high degree of sagacity, in possession of full rational powers, undisturbed by evil or excessive passions. On this point Dr. Bay, (a) in the following observations (the result of his long experience), disposes of the very objection which my learned friend has put forward on the present occasion : — “ The purest minds cannot express greater horror and loathing of various crimes than mad- men often do, and from precisely the same causes. Their abstract conceptions of crime, not being perverted by the influence of disease, present its hideous outlines as strongly defined as they ever were in the healthiest condition ; and the disapprobation they express at the sight arises from sincere and honest convictions. The particular criminal act, however, becomes di- vorced in their minds from its relations to crime in the abstract ; and being regarded only in connexion with some favourite object which it may help to obtain, and which they see no reason to refrain from pursuing, is viewed, in fact, as of a highly laudable and meritorious nature. Herein, then, consists their insanity, not in preferring vice to virtue, in applauding crime and ridiculing justice, but in being un- able to discern the essential identity of nature between a particular crime and all other crimes, whereby they are led to approve what, in gene- ral terms, they have already condemned. It is a fact not calculated to increase our faith in the march of intellect, that the very trait peculiarly characteristic of insanity has been seized upon The Queen against Daniel M‘Naughton, 1843 . (a) Ray’s Med. Jurisp. s. 17, p. 32. 891] as conclusive proof of sanity in doubtful cases : and thus the infirmity that entitles one to pro- tection, is tortured into a good and sufficient reason for completing his ruin.” I trust, gentlemen, that these observa- tions, proceeding from a man of the most scientific observation, having all the faci- lities of studying everything connected with the subject, will not be lost upon you. I could mention case after case — I could ■continue till the sun should go down on my uncompleted task — I could cite case .after case, in which the intellectual faculty was so impaired that the insanity upon one point was beyond all doubt, and yet where there was upon all others the utmost sagacity and intelligence. You will see that all the evidence of my learned friend the Solicitor General relates to the ordinary relations of a man’s life. That does not effect the real question. It may be that this man understood the nature of right and wrong on general subjects — it may be that he was competent to manage his own affairs, that he could fulfil his part in the different relations of life, that he was capable of transacting all ordinary busi- ness. I grant it. But admitting all this, it does not follow that he was not subject to delusion, and insane. If I had repre- sented this as the case of a man altogether subject to a total frenzy — that all traces of human reason were obliterated and gone — that his life was one perpetual series of paroxysms of rage and fury, my learned friend might well have met me with the evidence he has produced upon the present occasion ; but when I put my case upon the other ground, that of partial delusion, my learned friend has been adducing evidence which is altogether beside the question. I can show you instances in which a man was, on some particular point, to all intents and purposes mad— where reason had lost its empire — where the moral sense was effaced and gone — where all control, all self-dominion, was lost for ever under one particular delu- sion ; and yet where in all the moral and •social relations of life there was, in all other respects, no neglect, no irrationality, where the man might have gone through life without his infirmity being known to any except those to whom a knowledge of the particular delusion had been com- municated. My learned friend has also re- marked upon the silent design and con- trivance which the prisoner manifested ^lpon the occasion in question, as well as upon his rationality in the ordinary trans- actions of life. But my friend forgets that it is an established fact in the history of this disease, perhaps one of its most striking phenomena, that a man may be mad, may be under the influence of a wild and insane delusion, — one who, all [892 barriers of self-control being broken down, is driven by frenzied impulse into crime, and yet, in carrying out the fell purposes which a diseased mind has suggested, may show all the skill, subtlety, and cunning, which the most intelligent and sane would have exhibited. Just so in the case of Hadfield ; it was urged against Lord Hrskine, that Hadfield could not be mad, because he had shown so much cunning, subtlety, deliberation, and design, in the whole of the circumstances which led to the perpetration of the act with which he was' charged. In the present case, my learned friend the Solicitor General has told you that the prisoner watched for his victim, haunted the neighbourhood of the Government offices, waited for the moment to strike the blow, and throughout exhibited a degree of design and deliberation inconsistent with insanity. The same in Hadfield’ s case ; Hadfield went to the theatre, got his pistol loaded, and took his position in a place to command the situation in which he knew the King would sit ; he raised the pistol, he took deliberate aim, and fired at the person of the King. All these cir- cumstances were urged as evidence of design, and as inconsistent with the acts of a madman. What then, gentlemen, is the result of these ' observations ? What is the practical conclusion of these investi- gations of modern science upon the subject of insanity? It is simply this: that a man, though his mind may be sane upon other points, may, by the effect of mental disease, be rendered wholly incompetent to see some one or more of the relations of subsisting things around him in their true light, and though possessed of moral per- ception and control in general, may be- come the creature and the victim of some impulse so irresistibly strong as to anni- hilate all possibility of self dominion or resistance in the particular instance ; and this being so, it follows, that if, under such an impulse, a man commits an act which the law denounces and visits with punishment, he cannot be made subject to such punishment, because he is not under the restraint of those motives which could alone create human responsibility. If, then, you shall find in this case that the moral sense was impaired, that this act was the result of a morbid delusion, and necessarily connects itself with that de- lusion ; if I can establish such a case by evidence, so as to bring myself within the interpretation which the highest autho- rities have said is the true principle of law as they have laid it down for the guidance of courts of law and juries in inquiries of this kind, I shall feel perfectly confident that your verdict must be in favour of the prisoner at the bar. The Queen against Daniel MWaughton, 1843. 893] TJlg Queen against Da^i With these observations I shall now proceed to lay before you the facts of this extraordinary case. My learned friend the Solicitor General has already given you some account of the prisoner at the bar, and I will now fill up the outline which my learned friend has drawn. The pri- soner, as you have been told, is a native of Glasgow. At an early age he was ap- prenticed to his father, who carried on the business of a turner in that city ; at the end of the apprenticeship he became a journeyman to his father, having been disappointed in not being taken by him as a partner. The prisoner, I should observe, is a natural son, and probably did not meet with that full measure of kindness which is usually shown to legitimate off- spring. Whatever might have been the predetermining cause, he appears to have been from the commencement a man of gloomy, reserved, and unsocial habits. He was, moreover, as you will hear, though gloomy and reserved in himself, a man of singularly sensitive mind — one who spent his days in incessant labour and toil, and at night gave himself up to the study of difficult and abstruse matters ; but whose mind, notwithstanding, was tinctured with refinement. As one trait of his cha- racter, I would mention that he was extremely fond of watching children at play, and took infinite delight in their infantine and innocent ways. I will prove, also, that he was a man of particular humanity towards the brute creation, and that when he went out he was in the habit of carrying crumbs in his pocket to dis- tribute to the birds. If in the course of their walks his companions discovered a bird’s nest, he would interfere, and not allow them to approach it. These things are striking indications of cha- racter, and certainly do not accord with the ferocity of an assassin. I mention these things to show that, from the earliest period, the prisoner had a pre- disposition to insanity. I shall prove to you, gentlemen, that the man and his wife with whom he lodged in 1837, be- came so alarmed at his behaviour that they gave him notice to quit, and forced him to leave, despite his wish to remain, from an apprehension that all was not right within his mind. I shall next carry him on to the time when he relinquished his business. When he quitted his lodg- ings in 1837 he went to live in his own workshop, and there he lived alone, with- out friend or associate, without recreation or amusement, save that which was found in turning from severe toil to severer studies. He then began to believe that persons persecuted him ; he then began to act more strangely than before. With these moral phenomena must be coupled iel M'Nauyhton, 1843. [894 certain physical accompaniments. Tho unhappy prisoner would complain of pain ; he would sit for hours, aye, even for days, holding his head within his hands, and uttering ejaculations descriptive of the tortures he endured. Often has he been, known to hasten out, under the influence of these agonies, and throw himself into the waters of the Clyde in order to seek some relief from the torturing fever by which his brain was consumed. These facts I shall prove to the court and jury. They do not amount to insanity, but they will show what was going on within. They will show his predisposition to the disease which has since assumed so ter- rible a shape. It appears that in the beginning of 184*1 he gave up his business from which he was deriving considerable gain. Why ? Doubtless because at that time the fearful phantasms of his own imagination rendered his existence miser- able. He was wretched, because he was constantly harassed by the terrible images his disordered mind conjured up. These terrifying delusions had become associated with the place of his abode, haunting him at all hours of the day and night. You will hear from one of the witnesses, to whom he explained himself, that he gave up business “on account of the persecu- tion by which he was pursued.” Yet it appears that all this time his business was prosperous and thriving, and, in addition, the great tendency of his mind seemed still to be a desire to earn money and to save it. That these phantasms long existed in that man’s mind there is no doubt, before he at length sought relief by flight from this hideous nightmare, which ever- lastingly tortured his distracted senses. Ho doubt these delusions existed in his mind before, but it was not until he left his business that they were revealed to others in anything like a definite shape. And, gentlemen, you will learn from the medical authorities that it was natural for him, who became at last borne down by these delusions, to struggle against them as long as he could ; to resist their influence, and to conceal their existence ; until, at last, the mind, overwrought and overturned, could contain itself no longer, and was obliged to give form, and shape, and expression, “a local habitation and a name,” to the fantasies against which it had struggled at first, believing, it may be, for a time, that they were delusions, until their influence gradually prevailing above the declining judgment, they at last assumed all the appearance of reality, and the man became as firmly persuaded of the substantiality of these creations of his own fevered brain as of his very exis- tence. Wherever he was, these creatures of his imagination still haunted him with 895] The Queen against Daniel M'Naughton , 1843, [896 eager enmity, for the purpose of destroy- ing his happiness and his life. Nothing, then, could be more natural than that a man under such a persuasion should at- tempt to escape from the persecution which he erringly imagined to exist, and to seek in some change of place and clime a refuge from the tortures he endured. Alas ! alas ! in this man’s case the ques- tion put by the poet of old received a melancholy response : — a Patriae quis exul Se quoque fugit ? ” What exile from his country’s shore can from himself escape ? "When he left his own country he visited England, and then Prance ; but nowhere was there a “resting-place for the sole of his foot.” Wherever he went, his dis- eased mind carried with him the diseased productions of its own perverted nature. Wherever he was, there were his fancies ; there were present to his mind his ima- ginary persecutors. When he planted his foot on the quay at Boulogne, there he found them. No sooner was he landed on a foreign soil than there were his visionary enemies around him. Again he fled from them, and again returned to his native land. Peeling the impossibility of escape from his tormentors, what course did he pursue? When he found it was impossible to go anywhere by night or by day to effect his escape from those beings which his disordered imagination kept hovering around him, what does he ? What was the best test of the reality of the delusion ? That he should act exactly as a sane man would have done, if they had been realities instead of delusions. And there is my answer to the fallacious test of my learned friend the Solicitor General. He did so act; he acted as a sane man would have done, but he mani- fested beyond all doubt the continued existence of the delusions. He goes to the authorities of his native place, to those who could afford him protection, and with clamours entreats and implores them to defend him from the conspiracy which, he told them, had been entered into against his happiness and his life. Are we to be told that a man acting under such delusions, on whose mind was fixed the impression of their existence, and who was goaded on by them into the commis- sion of acts which but for them he never would have committed, — are we to be told that such a man is to be dealt with in the same way as one who had com- mitted a crime under the influence of the views and motives which operate upon the minds and passions of men under ordi- nary circumstances ? [Counsel proceeded to refer to the prisoner’s applications for protection to his father, to Mr. Wilson, the Sheriff Substitute, to the Lord Provost of Glasgow, &c.] That these delusions afterwards took a political bias is pos- sible ; they may have done so. But such was not the first morbid impression of the prisoner’s mind. The first was, according to his own complaint to Mr. Wilson, that the Catholic priests and Jesuits were engaged in persecuting him, and he stated that the annoyance he had experienced from them was such that he had been obliged to leave the country, and had gone to France, but that on land- ing at Boulogne he found he was watched by them still, and therefore it was useless to go further. Mr. Wilson endeavoured to soothe him and to disabuse his mind, and he went away, apparently somewhat quieted. At the end of three or four days he comes back and says that there are spies all around him, and^that the Church of Rome and the police and all the world are against him. Here you have in addi- tion to the Church of Rome, the “ police ” and “ all the world.” Mr. Wilson spoke to him of the folly of supposing the Church of Rome to be against him, and assured him that if the police did anything against him, he, Mr. Wilson, would find it out. He comes again in the course of a few days, and then, in addition to his former complaints, he says, “ The Tories are now persecuting me on account of a vote I gave at a former election.” You will at once comprehend, gentlemen, that the delusion arose not from any part he had individually taken in politics — it was the form which was assumed by a diseased mind, believing itself to be the victim of persecution by anybody and everybody. First it was the “ Catholic priests,” then it was “ the Church of Rome, the police, and all the world,” and then it was “ the Tories.” After that he called again upon Mr. Wilson to know what had been done for him, when Mr. Wilson, to soothe him, told him that he had made inquiries ; and promised to speak to Captain Miller, a superintendent of police. Again he called, and was told that Captain Mill&i' said there were no such persecutors, if there were, he should know of it. The prisoner said that Captain Miller was deceiving Mr. Wilson, as he knew that his persecu- tors were more active than ever ; that they gave him no rest day or night ; that his health was suffering, and that the persecutions he endured would drive him into a consumption. Mark that state- ment, gentlemen ; couple it with the de- claration he made after he was appre- hended, and it will enable you to judge of the state of the man’s mind at the time be made that declaration. Again he goes away; he does not come back again for 897 ] some months, when ho returns to talk again of his persecutors. This was in the summer, and the time was drawing nigh to the period of this unhappy deed. Mr. Wilson will tell you, gentlemen, that when he saw him at that time his conduct had become more strange, and his conversa- tion more incoherent ; doubtless as time progressed his disorder was becoming worse. Having got rid of him, Mr. Wil- son does that which affords the best test of the sincerity of the conviction he will express to you — namely, that he believed the man to be insane. He goes to the man’s father and tells him that, in his opinion, it was unfitting for his son any longer to be left at large. [The prisoner also applied to Mr. Turner, who gave the same advice to his father.] Would to God that advice had been listened to ! Would to God that warning voice had produced the effect which was intended ! Then this melan- choly catastrophe might have been pre- vented ! By judicious medical treatment the man might have been restored to reason, or, at all events, such means might have been resorted to as the law allows for the protection of society. Oh, then, what different results would have been produced ! The unhappy prisoner might have been spared the horror of having imbrued his hand in the blood of a fellow creature ; he would have been spared the having to stand to-day at that bar on his trial for having committed the worst crime of which human nature is capable ; as it now is, his only trust must be in your good sense, judgment, and humanity, in the opinion of which you may form upon the evidence which those who come from a distant part to throw a light on the subject will give you, and in such aid as my humble capacity enables me to afford him. So much, gentlemen, for the evidence I shall give with respect to the origin of this wretched assassination. [The evidence called by the Solicitor General does not in the slightest degree negative the case of insanity which the witnesses will clearly establish. It is that sort of negative testimony which can only spring either from the absence of all op- portunity of observation, or from want of attention to the matter in question.] I now come, gentlemen, to the act itself, with which the prisoner now stands charged. The Solicitor General has said that you are not from the nature of the act itself, to draw an inference as to the state of mind of the person committing it. My learned friend put the proposition rather vaguely, but I can scarcely suppose that he meant what I have just said to the full extent of the terms. He might have meant either that you were not necessarily to infer from the o 67432 . * [898 nature of the act, from its atrocity and the absence of all probable impelling motives, the insanity of the person com- mitting it, that is to say, that you were not to infer it concfusivcly from those circumstances alone, or he might have meant that the nature of the act itself ought not at all to be an ingredient in form- ing a judgment of the state of the party committing it. Now, if my learned friend could have meant this last proposition, I must say, that with all my respect for him, I should be compelled boldly to differ from him, and to dissent altogether from a proposition so monstrous as that would seem to be. If it be found that an act is done, for which he who committed it was without any of those motives which usually actuate men in a state of sanity to wickedness and crime, if the whole circumstances connected with the perpe- tration of that act tend to show that it was one wholly inconsistent with the re- lation towards the surrounding world of the party committing it, am I, in such a case, to be told that I am to draw no in- ference at all from the nature of the act itself ? I am sure, gentlemen, you will not allow your minds to be influenced and misled by any such proposition. You must look to the act, not conclusively, indeed, but in connexion with the other leading circumstances of the case. What is the act ? In the broad face of day, in the presence of surrounding numbers, in one of the great and busy thoroughfares of this peopled metropolis, with the cer- tainty of detection, and the impossibility of flight, with the inevitable certainty of the terrible punishment awarded to such a deed, a man takes away the life from one who (in any view of the case) had never, in thought, word, or deed, done to the perpetrator of that act the faintest vestige of an injury, from one who, as my learned friend yesterday described him, was of so mild a nature that he would not injure any being that had life, does this in the total absence of all motive, with the certainty of inevitable detection, and of equally inevitable punishment ; yet you are told by my learned friend that you are not to let the nature and the circumstances of such an act enter into your judgment as to whether the person so committing it was sane or not. Who is there who, not having his judgment overclouded by the indignation which the very mention of such a deed is calculated to excite, could bring for a single moment his dispas- sionate reason to bear upon the nature of the case whose mind would not suggest that the act must be that of a frenzied lunatic and not of one possessed of his senses ? My learned friend says that, nevertheless, you are not to look to the F F The Queen against Daniel M‘Naughton, 1843 . 8991 The Queen against Daniel M ( Naughton, 1843, [900 question of motive, and he appeals to history for instances where fanaticism and enthusiasm have operated on ill-regulated minds to induce them to commit similar crimes. I might possibly object that these instances are not strictly in evi- dence before you, but I will not adopt such a course. I admit that in order to understand the nature of insanity aright we must look beyond the evidence in the particular case. I will travel, therefore, with my learned friend beyond the facts now before you, and will turn to history in order to aid our judgment. I concede to him that fanaticism and enthusiasm operating on ill-regulated minds have produced similar disastrous results on former occasions. But look at the mode in which those motives operated on the minds of the criminals. The religious fanatic sharpened his steel against his sovereign’s life, because he was told by a fanatical priesthood that he was doing a service to God and to religion, that he was devoting himself by that act to the maintenance of God’s religion, and that, while incurring an earthly martyrdom, he was also ensuring to himself an everlasting reward. Again, I admit that political enthusiasm has urged on others to similar crimes. Why ? Because they acted under the belief that in some great emergency, while they were sacrificing the moral law, they were ensuring the welfare of their country. They were impelled by fana- ticism in another form, by political en- thusiasm, by misdirected and ill-guided notions of patriotism. Political enthu- siasm ! Where in this case is there a single trace of the existence of such a sentiment in the mind of the assassin? Where has the evidence for the prosecu- tion furnished you with a single instance of political extravagance on the part of this man ? Is he shown to have taken a strong and active part in political matters ? Did he attend political meetings ? Is he shown to have been a man of ill-guided, strong, and enthusiastic political senti- ments ? There is not a tittle of evidence on that subject. Many among us enter- tain strong political opinions. I do not disclaim them myself. I entertain them, and most strongly too ; but if I believed that they would make me love, cherish, esteem, or honour any human being the less on account of his holding different opinions I would renounce politics for ever, for I would rather live under the most despotical and slavish government than forego aught of those feelings of humanity which are the charm of human life, and without which this world would be a wilderness. £The prisoner had no animosity against Sir Robert Peel, for whom he is said to have mistaken Mr. Drummond. ] There is no evidence to show that he did intend to shoot Sir R. Peel, save that of the policeman. I hardly know whether I am not throwing away time in devoting a single observation to the evidence of a man whose own state- ment justifies me in saying that he was acting a thoroughly treacherous part ; a man who now shows himself in his true colours, an inquisitor and a spy ; but who then, in the garb of fairness and honesty, sought to worm himself into the secrets of the unhappy man at the bar. I allude to the statement made before the magistrate as to the conversation he had with the prisoner. Having gently insinuated him- self into the man’s confidence, he asks a question as to the identity of the indi- vidual who had been shot. The answers he says the prisoner gave may be true or false ; the statement of that witness may be consistent with truth, or it may be a fabrication ; I know not, care not. Sure I am of this, that whatever may be the nature of the crime with which a man may stand charged, a British jury will hesitate to admit any one single fact which is an essential ingredient in the proof of the case, on the unsupported tes- timony of an individual who has mani- fested so much black perfidy, which will remain indelibly stamped upon his cha- racter. If the statement were true, why should it rest upon the evidence of that policeman only, when it is clear that at part of the conversation at least there was also a constable present? But I really waste time upon this part of the case, and I will proceed at once to a more important point, namely, the conduct of the prisoner himself after he had been brought before the magistrates- And this brings me to the question, whether or not the delusion under which the prisoner previously laboured existed in his mind at the time the act was done with which he now stands charged, and in truth was the cause of that act? I have already laid before you circumstances (and they will be proved in evidence) which establish beyond all controversy the existence of a delusion, exercising a blind and imperious influence over the man ; and I have only further to establish, that the delusion led to the act, and was subsisting at the time that act was done. But surely it would be most monstrous and unjust to say that the same degree of delusion which prevailed eighteen months or two years before, did not exist at the time of his committing the act. What was his statement before the magistrate ? He said : — “ The Tories in my native city have compelled me to do this. They follow and persecute me wherever I go, and have entirely destroyed my 901] . The Queen against Da: peace of mind. They followed me to France, into Scotland, and all over England ; in fact, they follow me wherever I go. I can get no rest for them night or day. I cannot sleep at night in consequence of the course they pursue towards me. I believe they have driven me into a consumption. I am sure I shall never be the man I formerly was. I used to have good health and strength, but I have not now They have accused me of crimes of which I am not guilty ; they do everything in their power to harass and persecute me ; in fact, they wish to murder me. It can be proved by evidence ; that’s all I have to say.” Save only that the enemies he spoke of and their persecution were the phantoms of a disordered mind, his statement was true. True it was that he was a different man, in health of body, and in health of mind, quite different in the regulation of his passions and propensities ; he that at home had been a quiet, calm, inoffensive man, one who never raised his hand against a human being or created thing, had been converted by the pressure of imaginary evils into a shedder of human blood. This statement of the prisoner, which doubtless, at first, was received with suspicion, shows, when coupled with his previous history, in a totally different light, and now cannot be regarded other- wise than as the true and genuine expres- sion of the feelings which were alive in his breast. No wonder that in the first excitement of popular feeling such a state- ment should be unfavourably received ; the people had seen an innocent and un- offending man perish by the hand of an assassin ; they were justified in viewing with distrust manifestations of insanity, which might be only assumed ; but now, when the fearful delusions under which this man has so long laboured are made clearly known to you, the whole matter will, I am sure, be regarded by you under a totally different aspect. But then the Solicitor General speciously asks, whether this is not the case of a man feigning and simulating insanity in order to avoid the consequences of his crime ? It is not so ; it is the case of a man who manifested, after the deed was done, the same delu- sion, which will be proved to have been present in his mind for months, nay, years before the act was committed. But I shall not leave this part of the case upon the prisoner’s statement alone, for I am enabled to lay before you evidence that will satisfy your minds of the prisoner’s insanity since he has been confined within the walls of a prison. He has been visited by members of the medical profession, of the highest intelligence and the greatest skill, not chosen by the prisoner himself, but some of them selected by his friends, and others dejputed by the Government del M‘JS T aughton, 1848. [902 which my honourable and learned friend the Solicitor General represents on the present occasion. They visited the pri- soner together several times ; they to- gether heard the questions put to him, and noted the answers he gave. My learned friend has accurately told you the nature of the defence I have to offer ; he has sought to anticipate it by evidence to establish the prisoner’s sanity. How is it, then, that the medical men employed by the Crown have not been called ? Why, my learned friend has now beside him, within his arm’s reach, two of the medical gentlemen sent by the Government, and he has not dared to call them. My learned friend knew (because their opinions have been communicated to the Government and to my learned friend) that the man was mad, and in justice to the public and to the prisoner those gentlemen ought to have been brought forward. I was astonished when the case for the prosecution was closed without those two witnesses being called. They sat within my learned friend’s call, and yet my learned friend, in the exercise of the dis- cretion which is his characteristic, dared not put them in the witness-box. Their testimony is, however, upon record ; it requires not their delivery by their own mouths of the opinions I know them to entertain ; their absence from the witness- box speaks trumpet-tongued as to the opinions they were ready to pronounce ; and when I call before you the medical gentlemen who have attended at the re- quest of the friends of the prisoner, and have communicated with this poor deluded maniac, and it is found that their opinions correspond in all particulars, there will not be left a shadow of doubt that this was no simulated insanity, but a real de- lusion, by which the prisoner was deprived of all possibility of self-control, and which left him a prey to violent passions and frenzied impulses. I know there has been much said of the danger of admitting a defence of this kind. I do not dispute it ; it is a defence at which it is the province of a court and jury to look with care. True, it is a defence easily made, but it is a defence which the sagacity of courts and juries prevents being too easily established. If an offender should first suggest in- sanity as a defence after the perpetration of a crime, the eye of suspicion would naturally rest upon such a defence. Here, however, there can be no pretence for saying there is the slightest reason to believe that this was a case of feigning and simulation, when I shall have proved the existence of the delusion for the space of two long years before, as well as its continuance since, the act was committed. F F 2 903 ] When I have proved this, my learned friend will not dream of contending that this is a case of simulation. Again, I ask, is there no distinction between the manner in which the common murderer who acts under the impulse of ordinary motives executes his purpose, and that of the un- happy maniac who, in self-defence as he thinks, slays one who in his delusion he fancies is attacking him ? There is every distinction. The ordinary murderer not only lays plans for the execution of his designs ; not only selects time and place best suited to his purpose ; but when suc- cessful, he either flies from the scene of his enormities, or makes every effort to avoid discovery. The maniac, on the con- trary, for the most part, consults none of the usual conveniences of crime ; he falls upon his victim with a blind fury, perhaps in the presence of a multitude, as if ex- pressly to court observation, and without a thought of escape or flight ; not unfre- quently he voluntarily surrenders himself to the constituted authorities. When, as is sometimes the case, he prepares the means, and calmly and deliberately exe- cutes his project, his subsequent conduct is still the same as in the former instance. The criminal often has accomplices, and always vicious associates ; the maniac has neither. What was the case in the present instance ? The prisoner does not attempt to escape ; he acts coolly and deliberately ; he shows himself to be a maniac seeking only the gratification of his involuntary impulse ; he made no attempt to secure his own safety by flight or escape, though he knew that the noise of his first pistol must have attracted attention to the spot ; though he saw Mr. Drummond’s coat in flames, and his victim staggering under the shot, though he must have known that his purpose was effected, instead of thinking of himself, he drew forth the other pistol, with a deliberate intent he passed it from one hand to the other, he levelled it at his victim, and when the policeman had even seized him, still the struggle was not to escape, but to raise his arm and to carry out the raging im- pulse of his burning and fevered brain. A common murderer would have acted in a different manner ; he would have chosen a different time, a different place ; he would have sought safety by escape. Gentlemen, I have meutioned that I shall call medical men of the highest rank in the profession ; men who have frequently been employed by the Government in cases of this nature, and upon whose cha- racters the stamp of the highest approba- tion has thus been placed. They will state the result of their examinations of the prisoner, and their evidence upon the whole will be such as to leave no other [904 than a firm conviction that he is insane. I shall also call the surgeon of the gaol, whose duty it has been to see him daily, and whose facilities of observation have therefore been such as to enable him to come to a sound conclusion, and who, besides, was directed to pay particular attention to the state of the prisoner’s mind. My friend has not thought fit to call him. I will call him. You Ivill hear from that gentleman the result of his de- liberate and impartial juhgment, which is that the prisoner is labouring under mor- bid insanity, which takes away from him all power of self-control, and that he is not responsible for his acts. When I have proved these things, I think the defence will be complete. I do not put this case forward as one of total insanity ; it is a case of delusion, and I say so from sources upon which the light of science has thrown its holy beam. I have endeavoured to show the distinction between partial delu- sion and complete perversion and prostra- tion of intellect. I may, however, perhaps be allowed to refer to one more author on this subject. I allude to M. Marc , phy- sician to the King of the French, and one of the most profound investigators of this disease. I will translate the passage as I proceed. M. Marc, in his treatise De la Folie,” says(a) : — “ Homicidal monomania is a partial delusion characterised by an impulse, more or less violent, to murder ; just as suicidal monomania is a partial delusion characterised by a disposition, more or less voluntary, to destroy oneself. This monomania presents two very distinct forms. In some cases the murder is provoked by an internal but raving conviction, by the excite- ment of a wandering imagination, by a false reasoning, or by the passions in delirium. The monomaniac is impelled by some motive obvious but irrational ; he always exhibits sufficient signs of partial delirium, of the intelligence or of the affections. Sometimes his conscience makes him turn with horror from the act which he is about to commit ; but his will is overcome by the violence of his impulse ; the man is deprived of his moral liberty ; he is a prey to a partial delirium ; he is a monomaniac ; he is mad. In the other cases the homicidal monomaniac does not present any alteration of the intelligence or affections ; he is carried away by a blind in- stinct, by something indefinable, which impels him to kill.” I think, gentlemen, I have sufficiently dwelt upon the authorities which can throw light upon this inquiry. I trust that I have satisfied you by these autho- rities, that the disease of partial insanity can exist — that it can lead to a partial or total aberration of the moral senses and affections, which may render the wretched patient incapable of" resisting the delu- The Queen against Daniel M { NaugJiton 3 1843 . (a) M. Marc, De la Folie, p. 25. .905] The Queen against Daniel M'Naughton, 1843. [900 sion, and lead him to commit crimes for which morally ho cannot be held to be responsible, and in respect of which, when such a case is established, he is withdrawn from the operation of human laws. I proceed now to lay the evidence before you. In doing so I shall give my learned friend the Solicitor General the opportunity of a reply. In this case it will be of considerable advantage, for he will have the opportunity of addressing you, and ' commenting on the evidence after it all shall have been given ; whereas I can only anticipate what it may be. Many facts may be spoken to by the wit- nesses — many important observations may fall from them — on which I shall be de- prived of all comment. {a) The arguments which my friend’s profound experience and his great legal acquirements may suggest are yet within his own mind ; I ean but dimly anticipate them. If any advantage should exist in such a case, surely it should not be on the part of the prosecution, but of the prisoner. And my learned friend, moreover, will have the immense advantage resulting from that commanding talent before which we all bow down. But I know that he will prolong to the end of this eventful trial that calm and dispassionate bearing, that dignified and appropriate forbearance which sat so gracefully on him yesterday. Gentlemen, my task is at an end. I have received at your hands, and at the hands of the Court, a degree of considerate at- tention for which I owe you my most grateful acknowledgments. I ought to apologize to my lords and to you for the length of time that I have detained you ; but you know the arduous and anxious duty which I have had to perform, and you will pardon me. From the beginning to the end I have felt my inadequacy to discharge it ; but I have fulfilled it to the best of my poor ability. The rest is with you. I am sure that my observations in all that deserves consideration will be well weighed by you, and I am convinced that the facts of this case, and the evi- dence adduced in support of them, will be listened to by you with the most anxious and scrupulous attention. You can have but one object — to administer the la fir ac- cording to justice and to truth; and may that great Being from whom all truth proceeds guide you in this solemn inquiry, that when hereafter the proceedings of (a) The right of summing up the evidence in cases of felony and misdemeanor was conferred on prisoners and their counsel in 1865 by 28 & 29 Viet. c. 18. s. 2 (Denman’s Act). Similar pro- visions had already been enacted as regards civil trials by the Common Law Procedure Act, 1 854, 17 & 18 Yict. c. 125. s. 18. this memorable day, and their result shall be scanned by other minds, they may bear testimony that you have rightly done your duty ; and, what to you is far more important, that when hereafter in the re- tirement of your own homes, and the secrecy of your own thoughts, you reverb to the part you have taken in the business of this day, you may look back with satis- fied consciences and tranquil breasts on the verdict you will this day have given. Gentlemen, the life of the prisoner is in your hands ; it is for you to say whether you will visit one on whom God has been pleased to bring the heaviest of all human calamities — the most painful, the most appalling of all mortal ills — with the con- sequences of an act which most undoubt- edly, but for this calamity, never would have been committed. It is for you to say whether you will consign a fellow being under such circumstances to a pain- ful and ignominious death. May God protect both you and him from the con- sequences of erring reason and mistaken judgment ! In conclusion, let me remind you, that though you do not punish the prisoner for an offence committed at a time when he was unconscious of wrong, you have, on the other hand, the power of causing him to be placed in an asylum provided by the mercy of the law, where he will be protected from the conse- quences of his own delusions, and society will be secured from the danger of his acts. With these observations I trust the case in your hands, with the full convic- tion that justice will be upheld in the verdict to which you shall come. Daniel M‘Naughton . — Examined by Clarkson. I reside at Glasgow, and am a turner by business. The prisoner, who is a natural son of mine, was apprenticed to me, and after he had served about four years and a half became my journeyman, in which capacity he continued for about three years. When he left me he went into business as a turner on his own ac- count, and was always a very steady, in- dustrious young man, and exceedingly temperate in his habits. After he went into business I did not see him so often, although I saw him then frequently. He seemed to me more distant than formerly, but I knew of no reason for his being so. He would frequently pass me in the street and not speak to or notice me. About two years ago I recollect the prisoner calling at my house, and, upon seeing me, he expressed a wish to have an interview in private. We went into a room alone, and he then told me that various prosecu- tions had been raised against him, and 907 ] The Queen against Daniel M‘Naughton , 1843 . [908 begged that I would speak to the autho- rities of the town upon the subject, in order to have a stop put so them. He particularly mentioned the name of Mr. Sheriff Ali&on , as one of the persons I was to speak to. I asked who the persons were that persecuted him, and he told me that Mr. Sheriff Alison knew all about it. I told him I was extremely sorry to hear that he was so persecuted, and endeavoured to persuade him that he was labouring under some mistake. I told him that I was not aware of any person being perse- cutive in Glasgow. Finding that he was labouring under some delusion, I said nothing more upon the subject, but tried to turn the conversation. We then talked upon other subjects, upon all of which he spoke rationally enough. He then asked me to get him a situation in some counting house in Glasgow. I promised him that I would endeavour to do so, but told him that I thought he had, in the first in- stance, better go to some respectable teacher, and learn writing and arithmetic. He said he would do so, and we then parted. About a week after that inter- view he again called upon me, and in- quired whether I had, according to my promise, caused the authorities to take any measures to prevent the persecution which was going on against him ? I told him that I thought after our last inter- view he would have gone to school, and banished all such ideas from his mind. He then said that the persecution still continued, and that he was followed night and day by spies ; wherever he went they followed him. I asked him who the spies were, whether he knew any of them, or whether he could point them out? To which he replied, that it would be quite useless to point them out, as they were always in his presence ; wherever he might be, whenever he turned round, there they were. I asked him whether he ever spoke to them, or they to him P He said they never spoke to him, but when- ever he looked at them they laughed at him, and shook their fists in his face, and those who had sticks shook them at him. He also said, that one of the men, when- ever he looked at him, threw straws in in his face. I asked him whether, if I went out with him, he could point out any of the spies tome? He said, “Oh, no ; if they see anyone with me they will not follow at all ; it is only when I am alone that they follow and annoy me.” I then asked him what he thought they meant by showing him straws ? To which he replied, he presumed it meant that he was to be reduced to a state of beggary by them. I told him that if he really saw a person with straws, in all probability it must be some person out of his mind. After some further conversation in the same strain, he begged of me, nay, in- sisted upon my calling on Mr. Sheriff Bell. I then promised him that I would see Sheriff Bell upon the subject. In about a week he called upon me a third time, and asked whether I had seen Sheriff Bell. I told him I had not. He then said the persecution still continued, and inquired why I had not seen Sheriff - Bell according to my promise, as he kne,w all about the matter. I saw nothing more of him for a considerable time, and I then accidentally met him on the road, a short distance (about four miles) from Glasgow. We had a conversation for upwards of an hour, and the chief topic was the perse- cution he was enduring ; he said he had left Glasgow, and had gone to England, and even to France, to get rid of the spies, but they still followed him ; the moment he landed in France there they were also. After that interview he called upon me again, and requested that I would prevail upon the authorities, particularly Sheriffs Alison and Bell, to put an immediate stop to the persecution. On that occasion I reasoned with him for some time upon the folly and absurdity of supposing that such a conspiracy existed against him, and assured him that such was not the case ; and I then thought that the impression was effaced. He again spoke to me about getting him a situation, and I promised I would do so. Between that interview and the month of September he called upon me several times, and always requested me to seethe authorities upon the subject. I never saw any of the civil authorities, as I saw that he was labouring under some extraordinary delusion, and therefore con- sidered it quite unnecessary. Cross-examined by the Solicitor General. The last interview I had with him was in August last, shortly before he came to London. When he was apprenticed to me he lived in my house, but whilst a journey- man he went into lodgings. I do not know his reason for leaving my house, but it certainly was not on account of any quarrel. He did not go into business for himself before he left my house, nor till some time afterwards. I believe he went into business for himself because he felt dissatisfied at my not letting him have a share of my little business. Did he ask you to take him into part- nership? — Yes, he did; bub I refused, be- cause I had some younger children to provide for. After he went into business we very seldom spoke. For a long time I think he fancied that I was annoyed be- cause he took some of my business from me, which was not the case. I know that 909] The Quern against Daniel M'Naughton, 1843. [910 his shop was in Stockwell Street, but I never went there. He carried on business in Stockwell Street for about five years, and disposed of it two years ago. We were not at all upon the terms that a father and son usually are. At times party politics run very high at Glasgow. At the time the conversations you have been mentioning occurred, what was your opinion with respect to your son’s mind ? — It certainly was my impression that his intellects were impaired. Did you consult any medical gentle- man F — I did not, because I thought the delusions under which he was labouring would eventually pass away. Then am I to understand that upon all other subjects he conversed rationally P — Yes, upon all subjects except the one I have mentioned. Ke-examined by Clarkson. The prisoner continued to work at my shop after he left my house. He fre- quently passed me in the street without taking the slightest notice ; it was his own act to do so, not mine. He was always a very harmless, inoffensive youth, and ap- peared harmless when labouring under those delusions. I never heard of his having evinced any disposition to do any injury either to himself or anyone else. William Gilchrist. — Examined by Bodkin. I am a printer in Glasgow. I have known the prisoner since the year 1834. I lodged with him at Gorbals. We slept in the same bed. The prisoner used frequently to get up in the night and walk about the room, uttering incoherent sentences, and making use of such ejaculations as “By Jove,” “My God.” He uttered them in a very serious manner, but not in a very loud tone. Sometimes he would walk about the room by the hour together whilst undressed, and then return to bed. Such conduct occurred from time to time during the whole period we lodged to- gether. His conduct was always that of a mild, inoffensive, and humane man. I have frequently seen him, when we have been going out to take a walk, put crumbs of bread into his pocket to feed the birds with. He appeared to be very fond of children, and I have observed him watch the children at play for hours ; he said he liked to see their innocence. The last time I saw the prisoner was in July 1842, when we walked together for a short dis- tance. I thought he was altered, both in manner and appearance, for when I looked at him he always dropped down his head and looked on the ground. His conver- sation was not so connected as formerly. I have known the prisoner burst out into immoderate fits of laughter without any cause whatever ; at other times he would moan. I never knew him to attend any political meetings, or express any extrava- gant political opinions. When I last saw him he told me, in the course of a con- versation, that when he was in London he went one night to the House of Com- mons, and heard Sir Robert Peel , Lord John Russell, and Mr. O’Connell speak, and he expressed himself highly delighted. He said he thought Sir Robert Peel had arrived at what Lord Byron had said of him, “that he would be something great in the State” ; he said ho thought Lord John Russell was very inferior as a speaker to Sir Robert Peel, and that Mr. O’Connell was inferior to both. Did you ever hear him, either on that or any other occasion, speak at all disre- spectfully of Sir Robert Peel ? — Certainly not. Cross-examined by Adolphus. The ejaculations which I have spoken of, and also the laughter, might have been caused by the recollection of something he had previously heard, and of which I was not aware. Did you ever hear him speak about Sir R. Peel's political character p — Never. Or make use of any threat towards him ? —No. John Hughes. — Examined by Monteith. A tailor at Glasgow, confirmed the evi- dence of the last witness. The prisoner lodged at my house during the year 1835. A person of the name of APCordigan, who slept in the same bed with the prisoner, made several complaints to me about the prisoner disturbing him during the night, and left me in consequence. The prisoner did not appear to be fond of society, and scarcely ever spoke unless first spoken to, and then his replies were quick and hurried, as if he wished to avoid conversation. I also noticed that when any person spoke to him, if their eye caught his he immediately looked down to the ground, as if ashamed ; whenever he asked for anything he appeared con- fused. In consequence of his very strange manner I gave him notice to leave, but he was very unwilling to go away. Another reason I had for wishing him to leave was in consequence of the infidel doctrines he maintained, and the books of such a character which he was in the habit of reading. I always have family worship in my house every Sunday, and generally in the week days. The prisoner mostly attended on Sundays. 911] The Queen against Daniel M‘Naughton, 1843. [912 Cross-examined by tbe. Solicitor General. I did not tell him the true reason why I wished him to leave my house. I assigned as a reason that my wife could not wait upon him any longer. Did you observe any particular difference in his behaviour whilst he was at your house ?— Yes, I thought his appearance just before he left was more strange than when I first saw him. Coleridge, J. : Have you any children living in your house ? — I have, my Lord. Did the prisoner seem fond or take any notice of them? — He never used to take any notice of them. William C arlo . —Examined by Clarkson. I am a turner in Stockwell Street, Glas- gow. I have known the prisoner for seven years, and was in his employ as journey- man for nearly three years, down to 1838. He had a very good business in 1840. I purchased it in 1841. Whilst I was in his employ he frequently complained of a pain in his head, and would often keep his hand to his head, as if in pain, the greater parb of the evening. When in this state I have known him on several occasions go and bathe in the Clyde, which is near the premises, in order to get rid of it. I have very frequently seen him since 1841, but never observed anything particularly the matter with him till about six months ago. I had frequently heard it stated during the last eighteen months that there was something wrong about him, but I did not believe it. In consequence of those rumours, however, I went bo see him whilst lodging at Mrs. Patterson’s. We then walked out together, and he gave me a description of his visit to France ; the only motive he assigned to me for going there was curiosity. He told me he was very much persecuted by certain parties, who always followed him about wherever he went, and that he could get no rest for for them night or day. He said they were using all their influence against him, in order to prevent his getting a situation ; whether he went to France, England, or Scotland, the spies were always about him. He told me it was immaterial in what country he was, for they were sure to send their emissaries before him, and he was known wherever he went. I asked him who the parties were, and he told me they were Scotchmen, and natives of Glasgow. I told him it was all imagina- tion, and endeavoured to persuade him to think nothing more about it. I also told him that if any person ill-used him or slandered him I would have them punished, as I considered his character was very good. He said he would do so, and added that if he could once set his eyes upon them they should not be long in the land of the living. After the conversation had continued for some time he became very much excited; and, seeing that he was labouring under some extraordinary ex- citement, I considered it prudent to drop the subject. In consequence of that conversation I immediately came to tbe conclusion that he was not in his right mind. Cross-examined by Waddington t I never noticed anything extraordinary in his behaviour till the period I have just mentioned, although his habits were rather eccentric. What do you mean by eccentric ? — Why, that he was very hard-working and penu- rious ; he was also eccentric in his dress. The last few times that I saw him I noticed that he was not quite so cheerful as usual, though he was generally sullen and reserved, and always evinced a dis- position to evade conversation. Coleridge, J. : What did you pay him for his business? — 18 1 . Did that sum include the tools ? — Yes ; but there were very few, and most of them were worn out. Jane Drummond Patterson . — Examined by Bodkin. 1 know the prisoner. He lodged in my house two years ago. I observed some- think very peculiar in his manner. His eyes presented a very strange appearance ; he looked wild, and very different from what he used to do. He was also very restless in his sleep. I frequently heard him moan and groan in his sleep, and sometimes he spoke as if disturbed. He went away twice, and told me he had been to France. I told him he had better stop away altogether ; to which he replied that he could not stop either in London or in France, as he was constantly haunted by a parcel of devils following him, and they said they were persons from Glasgow. He appeared then rather angry. I at length began to be afraid of him, and expressed a wish for him to leave my house. He said he would leave as soon as possible ; he could get situations any- where, but it was of no use, as they were all haunted with devils. A few days before he left in September, I found some pistols in his room. I said, “ What in the name of God are you doing with pistols there ? ” He said he was going to shoot birds with them. On one occasion, when I was speaking to him about getting a situation, he laid hold of me, made use of an oath, and looked very wild. When he went away he took nothing with him but the clothes on his back. I noticed when 913] ho went away that he looked very wild and frightsome-likc. Cross-examined by the Solicitor General. I noticed the peculiarity when he first came to lodge with me, but he did not mention anything about being haunted by devils till three or four months after- wards. Henry G. Bell . — Examined by Monteith. I am one of the sheriffs depute of the county of Lanark, and reside at Glasgow. I believe the prisoner to be the person who called upon me about nine or ten months ago and complained that he was harassed to death by a system of persecu- tion which had for some time been adopted towards him, and for which he could obtain no redress whatever. I told him I would render him any assistance in my power, and asked him the nature of the persecu- tion he complained of. He made a long, rambling, unintelligible statement in re- ply, from which I gathered, as far as I can recollect, that he was constantly beset by spies, and that he considered his life and property in danger. I told him that I thought he must be labouring under some very erroneous impression, and ad- vised him, if he had any criminal charge to make against any person, to go to the Procurator-Fiscal, or if his complaint was of a civil nature, to apply to some man of business. He said it would be perfectly useless to make any such application, and appearing dissatisfied with my answer, he went away. He called upon me again about a fortnight or three weeks after- wards. I asked him whether he had seen the Procurator-Fiscal or a man of business, and he said he had not. He then made another statement of a precisely similar character, but I told him that I could not render him any assistance, and he then went away. I certainly concluded that he was not right in his intellects — that he was labouring under some very extra- ordinary delusion, and I made a remark to that effect to my clerk. Hot cross-examined. Alexander Johnston, M.P. — Examined by Clarkson. The prisoner called upon me about a twelvemonth ago and complained of being subjected to an extraordinary system of persecution, and wished for my advice as to the best method of getting rid cf it. On subjects of general business he talked very rationally, but with respect to this particular business he said that he had for a considerable time been persecuted by the emissaries of a political party, whom [914 he had offended by interfering in politics. He also complained of being attacked through the newspapers, and said the per- sons of whom he complained followed him night and day ; that he could get no rest for them ; that they had destroyed his peace of mind, and what to do he really did not know. I reasoned with him, and told him that I thought he must be mis- taken ; assured him that nobody followed him about, and advised him, if he received any annoyances, to apply to the captain of police. He then said that he thought his persecutors would be satisfied with nothing less than his life. When I told him that I thought he was mistaken, he said that he was quite certain that he was not. He assured me that he was perfectly sound in his mind, and in good bodily health. He then left me. What was the impression left upon your mind by that interview ? — I certainly thought that what he stated was his firm conviction. In about a week or ten days the prisoner again called upon me, and he then told me that his persecutors were still pursuing him, and wished me to take some steps in order to deter them from so doing. I again recommended him to go to the sheriff, and assured him that if he was in reality annoyed as he had de- scribed, he would be protected. I merely told him that in order to get rid of him, feeling assured that he was labouring under a delusion. About a month after the last interwiew, I came to London, and in a few days I received a letter from the prisoner, reiterating the same complaints, and begging of me to interfere in his behalf ; to that communication I wrote the letter produced. Have you the letter you received from the prisoner ? — No, I have not. Clarkson : We propose now, my Lord, to put in and read the letter this witness wrote to the prisoner. Tjndal, C.J. : Be it so. The clerk of arraigns then read the letter as follows : — “ Reform Club, “Sir, “May 5, 1842. “ I received your letter of the 3rd of May, and am sorry I can do nothing for you. I fear you are labouring under an aberration of mind, and I think you have no reason to enter- tain such fears. “ I am, &c. “Alexander Johnston. “ Mr. D. M‘Naughton.” Cross-examined by the Solicitor General. I had no knowledge of the prisoner pre- vious to his calling upon me ; neither had I any other conversations with him but those I have stated. The Queen against Daniel M‘ Naught on, 1843. 915] The Queen against Daniel M‘Naughton, 1843. [916 Sir James Campbell. — Examined by Cochburn. I am Lord Provost of Glasgow, and was so in the year 1842. In the month of May in that year, the prisoner called upon me ; he said he wanted my advice and protection. He said that he was the victim of an extraordinary persecution ; that he was followed and beset by spies night and day, and that he could not get rid of them ; they dogged him wherever he went, and he could not in consequence get any rest night or day; that he was afraid to go home, and had therefore been compelled to sleep in the fields in the suburbs of the town. I asked him who his persecutors were, and he told me they were persons who had an ill-feeling to- wards him, and that he considered his life in danger in consequence. I at once saw that he was labouring under a strange delusion, and told him that he was labour- ing under some hypochondriac affection, for which he ought to have advice, and asked him whether he had ever been treated as an insane person ? He said he had not, and endeavoured to persuade me that he was in the enjoyment of sound mind and health. After some further conversation, I advised him to consult with his friends upon the subject, and suggested the propriety of seeing some medical gentleman. He did not appear to be satisfied with what I stated to him, and he then went away. I immediately sent for the prisoner’s father, in order to let him know what had taken place, but he did not wait upon me, a,nd I took no further steps in the affair. I felt no doubt at the time that the prisoner was labour- ing under some species of insanity. Cross-examined by Waddington. I did not notice anything particular in the prisoner’s appearance, and I should not have observed there was anything wrong about him had it not been for what he stated. He was a total stranger to me, and I should think the conversation did not last more than five minutes, [The Eev. Alexander Turner spoke to a similar interview with the prisoner, and to advising his father to put him under restraint.] Hugh Wilson. — Examined by Bodhin. Commissioner of police at Glasgow. I have known the prisoner for about ten or twelve years. I recollect his calling upon me, about eighteen months ago, to make a complaint. He said that he had come to consult me on a very delicate matter ; and, after some hesitation, said that he was the object of some persecution, and added, that he thought it proceeded from the priests at the Catholic chapel in Clyde Street, who were assisted by a parcel of Jesuits. I asked him what they did to him, and his reply was, that they followed him wherever he went, and were never out of his sight, and when he went into his bedroom he still found them with him. He was perfectly calm and collected when he first came in, but when he began to talk about the persecution, he became very much excited ; and I then thought he was daft. I saw that he was extremely anxious upon the subject, and therefore told him to call again on the following Tuesday, and I would see what could be done for him. A few days afterwards I again saw him, when I promised to speak to Miller, the superintendent, about it. "When I again saw him, I told him that I had seen Miller, who said it was all non- sense and there - was nothing in it ; to which the prisoner replied that Miller, was a bad one, that he saw it in his face, and he wanted to deceive both him and me. Having again run on about the Catholics and the Jesuits, he went away. In two or three days he again called, and on alluding to the subject, said, the Tories had joined with the Catholics, that he could get no rest either night or day, through their persecuting conduct, and he felt quite sure they would throw him into a consumption. At that interview I told him he had spoilt the scheme which I had planned for the purpose of finding out his persecutors, at which he appeared to be very much disappointed. I desired him not to look either to the right or to the left, and, if possible, let them see that he did not observe them. He said he would do so. After that interview, I did not see him for three or four months, when he again came to me and said he was worse than ever. I told him he should get out of their Way. He said he had been to Boulogne, and asked me if I knew the watch-box on the Custom House quay there ? I told him I did. He then said that as soon as he landed, he saw one of his spies peep from behind it, and added, that it was no use going further into France, and spending his money, when he could get no relief. He appeared then worse than ever, and I ad- vised him to go into the country and amuse himself by working, and not to think anything more about it ; but he said it was no use going there, as they would be sure to follow him. I had several other interviews with him, and the last time I saw him was about the month of August last, when he made the same sort of complaint, and the delusion then appeared to be stronger in his mind than ever. 917] The Queen against Daniel M i Naught on, 184-3. [918 Cross-examined by the Solicitor General. The office I hold is not one of a political character. I have not canvassed the prisoner for his vote within the last twelve months. I have solicited his vote, bnt that was three or four years ago. When I saw him in August last, he was very much excited. He said the police, the Jesuits, the Catholic priests, and Tories were all leagued against him. Dr. JE. T. Monro . — Examined by Cochhurn. I have devoted much attention to the subject of insanity, and have an experience of thirty years. I was requested by the friends of the prisoner to visit him in Newgate. I was accompanied by Sir A. Morrison, Mr. M‘Clure, and other pro- fessional gentlemen. You met on that occasion some medical gentlemen, who were deputed on the part of the Crown to visit the prisoner ?— I met Dr. Sutherland, jun., and Dr. Bright. I believe you all saw the prisoner to- gether ? — Yes, we saw and examined the prisoner together. How was the examination conducted ? — We all asked the prisoner questions in turn. Did you make at the time any note of the examination ? — No ; but I made some notes afterwards. When did that examination take place ? — On the 18th of February. What did the prisoner say in answer to the questions put to him ? — With the permission of the Court, I will state the substance of what he stated. In reply to the questions put to him, the prisoner said he was persecuted by a system or crew at Glasgow, Edinburgh, Liverpool, London, and Boulogne. That this crew preceded or followed him wherever he went ; that he had no peace of mind, and he was sure it would kill him ; that it was grinding of the mind. I asked him if he had availed himself of medical advice ? He replied, that physicians could be of no service to him, for if he took a ton of drugs it would be of no service to him ; that in Glasgow he observed people in the streets pointing at him, and speaking of him. They said that is the man, he is a murderer and the worst of characters. That everything was done to associate his name with the direst of crimes. He was tossed like a cork on the sea, and that wherever he went, in town or country, on sea or shore, he was perpetually watched and followed. At Edinburgh he saw a man on horseback watching him. That another person there nodded to him, and exclaimed, “That’s he;” that he had applied to the authorities of Glasgow for protection and relief. His complaints had been sneered and scouted at by Sheriff Bell, who had it in his power to put a stop to the persecution, if he had liked. If he had had a pistol in his possession, he would have shot Sheriff Bell dead as he sab in the court-house ; that Mr. Salmond, the procurator-fiscal, Mr. Sheriff Bell, Sheriff Alison, and Sir It. Peel might have put a stop to this system of persecution if they would; that on coming out of the court-house he had seen a man frowning at him, with a bundle of straw under his arm ; that he knew well enough what was meant ; that everything was done by signs ; that he was represented to be under a delusion ; that the straw denoted that he should lie upon straw in an asy- lum ; that whilst on board the steamboat on his way from Glasgow to Liverpool, he was watched, eyed, and examined closely by persons coming near him ; that they had followed him to Boulogne on two occasions ; they would never allow him to learn French, and wanted to mur- der him — he was afraid of going out after dark, for fear of assassination — that individuals were made to appear before him, like those he had seen at Glasgow. He mentioned having applied to Mr. A . Johnston, M.P. for Kilmarnock, for pro- tection ; Mr. Johnston had told him that he (the prisoner) was labouring under a delusion, but that he was sure he was not. That he had seen paragraphs in the Times newspaper containing allusions which he was satisfied were directed at him ; he had seen articles also in the Glasgow Herald, beastly and atrocious, insinuating things untrue and insufferable of him ; that on one or two occasions something pernicious had been put into his food ; that he had studied anatomy to obtain peace of mind, but he had not found it. That he imagined the person at whom he fired at Charing Cross to be one of the crew — a part of the system that was de- stroying his health. When you referred to the person whom he had fired at at Charing Cross, how did you put your question P — I cannot recollect the exact question. I have no doubt I asked him who he thought the person was. State, Dr. Monro, as correctly as you can, what the prisoner said on this point ? — He observed that when he saw the person at Charing Cross at whom he fired, every feeling of suffering which he had endured for months and years rose up at once in his mind, and that he conceived that he should obtain peace by killing him. I believe all the medical men heard the questions put to him and the answers ? — Yes. Drs. Bright and Sutherland were present. I do not know if they saw the prisoner yesterday. 919 ] Do you think that your knowledge of insanity enables you to judge between the conduct of a man who feigns a delusion and one who feels it ? — I do, certainly. Do you consider, Dr. Monro , that the delusions were real or assumed? — I am quite satisfied that they were real. I have not a shadow of a doubt on the point. Supposing you had heard nothing of the examination which took place in Newgate, but only the evidence which has been ad- duced in court for the last two days, would you then say that the prisoner was labour- ing under a delusion? — Most certainly. The act with which he is charged, coupled with the history of his past life, leaves not the remotest doubt on my mind of the presence of insanity sufficient to deprive the prisoner of all self-control. I consider the act of the prisoner in killing Mr. Drummond to have been committed whilst under a delusion ; the act itself I look upon as the crowning act of the whole matter — as the climax — as a carrying out of the pre-existing idea which had haunted him for years. . Is it consistent with the pathology of insanity, that a partial delusion may exist, depriving the person of all self-control, whilst the other faculties may be sound ? — Certainly; monomania may exist with general sanity. I have frequently known a person insane upon one point exhibit great cleverness upon all others not im- mediately associated with his delusions. I have seen clever artists, arithmeticians, and architects, whose mind was disordered on one point. An insane person may com- mit an act similar to the one with which the prisoner is charged, and yet be aware of the consequences of such an act. The evidence which I have heard in Court has not induced me to alter my opinion of the case. Lunatics often manifest a high degree of cleverness aud ingenuity, and exhibit occasionally great cunning in es- caping from the consequences of such acts. I see a number of such cases every day. Cross-examined by the Solicitor General. You have stated tha.t Drs. Bright and Sutherland were present at the examina- tion. Did they hear your examination of the prisoner ? — Yes, they were present and heard the examination. They were there on the part of the Crown. I asked all the questions. Is it not the practice of the Crown to have medical gentlemen present at the examination of a person charged with such serious crimes as the prisoner is now accused of ? — I believe it is. I believe you attended in the case of Oxford on the part of the Crown ? — I saw [920 Oxford by myself ; no other medical man was present. Who were present when you examined M ( Naughton ? — Sir A. Morrison , Mr. M‘Glure, Drs. Bright and Sutherland. On the two last occasions on which I saw the prisoner, Mr. Hutchinson and Dr. Crawford were present at the request of the friends of the prisoner. They ex- amined the prisoner almost exclusively on that occasion, and, in accordance with the usual practice, gentlemen in behalf of the Crown also attended. I should like you to acquaint the Court with the exact form of the question you put to him which had a reference to his firing the pistol at Mr. Drummond, at Charing Cross ? — I did not take any notes at the time. Did you ask him if he knew whom he fired at ? — I am not quite certain. I think I asked the prisoner whom he fired at. Did anyone present ask the prisoner if he knew that it was Sir Robert Peel he shot at ? — I think he was asked the ques- tion more than once. He hesitated and paused, and at length said he was not sure whether it was Sir Robert Peel or not. This was asked in my presence. Please to refer to your notes, and tell me whether he did not say that if he thought it was not Sir Robert Peel, he would not have fired at all? — I have no notes to that effect. The notes that I have with me were made at home, and not at the time of the examination. Did he not say he would not have fired if he had known that it was not Sir Robert Peel ? — No, I think he did not. On this point he observed that the person at whom he fired gave him as he passed a scowling look. At that moment all the feelings of months and years rushed into his mind, and he thought that he could only obtain peace by shooting him. He stated this in answer to my questions. I avoided all leading questions. There was much repe- tition in the questions put to him. The gentlemen from Scotland also examined him. What was the form of the question which related to his firing at Sir Robert Peel ? — I think the question was, “ Did you know whom you were firing at ? ” In reply he observed, “ He was one of the crew that had been following him.” Do you mean to say, Dr. Monro , that you could satisfy yourself as to a person’s state of mind by merely going into a cell and putting questions to him ? — In many instances I can ; I will mention a case in point. A short time back I was called in to examine a man who was confined in Newgate under sentence of death. It was thought that he had feigned insanity. After an attentive examination, in conjunc- The Queen against Daniel M'Naughton, 1843 . 921 ] tion with Mr. M" Mur do, I at onco detected that his insanity was assumed, and such turned out to be the fact. I had the satisfaction afterwards of hearing that the man himself confessed prior to his execu- tion that he had feigned insanity. I wish to know whether your skill would enable you to ascertain the nature of the delusion under which the prisoner was labouring without seeing the depositions taken in his case ? — Certainly. I have formed my opinion from an examination of the prisoner personally, in conjunction with the depositions. Is it not necessary to examine the bodily symptoms in these cases ; for instance, the pulse ? — Yes, sometimes. I did not feel liis pulse, neither did I lay much stress upon the appearance of his eye. Do you always assume that the party tells you what is passing in his mind ? — Not always. What do you mean by insanity ? Do you consider a person labouring under a morbid delusion of unsound mind ? — I do. Do you think insanity may exist without any morbid delusion ? — Yes ; a person may be imbecile ; but there is generally some morbid delusion ; there are various shades of insanity. A person may be of unsound mind, and yet be able to manage the usual affairs of life. May insanity exist with a moral percep- tion of right and wrong? — Yes ; it is very common. A person may have a delusion and know murder to be a crime ? — If there existed antecedent symptoms I should consider the murder to be an overt act, the crown- ing piece of his insanity. But if he had stolen a 10 1. note it would not have tallied with his delusion. But suppose he had stolen the note from one of his persecutors ? (Dr. Monro’s answer was not heard owing to the laughter which followed the Solicitor General’s observation.) A delusion like M Naughton’ s would carry him quite away. I think a person may be of unsound mind, labour under a morbid delusion, and yet know right from wrong. Have you heard of what is called moral insanity ? Have you read the works of M. Marc ? — I understand what monomania means. It is attended by an irresistible propensity to thieve or burn, without being the result of particular motives. Re-examined by Cockburn. You said, Dr. Monro, that a person might labour under a particular form of insanity without having his moral percep- tions deranged. For illustration — a man may fancy his legs made of glass. There [922 is nothing in that which could affect his moral feelings P — Certainly not. You have not the slightest doubt that M‘Naughton’s moral perceptions were im- paired ? — No. Sir A. Morrison , M.D. — Examined by Clarkson. I believe, Dr. Morrison, that you were one of the gentlemen who saw the prisoner in conjunction with Drs. Monro, Suther- land, and Bright ? — I did. You have been in Court during the whole of the day ? — I have. Were you not present during the whole of the examination of the prisoner in New- gate ?— I was. Did you arrive at any conclusion as to the prisoner’s state of mind ? — I did. Please to state to the Court what your impression was ?— That M l Naughton was insane. After having heard the evidence adduced that day in Court, has your opinion under- gone any alteration?— I am still of the same opinion, that the prisoner was insane at the time he committed the act with which he is charged. > The prisoner’s morbid delusions con- sisted in his fancying himself subject to a system of persecutions ?— Yes ; that was the peculiar cause of his insanity. What effect had this delusion upon his mind? — It deprived the prisoner of all restraint over his actions. Do you speak with any doubt upon the point? — Not the slightest. Cross-examined by the Solicitor General. Had you formed your opinion in conse- quence of reading the depositions ? — It is the result of reading the depositions and examining the prisoner. I had, however, arrived at a conclusion of his insanity before I read the depositions. [Mr. William M‘Glure, a surgeon living in Harley Street, confirmed the previous evidence. I consider when he fired at Mr. Drum- mond, at Charing Cross, he (the prisoner) was suffering from an hallucination which deprived him of all ordinary restraint. Dr. W. Hutchenson, physician to the Royal Lunatic Asylum at Glasgow, gave evidence to the same effect. The prisoner had lost all self-control at the moment he fired at Mr. Drummond. The act flowed immediately from the delusion.] Cross-examined by the Solicitor General. Do you mean to say that the delusion prevented the prisoner from exercising any control over his actions ? — I said that the act was the consequence of the delu- Thc Queen against Daniel M‘ Naughton, 1843 . 923 ] sion, which was irresistible. The delusion was so strong that nothing but a physical impediment could have prevented him from committing the act. He might have done the same thing in Glasgow if the disease of the mind had reached the same point. From what period do you date his in- sanity P — From the time when MNaugh- ton called upon the commissioner of police, Mr. Wilson, for protection. Was he insane at that time P — Yes. When was that ? — Eighteen months back. Cockburn : Supposing at that time the same morbid notion had seized him, do you think he would have committed a similar act? — I do not think he could have resisted any impulse springing from the morbid delusions under which he suffered. Ke-examined by Cockburn. When patients exhibit symptoms similar to those which the prisoner manifested they are generally, I believe, placed under restraint? — Yes. Such symptoms often gradually develop themselves, whereas many have these delusions for some time and are harmless, and then they may suddenly impel them to the commission of crime. I have known cases of that kind. [Dr. P. J. Crawford, of Glasgow, and Mr. Aston Key, of Guy’s Hospital, con- firmed the previous witnesses.! Forbes Winslow. — Examined by Clarkson. Mr. Winslow, you are a surgeon resid- ing in Guildford Street P — I am. You are the author of the “Plea of Insanity in Criminal Cases,” and other works on the subject of insanity ? — Yes. I think, Mr. Winslow, that you have been in Court during the whole of the trial and have not been summoned on either side, and have heard all the evi- dence on the part of the Crown and for the defence ? — I have. Judging from the evidence which you have heard, what is your opinion as to the prisoner’s state of mind ? — I have not the slightest hesitation in saying that he is iusane, and that he committed the offence in question whilst afflicted with a delusion, under which he appears to have been labouring for a considerable length of time. Tindal, C.J. : Mr. Winslow, will you repeat what you have just stated P — Witness again expressed an unqualified opinion of the prisoner’s insanity. Dr. Fhilijys, surgeon and lecturer at the Westminster Hospital, was then called. [924 Tindal, C.J. : Mr. Solicitor General, are you prepared, on the part of the Crown, with any evidence to combat this testi- mony of the medical witnesses who now have been examined, because we think, if you have not, we must be under the necessity of stopping the case ? Is there any medical evidence on the other side ? Solicitor General : Ho, my Lord. Tindal, C.J. : We feel the evidence, especially that of the last two medical gentlemen who have been examined,' and who are strangers to both sides and only observers of the case, to be very strong, and sufficient to induce my learned bro- ther and myself to stop the case. Solicitor General : Gentlemen of the jury, after the intimation I have received from the Bench I feel that I should not be properly discharging my duty to the Crown and to the public if I asked you to give your verdict in this case against the prisoner. The Lord Chief Justice has intimated to me the very strong opinion entertained by himself and the other learned judges who have presided here to-day, that the evidence on the part of the defendant, and more particularly the evidence of the medical^witnesses, is suffi- cient to show that this unfortunate man at the time he committed the act was labouring under insanity ; and, of course, if he were so, he would be entitled to his acquittal. I was anxious, however, to say, on the part of the Crown, that they have had no object whatever but the attainment of public justice, and I believe I am right in saying that, on the part of the prosecu- tion, every facility has been given to the defence. There is no wish, there can be no wish on the part of the public prose- cutor, but that the ends of public justice shall be attained ; and, certainly, when in the streets of this metropolis a crime of this sort was committed, it was incum- bent on those who have the care of the public peace and safety to have the case properly investigated. The safety of the lives and persons of all of us requires that there should be such an investigation. On the part of the Crown I felt it my duty to lay before you the evidence we possessed of the conduct of this young man. I cannot agree with the observa- tions my learned friend has made on the doctrines and authorities that have been laid down in this case, because I think those doctrines and authorities are correct law ; our object being to ascertain whether at the time the prisoner committed the crime he was at that time to be regarded ! as a responsible agent, or whether all control of himself was taken away P The Lord Chief Justice I understand, means to submit that question to you. I cannot press for a verdict against the prisoner. The Queen against Daniel MN aught on, 1843 . 925 ] The Queen against Daniel M‘Naughton, 1843 . [920 The learned judge will submit the case to you, and then it will be for you to come to your decision. Tindal, C.J. : Gentlemen of the jury, in this important case which has excited very great anxiety during the two pre- ceding days, the point I shall have to sub- mit to you is whether on the whole of the evidence you have heard, you are satisfied that at the time the act was committed, for the commission of which the prisoner now stands charged, he had that com- petent use of his understanding as that he knew that he was doing, by the very act itself, a wicked and a wrong thing. If he was not sensible at the time he committed that act, that it was a violation of the law of God or of man, undoubtedly he was not responsible for that act, or liable to any punishment whatever flowing' from that act. Gentlemen, that is the precise point which I shall feel it my duty to leave to you. I have undoubtedly been very much struck, and so have my learned brethren, by the evidence we have heard during the evening from the medical persons who have been examined as to the state of the mind of the unhappy prisoner, for unhappy I must call him in reference to his state of mind. Now, gentlemen, I can go through the whole of the evidence, and particularly call back your attention to that part of it to which I at first adverted, but I cannot help re- marking, in common with my learned brethren, that the whole of the medical evidence is on one side, and that there is no part of it which leaves any doubt on the mind. It seems almost unnecessary that I should go through the evidence. I am, however, in your hands; but if on balancing the evidence in your minds you think the prisoner capable of dis- tinguishing between right and wrong, then he was a responsible agent and liable to all the penalties the law imposes. If not so, and if in your judgment the sub- ject should appear involved in very great difficulty, then you will probably not take upon yourselves to find the prisoner guilty. If that is your opinion then you will acquit the prisoner. If you think you ought to hear the evidence more fully, in that case I will state it to you, and leave the case in your hands. Pro- bably, however, sufficient has now been laid before you, and you will say whether you want any further information. Foreman of the Jury: We require no more, my Lord. Tindal, C. J. : If you find the prisoner not guilty, say on the ground of insanity, in which case proper care will be taken of him. Foreman : We find the prisoner not guilty, on the ground of insanity. The clerk of the arraigns, by order of the Court, directed the gaoler to keep the prisoner in safe custody till Her Majesty’s pleasure bo known. The prisoner was then removed, and the jury were discharged. On Wednesday, the 15th of March, the prisoner was removed by Mr. Cope, the governor of Newgate, to Bethlehem Hos- pital, St. George’s in the Fields, under an order from the Right Hon. Sir James Graham, Her Majesty’s Secretary of State for the Home Department. House of Lords, May 26, 1843. The House of Lords having resolved(a) in consequence of this verdict to take the opinion of the judges as to the law re- specting crimes committed by persons afflicted with insane delusions, all the judges attended their Lordships, but no questions were then put. June 19, 1843. — The judges again at- tended the House of Lords, when the fol- lowing questions were put to them without argument : — • “ 1st. — What is the law respecting alleged crimes committed by persons afflicted with insane delusion in respect of one or more particular subjects or persons ; as, for instance, where, at the time of the commission of the alleged crime, the accused knew he was acting con- trary to law, but did the act com- plained of with a view, under the in- fluence of insane delusion, of redress- ing or revenging some supposed grievance or injury, or of producing some supposed public benefit ? * 4 2nd. — What are the proper questions to be submitted to the jury when a per- son, alleged to be afflicted with insane delusion respecting one or more parti- cular subjects or persons, is charged with the commission of a crime (mur- der, for example), and insanity is set up as a defence ? “ 3rd. — In what terms ought the question to be left to the jury as to the pri- soner’s state of mind at the time when the act was committed ? “ 4th. — If a person under an insane delu- sion as to existing facts commits an offence in consequence thereof, is be thereby excused ? “5th.— Can a medical man, conversant with the disease of insanity, who never saw the prisoner previously to the trial, but who was present during the whole trial, and the examination of all the witnesses, be asked his opinion as to the state of the pri- (a) See debate on March 6 and 13, 1843, Hansard, vol. 67, pp. 288, 714. 927 ] The Queen against Daniel M‘Naughton , 1843 . [928 soner’g mind at the time of the com- mission of the alleged crime, or his opinion whether the prisoner was conscious at the time of doing the act that he was acting contrary to law, or whether he was labouring under any and what delusion at the time ?” Maule, J. : I feel great difficulty in answering the questions put by your Lord- ships on this occasion : — First, because they do not appear to arise out of, and are not put with reference to, a particular case, or for a particular purpose, which might explain or limit the generality of their terms, so that full answers to them ought to be applicable to every possible state of facts not inconsistent with those assumed in the questions ; this difficulty is the greater, from the practical experi- ence both of the Bar and the Court being confined to questions arising out of the facts of particular cases : secondly, be- cause I have heard no argument at your Lordships’ Bar or elsewhere on the sub- ject of these questions, the want of which I feel the more the greater is the number and extent of questions which might be raised in argument : and, thirdly, from a fear, of which I cannot divest myself, that as these questions relate to matters of cri- minal law of great importance and frequent occurrence, the answers to them by the judges may embarrass the administration of justice when they are cited in criminal trials. For these reasons I should have been glad if my learned brethren would have joined me in praying your Lordships to excuse us from answering these ques- tions, but as I do not think they ought to induce me to ask that indulgence for my- self individually, I shall proceed to give such answers as I can, after the very short time which I have had to consider the questions, and under the difficulties I have mentioned, fearing that my answers may be as little satisfactory to others as they are to myself. The first question, as I understand it, is, in effect, What is the law respecting alleged crime, when, at the time of the commission of it, the accused knew he was acting contrary to the law, but did the act with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance of injury, or of producing some supposed public benefit ? If I were to understand this question ac- cording to the strict meaning of its terms, it would require, in order to answer it, a solution of all questions of law which could arise on the circumstances stated in the question, either by explicitly stating and answering such questions, or by stating some principles or rules which would suffice for the solution. I am quite un- able to do so, and, indeed, doubt whether it be possible to be done, and therefore request to be permitted to answer the question only so far as it comprehends the question whether a person, circumstanced as stated in the question, is for that reason only to be found not guilty of a crime respecting which the question of his guilt has been duly raised in a criminal proceeding ; and I am of opinion that he is not. There is no law that I am aware of that makes persons in the state described in the question not responsible for their criminal acts. To render a person irre- sponsible for crime on account of unsound- ness of mind, the unsoundness should, according to the law as it has long been understood and held, be such as to render him incapable of knowing right from wrong. The terms used in the question cannot be said (with reference only to the usage of language) to be equivalent to a description of this kind and degree of un- soundness of mind. If the state described in the question be one which involves, or is necessarily connected with, such an unsoundness, this is not a matter of law, but of physiology, and not of that obvious and familiar kind as to be inferred with- out proof. Second, the questions necessarily to be submitted to the jury are those questions of fact which are raised on the record. In a criminal trial, the question commonly is, whether the accused be guilty, or not guilty ; but in order to assist the jury in coming to a right conclusion on this neces- sary and ultimate question, it is usual and proper to submit such subordinate or intermediate questions as the course which the trial has taken may have made it con- venient to direct their attention to. What those questions are, and the manner of submitting them, is a matter of discretion for the juiige — a discretion to be guided by a consideration of all the circumstances attending the inquiry. In performing this duty, it is sometimes necessary or convenient to inform the jury as to the law ; and if, on a trial, such as is sug- gested in the question, he should have occasion to state what kind and degree of insanity would amount to a defence, it should be stated conformably to what I have mentioned in my answer to the first question as being, in my opinion, the law on this subject. Third, there are no terms which the judge is by law required to use. They should not be inconsistent with the law as above stated, but should be such as, in the discretion of the judge, are proper to assist the jury in coming to a right con- clusion as to the guilt of the accused. * * Fourth, the answer which I have given to the first question is applicable to this. 929 ] The Queen against Daniel M'Naughton, 1843 . [930 Fifth, whether a question can be asked depends, not merely on the questions of fact raised on the record, but on the course of the cause at the time it is pro- posed to ask it ; and the state of an in- quiry as to the guilt of a person charged with a crime, and defended on the ground of insanity, may be such that such a ques- tion as either of those suggested is proper to be asked and answered, though the witness has never seen the person before the trial, and though he has been present and heard the witnesses ; these circum- stances, of his never having seen the per- son before and of his having been present at the trial, not being necessarily sufficient, as it seems t'o me, to exclude the lawful- ness of a question which is otherwise law- ful, though I will not say that an inquiry might not be in such a state as that these circumstances should have such an effect. Supposing there is nothing else in the state of the trial to make the questions suggested proper to be asked and answered, except that the witness had been present and heard the evidence, it is to be con- sidered whether that is enough to sustain the question. In principle it is open to this objection, that, as the opinion of the witness is founded on those conclusions of fact which he forms from the evidence, and as it does not appear what those con- clusions are, it may be that the evidence he gives is on such an assumption of facts as makes it irrelevant to the inquiry. But such questions have been very frequently asked, and the evidence to which they are directed has been given, and has never, that I am aware of, been successfully objected to. Evidence, most clearly open to this ob- jection, and on the admission of which the event of a most important trial probably turned, was received in the case of the Queen v. M'Nauglilon, tried at the Central Criminal Court in March last, before the Lord Chief Justice, Mr. Justice Williams, and Mr. Justice Coleridge , in which coun- sel of the highest eminence was engaged on both sides ; and I think the course and ractice of receiving such evidence, con- rmed by the very high authority of these judges, who not only received it, but left it, as I understand, to the jury without any remark derogating from its weight, ought to be held to warrant its reception, notwithstanding the objection in principle to which it may be open. In cases even where the course of practice in criminal law has been unfavourable to parties ac- cused, and entirely contrary to the most obvious principles of justice and humanity, as well as those of law, it has been held that such practice constituted the law, and could not be altered without the authority of Parliament. Tindal, C.J. : My Lords, Her Majesty’s o 67432. judges, with the exception of Mr. Jus- tice Maule , who has stated his opinion to your Lordships, in answering the ques- tions proposed to them by your Lordships’ House, think it right, in the first place, to state that they have forborne entering into any particular discussion upon these questions, from the extreme and almost insuperable difficulty of applying those answers to cases in which the facts are not brought judicially before them. The facts of each particular case must of necessity present themselves with endless variety, and with every shade of difference in each case ; and as it is their duty to declare the law upon each particular case, on facts proved before them, and after hearing argument of counsel thereon, they deem it at once impracticable, and at the same time dangerous to the administration of justice if it were practicable, to attempt to make minute applications of the princi- ples involved in the answers given by them to your Lordships’ questions. They have, therefore, confined their answers to the statement of that which they hold to be the law upon the abstract questions proposed by your Lordships; and as they deem it unnecessary, in this peculiar case, to deliver their opinions seriatim, and as all concur in the same opinion, they desire me to express such their unanimous opinion to your Lord- ships. The first question proposed by your Lordships is this: “What is the law re- specting alleged crimes committed by persons afflicted with insane delusion in respect of one or more particular subjects or persons ; as, for instance, where, at the time of the commission of the alleged crime, the accused knew he was acting contrary to law, but did the act complained of with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some supposed benefit?” In answer to which question, assuming that your Lordships’ inquiries are confined to those persons who labour under such partial delusions only, and are not in other respects insane, we are of opinion, that, notwithstanding the party accused did the act complained of with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some public benefit, he is nevertheless punish- able, according to the nature of the crime committed, if he knew, at the time of committing such crime, that he was acting contrary to law, by which expression we understand your Lordships to mean the law of the land. Your Lordships are pleased to inquire of us, secondly: “What are the proper G G ■ 931 ] The Queen against Daniel M‘ Naught on, 1843 . [932 questions to be submitted to tbe jury, where a person alleged to be afflicted with insane delusion respecting one or more particular subjects or persons is charged with the commission of a crime (murder, for example), and insanity is set up as a defence ?” And, thirdly : “ In what terms ought the question to be left to the jury as to the prisoner’s state of mind at the time when the act was committed ?” And as these two questions appear to us to be more conveniently answered together, we have to submit our opinion to be,, that the jury ought to be told in all cases that •every man is to be presumed to be sane, ■and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction ; and that, to establish a defence on the ground of insanity, it must be clearly proved, that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know he was doing what was wrong. The mode of putting the latter part of the question to the jury on these occasions has generally been, whether the accused at the time of doing the act knew the difference between Tight and wrong ; which mode, though rarely, if ever, leading to any mistake with the jury, is not, as we conceive, so •accurate when put generally, and in the abstract, as when put with reference to the party’s knowledge of right and wrong in respect to the very act with which he is charged. If the question were to be put as to the knowledge of the accused, solely and exclusively with reference to the law of the land, it might tend to con' found the jury, by inducing them to be- lieve that an actual knowledge of the law «of the land was essential in order to lead to a conviction ; whereas the law is ad- ministered upon the principle that every one must be taken conclusively to know it, without proof that he does know it. If the accused was conscious that the act was one which he ought not to do, and if that act was at the same time contrary to the law of the land, he is punishable ; and the usual course, therefore, has been, to leave the question to the jury, whether the party accused had a sufficient degree of reason to know that he was doing an act that was wrong ; and this course we think is correct, accompanied with such observations and explanations as the circumstances of each particular case may require. The fourth question which your Lord- ships have proposed to us is this: “If a person under an insane delusion as to • existing facts commits an offence in con- sequence thereof, is he thereby excused P” To which question the answer must of course depend on the nature of the delu- sion ; but, making the same assumption as we did before, namely, that he labours under such partial delusion only, and is not in other respects insane, we think he must be considered in the same situation as to responsibility as if the facts with respect to which the delusion exists were real. For example, if, under the influence of his delusion, he supposes another , man to be in the act of attempting to take away his life, and he kills that man, as he supposes, in self-defence, he would be exempt from punishment. If his delusion was that the deceased had inflicted a serious injury to his character and fortune, and he killed him in revenge for such, supposed injury, he would be liable to punishment. The question lastly proposed by your Lordships is: “ Can a medical man, con- versant with the disease of insanity, who never saw the prisoner previously to the trial, but who was present during the whole trial and the examination of all the witnesses, be asked his opinion as to the state of the prisoner’s mind at the time of the commission of the alleged crime, or his opinion whether the prisoner was conscious at the time of doing the act that he was acting contrary to law, or whether he was labouring under any and what delusion at the time ?” In answer thereto, we state to your Lordships, that we think the medical man, under the circumstances supposed, cannot in strictness be asked his opinion in the terms above stated, because each of those questions involves the determination of the truth of the facts deposed to, which it is for the jury to decide,andthe questions are notmereques- tionsupon a matter of science, in which case such evidence is admissible. But, where the facts are admitted, or not disputed, and the question becomes substantially one of science only, it may be convenient to allow the question to be put in that general form, though the same cannot be insisted on as a matter of right. (a) Lord Brougham : My Lords, the opinions of the learned judges, and the very able manner in which they have been presented to the House, deserve our best thanks. One of the learned judges has expressed his regret that these questions were not argued by counsel. Generally speaking, it is most important that in questions put for the consideration of the judges they should have all that assistance which is afforded by an argument of counsel ; but, (a) As to these answers see Stephen’s His- tory of the Criminal Law of England, vol. 2, 152, &c. ; also later cases collected in 1 Russ. Cri. 128 &c. 933 ] The Queen against Daniel M'Naughton , 1843 . [934 at the same time, there can be no doubt of your Lordships’ right to put in this way abstract questions of law io the judges, the answer to which might be necessary to your Lordships in your legislative capacity. There is a precedent for this course in the memorable instance of Mr. Fox's Bill on the Law of Libel, where, before passing the Bill, this House called on the judges to give their opinion on what was the law as it then existed. (a) Lord Campbell : My Lords, I cannot avoid expressing my satisfaction that the noble and learned lord on the woolsack carried into effect his desire to put these questions to these judges. It was most tit that the opinions of the judges should be asked on these matters, the settling of which is not a mere matter of speculation, for your Lordships may be called on in your legislative capacity to change the law ; and, before doing so, it is proper that you should be satisfied beyond doubt what the law really is. Your Lordships have been reminded of one precedent for this proceeding, but there is a still more recent instance, the judges having been summoned in the case of the Canada Reserves to express their opinions on what was then the law on that subject. The answers given by the judges are most highly satisfactory, and will be of the greatest use in the administration of justice. Lord Cottenham : My Lords, I fully concur with the opinion now expressed (a) See the answers of the judges. 29 Pari. Hist. 1861. as to the obligations we owe to the judges. It is true that they cannot be required to say what would be the construction of a Bill not in existence as a law at the moment at which the question is put to them ; but they may be called on to assist your Lordships in declaring their opinions on abstract questions of existing law. Lord Wynford : My Lords, I never doubted that your Lordships possess the power to call on the judges to give their opinions upon questions of existing law proposed to them as these questions have been. I myself recollect that when J had the honour to hold the office of Lord Chief Justice of the Court of Common Pleas, I communicated to the House the opinions of the judges on questions of this sort framed with reference to the usury laws. Upon the opinion of the judges thus delivered to the House by me, a Bill was founded and afterwards passed into a law. Lord Lyndhurst, L.C. : My Lords, I entirely concur in the opinion given by my noble and learned friends, as to our right to have the opinions of the judges on abstract questions of existing law, and I agree that we owe our thanks to the judges for the attention and learning with which they have answered the questions now put to them. Materials made use of.— The report of the trial has been abridged from the full report by Richard M. Bousfield of Gray’s Inn, and Richard Merrett shorthand writer (London, 1843). The proceedings in the House of Lords are from 10 Cl. & F. 200. G G 2 935] Trial of Fear gas O’Connor and others , 1843. [936 THE QUEEN against FEARGUS O’CONNOR AND OTHERS. Trial of Feargus O’Connor, and Fifty-eight other Chartists, for Seditious Conspiracy, at Lancaster, Wednesday, March 1, 1843, AND THE FOLLOWING Days, BEFORE ROLFE, B .,(«) AND A SPECIAL Jury. Proceedings in the Court of Queen’s Bench on Motion in Arrest of Judgment, before Lord Denman, L.C.J., Patteson, Williams,, and Coleridge, JJ., May 26 and June 7, 1843. (Reported in 5 Q.B. 16.) In August 1842 a widespread strike took place in the Lancashire manufacturing districts. Bands of strikers went about forcing the hands to turn out, and on August 9 all the mills in Manchester were stopped. At numerous meetings held during the strike Chartist speakers urged the people to remain out until the Charter became law, and similar advice was given by a Chartist conference which met at Manchester on August 17. Feargus O’Connor, the Chartist leader, and fifty -eight others were indicted subsequently for a seditious conspiracy and other misdemeanors.. The jury found some of the defendants, including O’Connor, guilty on the fifth count, and others on the fourth count as well. Judgment was afterwards arrested on the fifth count, and the defandants convicted on the fourth count were not called up for judgment. Ruled by Rolfe, B. — 1. Conspiracy — Common Object — Different Means. A combination of two or more persons to do, or cause others to do, an illegal act, or to bring about a legal act by illegal means is a criminal conspiracy. To find the defendants guilty on any count, they must be found guilty of one and the same conspiracy. It is not enough that the defendants should have done the same illegal acts ; they must have been associated in a common object. 2. Competency of Parties indicted to give Evidence. Any one of several defendants who have been indicted for misdemeanor and put upon their trial together, is a competent witness agamst the rest, provided that, at any- time before verdict, a nolle prosequi in regard to him be entered, or a verdict of acquittal taken. Held by the Court of Queen’s Bench — 3. Counts for Misdemeanor — Venue — 7 Geo. 4. c. 64. s. 20. A count for misdemeanor containing no statement of venue, either by special reference- to the marginal venue or otherwise was bad at common law after verdict, although a venue was stated as usual in the margin of the indictment. (6) Such defect could not be cured by 7 Geo. 4. c. 64. s. 20, enacting that no judgment after verdict, or confession, or default should be stayed for “want of a proper or perfect venue, provided it shall appear by the indictment that the Court had jurisdiction over the offence,” for “ jurisdiction ” here meant local jurisdiction and not jurisdiction with reference to the Dature of the charge. The venue in the margin was insufficient, as it only implied that the indictment was found by a grand jury of the county named. Held also, that a count alleging, without any statement of venue, that certain persons did unlawfully assemble, See., and then charging, with a statement of venue, that the defen- dants did “ unlawfully aid, abet, assist, comfort, and support and encourage ” the said - persons, even if bad at common law, because laid as regards a material fact without a proper assignment of venue, was cured by 7 Geo. 4. c. 64. s. 20, as an imperfect venue, because the indictment showed the Court to have jurisdiction. (а) Afterwards Lord Cranworth, L.C. (б) See now 14 & 15 Viet. c. 100. s. 23, which enacts “it shall not be necessary to state the venue in the body of any indictment, but the name of the county only, or other jurisdiction named in the margin thereof shall be taken to be the venue for all the facts stated in the body of the indictment, provided that in cases where local description is or hereafter . shall be required, such local description shall be given in the body of the indictment.” By s. 24 of the same Act, “ no indictment for any offence shall be held insufficient .... for want of a proper or perfect venue.” $ 37 ] Trial of Fear gus O'Connor and others , 1843 . [938 In August 1842 serious disturbances, (a.) beginning with a general strike against a threatened reduction of wages, took place in the Lancashire and Cheshire manufac- turing districts, as hereinafter described. Bands of strikers went about forcibly turn- ing out the mill-hands and stopping the mills, in many cases by taking the plugs out of the engine boilers, whence the name "‘Plug Riots” applied to these distur- bances. Conflicts with the military oc- curred at Blackburn and Preston. Rival •agitations were being prosecuted at the time for the repeal of the Corn Laws and the establishment of the Charter, and Chartist speakers urged the strikers to re- main out until the Charter became law. On August 9 the strikers marched into Manchester, and all work was stopped in the town and the surrounding district. On August 16 and 17 a conference of leading Chartists, including Feargus O’Connor, M'Douall, Cooper, and others, met in Man- chester, and sanctioned the issue of a pla- card known as the Executive Placard, and signed by the five members of the Execu- tive Committee of the National Charter Association. The placard, which was couched in violent language (see below), boasted that within fifty miles of Man- chester every engine was at rest, and urged the people to remain out until the Charter became law. The conference ■also issued an address approving of the Executive Placard, and containing similar advice. Still more serious distur- bances occurred at the same time in the Potteries, (b) A Special Commission having been •opened on October 10, at Liverpool, by Lord Abinger, O.B., Alderson, B., and Cresswell, J., for the trial of the Lancashire offenders concerned in the late distur- bances,^) the grand jury found a true bill against Feargus O’Connor and fifty-eight others for a seditious conspiracy and other misdemeanors. The defendants traversed to the Spring Assizes, and on November 2 the indict- (а) As to these disturbances, see Gammage’s History of the Chartist Movement, c. 52 ; the Plug Plot, p. 234 ; the account of the Man- chester Conference in Cooper’s Life, p. 207, &c. ; and debates in Hansard, vol. 68, p. 42 ; For O’Connor, see Place MSS. 27,819 (27) ; Alexander Somerville’s Book of a Diligent Life, pp. 213-225; Forty Years’ Recollections by Thomas Frost, pp. 169-209; Urquhart’s j ■“Chartism,” “ Diplomatic Review,” July 1873, j p. 227 ; as to Harney, ibid. 216 ; as to M‘Douall, Somerville’s Autobiography of a Working Man, pp. 422-424, and 476. (б) See Cooper’s trial, below. “ The conspi- racy, it is said, was organised in eight counties.’’ Letter of Alderson, B., quoted at p. 81 of his Life. (c) See Lord Abinger’s charge, below. ment, at the instance of the Attorney Gene - ral, was removed into the Queen’s Bench. Lancaster Spring Assizes. Sitting at Nisi Prius. March 1, 1843. Before Rolfe, B., and a Special Jury. Trial of Feargus O’Connor and others. Mr. Baron Rolfe took his seat at nine o’clock precisely, and the prothonotary, having called over the list of special jurors, some were excused on valid grounds from serving, and others were fined 25 1. each for non-attendance. As there were only nine persons remaining, a tales was prayed for, and three others were added from the common jury. The following are their names : — James Anderton, of Duxbury, Esq., Foreman. James Rothwell Barnes, of Great Lever, Esq. Edward Brooke, of Rusholme, merchant. Isaiah Ashley, of Kirkdale, merchant. Thomas Edgeley, of Rusholme, merchant. Forsyth William Smith, of Toxteth Park, merchant. Charles Armstrong, of Everton, merchant. James Blyth, Plymouth Grove, Chorlton-upon- Medlock. Thomas Hague, of Waver tree, merchant. Richard Harrison, of Burnley. Charles Stores Kennedy. William Scott. Counsel for the Crown : the Attorney General (Sir Frederick Pollock),(a ) Stuart Wortley, Q.C .(b ) ; Sir Gregory Lewin, Q.C.; Hildyard, and Pollock. Counsel for the defendants : Dundas, Q.C., Atherton(c) with him for Robert Brooke. Baines , Q.C., Cobbett with him for James Scholefield and William Scholefield; Atherton appeared alone for James Fenton and William Stevenson. Serjeant Murphy appeared for Thomas Railton , John Durham, and Peter Murray McDouall. M'Obrey ap- peared for John Thornton, James Mooney , and William Aitkin. The other defendants had no counsel, and chose to defend them- selves. The Attorney General said, that with respect to William Scholefield, his learned friend might dismiss all further concern. He thought a nolle prosequi had been issued; but he would take a verdict of acquittal either now or at the end of the case. Serjeant Murphy said he appeared for George Johnson ; but that defendant said he should prefer conducting his own case, and he therefore defended himself. (a) Afterwards Lord Chief Baron. (b) Afterwards Recorder of London. (c) Afterwards Attorney General. 939 ] Trial of Fear gus O'Connor and others , 1843 . [940 Tollock opened the indictment, which was in the following form : — Lancashire \ The jurors for our Lady the Queen to wit J upon their oath present, that Feargus O'Connor, late of Manchester, in the county of Lancaster, labourer ; Peter Murray M‘Douall, James Scholefield, James Leach, Christopher Doyle, John Campbell, Jonathan Bairstow, Bernard M‘Cartney, James Arthur, otherwise called James M‘Arthhr, David Boss, Kichard Otley, George Julian Harney, James. Cartledge, Thomas Cooper, William Hill, Robert Brooke, James Taylor, John Hoyle, John Thornton, John Norman, Joseph Clarke, John Massey, John Fletcher, Thomas Browne Smith, Thomas Fraser, John Allinson, James Grasby, William Beesley, James Chippendale, Samuel Parkes, Thomas Bailton, Robert Ramsden, James Mooney, Thomas Mahon, John Leach, David Morrison, John Lomax, John Arran, James Skevington, William Scholefield, Richard Pilling, William Aitkin, Sandy Challenger, otherwise called Alexander Challenger, George Candelet, John Durham, James Fenton, William Stephenson, John Crossley, Albert Woolfenden, Robert Lees, John Lewis, Patrick Murphy Brophy, George Johnson, Thomas Storah, William Booth, John Wilde, William Wood- ruffe, Frederick Augustus Taylor, Thomas Pitt (all described as late of the same place, la- bourer), together with divers other evil-dis- posed persons, to the jurors aforesaid as yet unknown, on the first day of August, in the sixth year of the reign of our Sovereign Lady Victoria, and on divers other days and times between that day and the first day of October in the year aforesaid, at the parish of Manches- ter, in the county of Lancaster, unlawfully did conspire, confederate, and agree together, by causing to he brought and gathered together divers unlawful tumultuous and riotous assem- blies of seditious and evil- disposed persons in various parts of this realm, and by forcing and compelling divers of Her Majesty’s peaceable subjects, being then employed in their respective trades, manufactures, and occupations, to desist and depart from their respective employments and work, and by divers seditious and inflam- matory speeches, libels, placards, and other publications, to create alarm, discontent, and confusion, with intent thereby unlawfully to effect and bring about a change in the laws and constitution of this realm, against the peace of our said Lady the Queen, her crown and dignity. The second count was for unlawfully conspiring — by force and violence, and by creating alarm, discontent, tumult, and confusion, unlawfully to effect and bring about a change in the laws and constitution of this realm. The third count, after reciting that — heretofore on the first day of August, in the year aforesaid, and on divers other days and times between that day and the first day of October, in the year aforesaid, and at divers places within this realm divers evil-disposed persons unlawfully and tumultuously assembled together, and by violence, threats and intimida- tions to divers other persons being then peace- able subjects of this realm, forced the said last- mentioned subjects to leave their occupations and employments and thereby impeded and stopped the labour employed in the lawful and peaceable carrying on by divers large numbers of the subjects of this realm of certain trades, manufactures and businesses, and thereby caused great confusion, terror and alarm in the minds of the peaceable subjects of this realm, charged that afterwards the defendants — on the first day of August in the year aforesaid and on divers other days and times between that day and the first day of October in the year aforesaid, at the parish aforesaid, in the county aforesaid, together with divers other evil-disposed persons to the jurors aforesaid as yet unknown, the defendants did unlawfully conspire, combine, confederate, and agree to- gether to aid, abet, assist, comfort, support and encourage the said evil- disposed persons in this count first-mentioned, to continue and persist in the said unlawful assemblings, threats, intimidations, and violence, and in the said impeding and stopping of the labour employed in the said trades, manufactures, and busi- nesses, with intent thereby to cause terror and alarm in the minds of the peaceable subjects of this realm, and by means of such terror and alarm, violently and unlawfully to cause and procure certain great changes to be made in the constitution of this realm, as by law established, against the peace of our said Lady the Queen, her crown and dignity. The fourth count was in precisely the same terms as the third, except that it omitted the words “ conspire, combine, confederate, and agree together,” and simply charged that the defendants “ did unlawfully aid, abet,” &c. The fifth count charged that the defen- dants — together with divers other evil-disposed persons to the jurors aforesaid as } r et unknown, after- wards, to wit, on the first day of August in the year aforesaid, and on divers other days between that day and the first day of October in the year aforesaid, together with divers other evil-dis- posed persons, to the jurors as yet unknown, unlawfully did endeavour to excite Her Majesty’s liege subjects to disaffection and hatred of her laws, and unlawfully did endeavour to persuade and encourage the said liege subjects to unite, confederate, and agree to leave their several and respective employments, and to produce a cessa- tion of labour, throughout a large portion of this realm, with intent, and in order by so doing, to bring about and produce a change in the laws and constitution of this realm, against the peace of our said Lady the Queen, her crown and dignity. The sixth count charged the defendants with conspiring — “ l;o assemble and meet together unlawfully, riotously, and tumultuously, and to cause divers other persons to assemble and meet together. 941] Trial of Feargus O'Connor and others, 1843. [942 and by threats, menaces, violence, and intimi- dation unlawfully to force, and endeavour to force, divers of Her Majesty’s peaceable sub- jects ... to depart from their employ- ment and work, against the peace of the Queen, &c.” The seventh was for — “ unlawfully inciting and stirring up, and en- deavouring to incite and stir up, great numbers of Her Majesty’s liege subjects, with force of arms, unlawfully, riotously, and tumultuously, to assemble together, and by threats, violence, and intimidation, unlawfully to force, and en- deavour to force, divers of Her Majesty’s sub- jects to depart from their employment and work.” The eighth, — “ that the defendants and divers others did un- lawfully meet and assemble together in a for- midable and menacing manner, with clubs, sticks, and other offensive weapons to disturb the tranquillity, peace, and good order of this realm, and in contempt of Her Majesty the Queen, and against her peace, her crown, and dignity.” The ninth was the common count for riot. Opening Speech eor the Crown. Attorney General: May it please your Lordship and gentlemen of the jufy, I can assure you most unfeignedly, that I never rose to discharge a more painful duty than it is now my lot to discharge this day, nor one in which I consider the responsibility cast on those who have ad- vised the Crown to be greater than it is on the present occasion, while for a moment I allude to circumstances, which more or less must be in the knowledge of every- one of you, as probably they are of almost every person in Court, while I advert to them but for a moment, in order to caution you against any impression which you may have received with respect to any individual before you came into that box. It is scarcely possible not to entertain a strong impression of the danger and the mischief that might arise from offences such as are imputed in the indictment, if indeed they have been committed by any of the defendants. Gentlemen, I would call your attention exclusively on this oc- casion to the evidence that will be laid before you, and I state at the outset, without the slightest difficulty, that if you are not satisfied of the guilty partici- pation of every defendant, let all those who have, by their own evidence, or by the weakness of the case for the prosecu- tion raised a favourable doubt in your minds, have the benefit of that doubt, and by j-our verdict be acquitted. Gen- tlemen, the offence imputed to the de- fendants is that of endeavouring, by large assemblies of persons, accompanied by I force, violence, menaces, and intimida- tion, to produce such a degree of alarm j and terror throughout the country, as to | produce a change in some of the funda- j mental points of the constitution of this* country. I shall not stop here to inquire, , nor shall I detain you a moment to dis- cuss, the merits or demerits of the change,, nor the beauty of the constitution under which we live, nor the happiness which it may, or may not, shed around thoso who have the blessing to live under it. I am here not to discuss any political subject whatever. I am not here to praise- the constitution ; I am here for the pur- pose merely of vindicating the law. I doubt not his Lordship will tell you that the course of proceedings which I have adverted to is illegal, and that it is no by such proceedings that any change of whatever sort- is to be brought about in the constitution of this country ; and if you are satisfied by the evidence that the respective defendants have taken a part in a proceeding which had this for its object, and that these means which I have adverted to were the means to be resorted to by them, then it will be your painful duty to find them guilty. Gentlemen, a 3 little have I to do with the political origin of the meetings to which I must first call your attention. I propose to enter into no secret history of the motives of any individual anterior to the time when first the law was violated. I propose not to enter into any inquiry as to what were the circumstances that led to the commission of these offences, beyond what is abso- lutely necessary to render the facts in- telligible to you. And, gentlemen, having thus stated to you the duty that I con- ceive I have to perform, and entreated you to dismiss from your recollection any cir- cumstance tending to cast any prejudice-, or which may weigh against any of the prisoners individually, I shall proceed, as shortly as I can, to narrate the facts which I propose to lay before you as matters of evidence. Gentlemen, somewhere about July 26, there was a meeting held at Ashton- under-Lyne, which is about six miles to the east of Manchester. At that meeting the defendant William Wooclruffe was chairman, and another of the defendants, of the name of Pilling, was present, and was called upon to speak ; Woodruffe exhorted the people to give over work until they could get a fair day’s wages- for a fair day's work. He then called upon Pilling to address the meeting. The language which Pilling used was- very strong, and particularly directed against the owners of mills. A person named Aitkin, one of the defendants, said he would advise the cotton lords to keep 343] within the precincts of their own palaces, ais the dark nights were coming on, and •some bold hand more daring than the rest would reckon with them, for the reckon- ing day was near, and a bloody reckoning it was likely- to be. Gentlemen, shortly before this it appears there had been some reductions made by the masters in the wages of those they employed ; I think there had been as many as two or three reductions, and the last preceding reduc- tions had been carried into effect in the month of April in the last year. Some of the observations of this meeting were made with reference to the expected re- duction of wages. There were other meetings, at one of which notice was given of a further meeting to take place on Sunday, August 7, at Mottram Moor, or Wedensough Green, about four miles from Ashton, where the Chartists had been in the habit of holding their camp meetings. In the meantime, of the manufacturers, who had given notice of an intended reduc- tion of wages, I believe all except one had withdrawn their notice of reduction; but on Friday, August 5, one house having ^continued its notice —a sort of meeting of the masters and men at that factory oc- curred, at which something was said that gave offence to the men. I can hardly suppose that it was intended to give that offence. It, however, did create much offence, and the men immediately aban- doned their work, and that, I believe, was the first occasion of what is called the turn-out. On Saturday, August 6, there was a procession of not less than fifteen or sixteen thousand persons who went through Newton, headed by John Dur- ham — Gregory :{a) Fifteen or sixteen hundred. Attorney General : Another defendant and John Grossley. On Sunday, August .7, there were two meetings, one in the fore- noon and another in the afternoon. Muir- house, the chairman, addressed the meeting, and then, gentlemen, perhaps for the first time, the object of the meeting was dis- ■dinctly avowed. Muirhouse told the meet- ing that it was neither a wage question, nor a religious Question. It was a national question, ana their object was to make what was commonly called the People’s ■Charter the law of the land. On that oc- casion Candelet, one of the defendants spoke, and Wilde, who is now, I believe, suffering under sentence at Chester, (6) was another who addressed that meeting. At two o’clock in the afternoon there was a larger meeting at which the defendants (а) Solicitor for the prosecution. (б) Tried and convicted before Lord Abinger, C.B., at the Cheshire Special Commission for seditious conspiracy, and sentenced to be im- prisoned for two years in Chester Castle. [944 John Leach, Thomas Storah, Thomas Ma- hon, and William Stephenson spoke. At that meeting it was stated that on the following day there should be a general turn-out, and, that no one should return to work till the Charter became the law of the land. On that occasion, Muirhouse used language, of which, I believe, this is a correct statement Dundas : My Lord, I do not think that Muirhouse’ s name is in the indictment. Attorney General: I am not aware that Muirhouse is a defendant. I stated that he used this language, and I am perfectly correct in stating to you that what the chairman was permitted uninterruptedly to state is at least evidence of the inten- tion of those who were present ; and at that meeting I believe several of the de- fendants were actually present. “ The people had been told of the evils we labour under ; and I am requested to tell you that to-morrow a meeting will take place at Staly bridge, at five o’clock in the morning, when we will proceed from factory to factory ; and all the hands that will not willingly come out, we will turn them out ; and when we are out, we will remain out till the Charter, the only guaran- tee you have for your wages, becomes the law of the land. I hope to meet you all to-morrow at Stalybridge, when we will join hand in hand in this great national turn-out.” Gentlemen, there was a meeting on the following morning, at Haigh, near Staly- bridge ; there were from two to three thousand persons present ; and there was a placard at that meeting : — The men of Stalybridge will follow wherever danger points the way.” Another placard was : — “ They that perish by the sword are better than they that perish by hunger.” Gentlemen, that meeting proceeded first to Messrs. Harrison’s ; they there turned all the hands out, and stopped the mills ; they then proceeded to Messrs. Lee’s, where they did not find the same wil- lingness to receive their proposal to stop labour. The burst open the doors, and by force they did that which at Harrison’s they were able to do merely by their pre- sence and appearance. Gentlemen, it was arranged that they should meet the following morning, and something was said about going to Man- chester; and at a very early hour on Tuesday, August 9, there were meet- ings at Hyde, at Stalybridge — (the defen- dant Pilling was there) — and at Ashton ; and from the places where they all assembled, they determined to march upon Manchester. And accordingly, some thousands of persons, you will find, with a certain description of arms, with, blud- Trictl of Feargus O’Connor and others, 1843. 945] Trial of Feargus O'Connor and others , 1843. [946 geons and banners — having some appear- ance of military rank, and array, and order — marched upon the town of Man- chester ; and, finding the military very near the entrance of the town, they halted, and there was a sort of parley between them, the magistrate and the military- To the remonstrances of the magistrate they answered, that their ob- ject was peace, law, and order ; and they promised faithfully to keep the peace, and to commit no disorder of any kind. The magistrate withdrew the military, and putting himself— not exactly at their head as a leader, but for the purpose of point- ing out to them, I suppose, where they might go with propriety, and to watch them, that they did no mischief— the ma- gistrate placed himself along with them, and they marched into the town together ; the military having been withdrawn to prevent any hostile conflict. They had scarcely got into the town, when those who were rather in the rear separated themselves from the rest; and farming into various bands went from street to street, and from house to house, and took possession of the town. For three days the shops were shut np ; all labour was stopped ; portions of the mob went from place to place ; not merely at the mills, but at every place where the labour of j man was used, they went and enjoined the cessation of labour. In some instances they demanded bread; in others, they accepted money ; but, for three days, Manchester was in a state of the most lawless riot and confusion. The follow- ing week was remarkable at Manchester, for the introduction of some other pro- ceedings, still more threatening in their aspect than perhaps the assemblages of these persons already described. It ap- pears that at that time there had been sitting at Manchester a collection of dele- gates or persons in the Trades’ Union (a) ; and I beg to call your attention to a reso- lution of the trades, which was put forth on Friday, August 12. Gentlemen, the resolution was this : — « That we, the delegates representing the various trades of Manchester and its vicinities, with delegates from various parts of Lancashire and Yorkshire, do most emphatically declare, that it is our solemn and conscientious conviction that all the evils that afflict society, and which have prostrated the energies of the great body of the producing classes, arise solely from class legislation; and that the only remedy for the present alarming distress and widespread desti- tution is the immediate and unmutilated adoption and carrying into law, of the document known as the People’s Charter.— ‘ That this meeting recom- (a) See history of Trades’ Unions, Place MSS. (B.M.), 27,799, &c. mend the people of all trades and callings forth- with to cease work, until the above document becomes the law of the land. I may hero incidentally remark, that, if a number of persons had formed the de- sign of going about the country, from place to place, for the purpose of creating a cessation of labour, and compelling the public authorities of the country to adopt a particular change in the constitution, all those, who, in any way, afforded en- couragement of any sort to the persons who were so acting, became, what in law are called, accessories— whether before or after the fact, would make very little difference ; for, in a case of misdemeanor, which this is, all accessories are principals ; all who aid, encourage, assist, or foment this description of offence, are themselves guilty of that which they encourage in others. By this time, the state of Manchester had attracted the attention of the authorities there, and also the authorities in London ; and on the 14th there was a proclamation issued by the magistrates of their own authority, and on the 15th there was a proclamation issued in the name of the Queen by the executive government. And after those proclamations, calling upon every one to observe the peace, to abstain from giving encouragement to the vio- lence of others, it became still more and more the duty of all persons who were determined to obey the law, or who were not determined to disobey it, to abstain from any proceeding that could give en- couragement, directly or indirectly, to those who were still going about the country, from place to place, by inti- midation, to turn out those who were anxious to continue at work for their masters. On. the Monday there was a meeting of trades at, I think, the “ Sherwood Inn,” Tib Street ; and they adjourned to the Carpenters’ Hall. You will find, that at that meeting various motions and resolutions were carried ; and at length it was determined to issue a placard, to which I think it right to call your attention. “ LIBERTY. “ Liberty to the trades of Manchester and the surrounding districts.— Fellow-workmen, we hasten to lay before you the paramount import- ance of this day’s proceedings. The delegates from the surrounding districts have been more numerous at this day’s meeting than they were at yesterday’s, and the spirit and determination manifested for the people’s rights have increased every hour. In consequence of the unjust and unconstitutional interference of the magistrates our proceedings were abruptly brought to a close by their dispersing the meeting ; but not until, in their very teeth, we passed the following reso- 947 ] Trial of Fear gas O' 1 Connor and others , 1843 . [948 lution: — ‘Resolved — That the delegates in pub- lic meeting assembled, do recommend to the various constituencies which we represent, to adopt all legal means to carry into effect the People’s Charter ; and further we recommend that delegates be sent through the whole of the country to endeavour to obtain the co-operation of the middle and working classes in carrying out the resolution of ceasing labour until the Charter become the law of the land.’— English- men, legally determine to maintain the peace and well-being of society ; and show, by your strict adherence to our resolution, that we are your true representatives. Do your duty. We will do ours. We meet again to-morrow ; and the result of our deliberations will be fully laid before you.” Now, gentlemen, I have read to you every word of this. There occur in it ex- pressions with respect to “legal means,” and “ keeping the peace.” G-entlemen, I am afraid that those who directed the framing that paragraph would probably differ from the views which his Lordship will probably lay down to you, as to what are the legal means by which such objects may be carried into effect ; but it will be for you to judge whether, because the language of “peace, law, and order” is upon the lips of those who use such ex- pressions, accompanied by very different conduct — it will be for you to judge how far these expressions, which are used in a placard put forth to the public, really convey the intention of those who use them ; or whether they are used with the intention to depart from those professions, whenever a convenient opportunity may occur. Gentlemen, on Tuesday, August 16, there was another meeting, not now of the trades, but there was a meeting of de- legates,^) forming a sort of convention to represent the people of England, from different parts of the country : and I be- lieve that not less than from forty to sixty or seventy delegates arrived at Man- chester. At one of the meetings, un- doubtedly, about forty actually attended. (a) Delegates to the Conference of the Na- tional Charter Association, founded by Feargus O’Connor. Each town or district possessed an association of Chartists, who subscribed Id. a week. Each of the district associations had a president, treasurer, aud secretary. Members were also expected to take quarterly tickets at 2 d. each, the money to go towards the expenses of the executive committee of five, each of whom received 30s. a week, and was expeettd to give his whole time to the movement. Each town or district which had an association had the privilege of sending delegates to the confe- rences held from time to time on condition of providing their expenses. — Mr. Gregory’s report on the disturbances. Treasury Solicitor’s Papers, 2677 . Gentlemen, at that meeting an address was considered and approved, as an ad- dress to be printed and published to the people of England. It was an address from five persons, styling themselves “The Executive Committee of the Na- tional Association for carrying the Char- ter,” and I now beg to call your attention to the contents of that paper. The proof- sheet of this paper, corrected in the hand- writing of one of the defendants — I think Peter Murray M‘Douall—wi]\ be produced in evidence before you ; and with respect to his participation in it, it would be idle to suggest any doubt, because the proof- sheet was actually corrected by himself, in his own hand-writing. I beg to call your attention to the title of this placard. It is an “Address of the Executive Committee of the National Chartist Association to the people.” “ Brother Chartists, — The great political truths which have been agitated during the last half-century have at length aroused the degraded and insulted white slaves of England to a sense of their duty to themselves, their children, and their country. Tens of thousands have flung down their implements of labour. Your task- masters tremble at j r our energy, and expecting masses eagerly watch this the great crisis of our cause. Labour must no longer be the common prey of masters and rulers. Intelligence has beamed upon the mind of the bondsman ; and he has been convinced, that all wealth, comfort, and produce, everything valuable, useful, and elegant, have sprung from the palms of his hands ; he feels that his cottage is empty, his back thinly clad, his children breadless, himself hopeless, his mind harrassed, and his body pun- ished, that undue riches, luxury, and gorgeous plenty, might be heaped in the palaces of the task-masters, and flooded into the granaries of the oppressor. Nature, God, and reason, have condemned this inequality; and in the thunder of a people’s voice it must perish tor ever. He knows that labour, the real property of society, the sole origin of accumulated property, the first cause of all national wealth, and the only supporter, defender, and contributor to the greatness of our country, is not possessed of the same legal protection which is given to those lifeless effects, the houses, ships, and machinery which labour have alone created. “ Therefore it is that we have solemnly swOrn, and one and all declared, that the golden oppor- tunity now within our grasp shall not pass away fruitless ; that the chance of cen:uries, afforded to us by a wise and all-seeing God, shall not be lost ; but that we do now universally resolve never to resume labour, until labour’s grievances are destroyed, and protection secured to our- selves, our suffering wives, and helpless children, by the enactment of the People’s Charter. Knglishmen ! the blood of your brethren reddens the streets of Preston and Blackburn ” Gentlemen, I regret deeply to say, that at Preston and Blackburn there had been a conflict with the military, which un- > 940] fortunately did terminate in bloodshed. Now you perceive the language there is used with reference to that event. “ Englishmen ! the blood of vour brethren reddens the streets of Preston and P.lackburn, and the murderers thirst for more. Be firm, be courageous, be men ! Peace, law, and order, have prevailed on our side — let them be revered until your brethren in Scotland, Wales, and Ireland are informed of your resolution ; and when a universal holiday prevails, which will be the case in eight days, then of what use will bayonets be against public opinion ? What tyrant can then live above the terrible tide of thought and energy, which is now flowing fast, under the guidance of man’s intellect, which is now destined by a Creator to elevate his people above the reach of want, the rancour of despotism, and the penalties of bondage ? The trades, a, noble, patriotic band, have taken the lead in declaring for the Charter, and drawing their gold from the keeping of tyrants. Follow their ex- ample. Lend no whip to rulers therewith to scourge you. “ Intelligence has reached us of the wide- spreading of the strike ; and now, within fifty miles of Manchester, every engine is at rest, and all is still, save the miller’s useful wheels and friendly sickle in the fields.” Gentlemen, that was perfectly true. Within fifty miles of Manchester, all was still ; but in what way that stillness was produced, whether by the spontaneous wish of all persons who were compelled to observe that stillness, you shall judge to-day by the evidence ; and then you must further judge whether those who penned this document could by possibility be ignorant, that though undoubtedly a large portion of that rest from labour was accepted cheerfully by many, a very con- siderable proportion of it — I believe I should not be wrong if I said the greater part of it — was imposed upon a reluctant population by the activity, force, and threats of those who went from place to place to produce a compulsive abandon- ment of labour. “ Countrymen and brothers, centuries may roll on, as they have fleeted past, before such universal action may again be displayed: we have made the cast for liberty ; and we must stand, like men, the hazard of the die. Let none despond. Let all be cool and watchful, and, like the bridesmaids in the parable, keep your lamps burning ; and let your continued resolution be like a beacon to guide those who are now hastening, far and wide, to follow j our memo- rable example. Brethren, we rely upon your firmness ; cowardice, treachery, or womanly fear, would cast our cause back for half a century. Let no man, woman, or child, break down the solemn pledge ; and, if they do, may the curse of the poor and starving pursue them — they deserve slavery who would madiy court it. Our machinery is all arranged, and your cause will, in three days be impelled onward by all the [050 intellect we can summon to its aid: therefore, whilst you are peaceful, be firm ; whilst you are orderly, make all be so likewise ; and whilst you look to the law, remember that you had no voice in making it, and are therefore the slaves to the will, the law, and the price of your mas- ters. All officers of the association are called upon to aid and assist in the peaceful extension of the movement, and to forward all moneys for the use of the delegates who may be expressed over the country. Strengthen our hands at this crisis. Support your leaders. Rally round our sacred cause, and leave the decision ” Now where, gentlemen, do you think the decision is left after these appeals to “ peace, law, and order,” and to peace- ful struggle ” ? “ Leave the decision to the God of justice and of battle.” Gentlemen, this placard was extensively dispersed over Manchester, and it became a sort of rallying point to the various meet- ings that took place afterwards ; and the question that you have to decide with regard to all those who are concerned in the framing and putting forth of that placard — is whether in the entire scope and object of that publication you do not find a direct encouragement to those per- sons who were going about the country from factory to factory, and from mill to mill, — I might say almost from house to house, — to suspend labour of every kind, and to do it by force and menace, in order to carry out that change in the constitu- tion which would be effected by making the People’s Charter the law of the land. Gentlemen, you will have evidence given of what occurred at the meeting of dele- gates ; and as against oue of the defen- dants, I mean Mr. F. O'Connor, you will have the clearest evidence of his partici- pation in it, by a direct allusion to it in his own newspaper, the Northern Star, to which his name is affixed as a proprietor, and for the contents of which he is re- sponsible. Gentlemen, I propose first to read to you, from the Northern Star of the 20th of August a few expressions which clearly connect Mr. Feargus O'Connor with the publication of that document. Gentlemen, I think it perfectly right here to say, that, I believe that before this time, many paragraphs had been pub- lished in the Northern Star, dissuading the people from taking the course that they seemed to be bent upon ; and what- ever benefit in any way Mr. Feargus O’Connor can derive from a candid ad- mission on my part, I admit at once, that, prior to this time, apparently the Northern Star was directed against the strike. But from the paper which I hold in my hand you cannot doubt that for Eome reason — whether because the impulse seemed to be so strong — whether the current seemed Trial of Feargus O'Connor and others, 1 848. *951] Trial of Fear gns O'Connor and others, 1843. [952 to be so irresistible that it was no longer of any use to stem it — whether he was carried along by that current, or whether, seeing that there was such a prospect of ■Chartism becoming the law of the land, Mr. Feargus O’Connor thought the time was come when a use might be made of the turn-out, I know not ; I deal with the facts merely as they are before me. On the 20th of August the following paragraph appeared in the Northern Star in reference to the meeting of delegates in •conference in Manchester : — “ This body was driven by the ‘ troublous times ’ from the consideration of the particular matters and things for which it was summoned. The all-absorbing interest of the ‘ strike ’ move- ment was forced on the attention of its members as a first object of consideration. It being known that the sitting of this body was to commence on Monday, it was generally understood and believed that they would take up the subject ; and the decision to which they might come as to the course of action to be commended was looked for by hundreds of thousands with an intenseness . of anxiety perfectly indescribable. “The conference commenced its session at two p.m., and continued, by adjournments, till about seven on Wednesday evening.” And then he gives the statement : — “ Their deliberations were, as might be ex- pected, most anxious ; the discussions most ani- mated and earnest, and while some difference prevailed on the course to be recommended to the people, one soul and purpose seemed to animate the entire assembly as to the necessity of enforcing, by every means in their indivi- dual and collective power, the observance of peace, law, and order by and among the people. Each member, in the first instance, stated to the conference, so far as he had the means of knowing it, the state of his own district, and the opinion of his constituents in reference to * the strike.’ “ A general, anxious, and protracted discussion then ensued upon the question of adopting the following resolution of the delegates : — “ ‘ That whilst the Chartist body did not ori- ginate the present cessation from labour, the conference of delegates from various parts of England express their deep sympathy with their constituents, the working men now on strike ; and that we strongly approve the extension and continuance of their present struggle until the People’s Charter becomes a legislative enactment, and decide forthwith to issue an address to that effect ; and pledge ourselves, on our return to our respective localities, to give a proper direction to the people’s efforts.’ “Every speaker was restricted to five min utes, and no man allowed to speak twice on the same question. An amendment was proposed, differing from the resolution in phraseology, but having the same purport. Another amend- ment was proposed to the effect that— ‘ The information laid before this conference by the several delegates of whom it is composed does not warrant this conference in now re- commending to the people any national strike or holiday, or in any way mixing up the Chartist name and movement with the present strike for wages, subsisting in some districts, and origi- nated, as this conference believes, by the Anti- Corn Law League ; not seeing any means whereby the said strike can now be made a successful effort for the carrying of the People’s Charter ; while at the same time this conference deeply sympathise with their oppressed brethren on strike, and admire the spirit of energy and patriotism with which the trades of Manchester and at other places have declared for the People’s Charter.” The narrative goes on after alluding to this amendment: — “ After almost every member had spoken upon the question it was put, and the original resolution carried by a large majority.” Now observe what that original reso- lution was : — - “ That the meeting pledge themselves to assist the people in their present struggle, and put the Charter on the issue of the strike then going on.” “ It is but fair to state that a considerable majority of delegates were from the districts actually out and taking part in the struggle. After the adoption of the above resolution the following address was agreed to nem. con. The mover and supporters of the amendment deem- ing it both unnecessary and unwise to maintain an opposition, which, from being persisted in when seen to be powerless, might justly have been considered factious.” [The Attorney General read from the Northern Star the following passages from the address adopted at the confer- ence, remarking that the paper was only- evidence against the defendant O’Connor , its proprietor, but that the address would be proved independently.] “ You have not struck, you have been stricken ; but let the stroke recoil upon the tyrants who have so cruelly arrayed themselves against the interests of labour. “ Brothers, these are not times to hesitate ! The corn has a golden hue while your visages are pale, but hope for change and better times. We are fortunate in having an accredited Executive, bearing the confidence of all, at our head.” Gentlemen, that is the Executive Com- mittee of five persons whose address, ending with an appeal to the “ God of justice and of battle,” I have already read to you.(a) “ They, too, have called upon you. You wall read their address ; it breathes a bold and manly spirit. We could not, in times like the pre- sent, wdthhold from them, your servants, our cordial support, as in union alone is security to be found, and from unanimity alone can success be expected. (a) Above, p. 948. 953] Trial of Feargus O'Connor and others, 1843. [954- “ Brothers, the trades have issued a noble address. (a) It breathes a spirit worthy of old laws and old English liberties. This, brothers, is the time for courage, prudence, caution, watch- fulness, and resolution. “ In conclusion, brothers, we would, above all things, counsel you against the destruction of life or property. “ Remain firm to your principles, which are to be found in the document entitled the People’s Charter.” On a subsequent day, on September 3, Mr. F. O'Connor published another number of the Northern Star, in a leading column of which he gives an account of the meet- ing of delegates. It is in the form of a letter, but I believe that is the usual manner in which Mr. O'Connor puts a leading article into his paper. This is a letter from Mr. Feargus O'Connor, ad- dressed to the imperial Chartists. He says, amongst other things, — “ The delegates arrived at eight. Of course I don’t know any of them, as it appears that Sir C. Shaw has a desire to learn their names. I was one. We sat from eight to twelve in calm discussion, but no course was decided upon. When Mr. Hargraves arrived, it was unani- mously resolved, very much against my will, that neither I nor any other delegate should absent himself for the purpose of attending the Carpenters’ Hall meeting, and a message was sent to Rev. Mr. Scholefield to request him to make that communication to the meeting at Carpenters’ Hall, which he did. “ On Wednesday we met again, forty, and very excellent men. 1 believe there were exact- ly fort}’, Mr. O’Connor and Griffin made forty- two. We sat all day. There were two resolu- tions and one address passed, and that was all the business done. I seconded the address, ■which was earned by a great majority. I pro- posed one of the resolutions, which was carried unanimously. I drew up the address, the only address that was passed by the delegates, and, curious to say, the Northern Star was the only paper in England that published any one of the acts of the conference, and it published every one of them. I never saw so good a feeling pervade any meeting of the people’s leaders, never in my life. All was union and. harmony. At the close of the proceedings, and after the chairman had vacated the chair, some one asked — Tom Styles of Snookstown, I think — whether or no the placard that professed to come from the Execu- tive [the one that appeals to the ‘ God of battle ’] should appear in the Star ? 1 said, ‘ Yes, as an advertisement, and I will pay for it.’ At ten o’clock I walked down to Mr. Hey- wood’s. He was out. I remained till he re- turned, and the first word he said was, ‘ Well, sir, the poor devil that printed the placard pur- porting to emanate from the Executive has been seized, and his press and type are all taken,’ and, I believe, gentlemen, in consequence of that circumstance, the address did not appear in the Northern Star." How, gentlemen, I have not mentioned every one of the defendants by name but I shall, for a very short time call your attention to one of the defendants before I enter on the evidence — Mr. Scholefield, the elder. Mr. Scholefield himself gave the use of his chapel for this meeting ; he was present, and you will hear from the witnesses the language used at the meet- ing by the several defendants. Several of the speakers alluded distinctly to the use of direct physical force. I know that the object of many of the Chartists was to carry out their views without having re- course to physical force ; but, as to some of the defendants, you will find that one rnan(a) in particular stated that he came from a district where force had been re- sorted to. “ I have been,” said be, “ at Birmingham, Bilston, and the Potteries* and I have witnessed the feeling of resolution among the people. I will support the resolu- tion without making a long speech on it, because I believe the people in Staffordshire and many other parts are determined to fight, and are prepared for the worst. The Shakespearians of Leicester will not be behind in the cause. No- thing will gain our object but showing that we are prepared to fight.” Gentlemen, language of this kind used in the presence of other persons who make- no objection to it — who hear a speaker of this kind, who take his vote on an ad- dress— who reckon him as one of them- selves, and then put forth some address with phrases “ of lavr, peace, and order ; ” why, gentlemen, I might make here an appeal to your good sense if you can find any meaning in these phrases that justly should bring impunity and acquittal ta any ' of the parties present. It is my duty, and I can assure you, gentlemen, a most painful duty it is, to bring under your cognizance all these circumstances, and to ask you what is the construction you put upon them as men of sense and experience. As to the language used and the conduct adopted, I ask you whether those persons who put forth this address and passed these resolutions, and published them, can possibly be con- sidered in any other light than as asso- ciates with the more unfortunate and less enlightened parties who were going from town to town, and from mill to mill, encouraged by those addresses, — I might almost say provoked by them — into the (a) Thomas Cooper. See his trial at Staf- ford, below, 1249. (a) Above, p. 946. 955] Trial of Fear gas O'Connor and others, 1843. [956 excesses which otherwise they might have escaped ? Gentlemen, I mentioned that Mr. Scholefield, the proprietor of a chapel, had given it np for the use of the meet- ing. He was present when they delibe- rated ; he was there perfectly cognizant of what was going on, and it will be for you to consider whether by any over- whelming fear he was obliged to be there, whether he was not a part or parcel of the conference, and whether he did not assent to its proceedings. Let me call your at- tention to some words uttered by him at Carpenters’ Hall while the delegates were sitting in his house. I understand there was a tea party at Carpenters’ Hall in honour of some memorial to Hunt. [a) “ I am glad,” said Mr. Scholefield , “ to see 3'ou so comfortable under the circum- stances in which you are placed. 1 have a duty to perform with a friend (Mr. O’Connor). I have left him with other friends of the people advising plans to carry on the movement, that is, the people’s cause. I have to state, consider • ing the exact state of the town, that it would he better if Mr. O’Connor did not appear at this meeting. The cause may be retarded for a short time, but it will again raise up its head if our leaders are not taken. The object of our enemies is to seize our leaders ; but the com- mittee thought it best to deprive them of that opportunity.” Mr. Scholefield it appears was actively employed in going from one meeting to another, as well as giving the use of bis house to the delegates; and it will be for you to say in what light he appears. I own it would be to me a matter of some gratification to find that, with reference to him, some mistake had been committed as in the case of his son. I should rejoice as much as anyone in the innocence of any one defendant before you to-day. But I have a duty to perform to you and to the public at large, and painful as that duty may be in many respects, it is im- possible for me to shrink from its per- formance. Now, gentlemen, I have but one general statement to make beyond that to which I have called your attention, and it is one that I make with very mingled feelings indeed ; it is with re- spect to the intelligence and forbearance of those who mingled in this movement, but it is one that at the same time sug- gests an idea of the great extent and ex- treme peril in which the country might have been placed if such things could take place as I am now authorised to state. (a) See Huish’s Life of Hunt, and Trial of Henry Hunt, 1 St. Tr. N.S. 171. Gentlemen ; all labour of every kind had been stopped, not merely at the large manufactories where they were spinning by steam engines, but there was a general turn-out of all the hands em- ployed in all trades except of those who assisted in the production of the most ordinary necessaries of life. I believe the baker and the butcher were permitted to go on; but even the shoemaker and the tailor were stopped in their labours until the object of the turn-out should be carried. But it was manifest that, if this rule were enforced rigidly and to the letter, very great public mischief must ensue; and accordingly there sat in at least two places (I say two because I am in a con- dition to prove there were two, but I believe there is some evidence of com- mittees sitting in other places), com- mittees sat who at first styled themselves Committees of Public Safety, but whether the recollection of the connection of that name with some of the scenes of the French revolution suggested that they had better adopt another name I am not prepared to say, but I believe they after- wards called themselves the Committee of Operatives. Their object was to receive applications for a remission of the strict rule of abstaining from labour, and to give licences to persons to carry on to a limited extent their labours for the pur- poses specified in the licence. Gentlemen, I stated to you, and I did so most un- equivocally, that I have ever considered the existence of those committees as one of the most formidable evidences of the extent to which the “ strike/’ as it is called, had prevaded all classes of opera- tives ; but I can prove to you that two, I tfiink, at least, of the defendants (one of them is named Durham) sat at a table com- posing a committee of some ten or twelve, and received applications of the nature I have alluded to. For instance, a tailor on one occasion, in consequence of the death in the family of one of his customers, was applied to to make some mourning | clothes, but he did not dare do so until | he went to the committee and obtained permission. I believed there was some doubt entertained that he went beyond i the license, and a deputy was sent to in- quire into the matter. On another occa- I sion the waterworks of the town were nigh ; being stopped under a similar pretence. It so happened that the power which con- veyed the water was also employed in | connexion with some private works, and, while the committee gave an order to I have the power employed for the use of I the waterworks, they forbade it with j reference to the private interest con- i nected with it. In other cases a licence I was granted to get coals enough to supply 957] Trial of Feargas O’Connor and others, 1843. [958 the engine which kept the coal pits free from water. I believe I need not detail all the instances of this kind which occurred ; but you will find that there is quite evi- dence enough to satisfy you that a com- mittee sat, and that one or two of the de- fendants were members of that committee, and that they were granting licences, permitting persons to carry on to a certain extent the labour which otherwise they would not be permitted to do. Gentle- men, this is a proof of the extraordinary extent and intelligence with which this matter was carried on, and the numbers that were engaged in this species of strange violation of the law, which at the same time appeared to have for its object to a certain extent the interests of society. Gentlemen, there can be no doubt that if any attempt of this sort was to be again made, it perhaps could not be made with more respect for property and for life than what it generally did obtain even where violence was used. I should, gentlemen, bear willing testimony to the forbearance and moderation that fre- quently appeared, even in the midst of the lawless acts that were committed. The boldest defiance of the law was ac- companied by a respect for life and pro- perty to which I bear willing testimony. I feel rejoiced that I live in a country where, if excesses of this description occur, they are tempered by the forbear- ance and moderation which shines con- spicuously even amidst the violation of law which I have mentioned. Gentlemen, in addressing you I have been under a sense of the extreme importance of the duty I have to discharge, and which you will by-and-by have to discharge In making this statement to you and in bringing forward the evidence, and you dealing with it as gentlemen upon your oaths, there sitting, sworn to do justice, I have, I hope, not less from temper and feeling than from a discreet discharge of my duty, abstained from using one solitary expression of harshness. I desire to give no character to these offences beyond that which the law does and has done ; I desire not to raise your feelings from any sense of danger that you will not do jus- tice. I invoke you as dispassionately as it is possible under these circumstances to do, calmly and boldly, but firmly, to assist in the administration of the law. Gentle- men, to you will be ultimately committed the question of the guilt or innocence of the parties who will be respectively called on. It is possible that as to some there may be that weakness of evidence, or that absence of violent spirit which may in- duce you favourably to consider the case of some individuals. In that favourable consideration I shall cordially go along with you, whether it be to exclude from your verdict of guilty or to find them guilty, and to recommend them to the favourable consideration of the Court above. Gentlemen, with these observa- tions, endeavouring as much as possible to abstain from any topic that may disturb you in the calmest exercise of your func- tions, and in the most faithful discharge of your duty as well to the defendants as to the public on whose behalf this pro- secution is brought before you, I leave the case for the present in your hands. Dismiss every recollection you have of any party, attend to the evidence, do justice, and deliver your verdict accord- ingly. Rolfe, B. : With respect to what has been said by the Attorney General in re- ference to Scholefield , I wish to know are there any others against whom he will not proceed ? Dundas : Perhaps your Lordship will allow him to be acquitted. Rolfe, B. : I do not think it right to acquit him till the whole case is gone through. Baines : My learned friend the Attorney General offered it. Rolfe, B. : I think we had better let the whole case be gone through. Attorney General: I will give you a nolle prosequi. O'Connor applied to have all the wit- nesses on both sides ordered out of Court. The application was granted. The Attorney General asked permission for two reporters, who were to be examined from their notes, to remain in Court. Rolfe, B. : I shall not order out of Court either witnesses to character, or witnesses who are to give testimony of a formal nature such as proving notices, &c. The order applies only to witnesses who .are to speak to the facts of the case. O'Connor : No, my Lord, not witnesses to character, or to facts of no importance. I do not wish you to order out of Court such witnesses. Worthy : There are two reporters to the public newspapers here, my Lord, Mr. Hanly and Mr. Grant, who are to speak to what they have in their notes, and it is not necessary that the order should extend to them. O'Connor: I cannot take upon me to speak as to reporters who speak to material facts. Attorney General : They are to give evidence as to what took place on other occasions. Rolfe, B. : They will produce a written paper. Attorney General: They will speak to facts from written documents. 959] Trial of Feargus O'Connor and others , 1843. [960 B-olfe, B. : Then I shall not order them out of Court ; that is in substance, pro- ducing a written document. Evidence for the Crown. Joseph Haigh < — Examined by Stuart Wortley. IA milkman at Ashton-under-Lyne. Spoke to being present last July at a meet- ing of about three or four thousand people on a piece of waste ground near Thacker’s foundry at Ashton, Thacker’s ground it is sometimes called. William Woodrojfe, one of the defendants, was in the chair. TTe is a shoemaker. He introduced the de- fendant Aitkin. After speaking on the Charter and different things a considerable time, Aitkin said he should advise the cotton lords, particularly the Messrs. Rey- ner’s, to keep within the precincts of their own palaces, as dark nights were coming on, and the reckoning day was at hand. There was a placard on the walls of Ashton headed that way. I was also at a meeting at the Charles- town meeting-house near Ashton on Fri- day, August 12, at nine in the morning. There were from sixty to eighty persons present. Woodi'ojfe proposed a resolution, that it would facilitate the advance of the wages of operatives, if all labour should cease till that advance were obtained. I was at a meeting on Thacker’s ground, on Sunday, August 14. The defendant Johnson gave out a hymn beginning — “ A charge to keep I have ; A God to glorify ; A never dying soul to save, And fit it for the sky.” After the hymn Johnson addressed the meeting and gave them a religious ex- hortation. After he had done, other per- sons came and gave exhortations. Then the chairman said he had received a commu- nication — he knew not from whom, but he would read it to the meeting. It was to the effect that the committee had come to the determination that labour should not be resumed till the Charter became the law of the land. That was the first thing that was said about the Charter or labour-. At the time that announce- ment was made, a great consternation took place in the meeting ; there was some confusion as if the people were dissatis- fied. Johnson and Challenger were pre- sent when the chairman read that out. I was in Stamford Street, Ashton, on Saturday, August 13, at nine in the morn- ing. I was a special constable then. I had been sworn in on August 12. I saw a procession of men, women, and boys. There were four or five men abreast in front, and a lot of women and boys fol- lowed. The defendant Woodrojfe was in front. There were about sixty or eighty in all. As they passed they said, “ Fall in, fall in.” They went towards Staly- bridge. Cross-examined by Dundas. Aitkin is a schoolmaster ; Woodrojfe a shoemaker ; Challenger a hatter. There were several thousands at the meeting on Thacker’s ground on Sunday, August 14.] Dundas : Now, after the chairman read out what you stated, you said there was great dissatisfaction ? — There was. How was that expressed ?— By divisions of opinion, murmurs, and confusion. Divisions and murmurs? — Yes. The people were put into a sort of moving condition ; instead of sitting calm as be- fore, they became agitated. And how long did it last? — I cannot tell ; I came away while it was on the way. While what was on the way ?•— The dis- satisfaction that appeared to seize the meeting. While it was “ agate,” I suppose? Henry Brierly . — Examined by Sir G. Lewin. [A factory operative at Stalybridge. Spoke to being present at a meeting at the Haigh, near Stalybridge, on July 29. There were some hundreds there, A man named Challenger moved a resolution, that the present reduction of wages was injurious, not only to the manufacturers and la- bourers, but also to the shopkeepers, and to all classes of the community. The defendant Pilling moved a resolution in favour of a fair day’s wages for a fair day’s work, and they were of opinion that a fair day’s wages could not be obtained without the Charter being made the law of the land. That is as near what was said as I can think. A man named Brophy moved, and Storah seconded, a resolution to draw up a memorial to Sir Robert Peel for ten thousand stand of arms to be raised to protect the lives and property of the working classes against those who refused to pay the property tax. (a) The meeting was adjourned to Hyde. They were to meet on Saturday or Monday, I think. The meeting took place, but I was not present. It was adjourned to Dukinfield, and a meeting was held there on August 2 or 3. I was present. There were over a thousand there. They met in the Hall Green. When I got there Storah was moving the second resolution.] (a) The income tax imposed by 5 & 6 Yict, c. 35. 961] Sir G. Lewin {to the witness) : The mover of the resolution was called Storcch f— Yes And the same person was named Storah, and called upon to speak at a former meeting ? — Yes. Dundas .- How do you know that it is this Storah (the defendant). Sir G. Lewin : He was called by that name at a previous meeting. Attorney General : My Lord, it may be at once necessary to take your Lordships opinion on this distinct point. Now, I will assume that the Storah, who spoke at the meeting, is not the person called in the indictment by that name ; but then I say that the person named Storah (not the defendant), was present at a former meet- ing where some of the defendants were also present. That Storah goes to another meeting; and what takes place at this meeting and at various other meetings, it is quite evident are connected. The in- dictment charges that all the defendants conspired with divers others ; and this meeting, we are now speaking of, is an adjournment of a former meeting where some of the defendants were present. Rolfe, B. : That is not proved. They adjourned from Hyde, and he was not at Hyde. Attorney General : I wish to take your Lordship’s opinion upon this point. If some of the persons present at a former meeting are proved to be at this, then evidence of the general character of the meeting, and what was going on, may be admitted. In Hunt's case {a) I am told it was expressly held so. Rolfe, B. : In a case of this kind where you cannot prove exact coincidence it is so. Dundas .- I understand the Attorney General to dw r ell much upon this point that Storah is the person in the indictment. No person is spoken of but a person of the name of Storah, and who that person is, he (the witness) knows not, except that a person was so named by the chairman. He does not know who were at the other meeting. All we have in evidence is, that there was a meeting at which this person, Storah, was present ; but who the others are we do not know, nor have we Storah identified as one of the defen- dants. They must prove that Storah and some person at a former meeting are defendants, but it will not do to prove that at this third meeting there were persons proved to be present at a former meeting. Rolfe, B. : I think it will. If it had been proved that fifty of the people at the former meeting were at this meeting, then no doubt it would connect both in their (a) 1 St. Tr. N.S. 171. o 67432. [962 [ objects. Well, by proving only one to be present you are only reducing it. It is only pulling out the horse’s tail hair by hair — one by one. Sir G. Lewin: There is ail end of your point. IT he defendants Challenger, Woolfenden, Stephenson, and Filling were there. The same resolutions were passed as at the Haigh. Filling delivered a lecture. On Friday, August 5, I saw a procession of Baylet/s hands coming from Bayleys mills to Stalybridge, which is within a mile. They stopped near Cheetham’s factory, and the women and a good many men sat down, so that Cheetham’s hands could see them stop. They then went to the Haigh. Stephenson, Fenton, Durham, and Mahon were with them. All the rest were Bay- ley's hands. They met again in the evening, and also in the morning and evening of the next day. Brophy spoke, and exhorted them to turn teetotallers and keep sober. On Sunday, August 7, there was a camp meeting at Mottram Moor. There were several thousands there. Stephenson spoke, and said something about the principles of the people’s Charter. In the evening there was a meeting in a preaching-room called the “ Cave of the Adullamites,”(a.) at the back of the “ Moulders’ Arms,’’ Staly- bridge. The working men had formed a committee to meet the masters, and a man came and said Mr. William Bayley wanted to see the committee. Some thought it advisable to go, and others not. Mahon said there was little use in going. They had come out for the Charter, and they would stick to it. Next morning (Monday, August 8) there was a meeting at the Haigh. Brophy said they must get the hands out by legal means if possible, or stop them as they were going to work. Durham said he would have a procession, through Dukinfield and Ashton to let them see they were out. The body of the people then divided into several lots, and fetched out all the hands in the town. They met again at the Haigh. Durham said, “ Form in procession, and put Bayley 9 s hands out first, as they came out first, and go in a procession through Ashton.” He told them to go peaceably. They had colours and banners ; and Durham, Ste- phenson, Mahon, Brophy, and several others that I do not know, weie in the procession. They went down Caroline Street and up Dukinfield Brow to Hind- ley's mill. When the hands at Hindley’s (a) Cf. Mr. Bright in 1866 : “The right hon. gentleman has retired into what may be called his political Cave of Adullam, and he has called about him ‘ everyone that was in distress and everyone that was discontented.’ ” — Bright’s Speeches (1876), 349. Trial of Feargus O’Connor and others, 1843 . H H 5963] Trial of Feargus O'Connor and others , 1843. [964 mill heard the procession coming, they •stopped the engine, and “turned out” before the procession arrived. They went through Ashton, and all the mills stopped that day. I left them at Ash- ton, and went to Hyde at half-past four. They were fetching out the hands from the factories on Newton Moor. None of the men that came from Stalybridge were there. Durham,, Stephenson, and Leach, of Hyde, were there. Leach was addressing the meeting when I got up to it. He told them it would be more proper for them to •stand out for the wage than the Charter question. He said it was impossible for them to get the Charter at present. Mahon :said the Stalybridge people must meet on the Haigh in the morning ; and the Ash- ton people must meet near Thacker's foun- dry, and have a procession and go to Manchester, but they must take no sticks with them. There was a meeting at the Haigh next morning (Tuesday, August 9). Durham, Stephenson, and Fenton were there. Fen- ton exhorted them to keep peace, law, and order in the procession to Manchester. When I left it was understood they were to form a procession to go to Manchester. There was a meeting at the Haigh on the 11th. There was a falling out that morning between the wage question and the Charter. Fenton and Durham were in favour of the wage question. Stephen- son and Mahon said they might as well contend for the Charter. It was de- cided to have a meeting at Hyde, and to be ruled by the majority. I was not at that meeting. They met at the Haigh every morning at five o’clock. On Saturday, the 13th, a procession came from Glossop to Stalybridge, and a large meeting was held. Durham, Stephenson, Mahon, Fenton, Leach, of Hyde, and George Johnson were present. There was a man in the chair ; Wilde, I think, was his name. They had like to have thrown Wilde and Johnson out of the cart. Wilde opened the meeting for the wage question. They were talking of sending delegates to the manu- facturing districts to ascertain which of the masters were giving most and least wages, and to draw up a list between both, •so that the hands could go to their work, They could not return to work, as the masters had shut up the mill doors for a month. After they turned out, the mas- ters agreed not to let them in again for a month. There were ten or twelve thou- sand present. There was a resolution passed that they were to stick out for the 'Charter, but it was forced on them by the Glossop people, who came every one of Ihem armed with bludgeons and great sticks. There was a camp meeting on ^Sunday, the 14th. In the evening a gen- tleman with one arm from Manchester lectured, and said he was very sorry the people in that part of the country were out of work. It hurt his feelings to think they had come out for the Chart6r, for he thought they could not obtain it. On the 15th there was another meeting, and in the evening there was a meeting in the Chartist Association(a) room.] Sir G. Lewin .- Now tell me what took place there P — A piece was read out of the Northern Star, about appointing delegates to go to the conference in Manchester. Rolfe, B. ; He says something was read from a newspaper. Attorney) General: I take' your Lord- ship’s objection. Witness .- Mahon read something from a newspaper ; and he was to go to Man- chester as a delegate. He was the person elected to go P — Yes. Cross-examined by Murphy. [There was a turn-out twelve years ago. The factories were all stopped for eleven or twelve weeks. There was no mention of a Charter then . A general committee was appointed to direct the movement of the people’s turn-out. The masters would not let them return to work in consequence of the turn-out.] Now are you aware whether, on the oc- casion of that previous turn-out, delegates were sent to the various factories, and from one district to another, to watch the proceedings of the turn-out? — Yes, there were delegates appointed for such a pur- pose on that occasion. Do you recollect any processions at that time ? — Yes. Attorney General : I do not know in what way my learned friend wishes to connect what occurred twelve years ago with tlie present case. I suppose he does not mean to justify it. A mere passing allusion to explain how it affects the evi- dence is all I require. Rolfe, B. : I thought as the cross-exa- mination was going on, that the object of it was to show that the fact of delegates having been appointed twelve years ago to go from one factory to another to ascer- tain what were the proceedings of the different turn-outs, would not per se be. criminal. Murphy : My Lord, my object is clear — it is perfectly obvious. The Attorney General suggests that all this turn-out is connected with the Charter, and some vast conspiracy for the promotion of Char- tist principles throughout the country. I want to show that when no Charter was spoken of similar conduct took place. (a) The National Charter Association — O’Connor’s organisation. 965] Rolfe, B. : I do not think that is strictly admissible. A procession is either legal or illegal ; if legal, we do not want to jus- tify it by a reference to similar things done before ; if illegal, then to show that similar things were done on a former occa/- sion would not justify it. I thought, how- ever, it would be evidence as tending to show what is the meaning of appointing delegates. Murphy : They appointed delegates to go and inquire what masters were paying the highest and lowest prices, and to strike a medium. Attorney General: Confining it to that object it might not be illegal. Atherton: Wages were very low in Ashton, Stalybridge, &c. They had been getting lower and lower ever since 1826 ? — Yes. The first gathering you spoke of as of any importance was on the 5th of August P —Yes. Youthen spoke of the “ turn-outs ” at Bayley’s mills sitting opposite Cheetham’s mills — Bayley’s men leading the van ; now are you aware, or have you understood that all the hands in Bayley’s mills re- ceived notice to leave their work? Were they under notice if they did not consent to a reduction of 25 per cent, on their wages ? — Yes. If they did not consent to a reduction thien they were to give over ? — Yes. Then you spoke of several gatherings of Bayley’s men being in advance of the processions, and taking part in the turn- out ? — Yes, they w*ere always the first. Now, I understood you to say, that when a proposition was made for them to return to their work, that they said there was no use in doing so, because the masters said they (the hands) should re- main out for a month ? — Yes. Did you, or did you not, hear that Bayley’s hands complained that their masters told them to play for a month? Did you, or did you not hear that ? — Yes. This, my Lord, I put, because Sir Gre- gory Lewin seemed to think, from what the witness said, that it was the men themselves that refused to go back. Rolfe, B. (to the witness) .- Was that the way you put it? — Yes, my Lord, they (the mill-hands) said there was no use in going back, because the mill-doors were locked. Cross-examined by O’Connor. [They kept on meeting after the 15th, and they opened the chapel doors for them. The chapel-owners opened the chapels, because they sympathised with the men. They were not Chartists The shopkeepers also held meetings in the town hall. It [966 was said the masters had turned the men out and the m6n were much commise- rated on that account.] Did not Bayley’s hands go up in a body to request to be admitted to work ? — Yes. Attorney General: Were you there when they did so P — No ; but many of Bayley’s hands live near me. When did the men begin to return to their work ? — I think Platt’s men were about a month out : they returned on a Friday, the latter end of August. Can you remember the day of the month ? — No. Did they begin to return generally, or progressively, and by degrees, till things came to the present state ? — Some of them would not open the doors till the month was out. Rolfe, B. : Some of the masters ? — Yes. O’Connor: Were the men ready to go back ? — Yes, they were. O’Connor : About the 25th of August the whole question about wages and the Charter was given up ? — Yes. Re-examined by the Attorney General . How many mills are there in Ashton ? — Great numbers. Twenty-five or thirty ? — I dare say there are. Did you see in any instance what took place when the people came out of the mill ? — They joined the procession. Did you see how it was that they joined the procession — whether they came out of their own accord, or were turned out ? — They came out of their own accord gene- rally. But did you see any instances where they did not come out of their own accord ? — No, I did not. William Clayton. — Examined by Hildyard. [Constable of Hyde, spoke to a meeting of two thousand men at Hyde on August 1. Candelet said: — “ I hope you men of Hyde will be true to one another, and then we will soon have our rights : that will be the Charter and nothing but the Charter.” Other speakers then followed.] Joseph Little. — Examined by Pollock. What are you? — Special high constable of Hyde. Were you acting as special high con- stable in last August ? Rolfe, B. : As special what? Witness : I am special high constable, my Lord. Rolfe, B. : Special high constable ! JDundas : It is a new office, my Lord. H H 2 Tr ial of Fear gm O'Connor and others, 1843. 967] Trial of Fear gus O’Connor and others, 1843. [968 Hildyard: There has been a new Act for that, my Lord. {To the witness.) Did you attend a meeting in August last? — I attended a meeting on the 7th of August, on Wedensough Green, commonly called Mottram Moor. I wrote notes of what occurred, which (notes) I took imme- diately after the meeting. If the Court will allow me, I will produce then). Wil- liam Muirhouse was in the chair. Robert Wilde, John Leach, and George Gandelet were also present. At the close of the meeting, in the afternoon, Muirhouse said : — “ You people have been told the evils that ue, labour under, and I am requested also to tell you that to-morrow a meeting will take place at Stalybridge, at five o’clock in the morning when we will proceed from factory to factory, and all bands that will not willingly come out we will turn them out. And, friends, when we are out, we will remain out, until the Charter, which is the only guarantee you have for your wages, become the law of the land. I hope to meet you all to-monow morning at Stalybridge ; when we will join hand in-hand at this great national turn out. Leach began by pointing to- wards me, and said ‘ There is one of the Govern- ment men, who is like the black-coaled gentle- man who attends yon place.’ (He then pointed to a church near Wedensough Green.) ‘ Built for a good purpose, but now filled by thieves and rogues of the cotton fraternity ; but we would all be parsons and blue-bottles’ (a name they give the Manchester police) ‘ if we were all paid by Government, as they are, 60 1. a year — ? nice sum for a man working one day out of seven — and a man looking after us honest, poor, industrious labourers ; but let me tell you, that the church is an open hell, filled bj the cotton lords, who are a set of thieves and rogues ; and good honest people they’ll not allow to enter. But, friends, let us be true one to another ; there’s property in this plentiful country suffi- cient for us all. If you have not the common necessaries of life, take them ; and who can stand against you? None. The prisons are full : in the prisons they don’t want you. The police are in no fault. I wish you all to be quiet. You must not damage property or per- sons : but above all keep out of public-houses. To-morrow there will be a general turn-out in both the counties of Cheshire and Lancashire ; and the Charter will then be obtained.’ ” The next day, the 8th, there was a meeting in the market place at Hyde. John Leach, Muirhouse, Candelet, and Stephenson were present ; speeches were made recommending the people to remain out until the Charter became the law of the land. At a meeting in the same place next day Leach informed the meeting that they intended to go and join the Ashton people ; they intended to go to Ashton ; and from Ashton they said they would go to the Exchange, in Manchester, where they would meet the cotton lords, j and he doubted not but they would have the advance. They would never go to work till they had either the advance or the Charter. At another meeting, on Wed- nesday evening, Leach got on a waggon, and said he had attended a meeting of shopkeepers, at the Mechanics’ Institu- tion, and the shopkeepers had come to the resolution, or determination, I do not know which, that they would keep the turn-outs for two weeks. He requested that they would not be led to put any trust in the false shopkeepers. He wished the people of Hyde to be true one to another ; and on Wednesday next they would he met by Mr. O'Connor, at Manchester, and then they would come to a decision what- to do. He cautioned the people to be honest; not to take anything but their own ; not to assault any person, or take any property. Candelet followed. Hyde was in a riotous state during that day and all that week, the mills were not at work that day, and labour was completely stopped. On Friday there was a large meeting in the market place. Wardlaw said they were not to come there day by day, talking and speaking; they wanted to come to the determination how they were to get bread ; and he, for one, would go to the masters, as he knew they could not get the Charter at present. He demanded a show of hands for going to work, but he was hooted and hissed down. John Leach told them that Rayner , who addressed them last night, had been deputed by the shopkeepers of Ashton to come and try to get them to go to their work ; but he wished them to be quiet and true to one another, and to submit to nothing but the People’s Charter. He then made several remarks about a meeting at Stockport the day before, and said, that he headed the people, when they wenttothebastile(a) and took their loaves, and blood would have been shed, had he not prevented it. Also the Mayor of Stockport had shown him a drawer which had been broken open, and 71. stolen ; but he wished them not to do anything of that sort.] Pollock: How did he say that? — He said it in a laughing sort of a way ; he said, “ Yesterday, the Mayor of Stockport told me, and hundreds besides, that there was plenty in the store-rooms and mills, and if they would not give it them, take it.” .'j Rolfe, B. : Did he say the Mayor told them that? — Yes, my Lord, he said the- Mayor of Stockport told them so the day previous, but he did not wish the people of Hyde to do so, but to do as in the time of King John, when Magna Charta was granted. That was granted in one day. The people went in a large body to the (a) The Chartist name for the poor-house. 969] King and demanded it, and it was granted. He [Leach) told them to be true to one another, and the Charter would be the law of the land. Booth also spoke, but I did not take it down word for word. There were a great many navigators there. Rolfe, B. : What are navigators ? Polloclc : People employed on the Man- chester and Sheffield Railway. [To the witness.) Did Booth say anything to them ? — He said the “ navvies ” were in great distress, and they wanted support, but they might, if they chose, do as the Mayor of Stockport said. Rolfe, B. : I thought you did not know what he said ? — This was at the end, my Lord, when there was a rush of the navi- gators. “They might do, if they chose, as the Mayor of Stockport said — that is, go into the stores and help themselves.” O'Connor: That is what the Mayor of Stockport said [handing a paper to the Attorney General). [a) Witness: He [Booth) said, “as the Mayor of Stockport said.” He [Booth) did not advise so ; but when a great man, like the Mayor of Stockport, advised them so, “then,” said Booth, “you may please yourselves.” Some of the excavators cried out that they would go to the first shop they met, and help themselves. Rolee, B. : The excavators are the same as the navigators F — Yes, they made a rush towards a shop, but one of the exca- vators told them to stop, and they did so, and did not go into the shop. The witness also spoke to a meeting on Mottram Moor on the 16th, at half-past six in the evening. Booth addressed the meeting at very great length. He had a large placard in his hand. Booth took it and held it up before him, and commenced reading it. It began by stating what a large expense Her Majesty was to poor people. What a large quantity of wines she drunk ; what a large quantity of spi- rits she drunk ; and what a number of fat oxen she ate Murphy : Was he reading from the pla- card? — Yes. Lundas : Are you reading now from your notes, or speaking from memory? — I am speaking from memory. Lundas : You ought to tell us then that we may know the difference. Murphy : Well, my Lord, if that be so, he ought to produce the placard, and let it speak for itself. Attorney General : I do not know that there was any placard. Witness : The large number of sheep and lambs she ate, and said she cost the poor people yearly about 60,000Z. At that [970 time Mr. Sidebottom, one of tho county magistrates, came up in his gig and sent for me. I then left the meeting. A cry was then raised that the magistrates were going to take them, and Muirliouse and others leaped out of the cart. Muirliouse then said, “A meeting will take place to- morrow morning at six o’clock.” An excavator got on to a waggon, and said he wished them all to turn out, and that in five minutes all the “ navvies ” would be out. The excavators had gone to work that morning, my Lord. The delegate from Manchester said he was sent from that place to inform the people of Hyde, that he was in attendance at the hall as a dele- gate. Of the delegates assembled, three hundred and forty were for the Charter and eighteen against it. The latter were for the wages of 1840, or for a scale of wages ; but the middle classes, and all other classes of people in Manchester, were for the Charter, “ except the men of steel,” — the steel-hearted manufacturers. Can- delet also spoke. A Queen’s proclamation had been posted on the walls. I believe this is a copy of it. (The proclamation, of which the follow- ing is a copy, was then put in : — ) “ BY THE QUEEN.” A PROCLAMATION. “ Victoria R. “ Whereas, in divers parts of Great Britain, great multitudes of lawless and disorderly per- sons have lately assembled themselves together in a riotous and tumultuous manner, and have, with force and violence, entered into certain mines, mills, and manufactories, and other places, and have by threats and intimidation, prevented our good subjects therein employed from following their usual occupations and earning their livelihood. “ We, therefore, being duly sensible of the mischievous consequences which must inevitably ensue, as well to the peace of the kingdom, as to the lives and properties of our subjects, from such wicked and illegal practices, if they go un- punished, and being firmly resolved to cause the laws to be put in execution for the punishment of such offenders, have thought fit, by the advice of our privy council to issue this proclamation ; hereby strictly commanding all justices of the peace, sheriffs, under-sheriffs, and all other civil officers whatsoever, within the said United King- dom, that they do pse their utmost endeavour to discover, apprehend, and bring to justice the persons concerned in the riotous proceedings above-mentioned. “ And, as a further inducement to discover the said offenders we do hereby promise and de- clare, that any person or persons who shall dis- cover and apprehend, or cause to be discovered and apprehended, the authors, abettors, or per- petrators of any of the outrages above-mentioned, so that they, or any of them, may be duly con- victed thereof, shall be entitled to the sum of fifty pounds for each and every person who shall Trial of Fear cj us O’Connor and ethers, 1 843 . (a) Mr. William Nelstrop. 971] Trial of Fear gus O’Connor and others, 1843. [972 be so convicted, and shall also receive our most gracious pardon for the said offence, in case the person making such discovery as aforesaid shall be liable to be prosecuted for the same. “Given at our Court at Windsor, this 13th day of August, in the year of our Lord, 1842. “ God save the Queen.” Candelet began by reading the procla- mation and, pointing towards it, — it was on the walls — said he did not care a straw for the proclamation as those meetings were legal, and held in the day-time to protect the interest of the poor. The special constables and soldiers would be of no use ; the bayonets, in eight days’ time, would be of no use ; delegates were going about In agricultural districts, warning and turning the labourers out — all except the millers and the reapers of grain ; but, in fact, they were all nearly out. Then (he asked) where will the mili- tary and the special constables be ? “ But as I am to be in Manchester at ten o’clock this morning, I must conclude by telling you that, when in the Hall of Science (a) last night at six o’clock, Mr. Beswich, the superintendent of police, entered and told the people that he was sent by the ma- gistrates to inform the people there as- sembled, that they were not allowed to hold their meetings any longer, while the town was in that disturbed state. Three magistrates then entered, and gave the people ten minutes to disperse ; but in five minutes they were all gone. The battle is part won ; and be true to one another, and never submit to go to work until we have all the points of the Charter.’’ John Leach also spoke ; he said he was appointed one of the great national conference, and, at eleven o’clock, he had to meet M‘Douall, for he had sent him word that he longed to see him. “ I will collar him,” said Leach , “and bring him herewith me to Hyde this evening, and in eight days’ time will be a fixed wage by Act of Parlia- ment, and the Charter wili be the law of the land.” He made some observations about the shopkeepers of Hyde. He said %ey were a hypocritical set. I attended ameeting at Hyde on thel8th. A man from Glossop was present. Leach said, “ Does not my friend from Glossop tell you that there is plenty of able-bodied men in Glossopdale, well armed with their bludgeons, and not frightened to use them ! Where will all the specials and red-coated gentry be then ? Glad to give in, and we will have them to-morrow in large numbers, to meet and to go to Ashton.” He strongly recommended the people to be firm, and as long as he lived he would agitate, for the aristocracy of (a) The meeting place cf the Trades’ Union delegates. this country were bad, and without altera- tion would soon be worse. I remember a large placard, headed “ The Executive,” being posted in Hyde between the 14th and the 19th of August. I ordered one of my men to pull it down. {The placard was handed to the witness-.) It was posted, but not extensively. Cross-examined by Atherton. [I was in the habit of taking notes of what took place from day to day to lay them before the magistrates.] Cross-examined by O’Connor. Did you produce this book when exa- mined before the magistrates ? — Ho, sir,, because there was no evidence against anyone. Was the evidence against Muirhouse different from that in the book ?- It was in that book you got the* evidence against Muirhouse ? — Yes, and on this piece of paper {exhibiting some paper to the Court). Rolee, B. : That is the book from which you are now speaking ? — Yes. Did you produce this book when exa- mined before the magistrates, in open court, when Muirhouse was charged ? — I did not. You could not give evidence here, except your memory was refreshed from this book ? — Ho, sir. Did you not swear that it was your duty to take notes daily for the purpose of sub- mitting then to the magistrates P — Yes. And could you think of a more fitting and proper opportunity for exhibiting this book than when this man was examined ? — I can explain the reason why I did not produce the book. Rolee, B. : Explain it? — On appre- hending the prisoners we were obliged to take them away to Stockport. We could not keep them in Hyde, as we had no mili- tary, and as our police force was too weak, and therefore we conveyed them to Stock- port, and the magistrates came over and committed them. I went with the pri- soners, and gave evidence from memory. O'Connor: Were you examined after they were committed P — I beg your pardon, you were speaking of Muirhouse. Was there any other person against whom you gave evidence? — I swore against about twenty. Well, was any of these persons re- manded ? — They were committed^ And you did not present that book ? — Ho. Did you hear anything about the dis- tress that existed ? — Ho. It is your duty to collect information for the magistrates ? — It is, in my division. 973] And yet you never heard a word about the distress P — Mo. Mot a word P — Mo, I will not swear “ not a word,” sir. Well, what did you hear ? — I did not hear any unusual expressions about dis- tress. I heard Loach saying that the shop- keepers had come to a resolution to sup- port the turn-outs for a fortnight, but he advised them not to be led by the shop- keepers. Mow, I think that, in speaking of the 10th, you said the disturbances were great about Hyde P — Yes. From the 11th they were great ? — They commenced on Monday, the 8th. For a week they were great P — For a week or more. When did they cease. When did the public mind appear to sober down a little ? — After Saturday, the 20th. When Leach left the town we never had any disturb- ance. When did you see this placard ? —Which placard ? That placard you have been questioned respecting — as to its body, head, and tail ? — From the 14th to the 19th. What was the first day you saw it P — That is the nearest I can come to it. Have you made no note of it ? — Mo, sir. You have of all the morning and evening meetings, and none of that? — The reason is, I took the placard down and delivered it to the magistrates, after putting my name on it. I expected to see it here, and that I could identify it by the writing on the back of it ; but it is not here. After the 20th all turbulence ceased ? — Yes. Did the men begin to return to their work about that time ? — They did, sir, in some parts of my division. Did those who had turned out go in gradually from the 20th to the present time P — They did. Mow I think you have spoken of a dele- gate, saying, at a delegates’ meeting, that three hundred and forty were for the Charter, and eighteen for the wages of 1840. Is that what you said ? — Yes. That was said at the trades’ meeting, was it not ? Was it not at the trades’ delegates’ meeting that that was said ? Answer me ? — You know that three hun- dred and forty and eighteen do not make forty ! Cross-examined by Pilling . Are you not aware that I stopped a mill at Hyde P — Mo. Has there not been charity subscriptions for the poor of Hyde ? — {No answer.) Has there not been coupling of jennies P — I do not understand what you mean. [974 Do you know of spinners’ spinning with three-deckers ? Do you know what it is for one man to do three men’s work P — Mo, I never was three times in a factory in my life. Rolfe, B. : He tells you he does not know. Pilling : Ho has no notion of what he should know (laughter). IDundas was proceeding to question the witness about five interlineations which appeared in his note-book.] Attorney General: My Lord, I will not object to it, if your Lordship thinks I ought not. Your Lordship sees they have got a memorandum made in some part of' the book as to which the witness has not been examined, and which has not beern given in evidence. Rolfe, B. : But if they find any part fraudulently altered it might go far to impugn the general accuracy of the whole. Attorney General : Then, my Lord, the book is in evidence and is before the jury ; and it is no longer a private memorandum. For when the book is taken and looked at, not as to that part on which evidence has been given, but to other parts not read, then it ceases to be a private memoran- dum book, and the jury must see the- whole of it. Lundas .- My Lord, it is not at all neces- sary that you should be bound to make it evidence. Rolfe, B. : I shall not give any pros- pective decision ; as questions arise I shall decide them. [In further cross-examination the wit- ness admitted that the statement, “He {Leach) told them to be true to one an- other, and that the Charter would be the law of the land(u) was an interlineation, but asserted that it was made immediately after writing out Leach’s speech.”] Rolfe, B. : Are you able to say that the- alterations were made when your recol- lection enabled you to say that they were perfectly conformable to truth ? — Yes, my Lord. Thursday, March 2, 1843. Immediately after his Lordship took his seat, O'Connor rose and said: I understand, my Lord, that several witnesses on both sides have arrived since yesterday, and therefore I beg to repeat my application, that all the witnesses do leave the Court. I see the Right Honourable the Secretary of State for the Home Department^) here, and I wish to make an exception in his favour. (а) Above, p. 968. (б) Subpoenaed by O’Connor. Trial of Fear gus O'Connor and others, 1843. 975] Trial of Fear gus O’Connor and others , 1843. [976 Rolfe, B. : Let all the witnesses on both sides leave the Oonrt. Does any de- fendant wish Sir James Graham to go out of Court ? O’Connor : I presume not, my Lord. Attorney General : The penalty of re- maining in. Court after being ordered to retire is the displeasure of your Lordship, and not merely the penalty of not giving evidence. Rolfe, B. : It is contempt cf Court, you know. Joseph Sadler . — Examined by the Attorney General. [A police officer at Stockport. Spoke to seeing twenty or thirty thousand people coming into Stockport on August 11 last. They came from the direction of Ashton and Hyde. They had bludgeons and sticks. They went in different direc- tions of the town, to the different mills. Their numbers created alarm. All the shops were closed ; at the mills the hands were turned out, and the mills stopped. I went with the civil authorities to the workhouse. We found a great number of persons there coming away from the workhouse having a quantity of loaves of bread in their possession. I went in with the magistrates and some part of the mili- tary. There were between thirty and forty prisoners. Some were taken in the workhouse, some outside in the vicinity of the workhouse, and some in the road leading to it. Three or four persons made an application to the magistrates about releasing the prisoners. One of them gave his name as Leach. T only saw him during the interview with the magis- trates.] Did he state what his name was beside Leach ? — I believe John Leach. Did he say where he came from P — Hyde. Were you present when any applica- tion was made to the magistrates ? Lundas .- My Lord, I object to the answer to this question. I apprehend the description given by the witness is not sufficient to satisfy the Court that this is the person on the record. He is only spoken of as a person called Leach. The witness believes the name to be John Leach. He (the witness) never saw him again, and does not speak to any of the transactions done by this John Leach , of Hyde. Attorney General: My Lord, without discussing the general question, whether anything done by a large mob of this de- scription would not be evidence, I submit that what has been stated should go be- fore the jury. Leach was well known in the neighbourhood of Stockport and Hyde. An d I will recall to your Lord- ship’s recollection the fact that Little proved that John Leach , of Hyde, stated that he had been at Stockport ; and, I think, he stated that he had had an inter- view with the mayor and magistrates. I think that is sufficient evidence to go to a jury that this individual was John Leach, of Hyde. Lundas : My Lord, I submit that that is no answer at all. Rolfe, B. : What day was this P Attorney General: The 12th of August. Rolfe, B. : “He then made some re- marks about a meeting which took place at Stockport the day before ; he headed the people up where they went to the bas- tile and took their loaves.” Lundas : I submit that it is not a c all evidence. It is not sufficient to show that what a mob does shall be evidence in such a case as the present ; I object to what an individual says in private to a magistrate by way of private application. Here is an application made by a private indi- vidual belonging to a mob to a magistrate about prisoners. How, until such time a3 you have exhausted all the John Leach’s, of Hjde, you do not advance one single step — you do not show that this is the same John Leach who, on a former occa- sion, was at Stockport. Rolfe, B.: I think there is some John Jjeach in this indictment, but we are not absolutely certain that he is the same John Leach who was at Stockport. O'Connor: You will bear in mind, my Lord, that the witness says he is not sure that he would not know him again. Rolfe, B. : There might be a diflerent objection arising, supposing John Leach was to stand up and say, “Am I the man ” ? O'Connor : My Lord, as there are several counts in this indictment, and these counts charge all the defendants alike, so that whatever affects Leach will affect all ; therefore, each defendant has a right to object. I object on the ground of the witness not being able to identify Leach. Rolfe, B. : A person calling himself John Leach , of Hyde, came up and made a certain application. How, what is going to be further stated I cannot control. Attorney General (to witness) .- Were you present when an application was made to the magistrates of Stockport by a person calling himself John Leach ? — Yes. YVhat passed ? Lundas : How, I object to answering the question, and on the same ground. Rolfe, B. : I shall take a note of the objection. Attorney General: I submit that as against John Leach this is evidence. There is a man whose name and place of 977 ] abode corresponds with the John Lcacli on this record. Now, what did John Leach say p — He said he had come at the request of a public meeting on behalf of the prisoners then in custody, and requested ti:e magis- trates that the prisoners might be released. Did he give any reason for saying no- thing more about it? — He was informed by the mayor that they were in custody on a charge of felony, and that they could only be discharged by a proper course of law. Dundas .- Who stated that P — One of the parties said, if the prisoners were not re- leased, they were in such a state of ex- citement that they (the mob) could not answer for the consequences. Then the mayor said, “ They must be discharged by due course of law.” The prisoners were committed. O'Connor : Particularly till the 20th P — Yes. Dundas : Just tell me, for my informa- j tion, how far is Stockport from Man- chester ? — Seven miles. How far is it from Hyde ? — Five miles. Rolfe, B. : Manchester, Stockport, and Hyde seem to form a triangle. Cross-examined by O'Connor. Before I ask this witness any questions, my Lord, I should wish that he was re- tained, because it may be necessary to examine him afterwards. Rolee, B. : By all means. {To the wit- ness.) You are not to leave the town, you will mind that? — My Lord, it will be a great inconvenience to me if I am de- tained. Rolee, B. : I cannot help that. O'Connor: Had you heard an}^ exciting language used by other parties in Stock- port not connected with those parties that went into the workhouse ? — In the work- house, sir. At an}'- time previous to this outbreak, had you? — I attended several meetings by the direction of the magistrates, and am not aware that I heard exciting lan- guage at any of the meetings. Rolfe, B. : The question is, had you previously to this occasion — the attack on the workhouse — heard any exciting lan- guage ? — No. O'Connor: Did you hear this language used by any of the speakers: “ That he could not be responsible for a breach of the peace, I do not mean to threaten out- breaks —that the starving masses will come and pull down your mansions —but I say that you are drifting on to con- fusion without rudder or compass. It is my firm belief that within six months we shall have the populous districts in the north in a state of social desolation ; you [978 may talk of repressing the people by the military force, but what military force would be equal to such an emergency? The military will not avail. I do not be- lieve that the people will break out unless they are absolutely deprived of food. If you are not prepared with a remedy they will be justified in taking food for them- selves and their families.” Did you see that P — I am not aware. Did you see it on a placard on the wall ? — I am not sure. Did you see it handed about in fly sheets among the people ? — I believe I have. Rolee, B. : Do you remember when that was circulated P— My Lord, I would not swear with certainty as to the time I saw it, but I believe I saw it. O'Connor : You have seen it in some paper. Now, refresh your memory as to what paper you saw it in ? —I have seen the speech alluded to a3 having been j made by the Mayor of Stockport, both in the newspapers and in placards on the walls. How long may you have seen it re- maining on the walls of Stockport ? — For several days. You are a high constable or chief con- stable. Now, did you give any orders to your men to take that down ? — Never. Now, sir, did you see something of this kind placarded on the walls of Stockport, headed, a “Warning Voice,” with the following lines upon it : — “ There is a cry throughout the land, A fearful cry and full of dx-ead ! Woe to oppression’s heartless band ! A starving people ci*y for “ Bread.” That cry was heard when guilty Fi'ance On the dread brink of ruin stood ; Yet sound the viol, speed the dance ! ’Tis but the hungry cry for food ! I charge ye, England’s rulers ! grant . The justice that her sons demand ! Or, roused, the demon power of want Shall snatch the pike and wield the brand. ”(a) Have you seen that anywhere p — I do not know. I have no recollection of it ; but there were so many placards published at the time that it would be quite im- possible to recollect all. Rolfe, B. : By many placards you mean many violent and inflammatory placards ? —Yes. O'Connor: Do ycu remember seeing a placard headed ‘ k Murder, Murder, Mur- der ! ! ! ” ? — I do remember seeing it. Did you take that placard down ? — I gave no directions respecting it, nor am I aware that it was taken off. (a) These verses appeared in the Anti-Bread J'a.r Circular, May 5, 1842. Trial of Feargus O'Connor and others , 1 843 . 979] Trial of Fear gus O'Connor and others, 1843. [980 Did you see among those placards that were posted, one stating that the people would be justified in revolting if they did not get bread? — I really cannot answer with certainty. Words to that effect ? — I cannot say. As near as you can ? — There were so many placards of an exciting character posted daily that it would be impossible to tell. You were not ordered by the autho- rities to take down those placards ? — No. Now, I ask you as chief of the police, were those placards, in the state Stock- port was then in, sufficient to lead the people who were hungry to excitement ? — They were. You were aware of the mills being stopped ? — Yes, I saw them stopped. Is it notorious that there has been a greater reduction in wages at Stockport than in any other town ? — I cannot speak with certainty; I have not heard that stated ; I have heard other places spoken of as having reduced more than Stockport. Have there been considerable reductions in Stockport ? — Yes. Now, sir, did you see a placard headed with these words, “Murder, Murder, Murder ! ! ! They that be slain with the sword are better than they that be slain with hunger ; for these pine away stricken through for want of the fruits of the field ” ? Did you see a placard of that description posted in Stockport ? — I saw one headed “ Murder, 5 ’ but I am not sure if that is it. I ask you, as chief officer — as an honest man — by whom were those placards put up, or by what parties ? Eolee, B. : By whom, not by what party ? O'Connor : By whom ? Did you see the printers’ names? — Yes. Do you recollect any of the printers’ names ? — No. Now, you saw from ten t6 fifteen thou- sand persons in the town ? — A great many more. On that day ? — Yes. These placards were up at the time ? — Some of them were. The mills were all stopped ? — The mills were all stopped. With the exception of the attack on the workhouse, and the taking of the bread, everything was quiet and peaceable ? — No, sir, it was not peaceable. You did not hear any riot? Attorneij General: Hear his answer; he says it was not peaceable. O'Connor: Then you did not hear any exciting language ? — I heard no speaking at the meeting. After the 20th, or about that time, the riots began to subside ? — They did. Ee-examined by the Attorney General. [I was not sufficiently near to hear any of the language used at the meeting. (The 'placard of the Executive Chartist Association was handed to the witness.) I saw something like that about the 11th and 20th, but I cannot speak to the day.] The Attorney General : From the general appearance of this placard you are able to state that you saw a paper that resembles it ?— Yes. Thomas Barrington. — Examined by the Attorney General. [I am governor of the Stockport work r house. On Thursday, August 11, I saw several thousands of people with sticks and bludgeons. They were going by at that time. I went into the yard from the ground between the lodges and the board-room. I went through there to an inner yard. We had not been there more than a few minutes when somebody said, “ They broke in.” They came in thousands, and entered into the house. They took all the food that was in the house. They took seven hundred loaves, upwards of 7 lbs. each. They also took money. They shattered several doors to pieces, and broke a number of windows. At last, I believe, the military came and drove them away.] Cross-examined by Dundas. Pray, Mr. Bumble, — I beg pardon, Mr. Barrington, I meant, — was it known that you kept that quantity in the workhouse ? — Yes ; we usually have that quantity in the house. How much money was there taken ?— 61. and upwards. Where was it? — In the collecting officer’s department. Was it in small money? — It was in copper and half-crowns. Would such a sum as 71. in half crowns and other small money be laid out on the counter for paying? — It might, as that was pay-day. What windows were broken ? — Windows were broken in different parts of the house, where the mob broke in. Were they on the ground floor ? — Yes. Doors also were broken on the ground floor, where the mob entered. How long might they be with you alto- gether? — From the time they entered till the mayor and the authorities came it would be an hour. In what room is the bread kept ? — It is stowed away in various rooms. Always on the ground floor ? — Yes. Is the room in which you pay the men adj oining these room s ? — Yes ; partly sepa- rated from them by a door. 981] Trial of Fear gun O'Connor and others , 1843. [982 Cross-examined by O'Connor. Well, Barrington , you do not live on workhouse fare ? — Yes. Well, you are a good specimen. This mob entered in a general scuffle — a rush ? —Yes. Such a rush as, coming against doors or windows, would be likely to smash them ? — They did smash them. Was the Mayor of Stockport with them at first? — No. I believe you are as likely a person as any to know the state of the working classes respecting the alteration of wages ? —No. Do not you know anything about the in- creased number of inmates in the work- house ? — They were rather numerous at that time. Did they do you much personal injury? — None whatever. I believe the master of a workliouse is not, in general, a very popular man ; at least he is not so in excited times ? — I can- not say. But you know you were not injured ? — I was not injured, but I doubted it very much. Rolfe, B. : He doubted it very much ? O'Connor: He doubted whether he was hurt or not, my Lord. (To the witness.) Have you heard a great deal about the re- duction of wages ? — I do not interfere in that matter at all. Have you heard anything about it ? — Some little thing, but not much. You have not heard of the prevailing distress in Stockport consequent on the reduction of wages? — No, I have not. Not a word? — No. You may go down. I William Moore, a dresser at Marple, five miles from Stockport, spoke to two hun- dred men coming from Stockport to Shep- ley’s mills, and saying they wanted the hands turned out. The master turned out six hundred hands and stopped the mills. Witness also spoke to seeing Leach in Stockport coming back from an interview with the mayor on August 11. Leach and Boyle were coming back again, linked arm-in-arm, and several went to shake hands with them. They got on a wall, and Leach addressed them, and told them what had happened. He said they had been to the workhouse, and had seen the mayor and the magistrates ; and the ma- gistrates and the mayor told him that there had been some money taken from the drawer, and they had taken him to the drawer, and shown him where the money had been taken from. He said the mayor was very kind with him, and the magis- trates too. He asked them whether they could release the prisoners, and the mayor said ho could not — it would be violating the law ; but if they would go off he would perhaps release them in the course of an hour, or an hour and a half. He said the soldiers were there, and that they trembled like an aspen leaf. He shaked his hand, and said they trembled like an aspen leaf. James Crompton . — Examined by Wortley. A constable on duty on the 15th of August at Marple. Spoke to hearing Boyle address a meeting of about a thou- sand. He said : — “Friends and fellow-workmen, we are not met here this morning for any party object, but for a national object — an object upon which de- pends your slavery or freedom.” He then went on with a great deal of abuse of the Government (I have not the particulars), and then said : — “ Perhaps you will want to know from me how to get the Charter. You must work no more till it becomes the law of the land ; and you that have money in the banks and other places must fetch it out, and stop the supplies of the Government. Then you wifi make them glad to give you anything you may want. You will perhaps want to know how you are to get meat. Lord Kinnaird said, in the House of Lords the other day, if he wanted food, (a) he would take it where he could find it. Now your ty- rannical masters will have no objection to your doing what Lord Kinnaird said he would do. I tell you, if you want food, take it where you can find it, if your masters will not relieve you.” He proposed that there should be no more work till the Charter became the law of the land. There was a unanimous show of hands in favour of it. After the resolution was adopted, Boyle said, “ I see you are all Chartists, and there’s a meet- ing of Chartist delegates to-day at Man- chester, and you must elect a person to go there.” He then proposed that Mr. Joseph Taylor, the chairman, should be elected. There was a show of hands, and he was elected a delegate to go to Manchester. The mob then moved off, headed by Taylor and Boyle, to the Peak Forest Canal. They tied the boats to the side of the canal, and told the boatman that, if they went any further, they would sink their boats. The mob then went to the lock, and I went too, and charged them not to do any («) “ He thought that if he had seen his children perishing around him from want— if he had seen the felon in gaol better treated than the person willing to work— sooner than submit to this, he thought he would have gone and helped himself.”— Speech of Lord Kinnaird on the national distress, June 2, 1842. Hansard, vol. G3, p. 1130. 983 ] Trial of Fear gus O’Connor and others , 1843 . [984 damage to it, arid they threatened to throw me into the canal if I attempted to stop them. They pnlled out the bolt on which the door of the lock moves, and threw the lock door across the canal. The effect was that the navigation of the canal was stopped. Without working that lock the navigation could not go on.] Cross-examined by O'Connor. Was there not a resolution passed? — Yes. What was it? — Mr. Robinson , a print master, had his works stopped, and Chris- topher Doyle proposed that ho should be allowed to run his machinery and finish some pieces that were damaging ; and that all the sours and liquid should be saved. Why not tell that part of the resolution ? — I have told it. Why not tell it in the first instance, be- fore it was dragged out of you ? Rolfe, B. : He was not asked it. O’Connor : Were you aware of the state of the working-classes generally — that they were at that time very much dis- tressed ? — I was not aware of the circum- stance. Did they complain of being very much distressed? — Yes; I was aware of their complaints. Were you not aware that wages were below existence point ? — Yes. And were you aware that they com- plained of that ?— Yes. .Did you hear anything of the meetings of shopkeepers ? — Hot a word. Was any reference made to the meetings of shopkeepers? — Hot a word. How refresh your memory ? — There was a meeting on the 10th, at which Muirhouse was present, and he stated that all dona- tions from masters and others would be handed over to the shopkeepers’ committee in Hyde. Rolfe, B. : That all the donations — what is that ? O’Connor: That all the donations they received from the masters in the country should be handed over to the shopkeepers’ committee. (To the witness.) The donations came from the gentlemen and masters of the country ? — Why, Muirhouse led the mob up to the mills, and frightened it out of them. That was the way in which the donations came ?— Yes ; he led the mob up to the gentlemen’s houses, and gob the donations from them. IWortley was proceeding to re-examine the witness :] Rolfe, B. : It will be absolutely neces- sary, when I come to sum up, to take the evidence in the way it was taken in Staf- ford. There were several parties there, and after Chief Justice Tindal summed up from his notes, he then put it to the jury, as to each person that was on his trial, whether he was guilty or not guilty, and they wrote down their verdict privately as to each particular prisoner (here it will be as to each defendant) ; and it has oc- curred to me to-day that I cannot possibly do justice to the parties without doing so. Therefore I wish to say to the jury that they will not have to decide en masse. A Juror : In the first place we must say whether they are comparatively guilty ? Rolfe, B. : They must all be guilty of the same offence. You cannot say that one man is guilty of one offence and another of another ; all you find guilty you must find guilty of the same offence. I have stopped for the purpose that you may collect yourselves. ( The Judge then handed to the jury a list of the defendants.) How, by looking through that list you will find that when I come to sum up I shall show what evidence applies to each particular defendant, and you will be thus greatly relieved from perplexity in giving your verdict. Wortley: They may possibly be found guilty on several counts. Rolfe, B. : You cannot lump a great number of defendants together, because one may be guilty of one misdemeanor and another of another. They must be all guilty of the same offence. Murphy: It is quite obvious that the course your Lordship points out is the right one, inasmuch as T and my learned friends appear for defendants who will be very differently affected by the evidence, and therefore we sever our defence, and confine each case to particular counsel. O’Connor: Would your Lordship ask this witness what time the disturbances began to cease ? Witness : We had no particular dis- turbance in Marpie after the 20th. Abraham Longson. — Examined by Sir G. Dewin. One of the Stockport police. Spoke to a meeting of five or six thousand at Stock- port on the 15th. A man called Newton told them they must get their wages, and if they could not, they must ask their masters why they could not give it them ; and if they told them it was through the “ top shop ” (the Government), they must ask their masters to go with them as com- manders and sergeants, and find them with bread and cheese on the road. And to go to the Duke of Wellington ; and if that would not do, to go to Buckingham Palace, and the House of Commons, and the House of Lords, or whatever they have 985] Trial of Feargus a mind to call it, and demand from them j to take all restriction off. Filling made the following speech : — “Fellow townsmen, for I may so call you, having lived amongst you so long, and having been at so many meetings, by thousands, and hav ng been in prison. I do not know whether it would be safe for me to own it or not ; but I may avow that I have the honour to be father of this movement, and the sole cause of your being ladies and gentlemen at the present time ; for the masters of Ashton had thought proper to offer a reduction of twenty-five per cent, upon their wages. I then caused the bellman to go round and call the meeting, swearing by the God of Heaven, that, if the reduction took place, we would annihilate the system, and cause the day of reckoning. I then addressed a meeting of twelve thousand. I then went to Stalybridge, and addressed a meeting of ten thousand. I then addressed a meeting at Hyde of ten thousand, and at Dukinfield of five thou- sand. At every meeting they came to a resolu- tion to work no more till they got the same wages as they had in February 1840.” He then said he addressed a meeting at Royton, who came to the same resolution. He said he then called a meeting at Old- ham. But there they were taken by sur- prise, — “ and I had to come back, with five other of the speakers against me. In consequence of that, the people of Oldham were not out, but I was determined next morning to go and drub them out.” Is it drub dr drum ? — Drub. “ I w ent accordingly, and met them at eight o’clock, where one of them attacked me, and I gave him a floorer, and they all lay prostrated at my feet. All their masters were then willing to give them their prices, but one of the Anti- Corn Law League, of the name of Bayley, of Stalybridge. In the course of the last three weeks, I have addressed upwards of three hun- [ dred thousand in different parts of Lancashire and Cheshire. We then went to Drovlsden and Manchester, and the people of Droylsden swore by the God of heaven they would not work any more until they had got their price of 1840. They then came to Stockport, and caused all the mills to be stopped. You did not turn out as my friend here stated. It was the Ashton lads that turned you out ; and mind one thing, if you do go in, they will come over and give you a a d good hiding. They then went to the bastile ; but I did not consider that right ; but this winter we may all become thieves, and then the soldiers and police will have to look after us ; and that will eat up the system, as there are more ways than one of eating up the system ; but, if the Ashton lads had not been there, they would not have known that there had been such a place. The magistrates ought to have looked over such a trifling thing as that, and not have committed some to Chester.” He said lie had been in all parts of South Lancashire, and at Burnley, Chor- ley, Bolton, Preston, Colne, Padiham, [986 Clitheroe, Todmorden, Blackburn. The two Tory members of Blackburn was a-gate of working patent looms at 1 \d. per cut less than any other masters were giving in that neighbourhood, and stopped 9 d. per week for every loom. He then went to Todmorden, and the worthy member for Oldham was actually giving more wages for some kinds of work than what they were turned out for ; and when the authorities and soldiers went to him to protect his factory, he told them he could do without them, as the arras of the people were his protection ; and when that ceased, he hoped he should cease to live. Filling then said : — “ There’s that d d rascal of a Marshall and that d d bloodhound of a thief of a Jem Bradshaw ; they are both particular friends of mine, and I love them well, and they know it. But you must be sure and stick out, and not go to your work ; for, if you do, the masters will crush you down, you may depend upon it, and then the Ashton lads will come over again, and give you a d d good hiding ; and don’t you deserve it ? ” The crowd said : — “ Yes.” He said : — “ But you will not get off as you did before. Now that is intimidation ; but I know the law of conspiracy, and there never yet was a good thing got, but someone had to suffer for it. But they may put me in prison, for I don’t care a d n for being within the prison of the walls ” Or walls of the prison, which ? — He said prison of the walls then. He made a mis- take. He finished by exhorting them to stick out. He said he had a child who was dead a short time since. I believe he said a child, my Lord, or one of the members of his family, I am not certain. There were meetings on the 16th, and they appointed John Wright one of the delegates to go to Manchester. There was another meeting on the 17th. I have notes of it, which I dictated immediately after the meeting. [The notes were read by the officer of the Court. “John Wright addressed the meeting : — Dele- gates, chairman, and fellow-sufferers, I am come back quite different to that I expected I should have come back, but I have not received any information. But we were put down by the authorities. I went to Tib Street for to find the delegates, but I could not. I went to Avery Street to look for them ; and went to several other streets to look for them, but could not find them. At last we found them, and saw from the placards on the wall that it was dangerous for them to meet. We were admitted into the room. There were the workpeople as we call them. There were seventeen delegates to sup- 0' Connor and others , 1843. 987 ] Trial of Feargus O'Connor and others, 1843 . [988 port wages, but tbe moment we entered the room the meeting adjourned until to-morrow ; 4 And I could not tell My Lord God from Tom Bell ; * but there was no delegate there for your benefit. But the delegates deceived them ; but we waited upon them. But go — get the Charter ; go to the Devil and do what you will. But go to your work and get your wages. The meetings in Manchester are called illegal, and this meet- ing is illegal ; but when you get your wages go to your work. But in Manchester they will not go to their work until they get the Charter. But I did not come here to deceive you. But I believe there is a great many that will go and creep under the gates before this day month. We went for the wages we came out for. For I don’t care for no man, whether he be fool or Dick. Mr. President, I hope that no man will go from this meeting under any mistake. But I will not deceive you, for I have not voted this day. But the meeting was concluded for wages and the Charter, and both had gone together. I should have been one of the first. When Sawyer and me went upstairs they dissolved their j meeting until to-morrow, but we must look strict after them.” The witness also spoke to a meeting on the 17th, which was addressed by the defendant Allinson, and at which the fol- lowing placard was read J “ Run for gold ! Labour is suspended ; public credit is shaken ; paper is worthless ; run for gold ! Every sovereign is now worth 30s. Paper cannot be cashed. Run, middle-class men, trades. Oddfellows, sick clubs, money clubs, to the savings banks, and all banks for gold, gold, gold ! ! ! ” Was there any other placard read at that meeting ? — There was. Look at that ( the executive placard). Was it like that ? — I believe it was similar to that. Attorney General : I merely now prove, my Lord, that the executive address was used at that meeting. Cross-examined by Dundas. How long have you been in the police ? — Seven years, on the 12th of August next. Who wrote for you ? — Ben Norfolk wrote at first. Have you got him here with you ? — No. Have you got the second, and who is he ? — Robert Swan. And the third ? — Yes. Well, you have not brought him with you ? — I have not, sir. Are they all happy at home ? — I believe they are very well. Can you write yourself, or can you only read Swan’s handwriting ? — Oh, I can both read and write, sir. Anything written with a swan’s quill, I suppose ? — Yes, something with a pen. But you are a bad craftsman ; yet you have a monstrous good memory, Abra- ham ? — Well, I have a good memory. How long did it take you to dictate those notes to Ben ? — Well, I should say we were three-quarters of an hour, or an hour. A tidy memory that, Abraham. Can you carry a speech in your head so as to dictate it again ? — I can. How long do you carry before you de- liver ? — That depends on convenience. Do you always keep it in your head as long as that ? — 1 have some other things to think of sometimes. Do you presume to say that what you ' told to Ben was exactly what passed P — It was, but it was not all there. But it took three-quarters of an hour to tell it. How long was the man speaking ? How long, for instance, was Billing speak- ing ? — I did not take notes. Oh, but you can tell us ; that you need not take down. Cannot you tell us ? — I cannot exactly. I did not ask you to tell us exactly ? — It might be half an hour. I think he was speaking about that time. How long a speech could you carry in your mind P Suppose you heard a speech for half an hour, could you carry it ? — Some part of it. Twice as much as that of Billing’s? — That depends on the subject. Suppose it was all about wages and the Charter, could you carry it if it occupied an hour in the delivery ? — I think I could, sir. Murphy .* I do not ask you anything. Me Obrey : I want to see an example of this most extraordinary memory of yours ; you say you can remember a speech of- half an hour’s length ? — A part of it. Oh, I thought you could remember it so as to dictate it again ? — I said a great deal would depend on the subject. Just try if you can remember what is written down here ; see if you can repeat what my learned friend said ? — He has | been asking me if a meeting would dis- perse quietly. As to the first thing he said ? — He j wanted to know if I took notes at the time. Well, did not you ? — No ; I dictated to Ben Norfolk, who wrote them down. Aye, but can you repeat the first ques- tion put to you ? — That was the first. What was the next ? — If it was the original, and whether I had another, and about whether he had got pens, ink, and paper, and so on. Do you swear that these are the ques- | tions he put to you ? — Yes. | Are these the very words ? — Well, it is the question he asked. 989] Trial of Feargus O'Connor and others , 1843. Cross-examined by O’Connor. Do you read the Manchester Guardian ? — Occasionally. Do you think there is any striking similarity between the speech you re- ported for Pilling, and the speech of Pilling as reported in the Manchester Guardian ? — I never read Pilling’ s speech in the Guardian. Upon your oath?— Upon my oath. Now, when dictating to Robert, did he refresh your memory at all ? ; — He did occasionally. Then these were your notes and Robert’s together ? — Yes. And where is Robert ? — He is not here. And why is he not here ? — I cannot answer that. I think you said Wright took the chair on the 15th of August, and that Newton was the first man who addressed the meeting after Wright opened it. Newton told them that they should go to the Duke of Wellington’s, Buckingham Palace, the Lords, and the Commons, or the top shop ? —Yes. Did he say (on your oath) that if the Corn Laws were not repealed he would turn London upside down ? — He said a number of things that I cannot recollect. Did he say that, or words to that effect ? — I cannot say. Did the chairman tell Newton, when he talked of sacking London, that he (the chairman) would not go to London ? Did he advise the people not to go ? — He did. Bolfe, B. : You say, “when he told them to go and sack London.” He did not say that. O’Connor: It is pretty much the same thing, my Lord ; to fight the Duke of Wellington, &c. (To: the witness .) Besides these marks of disapprobation when New- ton recommended them to go to London, did the meeting charge him with being a tool in the hands of the Anti-Corn Law League ? — 1 recollect one or two indi- viduals shouted out, “ Newton , you are a tool in the hands of the Anti-Corn Law League,” or something that way. That was when he was recommending them to go to London. Did the meeting charge him with being sent there by the masters to create the disturbance ? Now, on your oath, is that the case, or not ? — I believe it is. Have you written that down in yotir notes ? — No. You can recollect now what Newton said, and why not put it down at the time ? Was not that an important feature ? — But I did not think at the time that it was important. You did not think it important for a man to be sent among thousands of irri- [990 tated individuals to create a disturbance ? When did you see that placard about running for gold ? — I believe it was on the 17th ; 1 will not be certain. Now, sir, did you attend a meeting of any party about the 15th or 16th, where the following resolution was passed : — “ That this meeting being convinced that the Government has no intention of affording effec- tual relief for the acknowledged distresses of the people, hereby avow the solemn determina- tion never again to pass, or to retain for twenty- four hours without exchanging for gold, any Bank of England notes until, by the total and immediate repeal of the Corn Laws, Parliament shows its willingness to commence a real redress of our grievances ” ?— I never saw it in print, nor placarded on the walls. [I am certain that Pilling used the word “ drub ” and not “ drum ” when he talked of going to Oldham.] Now, instead of fool or Dick, was it not “ Hoole ” or “Dick” he said, alluding to Holland Hoole and Richard Cobden ? Eolee, B. : Hoole or Dick ? O'Connor : Yes, my Lord ; thereby meaning Holland Hoole, a magistrate, and Richard Cobden, who is generally known by the name “Dick” at those public meetings. (To the witness.) Now, did not you know of more excited meetings in Stockport than in any other town in the neighbourhood ? Had there not been very angry discussions there between the people called Chartists and the Anti- Corn Law League ? — Yes. Kolee, B. : In public ? — Yes, my Lord. Murphy : My Lord, Pilling has requested me to ask, whether or not, in the whole course of their discussions he had not recommended the wage question ? Dundas : I do not know if Pilling is aware that he may ask questions him- self ? Bolee, B. : Certainly. Do you wish io ask' the witness whether you ever recom- mended anything else ? Pilling : My Lord, the constable and I have been together on a committee for years for the ten hours’ Bill; we are chums. (Laughter.) Bolee, B. : Did Pilling, at these meet- ings, ever speak about anything else but wages ? — Oh, yes. Was Pilling long anxious about the wage question ? — I am not aware of that ; but, in 1839, he was agitating for the Charter very much, my Lord. He says he was a chum of yours when endeavouring to get a Bill before Parlia- ment for ten hours’ work ? — I do not know that ever I sat on committee with him during my life. Were you a chum with him ? — Never, my Lord. 991 ] Trial of Feargus O’Connor and others , 1843 . [992 Explain yourself a little more. What do you mean by a chum ? Where is Pil- ling ? Pilling : Here, my Lord. Rolfe, B. : He says he never was a chum with you. Pilling : My Lord, I was anxious to get a ten hours’ Bill; a committee was ap- pointed ; I was one of that committee, and we chose him as another. Witness : With regard to that, my Lord, I was working at a mill some years ago, and I took twice some money from the rest of the men to the committee, but I did not stop, my Lord. Rolfe, B. : You were subscribing money to carry out the object of the ten hours’ Bill ? When was that P — It would be about 1834 or 1835, my Lord. Attorney General : My Lord, I may here state, that I have undertaken to call a witness named Wilcox, and it has been intimated to me by Mr. O'Connor that, if he be called, there will be no occasion to trouble Sir James Graham further. I state this in the hearing of all the defen- dants. Rolfe, B. : Is there any other defen- dant, not defended by counsel, who would wish xo examine Sir James Gkt'aham? O'Connor : I believe, my Lord, there is not, and I trust Sir James Graham will find that it has been with no idle purpose that he has been subpoenaed here to-day. It was by no wish to put Sir James Graham to any inconvenience ; but we have been requiring the attendance of another wit- ness, and, as he is to appear, we do not wish to detain the Right Honourable Secretary. Attorney General : That there may be no mistake about it, I state the name of the witness. It is James Wilcox, whom I undertake to call in proper time. Then, my Lord, it is understood that Sir James Graham may retire. Rolfe, B. : Oh, yes. John Robinson Scott. — Examined by midyard. [Spoke to meetings at Royton on the 13th, on the 15th, when the defendant Taylor was elected a delegate to go to Manchester, on the 16th and 17th. At the last meeting Taylor said: — “ Ladies and gentlemen, we have arrived at one of the most important subjects ever brought out to the public. There was a resolution passed in Manchester, on Monday last, for the Charter to become the law of the land ; and no doubt but something serious will take place before long. He understood that the magis- trates were sitting all day at the New Bailey Court House (Salford) ; and, about four o’clock in the afternoon, Mr. Beswick, one of the Man- chester police, and a magistrate, entered the room (Carpenters’ Hall), and told us our meet- ing was illegal, on account of the out-door pressure ; and our chairman refused to break up the meeting. They instantly left the room ; they allowed us ten minutes to disperse, and no decision was come to at that time ; for, first — one nibbled, then another, but none would take hold. But I fearlessly tell you, that I took hold of the grand question, to stand for the Charter, which met with loud applause. We had then only five minutes to disperse, and we have a considerable portion of the work to be done to- day ; and I consider that you have no time to lose. There is a considerable portion of the work to be done to-day, and if you wish to have a hand in this undertaking, you must say some- thing this morning ; you have not a moment to- lose, for the men must use the sword, and the women will know where to direct them.” He also said : — “ As soon as the delegate from Birmingham had got the decision, away he runs to the train to take the news, and, doubtless they would come forward in thousands to join our ranks, and before this day week there will not be one trade at work ; but I fearlessly tell you that I was the man that grappled the Charter at Man- chester yesterday, and I would like to witness a bloody revolution,” or resolution, I know not wbicb. \SyVoester Faraday, a constable, spoke to twenty mills being stopped in Bacup on August 12, and William Bentley , constable, to seeing tbe executive placard posted in Rochdale on the 17th. James Buckley. — Examined by the Attorney General. Confirmed Brierly's evidence as to the meeting on Mottram Moor, Sunday, August 7, and spoke to the mob turning out the hands at Harrison's and Lees's in' Stalybridge on the 8th. They then went to Hukinfield, Ashton, and Hurst. About twenty mills were stopped in the morning. There was a meeting in the afternoon at Thacker's ground. Aitkin blackguarded them for their violence. Pilling proposed that the people of Ashton should go to Stalybridge, and the people of Stalybridge to Hyde. I went with the Stalybridge people to Hyde. They stopped all the mills on the way. There was a meeting at the Haigh on the 11th. They were about dropping the Charter at Stalybridge at that time. There was another meeting at the Haigh on the 12th. Crossley and Fen- ton supported the wage question, but Woolfenden advised them to stick to the Charter. On the morning of the 13th, they met at the Haigh and went to Hyde. They wanted the people of Hyde to give up having anything to do with the Char- ter. Stephenson and Crossley were there. The people of Hyde blackguarded them for 993 ] Trial of Feargus O'Connor and others , 1843 . [994 cojning with such a tale as that. "When I got back to Stalybridge, there was what they called “a great meeting.” They came to this resolution that the Staly- bridge people must not vote. They were not to have any vote in it.] Rolfe, B. : The Stalybridge meeting came to a resolution that the Stalybridge people were to have no voting ? — Yes ; they were to have no vote in the new constitution. But the meeting was at Stalybridge. Attorney General: How many people were there at that meeting ? — Several thousands from all quarters. And the Stalybridge people were to have no vote ? Dundas : No vote in the new constitu- tion. Attorney General : They disfranchised them. Dundas They put them in Schedule A. (Laughter.) Murjphy : Stalybridge should go with Sudbury. At this meeting there were several called upon to take the chair, but they objected to have anything to do with it. At last they called on John Wilde, and he said he would not like to have “ nought to do wi’ it but he said as he had been called on he would do his duty as far as it lay in his power, and would give every person a fair and candid hearing as to whether it should be a wage question, or a Chartist question; he read that from a paper. Leach, Woolfenden, and Booth sup- ported the Charter. Radclijfe, Fenton, and several others spoke for the wage question. There was a show of hands. All hands were held up ; there were only two against it. Eight or ten thousand were there, coming from all parts of the country. Cross-examined by Dundas. What took you about to those different meetings ?— I think I had as much right to go with them as anybody else. Rolfe, B. : You must give another answer. What made you go ? How came you go to those meetings? — Well, 1 went there because I thought I would go. Dundas: And nobody desired you to go?— -No matter whether they desired me or not. Rolfe, B. : Were you desired by any- body to go ? — Yes. Dundas : Then why not say so, when I asked you, on your oath before ? — I have given you an answer ; I said yes. Why did you not give me the answer “ yes ” before, when I asked you, as a true man upon your oath ? Can you give an answer to that ? Can you explain that ? Are you ashamed of having been asked to go ? Surely you did not go as a spy, man ; did you ? Did you go as a spy ? — (No answer.) o 67432. Did you get anything for going ? Rolfe, B. : Come, answer the question. Did you get anything for going to those meetings ? — Yes. Dundas: Were you promised that you should get something if you went as a spy to those meetings, before you went to them ? — No, sir, not before. Who told you to go there before ? — I j am not going to tell you. j Well, if you do not tell me, whoever it I was that told you, were you not told it ; would be worth your while to go, or | something to that effect ? i Rolfe, B. : Answer that question, sir? —Yes. I Dundas : What have they given you for going ? — I cannot tell you what they have given me. How much ? — 5s. Who gave you that, and will you swear upon your oath that that is all you got for spying ? How much have you got ? An- swer like an honest man upon your oath ? — I cannot answer — about 4>l. or 5 1. at different times. Have you had the promise of any more ? — No. Did you expect any more for your ser- vices on these occasions — for going about to spy and report ? — Yes. Cross-examined by Atherton. [Witness admitted that in August his wife and children had been a year and a half in the workhouse, and remained there until he became a special constable in December; also that he saw tbe Govern- ment proclamation offering 50 1. reward, before he was examined at Ashton.] Do you recollect about the time of the 1 turn-out, calling on Susan Green, the | mother of your first wife, and telling her j that you had been watching the turn-out, j that you saw the lads break Lee's mill- j door, and might as well have 50Z. as any- 1 one else ? — I have. Do you recollect Susan Green then asking you whether you would go and ! swear against your neighbours ? — Yes. j And you answered 50 1.,” is that so ? — | I do not know what sort of a reply I made j to the old woman. | Now, do you recollect going afterwards to Susan Green, and telling her that Boyers j had been trying you as to the speeches of j the turn-outs, and you said, that, if it had | not been for the speakers, there would be more disturbances ? — Yes. [Witness stated that he had taken notes at some of the meetings, but had destroyed them after tbe last Chester assizes, because he thought they would not be wanted ; further.] Now, did not you know two months I before you destroyed that paper that you I I 995 ] Trial of Fear gus O'Connor and others , 1843 . [996 would be wanting at this assizes ? — I thought I could keep it in my head. I did not know whether I should be wanting or not, because people thought there would be no trial. But did not you think you would have to give evidence ? — -I did not know that ever they would be wanting any more. Were you before the grand jury in October, at Liverpool? — Yes. And you were that day examined about those matters you were speaking to ? — Yes. And it was after that you destroyed those papers ? — Yes. Cross-examined by O’Connor. Did you use your papers when before the magistrates? — No. You swear to that ? You had your papers then, and did not use them — you swear you did not use them ? — Yes. And you are bound over to appear again on the trial, and, in the meantime, you destroy them. Were you examined at Chester ? — Yes. Were the men you swore against con- victed or acquitted ? — They were convicted and acquitted. One was convicted, and two were acquitted. Now, did you get anything for that job ?* — Not much. How much ? — 50 s. What are you to get for this job ? — I do not know. Now, come, as a moderate man, what have you been led to expect ? Has anyone told you ? — No. No one has tdd you what you are to expect ? — No. Were you told by anyone that you would get the whole 1 50Z. if you convicted the parties ? — Nobody ever has told me that. Did you say it yourself? — No; it was for that job at Chester I said I should have the 50Z. Were the depositions you made before the magistrates read to you, or given to be read to you since you swore to them ? • — Well, they were read up to me a time or two. What a memory for a man to recol- lect, in March, all that happened sincp the 7th of August last ! Where were they read up to you ? — They were read in Manchester. By whom ? — I do not know. Do you see him in Court ? — No. It is not Wilde, the chairman ? — No. When were they read to you again ? — When were they last read to you ? — Now, come, sir, we must have an answer ; upon your oath, when were they last read to you? Bolfe, B. : Come, answer the question; when was the last time the depositions were read over to you ? — They were read to me to-day. O’Connor : Go down, sir. Wilde (one of the defendants) : In speak- ing of the meetings of the 13th of August, the witness said I was the chairman ; now, I am here alone, and have not the means of procuring counsel to defend myself, and I wish to know when my trial will come on, so that I may be prepared to defend myself to the best of my ability. Bolfe, B. : Your trial is going on now. (Laughter.) Wilde: Well, then, I think it is my time to ask a few questions. Bolfe, B. : No doubt, you are quite right. Ask him as many questions as you wish. Wilde : In what manner was that meet- ing conducted ? Bolfe, B. : You are speaking of the second meeting now — the large meeting ? Wilde : This is what he calls the large meeting. Bolfe, B. : Yes, the great meeting. Witness: Why, the people were very rough, and the speakers were very rough, one against another, respecting the wages question and the Chartist question. Was it on account of the wage ques- tion and the Chartist question ? — Yes. Were there not persons there who ob- jected to the Charter being carried out? Bolfe, B. : Wilde objected to its being a Chartist question ? — Yes. Wilde : Were there not two individuals who left the cart on account of the dif- ference that arose ? How many left the cart ? Did not Woolf enden, Woodrojfo, Johnson, Radcliffe, and Aitkin leave the cart because the meeting were making it a Chartist question ? — Woolf enden made a speech there, but whether he left the cart or not I do not know. Bolfe, B. : He made a speech in favour of the wage question ? — No, in favour of the Chartists. Wilde : He left the cart on the wage- question. Bolfe, B. : Did he leave the cart ? — Yes. Did he leave it in consequence of their putting up the Chartist question ? — No. Wilde: Was not the resolution put into my hand to put to the meeting, and did I not tell them that I would not put that ! resolution in the shape it was framed ? They requested me to stay in the chair and carry out the meeting, and I did so- on condition of seeing it terminating peaceably. I said I would try to have the understanding of the meeting, whether it would be a wage question or a Chartist j question, and I put the resolution verbally, objecting to the terms in which it was j drawn up. After that was done there 997] Trial of Feargus O'Connor and others, 1843. [998 was vory little said, but the meeting broke up and we all dispersed. Is that not so ? — Yes, they broke up peaceably ; they broke up very peaceably at last. Re-examined by the Attorney General. You never saw him except at that meet- ing ? — No. And have you given a correct account of what passed at that meeting ? — Yes. I got 506*. for my expenses at Chester, and 50s. at Liverpool, and it cost me 2d. in all. Joseph Oliver — Examined by W ortley. ^Overlooker in Bobinson's mills at Du- kinfield. Spoke to a meeting at Hall Green on the 2nd or 3rd of August. It was resolved that if the masters per- sisted in their abatements the people should turn out, and stop out, till they got a fair day’s wage for a fair day’s work, and till the Charter became the law of the land. Challenger and Pilling either proposed or seconded the resolu- tion. I also saw Pilling afterwards at a meeting on Thaclcer's ground on the 10th. He said he had been to Oldham the Satur- day before the turn out (August 6), and met with some opposition there. Some of his lads had been there on Monday and they raked some fires out and knocked some plugs(ur house ? Tell the hour as near as possible p — Between nine and ten o’clock. They remained there, you say, about an hour and a half? — Yes; Campbell went away, and the others remained there an hour and a half. How far is it from your house to Every Street ? Do not you know it is a great distance P — I do not know. I do not want to puzzle you, Miss Noblett ; I want to come at the facts. Do you know that it is above a mile ? Is it not a good way off — in the other part of the town altogether ? Rolfe, B. : Is it a long way off? — It is. O'Connor: And M‘Douall, Leach, and others were there between nine and ten o’clock, and remained there an hour and a half p — Leach was not. Cross-examined by James Leach. Do you remember Saturday, August 13 ? — Yes. Who was in your “ Snug ” on that day ? — You were. At what time P — Between eight and nine o’clock. What time did I leave your house P — At a quarter to eleven o’clock. Rolfe, B. : Does any other defendant wish to ask a question ? o 67432. . [1026 James Cartledge.- — Examined by the Attorney General. Where do you live now, sir P — At Man- chester. Now, Cartledge, speak as loud as you can that the people over there {pointing to the jury box ) may hear you. How long havo you lived at Manchester ? — About twenty years. And what has been your business ? — I have worked in a factory part of the time, and I have been a schoolmaster. Now, in the beginning of the month of August in last year, were you yourself a member of the Chartist body ? — Yes, sir. Were there any persons who called themselves the “ Executive Committee ” ? — Yes, sir. Who were they P — James Leach, of Man- chester, John Bair stow, John Campbell, Peter Murray M‘Bouall, and Morgan Wil- liams. O'Connor : At this stage of the pro- ceedings I wish to remind your Lordship that this man is in the indictment. Attorney General : Is that true, my Lord ? I thought there was a nolle prose- qui entered ? The Prothonotary : No. Attorney General : Well, it was ordered. I am much obliged to Mr. O'Connor for reminding me of it. I certainly, my Lord, had given directions for a nolle prosequi to be entered. The Attorney General, having entered the nolle prosequi, said : As my hand is in, I will now do the same for Wm. Scholejield, John Wilde, and Thomas Pitt. {It is done.) IDundas objected to the witness being heard.] Attorney General : My Lord, nothing is more common, if the Attorney General be absent, than to take an acquittal. Rolfe, B. : A nolle prosequi is as good to the party as an acquittal. Bundas: But, my Lord, you will not allow him to be acquitted till the end. Rolfe, B. : I will do so now. Bundas: But my learned friend has taken a step in advance. Attorney General : Nothing is more common than to apply to the Attorney General at the sitting of the Court for a nolle prosequi, where one of the defend- ants is a necessary witness. Rolfe, B. : There is no doubt about it. Attorney General: As an objection has been taken, perhaps we may as well be regular. Perhaps you will allow the wit- ness to be sworn. Rolfe, B.: Certainly. James Cartledge was again sworn. Rolfe, B. : I have taken a note of the objection of the defendants to have the K K Trial of Fear g us O'Connor and others, 1843. 1027] Trial of Feargus O'Connor and others , 1843 . [1028 witness examined, on the ground that he is in the indictment; that the Attorney General entered a nolle prosequi with his own hand to discharge him from the in- dictment, the defendants still objecting. IDundas again objected and referred to the case of The King against Perce- val, (a) Rolfe, B. : I think there is no analogy whatever in this case, and that of The King against Perceval. In the latter, the question was whether the bill was a good one, but here there is no dispute of the kind. Suppose A. and B. are indicted, and a bill is found against both, I do not see why B. might not afterwards be a witness. Attorney General : I believe, my Lord, in point of law (although it is usual to gain an acquittal, or enter a nolle prosequi before trial for the purpose of preventing even the supposition that the witness labours under any infirmity arising from a motive of that sort), he is perfectly com- petent as a witness. Rolfe. B. : I think the point is quite clear when the nolle prosequi is entered. I shall now read over the evidence which he has already given, and ask him to swear to it again. (Examination resumed.) Were any of the defendants present at that meeting F — No, sir. [I was at a meeting at Granby Bow Fields on Thursday, August 11. The magistrates interfered and dispersed the meeting. I went from there to Car- penter’s Hall. Brophy was present at the meeting. A resolution was passed for the five iron trades of Manchester to cease work till the Charter had become the law of the land. The five iron trades are the moulders, smiths, filers, turners, and another, which I do not remember. On Tuesday, the 16th, I was in the shop of Heywood, the printer, in Oldham Street. Heywood gave me a roll of paper and a note, and asked me to take them to M‘Douall at James Leach's. M‘Douall went upstairs, and came down in a few minutes. He did not say who it was for, or anything of that sort. I opened the paper. I believe it to be burned, because P. M. M‘Douall told me so on the night of the 17th. IDundas again referred to the objec- tion. In the 2 Bussell on Crimes, p. 507, it is laid down that one of several per- sons indicted jointly may be a witness against the others, £ * provided he has not been put upon his trial at the same time with the others, 5 ’ quoting 2 Hawk. P.C. c. 46. s. 90. The authority of the case The King v. Rowland and others, (a) before the Lord Chief Justice Abbott, on an in- indictment for conspiracy, is also quoted, in which the Lord Chief Justice held, that the counsel for the prosecution had a right, before opening his case, to call for the acquittal of any of the defendants he intended calling as a witness, if he had not previously entered a nolle prosequi. Here we have quite a different state.of things. The Attorney General did not enter a nolle prosequi till after the defendant was put upon his trial with others, and the rule of law is, that if he stand indicted with others as defendant, and be put upon his trial with others, he cannot be called as a witness. WoHley : In Phillip's on Evidence, p. 57, it is laid down that on a prosecution by the Crown, a nolle prosequi may be entered by the Attorney General, either before or at the trial, in order that the particular de- fendant may be called as a witness. Dundas : It does not appear there that the defendants were put on trial. Sir G. Lewin: In 2 Starkie it is laid down that an accomplice is a competent witness, provided he is not put upon his trial with the others. I have frequently, my Lord, seen it in practice at York, that where persons were indicted together, ap- plications have been made that they might be tried separately, in order that one might be a witness against another. And I remember Mr. Justice HoVroyd, where two persons were indicted together, al- lowed) after the conviction and before judgment, one to be examined as a witness in favour of the other. Murphy: That is the difficulty in our case precisely, and if his Lordship gets it on his notes it will be enough. Attorney General: My Lord, I am much obliged to my learned Mends on the other side for guarding the prosecution against the trouble of a new trial, to which, no doubt, the defendants would be entitled if this man is not a competent witness. But I consider that the ends of public justice require that I should examine him. I may, however, insist on examining him, for I believe, in point of law, I am en- titled to do so. O'Connor : My Lord, I have another objection to take. It is necessary that the Attorney General should enter the nolle prosequi on the record. Now, this record having been removed by certiorari to the Court of Queen’s Bench, it is neces- sary that the Attorney General should have the record here in order to enter the nolle prosequi. Attorney General .- The record came here (a) 1 Lew. C.C. 151. (a) By. & M. 401. 1029] by mittimus, and must necessarily be be- fore your Lordship. O'Connor: Of course it is for all avail- able purposes, but the question is, can the Attorney General alter the record, and on so vital a point P Attorney General : I would beg, my Lord, to read from Roscoe’s Criminal Evidence, p. 141, the following passage: — “ It is said that an accomplice indicted with another is an admissible evidence, if he be not put upon his trial. In strictness, however, there does not seem to be any objection to the admitting the witness at any time before con- viction. It therefore appears to me, my Lord, it is quite competent for me to ask your Lordship to direct the jury to acquit the witness, or I may, on behalf of the Crown, exercise the power of entering a nolle pro- sequi. O'Connor: This does not at all effect the point raised, namely, that the record has been removed by certiorari. Atherton : The view which Mr. O'Connor has taken, my Lord, appears to me to be the correct one ; and I beg again to sub- mit the objection raised by him, to the consideration of your Lordship. As- suming this to be an ordinary case of in- dictment, and not one removed by cer- tiorari, still a nolle prosequi could not be entered on this record, for this record is not the real indictment ; this record is not the information returned by the grand jury, but a transcript sent down by mitti- mus, as appears on the face of the record itself. The entry of a nolle prosequi is taking the judgment of the Court with respect to a particular defendant — let no further proceedings be taken. Your Lordship is sitting now, a judge of nisi prius, and this is a civil action, a nisi prius record. Attorney General : I beg to say that I have frequently, as Attorney General, signed a parchment for a nolle prosequi, but, until this occasion, I never entered it on the indictment itself, but always on a little paper handed to the officer of the Court. O'Connor : It must be a part of the record, and the entry of it now alters the record. Rolfe, B. : I will now state my opinion. In the first place, I conceive that the At- torney General may, in omni tempore et in omni loco , enter a nolle prosequi. There can be no prosecution going on against any person, at the suit of the Crown, in which it is not the privilege of the At- torney General at any time to enter a nolle prosequi. I confess I have a strong feel- ing that in an indictment for misde- meanor, at all events, the mere circum- [1030 stances of his being a defendant would not incapacitate a person from being a witness(a) ; but I think the Attorney General can at any time before the verdict is given enter a nolle prosequi for him, and thus put him in the same situation as if he never were a defendant. However, as it has been objected that this record has been removed by certiorari to the Court of Queen’s Bench, 1 would suggest, as the most convenient thing (the Attorney General may take his own course), instead of entering a nolle prosequi , to take an acquittal. And it may be essential to the interests of the other defendants to have the party acquitted. There can be no possible law that a man can be a more competent witness for one side than the other. Attorney General: I have no desire to struggle for any point of law. I submit, my Lord. Dundas : I submit, my Lord, that you will not permit the Attorney General to take an acquittal at this period. Rolfe, B. : We cannot do it again. I shall take it now as a tabula rasa — as if nothing had been said. Dundas : In the ordinary state of things I believe it is the rule that the co-ccn- spirator is not acquitted till the end of the case. Rolfe, B. : I do not see how any con- spirator can object to his co-conspirator being acquitted. Dundas : I submit to your Lordship that no co-conspirator can be acquitted. Rolfe, B. : I submit that no co-defen- dant can be heard. O'Connor : Suppose the Attorney General offers no evidence against Cartledge ? Rolfe, B. : If the Attorney General offers no evidence against him I think it very hard if we do not take an acquittal. We will take the others in the same way — Wilde and Scholefield. O'Connor: The grounds on which the Attorney General allowed Wilde to be ac- quitted was this : that nothing was found against him. How, my Lord, other wit- nesses do, in their depositions, charge Cartledge. Rolfe, B. : The Attorney General is not going to offer any evidence against Cart- ledge, Wilde, Scholefield jun., or Pitt, and he wishes them to be acquitted. There are four of them against whom he offers no evidence. The jury then by directions of the Court acquitted James Cartledge, William Schole- field, John Wilde, and Thomas Pitt. (a) See now Winsor v. Reg. 1 L.R. Q.B. 289 and 390 ; Reg. v. Payne, L.R. 1 C.C.R. 349 ; and Reg. v. Bradlaugh, 15 Cox, C.C. 217. K K 2 Trial of Fear ep- tember 1st, 1842, take the first opportunity of laying our opinions before you concerning the conduct of the masters whom we invited to meet us for the purpose of arranging the exist- ing differences. They having declined to do so, we consider such conduct most unjustifiable ; it being calculated to drive the working people to starvation and crime, and the shopkeepers to bankruptcy and ruin. Fellow workmen, we therefore call on you strenuously to adhere to the following resolution agreed to by our repre- sentatives, as the means of redeeming you from your present degraded state.” Then follows the resolution, in which the workmen declared their intention not to resume work till they got the prices they left off at, that is the prices of 1840. Gentlemen, if there is any ille- gality in that, I acknowledge I am guilty. There is no evidence that I was at the stopping of any mills, but merely that I was speaking at public meetings, as I have frequently done before in Stockport and elsewhere. I firmly believe that we have a right to send delegates to get sub- scriptions for the purpose of relieving those out of work. As I never came under any prosecution for these things before, I thought I had a right to do the same things still. But the law of con- spiracy it appears spreads its net so that no one can tell who is safe. The manner in which the prosecution has scraped things together shows that they had a bad case. I once said to a lawyer, “ You lawyers contrive to make up a good deal of things out of nothing,” and he said, ‘ £ In order to make up a good thing out of nothing I take care to get to- gether a good deal and then I am sure to make up something.” So they have brought together a great mass of stuff against us in order, at all hazards, to ensure a conviction. I hope, as Eng- lishmen, you will feel for us, and acting conscientiously, do your duty as English- men have done before. When was there such a prosecution as the present ? When were fifty-nine men prosecuted in one indictment for a strike P There is no such thing in the annals of history. There never was a Government prosecution for a turn-out for wages like the present. In- stead of progressing, the Government are going backward. But though the Government and prosecutors, I am sorry to say, are not progressing, the people are. Suppose, gentlemen of the jury, you were obliged to subsist on the paltry pittance given to us in the shape of wages, and had a wife and six helpless children, five of them under thirteen years of age, to support, how would you feel P Though you were to confine me to a dungeon I should not submit to it. I have a nervous wife, a good wife, a dear wife, a wife that I love and cherish, and I have done 1107] Trial of Fear gus O’Connor and others , 1843. [1108 everything that I could in the way of resisting reductions in wages, that I might keep her and her children from the workhouse, for I detest parish relief. It is wages I want. I want to be inde- pendent of every man, and that is the principle of every honest Englishman ; and I hope it is the principle of every man in this Court. Suppose, gentlemen, that any of you had a wife and six help- less children depending on your exertions for support, and suppose that one reduc- tion after another took place in your wages till the remaining portion scarcely proved sufficient to provide you with the common necessaries of life, and that on Saturday night your sorrowful wife had nothing for her family, that she saw her dear children dying almost for want of the common necessaries of life ; and that you had a son as I had, on a dying bed without medical aid, or anything to sub- sist on, how would you feel? I was twenty years among the hand-loom weavers and ten years in a factory, and I unhesitatingly say that during the whole course of that time I worked twelve hours a day with the exception of twelve months that the masters of Stock- port would not employ me ; and, the longer and harder I have worked, the poorer and poorer I have become every year, until at last I am nearly exhausted. If the masters had taken off another twenty -five per cent. I would put an end to my exis- tence sooner than kill myself working twelve hours a day in a cotton factory, and eating potatoes and salt. Gentlemen of the jury, I now leave my case in your hands. Whatever it may have been with others, it lifts been a wage question with me. And I do say that, if Mr. O'Connor has made it a Chartist question, he has done wonders to make it extend through England, Ireland, and Scotland. But it was al- ways a wage question and Ten Hours Bill with me. I have advocated the keeping up of wages for a long time, and I shall do so to the end of my days. And, if confined within the walls of a dungeon, knowing that as an individual I have done my duty, knowing that I have been one of the great spokes in the wheel by which that last reduction of wages was pre- vented, knowing that by means of that turn-out thousands and tens of thousands have eaten the bread which they would not have eaten if the turn-out had not taken place, I am satisfied whatever may be the result. With these observations I shall leave you to perform your duty. I have no doubt but you will, by your ver- dict, allow me to return to my loving wife and loving children, and to my em- ployment. My master has told me, coming away, that if I return again he will not take advantage of me as long as I am a good workman. With these considera- tions I leave my case with you, hoping and trusting you will not rely on the garbled statements given by the witnesses about the turn-out, but on the honesty and sincerity of the individual before you. And now, gentlemen of the jury, you have the case before you ; the masters conspired to kill me, and I combined to keep myself alive, (a) [Johnson was proceeding to address the Court ] Rolee, B. : There is no evidence affect- ing Johnson, except that given by the first witness. Johnson: I merely wish to make a few observations. Sir G . Lewin: I think there is, my Lord. Rolfe, B. ; Does anybody speak to you except Uaigh ? Johnson : Yes ; one witness said they were going to throw me out of a cart be- cause I dwelt on the wage question. Rolee, B. : Do not let me interrupt you. Sir G. Lewin: The Attorney General is not here this moment, my Lord, but I am quite sure that, if your Lordship thinks the evidence against Johnson is not so strong as against the others,, he would not press it. Rolee, B. : I do not wish to say that. Johnson : I am spoken to by Uaigh and Brierley, of Stalybridge, my Lord. Sir G. Lewin : He was in the chair at a meeting there. Rolee, B. : Yes, and they <{ had like to have thrown him out of the cart.” Sir G. Lewin : I am quite sure if your Lordship has any impression on the point, that I would be only acting in the spirit of the Attorney General to consent on his' part to an acquittal of Johnson. The jury, by the direction of his Lord- ship, acquitted Johnson. [Storah,M‘ Cartney,Beesley, and Bairstow followed. Bairstow described his election (a) “The artless and unvarnished statement of Pilling told with thrilling effect upon al who heard it. Not only the ladies, but the jury, the judge, and even the Attorney General himself, were affected to tears by the truthful and touching address of this factory operative. Indeed, the Attorney General was so over- powered by the picture drawn by Pilling of the distress which existed among the working classes previous to the turn-out, and the heart- less cruelty which they experienced at the hands of the master-manufacturers, that he was obliged to leave the Court.” — Note by Feargus O’Connor. As to the decline in prices and distress among the working classes at this time, see Walpole’s History of England (1890), vol. 4, p. 357, &c. 1109] to the conference.] I was elected during the last Summer Gloucester Assizes. The city of Gloucester is one of the towns I was sent from to the conference. T re- presented a meeting, called .by a public placard, and at which meeting upwards of two thousand were present, among whom were several legal gentlemen, and a number of the operatives of that city. A resolution was proposed, seconded, and carried unanimously, that I should go to Manchester, for the purpose specified in the convening notice that was inserted in the Northern Star of the 13th of that month, which paper has been read, and put in before his Lordship as evidence. After that I went to the town of Chelten- ham, and, at a public meeting there, I was elected for the same purpose, to sit at the same conference. Thence I went to Bristol, and at a public meeting there, convened by a similar placard posted on the walls — a meeting of which due notice was given to the authorities of the town — I was elected as at Gloucester. On the Monday morning preceding the Wednes- day on which the conference met, I de- parted from Bristol, and arrived at Man- chester the day following. In Bristol, Gloucester, and Cheltenham there was then no strike or cessation from labour, and, till cognizant of the circumstances that occurred in connexion with the origin and progress of the strike, I had not at- tempted to excite the people in that loca- lity, where I had been labouring as a public lecturer for three months, to adopt such measures, seeing that the strike could not be made acceptable unless it were the spontaneous, voluntary, and universal desire of the people to accomplish their •object by such means. These are the cir- cumstances under which I was brought to this meeting, and thrown into the imme- diate vicinity of those exciting circum- stances and of those exciting days to which reference has been made by several wit- nesses who have stood in that box during the last few days. [ Woolf enden and James Leach followed.] Wednesday, March 8, 1843. The defendant O'Connor : May it please your Lordship, gentlemen of the jury, before I enter into the consideration of this case, allow me to add my meed of praise to that which has already been be- stowed upon the manner in which this trial has been conducted from its begin- ning to the present moment. Gentlemen of the jury, we have no right to complain ; we have no fault to find ; and, therefore, we do not complain. I do not look upon this prosecution as an act of justice, or of leniency or mercy merely ; I go further. [1110 and say that I look upon it as regards myself as an act of grace. Gentlemen of the jury, after the evidence you have heard, if your verdict upon that evidence were a verdict of guilty, it would not convey to the public mind of this country half that criminality which, before this trial com- menced, was attached to my character. Before this investigation commenced, the press of all parties teemed with the im- portance of the case ; that it was one little short of high treason, and that I, Feargus O'Connor, was the prime mover in the several transactions connected with it. I am well aware that it is impossible for me altogether to remove all those prejudices which for years have been engendered in your minds. I do not seek to perform such Herculean labour ; but if you leave that box with less prejudice against my character than you entertained when you first took your seats, there then will I have achieved a greater triumph than even your verdict of acquittal would give me. In a prosecution of this kind, we may naturally suppose the Attorney General , on behalf of the Crown, would lay his whole case before you ; and that he would sup- port it, not by such evidence as has been given, but by the best that could be ad- duced, I admit that the opening speech of the Attorney General was what that of a lawyer and gentleman always should be ; it was a very different speech from what we have been accustomed to hear on such occasions ; but, taking it without con- trast, and by itself, it was the speech of a lawyer and a gentleman. I agree with the Attorney Ge?ieral, that an investigation was not only necessary but indispensable. After the state which it is proved to you this country was in for a considerable time, the Attorney General would be justly charged with a dereliction of his duty, if he had not had this solemn inquiry in a court of justice. But another question follows that — whether or not the right parties are before you ; and that is a ques- tion which will afterwards be submitted to you. What is the nature of the crime with which we have been charged ? What is the reason that you, gentlemen, in the course of these proceedings, have been compelled to confess yourselves somewhat puzzled with this heap of con- spiracies, assemblies, tumults, riots, and different crimes, so mingled together that his Lordship has had considerable trouble in laying it before you in a clear manner — clear to me but not clear to you and the rest of the defendants — for there has been a heap of charges so mixed up together that it is impossible for any defendant to justify himself against them ? Then, they are not mere remarkable for the period over which they range — embracing Trial of Feargus O'Connor and others , 1843. 1111 ] Trial of Feargus O'Connor and others , 1843 . [1112 not less than two months — than for the various transactions to which they refer. If these transactions and charges had been brought before you in a legitimate way ; if rioters had been indicted for riot ; if those who attended tumultuous and illegal meetings had been indicted for that offence ; and those gudty of conspiracy for conspiracy, then, gentlemen, your troubles would be limited and your course contracted ; each defendant would have known what he was called upon to justify. But now, after having ferreted throughout the whole country, having first produced their case before the magistrates, and having substantiated it there by the wit- nesses they called, they have not produced a single one of those witnesses in this Court. We are first committed, and then there is a perambulation throughout the country for evidence ; we are first indicted, and then there is a crusade to see what they can rake up to substantiate the charge. Conspiracy, to speak of it first; what is it ? A definable thing, a fact, and the moment parties combine to do an illegal act, or to do a legal act by illegal means, that moment the crime is perfected. It does not require from the 1st of August to the 1st of October to complete that crime. But it has been thought desirable and necessary to prove a variety of acts, such as illegal meetings, in order to sub- stantiate the charge of conspiracy. Now, so far as regards conspiracy, there is no evidence yet before you to prove that the defendants have been guilty of that crime. His Lordship will tell you what amount of evidence is required by law to prove conspiracy against any party. There must not only be a common design, but also a privity of that common design; and all the acts of the parties must be in pursuance of that common design ; and every conspirator must go to the extent that the other conspirators go, in the fur- therance of that common design. This will be laid before you by my Lord, and therefore it is the more unnecessary for me to dwell upon it at any considerable length. But let us see, in the first instance, how and by whom the entire case is proved. The Attorney Generali in his opening speech, said that the charge against us is that of having attempted to force a change in the laws of this country by tumult and riot — by tumult and riot. Gentlemen, there might have been some doubt as to the complexion which this prosecution bore up to the period of the acquittal of Wilde. Theie was, indeed, a desire on the part of the Crown to evade the evidence of their own witnesses as to the strike of labour. I could not discover for the life of me why the Crown sought to gloss this case, and put a new face upon it. But when I found on the second day that the Attorney General admitted Wilde’s innocence and consented to a verdict of acquittal, because he found he had not mentioned the Charter, then I came to the conclusion for the first time that this was a political trial, and that the Attorney General was determined to make it such, whatever the evidence might be — no, not the Attorney General — let it not be supposed that I lay this at the door of the Attorney General, but those who got up the evidence pre- sented to the magistrates in the first instance, corroborating the fact that it was a strike for wages. None of the witnesses who were brought before the magistrates have been called here ; but a different class of witnesses are now called here to prove a completely different conspiracy. That is an important fact, and one which, I trust, you will bear in mind. Then, gentlemen, we are charged with a conspiracy on the 17th of August. With this branch of the case, as I am more im- mediately concerned than any other, I may'very briefly deal. I am charged with having excited and recommended the continuance of the strike then in existence. Gentlemen of the jury, facts are stubborn things ; and, the Attorney General, with that ingenuousness which has marked his cha- racter through life, before he commenced the prosecution, or called any evidence, ac- quitted me of every charge in the indict- ment. Up to the time of the strike he not only acquits me of all cognizance and participation in it, but he goes further, and bears honourable testimony to the fact that I have resisted it. Gentlemen , at the period I resisted it — the 13th of August — to which period the Attorney General brings down his character of me, I inserted, in the Northern Star , an article which strongly inculcated the necessity of observing peace, law, and order ; and that article, gentlemen, was again inserted in the Northern Star of the 20th of August — the very publication which the Attorney General has put in evidence against me. But let us see what this conspiracy was, how it was carried on, and what are the documents referred to in the opening speech of the A ttorney General, and after- ward read in evidence, what the} 7 relate to, and what their nature is; whether justifiable and legal or not. Gentlemen, you have the evidence of the two principal witnesses for the Crown — from whom the poor defendants would not condescend to receive a character, but felt themselves dishonoured and lessened in their own estimation by receiving a good character from those persons — these are the two 1113] men — the Siamese youths — upon whoso oaths this charge is attempted to be sup- ported. What did we get out of them P The country being in the state it was, according to their evidence, who should be here to prove the case P Should it be left to the policemen, to the garbled re- ports of men who went out as sjDies — men who were sent out to prove everything especially connected with the Chartists, or should it be proved by the gentlemen who had an interest in the preservation of the peace of the country ? Where is the Mayor of Manchester ? Where is the borough- reeve of Salford P Where are the authori- ties ? Where are the magistrates ? Where are the aldermen P Where is Sir Charles Shaw(a) P Where is Mr. Maudefb) P Where is Colonel Wemyss[c) ? Where is Captain Sleigh ? Where were those who saw all, and could have spoken to all P Nowhere. The Crown could have produced them ; they have failed ; I shall do so. The evidence that should have been brought to substantiate the case, I shall produce to answer the case. This is an anomaly. This is a charge of conspiracy ; the coun- try is all but in a state of revolution ; yet mind fas the Attorney General will tell you in his reply), we are not charged with pro- ducing a bloody revolution. No ; but we are charged with a crime which, if I were guilty of, I should blush to stand up and defend myself against in a court of jus- tice. There is something appalling to an honourable mind in the charge of con- spiracy ; it implies not only secrecy, but the secret machinations of bad men to destroy something belonging to good men ; it is the most abominable of all crimes. But, I ask, where are those parties ? They are nowhere. Then, what is proved by ihe Siamese youths ? This, that the delegate meeting was , called two months before the strike took place ; we hove it proved by Cartledge that it was an open meeting ; and that a reporter, dismissed from my service, and not reporting for my paper alone, but for the British Statesman and other papers, was admitted. I admit that this meeting of delegates was projected two months before ; I admit that the dele- gates were elected two months before, and that it was to be held for the purpose of re-organising the Chartist constitution. We have a right to our constitution if (а) Chief Commissioner of Police for the borough of Manchester. His reports to the Home Office on the condition of Manchester and the neighbourhood are in the Home Office Papers, Domestic Disturbances, Military, 1842. See also his account of the events of August 9, in the Times of October 13, 1842. (б) Stipendiary Magistrate. (c) Assist. Adj.-Gen., Northern District. [1114 legal ; I would not support it if illegal. We also met to heal our differences. Here, in the first instance, you are asked to believe this, — that men, known to differ, meet to conspire; that men, known to have dissensions among themselves, meet to combine. Gentlemen, we did combine. “ When bad men conspire good men must combine.” We combined ; but, as has been well observed by a high authority, “ Never did good men meet for a good pur- pose without being thoroughly acquainted with each other ; and never yet was there an instance known of bad men uniting and co-operating for a bad purpose without being thoroughly known to, and having entire confidence in, each other.” That the Attorney General will not deny. Then you have here, combining together in the character of conspira'.ors, men known to be at variance with each other ; you have a reporter dismissed from my service, and with a pique against me, re- porting not for me, but for other papers, allowed to remain at my request. After the character of some of the evidence ; after the fact of the notes of the policemen being preferred to their own recollection, the notes of one being taken in a fair legible running hand, while his elbow was jogged by the crowd, — I did hope that the same character would have been preserved throughout the examination. I did think that, if the notes of a policeman were better than recollection, the notes of a reporter, taken before he consented to become a witness, and therefore indepen- dent of bias and divested of that charge now brought against him, might have purged off much of the accusation now brought against us. What was he exa- mined upon ? His recollection. What did he say P That he had full notes. He never was asked for the notes. In his depositions they were ; here they are not. If the best evidence that the case would admit of- was to be produced, why were not' the notes read ? If there was aught proving anything against the conspirators, it would be in the notes. It was said that their speeches were to be suppressed. They could not be suppressed from the notes ; therefore, you must infer that there was nothing in the notes of Griffin which would tell against the conspirators. I have shown that men must have confidence in each other before they can conspire. Why, there was a youth amongst us, one of a deputation, to whom we refused admission as a deputation. I said, “ No, they shall not come in as a deputation, because that would be illegal ; ” but we got it out of Cartledge that they might come in as a portion of the audience. You heard from Griffin that he had two copies of the address ; that he sent one to the Trial of Fear gus O’Connor and others, 1843. 1 115] Trial of Fear gas O’Connor and others , 1843, [111(1 Statesman ; and, if there were anything against ns, why did he not send a report to the Statesman ? Because it would not serve his purpose. But first, as to the Attorney General. He confesses that I opposed the strike. Then you have only to deal with me from the 13th to the 17th of August. The Attorney General , so far as I am con- cerned, has limited the inquiry to that period. Now, you are perfectly aware of the manner in which a charge of con- spiracy can be got up. It will be my duty, gentlemen, to take off all the magic with which legal ingenuity has surrounded this charge of conspiracy. Gentlemen, you have heard of awful practices, of mysterious doings, of the manner in which I travelled, — so much so that I thought I was one of an audience listening to, and partaking of, some melodramatic perform- ance. I looked for the properties, Hooked for the scenery, I looked for the masks, I looked for the daggers, I looked for the blue fire — for the torches — for the bayo- nets — for the swords and pistols, by which this conspiracy to upset the government by tumults was to be carried out. Gentle- men, I went at night from London, by the railway train,— with three hundred other people, — as, I believe, did Sir James Graham, when he came hither the other night. I then went in a cab by myself — because nobody else was going my way — to Mr. ScholefielcTs. I went there at half- past five in the morning, — because that was the time the train arrived in Man- chester. I left my own house in my own carriage, and proceeded to the Victoria, Euston Square, and there I waited till the train was ready to start. Gentlemen, I went in the coupe with an officer of the Guards, — conspiring of course, — and there we went, in the darkness and secrecy of night, rolling along under the dark tun- nels ; there I heard the rumbling of the wheels, and the echo of the conspirators’ voices, dinning in my ears. (Laughter.) Then I arrived at the scene where the conspiracy was first to be hatched ; I arrived early in the morning ; I slept till three in the afternoon ; I am never seen or heard of again till three o’clock in the noontide sun of an August day ; then I so conceal myself in a cab that all see me, and flock around me. They know me from the very appearance of the cab ; it smells of brimstone ; there is conspiracy in its look ; its very wheels knock fire out of the stones ; it smells of nothing but Peterloo ! Hunt's monument ! strike for wages ! tumultuous meetings ! riots ! turn out the hands ! and carry the Charter by tumult and violence ! I passed down to the “ Sherwood ” Inn ; because I was sent for. For what? To ascertain whether I would go to the tea party that night. I go to the “ Sherwood ” Inn (Tib Street) in the most public part of Manchester ; a crowd gathers round ; I request them to disperse; and I say, “Look out for a place where we can meet without being interrupted.” I refuse to go to Carpen- ters’ Hall for fear of the crowd. I see the effect of my first appearance in Man- chester ; I leave the place ; I abandon my intention ; I go to Mr. Scholefield's because he is an old friend of eight years’ stand- ing. Why ? Because I learned that the procession was put off ; and I went there to join in putting off the meeting in his chapel also. Then I learned that he had completed the good work before me. I found that he had come from the printer’s with the bill. Gentlemen, I am now stripping this conspiracy of all its tech- nicalities, and you will see which comports most with the truth, my case or the case of the Attorney General. Mr. Scholejield came in and showed me the bill. I clasped his hand and said, “ Thank God, but if I had known this, I need not have come at all.” But, gentlemen, being there, was I, having been elected two months before for a specific purpose, — was I even then to refuse to throw my weight, such as it was, into the scale, and to endeavour, by the best means in my power, to aid in turning this, which was likely to be a disastrous strike, into a peaceful agitation even for the Charter ? But, to return, gentlemen. I left in a cab at three o’clock in the afternoon ; I returned at half-past three o’clock to Mr. Scholefield's, and I am seen no more till the 17th. (a) On the 17th we met. Circumstances had arisen which, from our political position, made it desirable. Becollect you are not to find us guilty for that. Let me now caution you, gentlemen, if you think me guilty of too much popularity, find your verdict so. Say “ O'Connor has too much popularity.” If you think we ought not to have inter- fered, say so. But then, say that no other party in the State had a right to interfere in politics. Let the prohibition be gene- ral. We met; the conspirators met; in the midst of tumult we met at eleven ; we separated at half-past five, and had an hour and a half for dinner; so that we were four hours sitting in conclave, con- spiring against the peace of the country. We passed a resolution; we passed an address. Now take that resolution. What did we get from Cartledge? That it was the character of every resolution that has been passed relative to the Charter, and especially the words, “ That we wish to continue the struggle until the Charter becomes the law of the land.” (a) But see below, p. 199. 1117 ] Trial of Fear gas O'Connor and others, 1843 . [ 1118 - “ Struggle,” says the Attorney General, “what does that meanP” Why, what does an election straggle mean ? What docs any struggle mean P What does a straggle in the House of Commons mean P Does it mean that the parties, catch each other by the throats and strangle each other? No; it means that they are to “ contest, contend, and stand together.” This resolution — this all-important resolu- tion, this awful, this damning resolution, this dark-lantern resolution, what did it refer to p That we were to have the Charter then P No such thing ; but that we. were to continue, not the strike, but the struggle, till the Charter became the law of the land. “ Then,” says the Attorney General, “this is a tumult, a riot; this is not legal means. I admit (says the Attorney General) that yon have a right to contend by peaceful means, but not by tumultuous meetings.” Now, gentlemen, there is no one in this Court more anxious and will- ing to receive a proper definition of the law, on all matters connected with agita- tion, and with public meetings, and poli- tical movements of every description, than I am myself. Nor, gentlemen, do I con- sider that I can produce to you a higher authority than the Attorney General him- self as to what does constitute a tumultuous meeting. I do not ask you to take the law from me, gentlemen : I have attended more public meetings than any man living, or that ever lived before me, and I was never charged wirh causing a single breach of the peace ; I have often stopped it. But hear what the Attorney General considers a tumultuous meeting. In ad- dressing the Court at Newport upon an important transaction, this was his opinion as to what constitutes a tumultuous meet- ing “ Gentlemen, the law cannot be altered by the conduct of those who are called upon to obey it; and I make that admission to my Lords upon the bench, because, in the feAv remarks that I am about to make upon this part of the case, I do not mean to say that any change of the law has occurred hv reason of the relaxed discipline of society that has prevailed for some time past. But I do mean to say this distinctly, that from what has actually taken place, from that which has been permitted, perhaps, gentle- men, in some instances even sanctioned, a very different estimation is to be held of public meet- ings, aye, gentlemen, and even of armed meet- ings, from that which might have been formed some twenty or thirty years ago, and that the object and the intention of the parties may justly receive, at the close of the year 1839, a construction far more favourable than, perhaps, could fairly have been conceded in earlier periods of the history of this country, that you and I are familiar with, for I do not go back to very remote periods.” Then the Attorney General, in order to be explicit in laying down the law for us ; well knowing that those proceedings would be spread throughout the length, and breadth of the land ; well knowing that they would establish the character of public meetings, goes through the detail of that large public meeting held in Lon- don of the trades of two hundred thousand persons, and he shows that not one of them were punished, and then he con- cludes : — “ Gentlemen, under the name of agitation, what has not been done almost in every town and in every corner of this kingdom ? And if we pass— and, gentlemen, I shall do this lightly, because I do it reluctantly — if we pass for one moment, and take a glance at the sister king- dom, there familiarly we talk of a petition from five hundred thousand fighting men. Gentlemen, I say no more upon this point, but I call upon you to remember these transactions when you come to deliver your verdict on the guilt or the innocence of the prisoner. And let it be under- stood, that so far as permission, if not actual encouragement, has been afforded to such pro- ceedings, that it would be most unjust to use the same measure that was formerly in use as to the motives of parties. It would not be justice to weigh in the same scales as were formerly used, the transactions about Avhich you are making inquiry to-day.”(a; Gentlemen, we have only to come from 1839 to 1843, and give us an extension of the rule the Attorney General has made, and, by the rule of three, give ns the benefit. of one third greater relaxation upon his construction of the way in which the character of public meetings ought to be estimated. The Attorney General told the jury, at Monmouth, that the Reform Bill has altered the character of those meetings; that armed men had passed unpunished ; that they had heard of petitions from five hundred thousand fight- ing men in the sister kingdom, and that the Penal Code had been relaxed ; but the political code had been cotemporaneously made more stringent. But what says the Attorney General now ? That we have been guilty of attempting to upset the constitution, and to produce a change in the laws of this country by tumultuous meetings. Then I give you the character of what those tumultuous meetings are. But let us see whether or no this comes late, and with a bad grace ; and if there is (independently of what we learn from the acquittal of Wilde, and the reason assigned for it) anything more lurking at the bottom of this trial. You receive evidence here ; but there are other sources from which you may receive evi- dence. You take the laws from the («) Above, p. 319. 1119] Trial of Feargus O’Connor and others , 1843. [1120 legislature, as passed by Lords and Com- mons, and assented to by the Monarch. Are you not bound, then, on a national transaction of this kind, where men in the Upper House, of rank and property, men in the Lower House of all descrip- tions of wealth and property, — are you not bound to take the uncontradicted opinions of such high authority as the Lords and Commons ? Let us see what they are. I give you the name of the highest, best, and greatest men in this, or any other country. I give you the name of the most finished man, take him for all in all, thai; England can now produce. I much differ from him in politics ; but I think there is not, in this country, such another man, with such a mechanical head, such comprehension, such a power of mind, as Lord Brougham ; and what does he say P The Attorney General has sought to drive me out of my course ; he will tell you that the acts of another party., are not acts that we can justify ourselves upon. Lord Brougham says : — “ Trials are about to take place ; but I hope the parties I have charged will be called upon to answer on those trials.” (a) They have sought to make Lord Brougham a madman. (b) Would to God I were such a madman ! Was that the speech of a madman ? Ho : it was given upon his knowledge of the doctrine of the law of presumption. Then let us see whether the House of Lords and the House of Commons agree upon one thing. It is an extraordinary fact ; but so it is, and you are cognizant of it. (The At- torney General was quitting the court tem- porarily ) Before the Attorney General goes, speaking of the press, I have his authority, in the most unqualified manner, for saying that the statement imputed to him in the papers, that he said in the House of Commons that he was coming down here to prosecute the leading and most important offender,” is not correct. The Attorney General assures me that he never used one word of it. Gentlemen, this will make you cautious about re- ceiving the reports of policemen. All the papers, although reported by different reporters — the Herald, the Times, the Morning Chronicle , and the Morning Ad- vertiser-all reported it in the same words. The Attorney General never spoke them, and he has authorised me to contradict (а) “ I refer to a trial which is pending, and they who have used these expressions will, I hope and trust, be called upon for an explanation in the course of its proceedings.” — Speech of Lord Brougham in the House of Lords on the distress of the Country, February 9, 1843. -Hansard, vol. 66, p. 293. (б) See Hansard, vol. 68, p. 42. them. The Attorney General is there mis- represented; and I believe it for this reason, because reporters upon some papers very often exchange their slips, and it may happen that part of the same speech may be reported for the four papers by one and the same individual Lord Stanhopc(a) congratulated his coun- trymen upon the little damage that had been done to property, and none to life. Lord Brougham, together with others, charges the league with being the cause of the disturbance ; Mr. Walter (b) charges the poor-law as being the cause of the dis- turbances ; the league and Mr. Cobden[c) charge the landlords as being the cause of the disturbance ; Lord Francis Egerton(d) charges the Anti-Corn Law League with originating the disturbance, and others have charged it upon the Conservatives of Lancashire. Here is an extraordinary thing ; six parties in the field ; lords and commoners charge five different sources with being the cause of these disturbances ; but no one, except the Attorney General, charges the Chartists. Until this trial took place you heard of no charge against the Chartists. You have heard from those parties that they severally charged one another, but no one but the Attorney General charges the Chartists. Ah ! but there is something still more extraordinary in this most extraordinary case. The gentleman who got up this case for the rosecution reminds me of a fine old unter, which required a saddle wide in the gullet, full in the seat, and comfortable to ride on. The horse died; but the saddle was so good that the hunting gen- tleman went down into the market with the saddle to find another horse that it would fit. So it was with the gentleman who got up the case for the prosecution. (e) He went down into the manufacturing districts, with his saddle to find who it would fit ! He tried it upon the League ; but finding that the Chartists had the broadest shoulders, and that it fitted them best, he placed the saddle upon their backs and girdled it fast upon them. (Laughter.) A case was gone into before the magistrates before the learned gentle- man undertook to get up the case for the Crown. Upon that case the magistrates themselves, who were most interested in preserving the peace, got evidence ; and they brought that evidence to substantiate their case before themselves. The gentle- man who came afterwards went to the magistrates, to the parties who got up the (а) Hansard, vol. 66, p. 261. (б) lb. 165. (c) lb. 827. (d) lb. 821. ( e ) Mr. Gregory. 1121] Trial of Feargus O'Connor and others , 1843. [1122 first case, and proposed his sliding scale : he allowed those witnesses who gave evi- dence before the magistrates to slide off, and got an entirely new batch of witnesses, save and except the Siamese youths. That was the character of the conspiracy, and now we come to the (conference) resolution. That resolution speaks of a struggle. Terrible word ! What a struggle the Tories had with the Whigs during the last ten years ! What a violent struggle they shall have in the next ten years, if I can accomplish it, until they do justice to the people; that is, according to my notion of justice ; not by violence. I am not a conspirator ; I never have been ; and what is extraordinary, after all the pillaging, ransacking, and searching with- out search warrants, after all the breaking into houses, — I being the great con- spirator, — not a line is found in any man’s house affecting me. Where was the red box then — where was then the red box of patches picked up here and there, and which box I would recommend the Crown to send to the Chinese Exhibition. Not a single letter is found, notwithstanding all their researches, against me. Why? Because I was never a conspirator, and never wrote a private political letter to any man in my life. But what does this resolution do ? It approves of those who were turning out of work remaining out, till they got the wages they turned out for. Then we come to the conference address. The Attorney General says it recommends the executive address. What if it does ? There is nothing in that. Lord Chatham approved of the defection of America, and of the American declaration of independ- ance : a great many men, high in au- thority, approved of America separating herself from England. Was that con- spiracy ? But we are said to be accessories after the fact in the riots. I should wish to have some better definition of the law. I do not understand what an accessory after a riot means. Does the Attorney General mean to say it is an overt act of conspiracy? Does the Attorney General mean to say, that, if a man goes to a riot or a fight, and two days afterwards returns and tells his associates that he saw two arties engaged in a riot, does that make im an accessory ? I do not understand the law, gentlemen, if approving of that, which I have a right to approve of, makes me a conspirator. I now come to an important fact. The trades’ resolutions are spoken of ; the trades’ papers are seized ; the trades’ address was passed in the face of the magistrates; we referred to them; we said we rejoiced that the trades, after so long a struggle against us, had come out for the Charter. But recognition is o 67432. no proof of conspiracy; his Lordship will tell you that ; and also that every man in that conspiracy must have consented and joined in one common design to the same extent as the others. I believe the Attorney General will not deny, that every man in that conspiracy must have con- sented to the same extent. Then as to those addresses and resolutions, I ex- amined Cartledge at some length ; Griffin, not at such a length ; and why ? Because he had not sworn to one word contained in his depositions ; because the Attorney General was afraid of testing Griffin’s memory too much, apprehensive that he would not stand cross-examination ; and, to my astonishment, and the astonishment of the Court, the man who appeared before the magistrates to support the weight of the case, was let down of a sudden, with- out proving anything at all except what made for us. What was the evidence of these two men as to the character of the meeting? The Attorney General can- not get over it. If they take their evi- dence against me they must also take it for me. What did Cartledge say ? That he had attended hundreds of meetings, and had never heard me say one word at variance with the duty of a good subject. I asked Griffin, and he said the same. I ask you, could Griffin’s notes tell against me wfien Griffin’s tongue told you (know- ing these notes), that there was nothing against me ? Then I am seen with Dr. M‘Douall and Leach, a very natural con- sequence of our both being delegates. Leach was no delegate at all. He merely formed one of the audience. JRailton also was there. He is here as a defendant, but he was not present at the conference as a delegate. He was admitted as a stranger, and had nothing whatever to do with what was going on. I now come to speak of the executive address, which the delegates described as “ a bold and manly address.” In the year 1843 am I to be convicted be- cause of that ? Is that an offence, either at common law or by statute ? Am I to be convicted for saying that that is “a bold and manly address.” If I wished to go further, might I not have adopted that address ? But I did not ; nor am I in any way connected with it; for it is proved to be in the hands of the printer till ten o’clock ; I am not in Manchester till half-past five that morning, and not out of my bed till three o’clock in the after- noon. Having laid before you, gentlemen, the manner in which the conference was brought together, just let me see what we did at that conference, independently of what is given in evidence. How are you to learn that? From conjecture, and N N 1123] Trial of Fear gus O’Co' conjecture only. But, having failed to get the whole truth out of Griffin, I am •obliged to do what the Crown ought to do, to make patchwork of their evidence, and show that they have not a leg to stand on. They put me with rioters to make me guilty of riot ; with men who have at- tended illegal meetings, that I never saw, to make me guilty of that offence ; they put me with men of all descriptions, as they call them, in order to prove me guilty of all sorts of offences. But I am not proved to be a party to any riot, tumult, or conspiracy, or of attending illegal meetings. You will ask what were the address and the resolutions of the trades’ delegates ; those resolutions will be sent to you, and you put your own con- struction on them. Two hundred and .fifty or three hundred and fifty in num- ber were disturbed in their sittings, and their papers were taken, and the address which they had adopted. You will ask what that address and those resolutions were. You will ask why (the magistrates being in possession of their address and resolutions) they are not now before the Court ?(a) Those are questions you cannot get over, but must ask your- selves. Every witness on the first four days proved this important, this vital fact ; though the Attorney General, or rather, gentlemen, I would say, the prosecu- tion, did not see the drift of my ques- tions. Every witness on being questioned as to the time when the violence ceased, and peace was restored, swore that it was about the 20th of August, about the 20th — mind that, gentlemen ! My character is established to the 13th. I am not an ordinary man. I am only obliged to prove character every Saturday night; and the same article in the Northern Star of the 13th, which won the good opinion of the Attorney General for its powerful recommendation to peace, was again printed in the Star of the 20th ; and that was the paper which announced the meet- ing of the conference ; and from that day eace was restored ; the conspirators had one their work. That will be proof of something which the Attorney General cannot get over. What is conspiracy ? It implies secrecy. What, then, is the charge? Secrecy. What is the proof? Publication. (Laughter.) That is not the charge of an ordinary conspiracy. If they had done that, they might have put two or three thousand in the indictment if they liked ; but they charge us with a conspiracy wherein our transactions were to be kept private, because they would not depend on Griffin, who was discharged mor and others, 1843. [1124 for giving wrong reports of the Chartist meetings. And then they rely on this address ; which does what ? Recognises the address of another body. Gentlemen, suppose a man commits a very bad act ; no matter how bad, and suppose I direct attention to it as bold and manly. Sup- pose one man meets three men on the highway, and blows their brains out, am I accessory to the murder, if I say that it was a bold and manly act. Would you say I was a conspirator? Apart from these technicalities, take all and not a part of the evidence into your jury box ; take no part of the evidence by itself, but take the whole together and see the effect it produces, and was intended to produce ; note that every speaker after- wards recommended a return to labour. Gentlemen, you cannot hold me up as a conspirator; I know that I deserve the character of being a peace-maker, I know that you will not refuse me credit for it. Gentlemen of the jury, we have that evidence so full, conclusive, plump, and genuine, that even the prosecution for the last day could not contradict it. The Crown, seeing what I was driving at, - said, “Thi3 won’t do; we must begin to look at the date on which the distur- bance terminated — we must endeavour to prove that the outbreak continued for a considerable time after the publication of the executive placard, and the article which appeared in the Northern Star .” The Attorney General had borne testimony to my character up to the 13th of August. “Oh!” said they, “the disturbances lasted five weeks after that.” They took a respite, they had Sunday for breathing time, and they asked themselves why this question was put to every witness. Here is the Star of the 20th, and there is proof that all crime was ceasing at that period. “That won’t do,” said they, “we must carry on this conspiracy a little further.” Then they got a new batch of witnesses, they procured fifteen fresh witnesses, some of whom were confined in Lancaster Castle. I ask where was Luke M i Dermott, and all the others, whose names were on the back of the indictment ? I have been told that M c Dermott was in the felon’s cell. These are the kind of witnesses they have been ferretting out to get up this case against us. Now we come to analyse the evidence. Let us hear how they opened this case for the conspiracy. Bell, a policeman, swore he was at Mr. Scholefield’s at nine o’clock on the morning of the 16th, and that he went there because I was there, and it was to be a secret meeting. Now, did he report that to the authorities? He knew that the trades’ meeting of delegates was dispersed; but, in this disturbed state of the town, did (a) But see above, pp. 952 and 1052. 1125] Trial of Fear cj as O'Connor and others , 1843. [X12G the policeman, sent to watch for Fearr/us O'Connor, and knowing that there was to be a second meeting, and knowing, also, that Feargus O'Connor was at that meeting — have we any proof that this policeman reported to the magistrates where they might find this grand conspirator, who was 'Conspiring for the destruction of all the property in the country ? Talking of the destruction of property, what say the men of property of all parties P They say that it makes them rejoice more in the name j of Englishmen than ever, to think that j these people had so much power in their hands, and used it so mildly. It has been said in the House of Lords, and in the I House of Commons — it has been re-echoed i and repeated through the press, that there could have been no conspiracies at the j bottom of this, because the working-classes j appeared to have so thorough a veneration : for property of all descriptions, and for j life. TV hy, many persons, actually starv- : ing, went amongst those whom they saw likely to break the peace and checked j them. That fact we have indisputably proved at the commencement of the evi- dence ? This indictment runs over with a : ■continuando ; so that there is no power to separate things. The defendants have no power to justify. This indictment was | laid, as never was indictment laid before. If we were indicted for extorsively taking money, or for assault or battery, we might ! set up an alibi ; but here we cannot meet j the charge, we are so mixed up together. But what is the first evidence of outbreak ? That Mr. Bayley’s mill stopped. There ! was no riot up to that time ; although the Attorney General goes back to the 26th i July ; for he is not satisfied with including two months in this all-embracing indict- ment. On that day a meeting was held, but it was adjourned ; but he says the adjourned meeting never took place. Then he goes to the 8th of August, and proves that in all these outbreaks Bayley’s men, who were the first that were dismissed ! from their work, took the lead and headed the processions. The men who took part ! in this, were not men that I headed ; but j the men who were told by their masters to go and play for a month. There is the j commencement, there the seat of discord, the centre, and cause of the confusion. They are turned out by their masters ; they are then seen at the head of every j procession ; they forced out the others, i Billing’s address you heard, gentlemen, j I wish I had not heard it; I wish the j Court had not heard it ; I wish there had j not been a necessity for hearing it. His case was the case of thousands and tens I of thousands, and those men who are ! stricken — unnaturally stricken — become i themselves conspirators, for the purpose i of keeping up the price of their own labour. Then you have had all those defendants before you ; you have seen their de- meanour ; you have heard their defences. Out of so many speeches you must have discovered what was ingenuous and what was disingenuous. I extracted a good character for those who were known to them, from the principal witnesses. The defendants were not obliged to me for it. You have learned from them all what they say are the facts ; and, although not given in the form of evidence, yet, as dis- criminating and dispassionate men, put it altogether and see whether or no out of the lump you can educe the truth. Chief Justice Tindal has spoken to this case. He has very properly made a distinction between a mountebank and a zealous poli- tician. Ho has told the country, that, if a man conscientiously and zealously ex- presses his opinions, though he may pass the prescribed limits of the law, still his opinions are to be respected. Chief Jus- tice Tindal did not tell the people that they were to respect what was illegal, but that the opinions of a man, however warmly they might be avowed, if they did not absolutely go beyond the law, were to be honoured as the conscientious convic- tions of the man who uttered them. (a) Gentlemen, if I were asked, which party in the country has been the most violent, I might be disposed to allude to one whose writings and speeches were pro- minently before the public ; but, as my object is not to make out a case for prose- cution against any party, I shall abstain from any further reference to such a topic. I have stood in a more prominent position than any public man for the last ten years in England ; and if I were to ask for a character for zeal, if the forms of etiquette will admit of it, but they will not, I might say that I had the honour of sitting with his Lordship for three years in the House of Commons, (b) and with the Attorney General for three years in the House of Commons ; and, during that period, I think they will say I was as zealous a politician as ever entered that House. I have been out of the House of Commons for nearly seven years, and during that period I have spent more than 12,000Z. of my own money in advocating this cause. And here I must rejoice, that I am able to say this in this court of justice, in the presence of those who know me best and know every transaction of my life, that I have an opportunity of giving a triumphant refutation of the paltry asper- («) See below, p. 1413. (64 O’Connor sat for Cork 1832-35, and for Nottingham 1847-52. N N 2 1127] Trial of Feargus O’Connor and others , 1843. [1128 sions of those who have insinuated that I have been induced to pursue this course, and give an impulse to this cause, from pecuniary and interested motives ; for, although the Attorney ' General , in his opening speech, said it mildly, yet at the same time he said it most pointedly, that I had pursued that course because of some interest or benefit I expected to derive from my connexion with the Northern Star. Gentlemen, I never received a far- thing, or the fraction of a farthing, from any man, for anything in connexion with the Charter ; I never travel at the expense of the Chartist body ; I never defended myself at the expense of the Chartist body ; I never received a fraction of their money ; I have often paid hundreds of pounds to their funds ; and I am so deli- cate on this, that I never attend anywhere as a guest that I do not insist on paying for my ticket ; and,, to support their objects, I have sometimes paid as much as 10 1. for gas for a meeting. Gentlemen, I shall place my clerk, and other witnesses, in that box, to prove my character; and so far from making money by that extraordinary golden thing — the Northern Star , — T came to it a rich man, and 1 am now a poor man. I have spent a fortune in this cause. I am represented as a political trafficker. The whole of the press has been to show that I used the Northern Star to excite the people, in order to make it a medium of pecuniary profit to pyself. Gentlemen, I am not content with that ; I have got a witness from Ireland, and I will give you my character from those who have known me from a child; and you will discover, that, before ever I had the Northern Star, I carried into practice that which has been, and still is, the theory of my principles. You will find that I have devoted my whole time and money to the cause of the poor ; not to a mere lip service ; but I have been, for years together, paying as much as 20 1. a week to support people made paupers by oppression. And that is the reason I rejoice in this trial. I think I have shown my zeal. If I were a person, from pliancy of disposition, capable of being moulded into a political mounte- bank, I might have had 50,000?. for my services ; but I refused it as I would now refuse 100,000?. if it would purchase me your acquittal, if you were not convinced of my innocence. I use this as an occa- sion of triumph. I scorn to be bought and sold. I shall never sell my principles to any party whatever. A trafficking politician ! Why such has been the pecu- niary gain which I have derived from the agitation in which I have been engaged, that I have sold landed estates — have sold as much as 1,000?. worth of timber — to aid the cause ; I have sold an estate bringing me in 350?. a year paid to the day ; I have conducted thirteen contested elections in Ireland entirely at my own expense ; never eating a dinner at the expanse of the candidate. In attending elections in Ireland, as agent, I was en- titled to my fees ; but I never received a single farthing. That was before I had the Northern Stared) You, gentlemen, may think this unimportant, but I will esta- blish my character, which is of infinitely more importance to me that any of the technical forms of law with which the Attorney General is surrounding me. My character, gentlemen, is the more impor- tant to me, seeing the manner in which I have been held up to public odium by those who, having no principle of their own, are every ready to impute dishonesty to others. I tell you it is not from poor men that I collect funds; I do not take the pence out of the pockets of those who have but for themselves ; I did not take a farthing out of the defence fund in 1839 ; on the contrary, they owe me 280?. ; for I was their treasurer : I kept the account ; I balanced it, and there remains a debt of 280?. due to me. Gentlemen, I advanced a thousand guineas out of my own pocket when Mr. Frost was tried, before a single penny was subscribed by the Chartist body for defraying the ex- penses of his defence. I have never allowed a Chartist to be prosecuted with- out flying to the rescue, and thus testing my principles by my example and my practice. Then you have heard of my popularity. If this be a crime, find me guilty of popularity if you please. But with all my popularity, where is my offence ? Where is my name mentioned, except by the cracked-man. One man said he looked to Bronterre O'Brien , Fear- gus O'Connor, and Dr. M l Bouall; but that was not evidence. Another man said I was going to Manchester, and several letters were proved, but none of them contained the name of any one of the grand conspirators. From the 17th of August no act of mine is proved to be connected with the grand conspiracy — not a single act. The Attorney General's going to prosecute us, and his acquittal of Wilde, shows that we are indicted for advocating the Charter. Now a nice question will arise here as to whether or no we are to take the law as to the legality or illegality of our principles from so high an authority as the Attorney/ General; and the question for you is whether the Attorney General at Monmouth is to declare those principles legal, and then to come to Lancaster, and (a) Founded November 18, 1837. 1129] Trial of Feargus O'Connor and others , 1843. [1130 prosecute us for the same thing. He will say, “Ho, I don’t; it is for causing tumults.” Then I must ask the Attorney General, whether the tumult charged on us is as great as the tumult proved on that occasion at Monmouth and justified by him. Gentlemen, this is a long ques- tion ; you have heard the case of the Crown for five long days. Ours will not take as long ; but, under the circum- stances of the indictment being against so many, it would be no wonder if we occupied more of your time. How, gentle- men, this is high authority, telling us what the law is ; how far the law justifies us in going ; and whether or no the agi- tating of these principles is legal. Just hear ; and, although the Attorney General denied it at Monmouth, after you hear this I think you will say he is a good Chartist. [The defendant here read a passage from Sir F. Pollock's speech at Frost's trial, (a) concluding with the words : — “Yet I must say, that if at any time it should become the confirmed opinion of the large mass of intelligence and of numbers — of the strength and sinews of the community — if the intelligence that controls that strength should finally deter- mine to adopt the Chartist code, doubtless adopted it will be, as the Reform Bill was, and mere wealth would struggle ” — Struggle ! struggle ! struggle ! gentle- men — “ against it, in my opinion, in vain.”] How, gentlemen, what have I shown you here ? Here you have at least a re- cognition of the right to struggle for the Charter. Then you have, at all events, what constitutes a tumultuous meeting, and afterwards you have the fact of this prosecution of Chartists, for advocating that struggle, even in milder terms than those prescribed by the Attorney General. Gentlemen, though not confessedly, yet impliedly, you will find that when or- ganic changes take place in the constitu- tion, a relaxation of the law is allowed. You have a relaxation of the law urged by the Attorney General in 1839, in con- sequence of an organic change which had previously taken place ; so that, although the Reform Bill left many without the pale of the constitution, yet impliedly, as shown by the Attorney General , it guaran- teed an increase of political power to those men. Although not yet included in the franchise, they went on pari passu, those without with those within; those within enjoying the benefits of the organic change ; those without thinking there ought to be a larger extension in the out- ward details of the machinery by which the thing is to be carried on. Hence it is from the opinion given during the agitation of the Reform Bill, from the confirmation of the manner in which that Bill was forced upon a reluctant Govern- ment, that now the Attorney General places us in the same position in 1839 and 184-3, that the Whigs and Reformers were placed in in 1831 and 1832. I am contented it should be so ; I will stand the contrast. A conspirator to destroy anything by force or tumult, must be a cruel man. I never inflicted an injury or a wound upon any dumb animal since I was born, and I trust in God I never will. How was the Reform Bill carried ? Where are our ashes ? Where are our dead ? Where are our smouldering cities P Where are our gibbets ; where our transported felons, and where our gaols P Alas ! our gaols are full now ; but not for the same crimes. Take the story of those men around me, honest, unsophisticated, strug- gling most righteously for their rights, yet respecting the property of those who they thought had injured them — even of those who were their unnatural leaders in 1832. Take them ; analyse them ; look at them; do they look like conspirators? Place them in the situation in which the Attorney General placed the Reformers. Do you see flames ? Have you a Bristol on fire — a Hottingham in flames — a Hew- castle consumed ? Do you see an effigy of the King with his head cut off, and inscribed — “ Reform, or the King’s head.” and a bloody executioner with a weapon in his hand p Where was all this ? Ho ; you only find such mottoes as — “ More pigs and less parsons.” (Laughter.) There is another party, (a) gen- tlemen, which has for one of its mottoes, “ They that be slain with the sword are better than they that be slain with hunger, for these pine away, stricken through for want of the fruits of the field.” Then take us, what has been our con- duct for seven years ? I have been out of the House of Commons seven years. I have been in every town of England, Ire- land, and Scotland, always at my own expense ; I have spoken to millions upon millions of men ; and I have never been rosecutedfor a word I have spoken. Ho. have been well watched. The Ar gus eye of the law has never slept while I was at work. Mr. Fox Maule ( b ) admitted in the House of Commons that he had sent a special spy to watch me in Scotland. I was much honoured, gentlemen. I have been prosecuted three times before, gen- («) The Anti-Corn Law League. (6) Assistant Un ler Secretary for the Home Department. (a) See above, p. 342. 1131] Trial of Feargas O’Connor and others, 1843. [1132 tlemen. For what ? I was once subjected to a trial by special jury for having taken four lines from another paper to make up a column. They were these : — “ A poor little fellow broke out of Warminster workhouse on Saturday last. The overseers followed and brought him back, and put him in custody ; and so great was his suffering that the poor little fellow ate part of his hand and his arm off.” That is not a part of the libel, but the whole of it. For that Chief Justice Tin - dal tried me.fu) I was in Scotland at the time. Another libel was published the day I was on my trial ; I wrote imme- diately to take it out, and proved that out of forty-three thousand copies it only ap- peared in the first edition. I was tried again by special jury, and found guilty. I received nine months’ imprisonment for just taking four lines from another paper, isow, although I had no more to do with the authorship of that paragraph than any one of the jury, although the paper in which it first originated was well known ; and although I proved that the paragraph was taken out of a part of the first im- pression, still I was found guilty. Why ? Because they wanted a Chartist. They could not charge me with any act of my own. Being a public writer in every newspaper, and a public speaker in every locality, and they being unable to charge me with any illegal act of my own, they brought an ex officio information against me, put me to immense expense, and found me guilty. Then they prosecuted me for a matter which was published and contradicted the very day the paper ap- peared. I put in the affidavit of four thousand eight hundred working men, in- cluding some of the officials of Rochdale, to state that my speeches, in their opinion, had preserved the peace of the country. Notwithstanding that, I got sixteen months in a felon’s cell, in solitary con- finement, in York Castle ; that was my punishment for that, gentlemen. Then, as I say, in this and other ways great pre- judice was excited against me. Perhaps you have not heard many Irish anecdotes. I will tell you one. Once upon a time there was an old maiden lady, who had an old cat and an old housekeeper. When the housekeeper grew somewhat anti- quated, she began to be negligent, and all the crockery began to go. But when any- thing was missing it was always the red cat. At last the red cat was doomed to death ; it was killed. Notwithstanding this, the china salad bowl was broken. “ Molly,” says the lady, “who broke the salad bowl ? ” “ Arrah, musha, my lady, (a) 3 St. Tr. N.S. App. 1299, and below. sure the red cat has been here again.” “Why, Molly, how can that be ; the red cat was killed ? ” “ Ah, I declare to G-od, ma’am, I always heard that cats had nine lives ; but now I am sure of it.” (Laugh- ter.) Now, gentlemen, I think that you will find that I am the red cat in this Chartist movement. A riot took place at Newport in 1839 ; I was the red cat; I knew all about it. (a.) I went down, and for eight days attended the trial with the Attorney Gene- ral here; my name was never mentioned, for the best reason — that I never heard of it till the accounts appeared in the newspapers. A petition was presented to the House of Commons(6) ; aud a. little gentleman there, jealous of my popularity, and who cannot acquire any himself, said that 1 was the author of it. Gentlemen, I never wrote a line of it, or saw it in MS. I saw it first, after its pub- lication, in York Castle. Then comes this address, which the Times represented to be little short of High treason. I was made to be the author of that address all over the country. G-entlemen, I never- saw that address till I saw it in print, placarded on the walls of Manchester. So that here we have Newport, the National Petition, and the address ; I was the red cat in them all. Gentlemen, I put my name to my own acts. I stand by my own acts ; 1 never flinched from the re- sponsibility attached to my own acts. A great deal has been said by those behind me, as to their indifference to your ver- dict. What has made them Chartists? What has not been said to create preju- dices against the Chartist body? If a diversion is to be got up, they can get a man to fire at his own hat at Southampton, and then declare it a Chartist move to shoot the Queen, (c) If the public mind is to be diverted, while experiments of great changes in financial and commercial affairs are getting on, then something is got up, in which the Chartists always figure ; and we read of a man riding on horseback from Kent, carrying letters to the post office, and all of these developing a conspiracy to destroy the Queen’s life. My answer to that was, that the gentle- man on horseback was not a Chartist, for Chartists were always obliged to walk.. The way to inculcate respect for the law in the minds of the people is by calm dis- (a) As to O’Connor and the Newport out- break, see Northern Star, 1845, Maj r 7. (A) On May 25, 1841, a petition purporting to be signed by 1,300,000 persons was presented for Frost’s release, and on May 2, 1842, another petition purporting to be signed by 3,315,752. persons for the six points of the Charter. (c) See Times, October 3 and 8, 1 842. 1133] Trial of Feargus O'Connor and others, 1843. [1134 passionate trials of this kind. And let me say now, having practised for a long time at my own profession, that never in the course of my practice did I see an in- vestigation more pre-eminently calculated to inspire all who have witnessed it, not only with respect, but with veneration for the laws. There have been trials which carried on their face a determina- tion for prosecution. Now, let us briefly analyse the evidence in this case, and see how the several charges have been substantiated, and by what description of evidence they have been supported. Gentlemen of the jury, the manner in which this complicated case has been brought before you does not puzzle me so much as it would otherwise have done, had it not been for the argu- ments of my Lord. But now I come to the material part of this question. One witness had it in his power to tell the authorities that Feargus O'Connor and his friends were holding a secret meeting. Gentlemen, there was no difficulty in ferretting out our place of meeting ; and if there was anything illegal in our meet- ing, it was the policeman’s duty to com- municate the facts within his knowledge to the authorities. Then what do we find ? That every witness speaks to one fact, with a degree of certainty not bearing upon any other, viz., the time when the disturbances ceased to exist, when the men began to ‘‘dribble back again” (I think was the expression) to their respec- tive avocations. I am now going from memory over the evidence of Little , special high constable of Hyde, who evinced so much anxiety to entrap John Leach , one of the defendants, and make him the common disturber — the “red cat” of Hyde. Little said, that after Leach left Hyde it was perfectly tranquil. That evidence was for the purpose of showing that Leach was the “red cat” there. Then came Hibbert, clerk to the magis- trates at Hyde, and he said the disturb- ances lasted five or six weeks after the 7th of August — bringing them down to September. This is most important. Now, gentlemen, a part of my case was, that an experiment was to be tried to turn out those hands, to see whether they could be directed to a repeal of the Corn Laws. Mr. Rhodes, the son-in-law of Shejpley, swears that, on the 10th of August, one hundred to one hundred and fifty men came and turned out his hands, two hundred in number ; mind, there was no resistance ; they turned out ; the gates were opened for them. Then, the scheme having failed, Mr. Rhodes's and Mr. Shel- ley's hands again returned to work on the 26th, and not being anxious to turn out themselves, at the latter end of the same month they beat off six hundred men at noon, and one thousand in the evening. When it was their master’s interest to keep them at work they could beat off* a thousand ; when it was his in- terest to let them go one hundred turned out two hundred. It is a most extraor- dinary fact, and I leave it for your con- sideration. It will be impossible to consider this case as a whole unless you carry the whole of the evidence with you. The Crown has gone as far as men could go, so to complicate the case, that if I was not hit here I was to be hit there. In some way or other I was to be entangled in the meshes of the law ; having received the awful character, not of pacificator general, but of conspirator general, in this country for many years. I ask you, were you not prepared to hear such a burden, such a load, such a catalogue of crime and crimi- nality pressed and sworn against me as never before was presented in a court of justice. From the character given of me by the press, were you not prepared, on account of your prejudices, to hear a great deal, and to believe anything — even the worst charge — that could be preferred against me ; and were you not astonished to find there was so litte ? Gentlemen of the jury, no doubt you will have the law laid down to you as the law ought to be laid down ; but, taking the opinion of the Attorney General , that the law as it stands was established when the judges were not so free to express an impartial opinion, and considering that my Lord will be obliged to give you the law as he has it — that is, as it was given in the olden time, “ durante bene jplacito ,” which signifies. “ you shall be continued on the bench so long as you do what I bid you” — when there were no counsel for the prisoner, and when precedents were drawn from the dark ages ; but now the judge is counsel for the defendants, if they are not other- wise defended, and if ever there was a time when a precedent is to be drawn from the living genius of the day — so as to represent the existing mind of the country — if we have lived long enough under the precedents of the dark ages, and if, as the Attorney General says, there is but a few years’ transition from Reform agitation to Chartist agitation, then, in God’s name, gentlemen, why should there not be an alteration in the machinery by which crimes have been punished — why should there not be a practical alteration in the laws of agitation, tumult, and riots. Gen- tlemen, from the moment the seven bishops were acquitted down to the present time the country has looked upon juries as the mouthpiece of the national trumpet, which shall declare to the country every indica- 1135] Trial of Feargus O’Connor and others , 1843. [113* tion that freedom is attempted to be im- peded. Yon are called upon to-day to give a verdict never before anticipated or looked to with tbe same anxiety. Yon have brought before yon by the strongest Government that ever existed in this country, at least for many years, the most paltry offence with which ever men were charged. You have now a Government which, powerful in its ma- jority, ought not to dread assaults of this nature, a Government which refused to hear the application of 'three and a half millions of men for the People’s Charter, which is to be relied upon as our offence, for mind, in his reply the Attorney General will endeavour to connect us with the tumult, which we were wholly uncon- nected with. Whence are we to derive the examples by which our conduct is to be guarded ? Surely from the House of Commons. What do we find P Year after year petitions for the Charter have been presented to the House of Commons ; they are discussed ; not refused to be discussed, as they would be if they were illegal and unconstitutional. They are laid upon the table ; though the last was so big that it could not lie in the House, and, therefore, it could not lie on the table at all ; and the divisions have been sixty-five or sixty-six in favour of this treasonable question of the Charter. In 1839 the Whigs allowed us to sit in a convention, whicn the Tories now tell us is treason. I am now beginning to learn that the sons are not better than their fathers, and that the Whigs allowed us to pursue the agi- tation of a question which the Tories tell us is treason. In that conference we sat two months, which were spent in de- bating the question of a sacred holiday, which was brought forward by Mr. Attwood in the House of Commons. Speech upon speech was made, recommending a cessa- tion from labour, in order to carry the question. Will the Attorney General say, ;< The Whigs were weak, and dared not prosecute you ; we are strong, and there- fore will prosecute you.” Is that the re- laxation in the law pointed out by the Attorney General , when so nobly defend- ing his client at Monmouth, when he was enabled by his knowledge of the law— at all events by the ingenuity which he brought to bear upon the case — to save the life of his client by defending him from the charge of high treason P It has been proved that eight members of Parliament drew up the document called the People’s Charter, (a) Then where are you to look for conspirators ? In the House of Com- mons p Of course, if it be illegal to agitate for the Charter, those who drew it up and presented it to the House of Commons must be in peril. But we have here, in addition to this great legal authority (the House of Commons) the names of those eight members of Parliament affixed to this Charter. They declared it not only legal but constitutional, and that the people should not abandon it, but stand by it. In prosecuting the consideration of the evidence you will find that we make out our case from the evidence for the Crown. Mr. Wilcox,' whose evidence is most important, says he was uneasy in his mind, because he thought the Chartists were to be entrapped. He has heard many of my speeches, and says they all tended to preserve the peace of the country. He felt so uneasy in his mind, in consequence of the trick about to be played on us, that he went as far as Birmingham on his way to Sir James Graham; and then he re- turned and wrote a letter to Sir James. I was stopped very properly by his Lord- ship, who decided that the contents of that letter could not be given in evidence. Then look at the evidence of the cracked man. Look at the evidence of the witness Buckley, who came here under the expec- tation of obtaining 50 1. Just think of a strong Government producing such a wit- ness as that, with the hope of 50 1. flicker- ing before his eyes and the recollection of what he had already received for his ser- vices. What did he admit P He admitted that there was no violation of person or property in his neighbourhood, and he attributed that to the pacific character of the speeches delivered at the various meet- ings. It was the speakers who stopped the disturbances. Then we go to Brierley ; he says he never saw anything so tranquil, and that the hands always turned out of their own accord, and evidenced no dis- position whatever to riot. But there is something more important still, some- thing exceedingly important; Buckley said he had instructions from the magistrates to report to them everything he heard tending to a breach of the peace. Had he reported one word of the kind P Hot a word. You, gentlemen, have watched the character of this evidence ; you have heard the manner in which this evidence was got up, and how it was sought to be pro- cured. You have heard of the state of Burnley ; you have had the constable of Burnley, M‘Cabe, before you. What does he say ? He says that just before this out- break I was in North Lancashire. Why did I go to North Lancashire P Why wa3 I there P Let us hear what he says. He was within ten yards of the pavilion where I was addressing a meeting. That pavilion was erected by the middle classes when it served their purpose to invite me. M : Cabe was present for the purpose of collecting (a) See above, p. 341(a). 1137] evidence and giving it in a digested form to the magistrates. When he was not able to attend himself he employed com- petent reporters ,who furnished him with an account of all that was said. He was within ten yards of me — the grand con- spirator — and he never heard me uttering a word of sedition. I was taunted a little before this with being a coward by the Times for not going down to North Lan- cashire. I received letters from middle- class men and others informing me of the state of the district, and that several mills had been burned. I also received letters from working men stating that spies were among them. I went down for a week, and what was the result ? There was no mischief to property after I left. I might appeal to the manufacturers whether they did not let their hands turn out to hear my address. I might appeal to one and all — to the manufacturers of Blackburn, Burnley, Clitheroe, Colne, and Lancaster, if it was not my persevering effort during the whole of the week to tranquillize the angry spirit that then prevailed in that district. Why did I go ? Because Mr. Aclancl told me that there would be a revolution, and that the mills would be stopped in three weeks ; I told the people the convulsion was come — (“struggle” was not the word : that word conveys to my mind a peaceful contest) — and I told them for God’s sake to fold their arms and do nothing; for as sure as they did, those who urged them on would be in the jury box, while they would be in the dock. I did tranquillize them ; and upon the hustings at Keighley, I was publicly charged with being a Tory spy, paid by the Government to keep the country quiet ; with receiving money from the Carlton Club, because I had been traversing York- shire, Lancashire, and Nottinghamshire, cautioning the people to be quiet, having first had the intimation that the mills were to be stopped. Well, the turn-out having taken place, was it improper for us to say, “Now the strike has arisen, let us endeavour to turn it to the accomplishment of a parti- cular object?” I am not here contending that no disturbances have taken place. It is but natural to suppose that when the hands were turned out they would become rash, unruly, and agitated — that disposition on their part we endeavoured to allay, but as we did not turn the hands out was it not right for us to say, “Now let us turn the strike, so far as the trades of Manchester arc concerned, to the accomplishment of the People’s Charter ” ? If that is illegal, that we did. But we deny that the Chartists had any hand in turning out the workpeople. If I am asked whether we recommended [1138 those who were out on strike to join in the agitation for the Charter, to that I plead “ Guilty.” We have done that. We had a perfect right to do so. But see what it requires in the mind of an honourable man to convict an honourable gentleman of the crime of conspiracy. I leave Lon- don on the 15th to attend a meeting at Mr. Scliole field’s chapel. That meeting was Hunt’s anniversary. I am proved to be at every one of those meetings for several years past. I leave London at the latest possible period to allow of my at- tending the meeting in Manchester ; and I leave Manchester immediately after the conference is over. I am never found in Manchester afterwards during the distur- bances. No act of mine that could by any possibility constitute a conspiracy has been proved against me. I never left London, which is two hundred miles away from all those scenes, until long after the outbreak took place. If I had anticipated this conspiracy, or not having anticipated it, if I had linked myself to it, would I have borne the character given me by the Attorney General? Would I, up to the period to which his character extends, have been destroying that very force with which I hoped to accomplish my own de- sign and that of others ? No, gentlemen, I can prove to you that from the beginning to the end of the turn-out I deprecated not only violence, but conspiracy, riot, and everything calculated to lead to them. But, gentlemen, I shall not be satisfied with resting solely on the case made out for me by the Crown, and the character wrung reluctantly from the witnesses,, but I shall produce to you the authorities of Manchester, the witnesses whom the Crown ought to have produced; and I shall also call evidence to show that, from the time I returned to London, all my letters, private and public, were directed to a place where they were all opened ; and, on the 24th, I published a notification in a daily paper that any improper letter addressed to me should be returned open through the post, marked “ Matter im- proper contained in this letter.” But I will produce to you millowners, men of property, influence, and character, who have known me seven or eight years, who shall speak to my character and the effect my speeches have had on public meetings in the se'veral localities where I have been. If this does not satisfy you I do not know what will. And then these other men who defend themselves, why are they put altogether in this indictment ? The evidence affect- ing each is so different in character that you, gentlemen, must naturally ask why are they all thrown together in a bun- dle? Gentlemen, we are not all charged Trial of Feargus O’Connor and others, 1843. 1139] Trial of Fear gus O'Connor and others, 1843. [1140 with the same transactions, but in this indictment we are thrown down before you in one common heap ; hut take care and pick Fear gus O'Connor out at all events ; have the red cat, gentlemen, under any circumstances. If the con- spiracy be not strong enough to catch him have a bit of tumult ; if tumult be not strong enough, as they have aban- doned the riot, why have a bit of illegal assembling ; but take care, the net is drawn for you ; take care and do not let the big fish escape. G-entlemen, I look upon this trial as an act of grace— as a God-send. Nothing so much proves the weakness of a Government — strong though they may be in majorities in the Houses of Parliament — as the desire to put down public discussion. A majority of the House of Commons is one thing, a ma- jority of the public mind is another thing ; and powerful though their majority may be, it cannot stand for a month against well-digested public opinion. Gentlemen, what ought to be the constitution of the country p It ought to be the best digest of the living genius of the day, and such is the Charter. Gentlemen, there is not one point in the Charter that is not recog- nised by the Government. You have the ballot and no property qualification. You have heard that the Scotch members re- quire no property qualification ; you might be told that the university members re- quire none ; but how is universal suffrage practically admitted by this strong Govern- ment? When the Attorney General was cracking jokes on tbe pot-boys of Hunting- don — and certainly they were the only good jokes I heard during that election contest — he was glad enough to hear the “ rat-tat-too ” of the Chartists coming to his assistance, when we placed upon our banners, “ Down with the Whigs.” Then all liberty and licence was given to those who helped them into place and power ; but having once got possession, like wily tenants, they now dispute the title of the lessor, because they think themselves safe and secure. The Whigs when they got into power evinced the same disregard of public opinion, and were consequently sent to the back-side of the Treasury ; but the same disregard which the Whigs showed to public opinion will have the same effect in driving this strong Govern- ment from the position it now holds. Gen- tlemen, you must have seen that it was my intention, in the commencement of these proceedings, to carry the war into the enemies’ camp, on the doctrine of presumption, by showing what party had used language most calculated to lead to the offences charged in this indictment. But I have abandoned that intention. And why ? Not because I did not think that much stronger language had not been used by the party to which I alluded than ever was employed by the Chartist body, but because I would not be a party in making out a case for the prosecution of others. Conspirator as I am, I trust I have honour enough not to seek to make out a case against others. Gentlemen, you may recollect that, in July or August, after Parliament had been prorogued, an attempt was made to sup- press public opinion and public meetings. Why was I going to put in the evidence of the moving cause to the late outbreak, which I have now abstained from ? Why was it that, though antagonist to that party, I did not try them p It is because we live in a free country. I thank God — and I say it with pride and pleasure — that we live in such a country. I have told you that you should have the whole case from me. You shall Lave the whole case from me. I went to Mr. Scholefield’’ s on the 16th of August. I did so becap.se I was aware that I should learn from him what the proceedings were to be. I solemnly declare that, from the beginning to the end, he had as much to do with that conference meeting as you had, and no more. There is a communication be- tween Mr. Scholefield’ s house and the graveyard, through the chapel where we were sitting. Mr. Scholefield in going to the graveyard was obliged to pass through the chapel. This will account for his being occasionally seen in the chapel during the sitting of the conference. It was sworn that he was present on many occasions. Now, I will swear, that on one occasion I have seen him taking a raven from the backyard throught the chapel. It was at my request that Mr. Scholefield gave us the use of that chapel. It was I that asked him to permit the delegates to meet there. Why ? Because when Dr. M'Douall engaged a room to hold eighteen persons, only that number of delegates was expected, but double that number came ; and as there were many persons crowding about the door, and much ex- citement ensued, I said “We will get some place to meet in where we won’t be watched, and where there will be no danger of bringing the people into colli- sion with the authorities.” I, accordingly, applied to Mr. Scholefield for the use of his chapel. He told me that his son kept a school in it, and hoped no damage would be done to it. 4 * From my regard to you,” said he, “and your undertaking that no damage will be done to the chapel, I will give it to you ; but you will guarantee that you will only have it daily, and up to the time originally intended for holding these meetings.” You have it then from Miss Nollett, that M‘Douall only remained 1 141 J Trial of Feargus O' Co at her mother’s an hour and a half. That is the history of the transaction, which the Attorney General will endeavour to explain away as soon as he comes to reply — and reply he most assuredly will, as ho has a right to do. But let us see what value the Attorney General put on the acquittal of the Chartists tried at New- port, and apply it here. At Newport the prisoners were charged with high treason, and let us see what importance the Attorney General attached to an acquittal in that case, and whether the same reasons do not apply with much greater force in favour of an acquittal here. The learned gentleman spoke thus : — “ Gentlemen, under these circumstances, I again say that I know of no public measure that would tend so much to the honour of the country, to the peace of the community, to the quieting of that alarm which this lamentable transaction has created, than a verdict of not guilty, if that verdict can be pronounced with truth. It is no question whether you can safely pronounce that verdict ; the single question is, can you pronounce it with truth ? If you can, it would be the largest measure of safety to the country. If you can assure Her Majesty’s sub- jects in all parts of her dominions here, that these thousands upon thousands did not meditate rebellion ; that their object was to enforce some claims on behalf of a suffering brother Chartist ; that the accidental circumstance of their finding persons whom they were determined to rescue at the spot where they had meant to make only a demonstration of strength, led to violence, and that the instant they found that led to bloody resistance, they fled with terror and dismay from a field that they had never intended to enter — such an assurance will be attended by the best results. I say, gentlemen, that nothing could occur so much to reassure this county, and the kingdom at large, as the verdict not guilty, if you can truly pronounce it ; and I believe there would be more safety in that verdict, if true, than if ten thousand troops were parading the different parts of this county to enforce obedience to the law at the point of the sword. ”(cf) Now, the Attorney General may meet this by observing, “Well, I say so still, provided you can find such a verdict with truth.” Recollect that it is not for the sake of convenience you are to try this cause, but for the sake of right, for the sake of law, for the purpose not only of tranquillizing the country (a circumstance upon which the Attorney General laid so much stress), but for the purpose of seeing whether there has been enough proved by the evidence for the Crown to justify you, by the doctrine of presumption, in coming to the monstrous conclusion that these defendants were the fomenters of the strike which commenced in the early part mor and others , 1843. [1142 1 of August, or that, not having originated the strike, they had taken hold of the machinery, then in operation, for the pur- pose of carrying on, by tumult and riot, that which was begun by others. In con- clusion I have only to say, that Mr. Justice Coleridge{a ) rejected the evidence of a re- porter because he gave only garbled ex- tracts from his notes, and not the whole of the speeches. You will remember these things. Remember the right of free ex- pression is a thing not only to be per- mitted, but to be preserved, by a jury of Englishmen. Gentlemen, I look with in- tense anxiety, on account of my country at large, for the verdict you will give. You are the organ, gentlemen, and if it be resounded from that jury-box, that prose- cutions for holding political principles will no longer be entertained in courts of jus- tice, there will be no more conspiracies ; the moral influence of intelligence will put to flight the crotchets of the most crotchetty. You will find more safety in that course than in any other you can pursue, gentlemen, inasmuch as Sir James Graham said that we require an investi- gation, inasmuch as Lord Brougham said that we require an investigation into the origin of the late disturbances, and that that investigation would take place during the examination of those in the indict- ment. I now leave the whole case in your hands; trusting that you will pronounce by your verdict that the day is not yet come when free discussion is to be put down ; but that by an honourable ac- quittal, which the evidence adduced will amply justify you in pronouncing, you will add another link to the triumph which the cause of truth and justice has achieved in this country, and which I con- scientiously believe is hastening on to its final accomplishment. Gentlemen, I leave the whole case in your hands, being con- scious that no complaint can be made as to the manner in which it was brought forward — that no complaint can be made as to the manner in which it was enter- tained ; and, I believe, gentleman, we can complete the link of triumph and satisfac- tion by adding that no complaint can be made as to the manner in which it will be decided. Evidence for the Defence. William Scholefield. — Examined by Gobbett. Are you son of the defendant James Scholefield ? — Yes. Do you reside with your father p — Yes. On the 16th of August did Mr. Feargus (a) Above, p. 346. (a) Beg. v. O'Brien, Appendix. 1143] Trial of Feargus O’Connor and. others, 1843. [1144 0" Connor come to your father’s house? — Yes. Did he sleep at your house that night ? — Yes. On the 16th of August ? — Yes, sir. Can you teli me when he went to bed ? — I do not know, sir. Can you say at what time he was called, or at what time did he get up the next morning ? — About nine o’clock. O'Connor: He is talking about another morning. Cobbett: Did Mr. O'Connor go to bed on his arrival in Manchester on the 16th ? — Yes. At what time ? — About six o’clock. Do you recollect at what time he was called ? — At half-past two. During the day time ? — Yes. What are you ? — A schoolmaster. Is your school attached to the chapel P — Yes. My sister teaches in the girls’ school. Can you say at what time did Mr. O'Connor arrive in the morning? — Ac half-past five o’clock. Where was your father when Mr. O' Con- nor arrived ? —He was out. Can you recollect whether Mr. O'Connor arrived unexpectedly or otherwise ? — We did not expect him. Do you know what your father was then about ? — Yes ; he went to get some placards printed. Was a bed prepared for Mr. O'Connor ? — Ho, he had to wait till a bed was pre- pared. Did your father get up early in the morning ? — Yes. Will you look at that placard now ( hand- ing it to witness) ? Was that the placard your father went to get printed P — Yes. [Scholejield's placard postponing the meeting summoned for August 16 was here put in and entered as read. (a-)] Did you see many of them ? — Yes, I saw many of them that day in the town. Have you seen that before ? — Yes. I believe it is a placard postponing the meeting ? — Yes. What time of the day was it on the 16th when you saw that placard first ? — I saw it about six o’clock in the morning. How, who is the printer of that placard ? — Mr. Kiernan. Did you ever see any of those placards P — Yes, I put a few on boards, and went to see them posted about the streets. Did anyone else bring any ? — Yes. Who else ? — Kiernan' s journeyman. Are you aware of the quantity brought P — About two or three hundred. What time did your father go out of the house? — About four o’clock in the morn- ing. On the 17th of August did you see your father P— Yes. In what way was he engaged during that day p — He was chiefly in the surgery during that day. Do you know whether there was any, and what, business going on in the back burying- ground that would call his atten- tion that way P — There was a man there painting some gates, and the sexton was at work there. Is there a burying-ground there, and is it situated so that the chapel is between it and the house ? — Yes. How, to go to those premises from the house, which would be the ordinary and regular way ? — To go through the chapel. Is there any other way ? — Yes, but the regular way for our family is through the chapel. Look at that placard {handing a placard to witness ). Is that one of the same placards ? — Yes, sir. Examined by O'Connor. Are you aware that, about five or six o’clock that evening, I requested your father to go down to the Carpenters’ Hall to make an apology that I could not go down that evening in consequence of the excited state of the town ? Do you recol- lect my speaking to a man named Cocksliott and sending for a cab ? — Yes. Do you recollect your sister and the whole family being present, and a long discussion taking place as to whether it would be prudent for me to go to Car- penters’ Hall or not, and that the result of that consultation was that your father should go and apologise for my non-ap- pearance ? — Yes. Cross-examined by the Attorney General. [My father went to the Carpenters’ Hall that night, and returned in half an hour. I do not know who were - in the chapel that night. I did not go in.] How do you know there were any per- sons there on the night of the 16th ? — Because I heard a few persons pass the surgery window. What time did they go in P — About six or seven o’clock. What time did they stay? — I do not know. Did you see them come out again ? — Ho, I went to bed about ten o’clock. Did they remain there till you went to bed?— Yes. Then when you went to bed you left those persous in the chapel P — Yes. Was it lighted up ? — Yes. (a) See text above, p. 1021. 1145] Trial of Fear gus O'Connor and others, 1843. [1146 Now, I beg to ask Mr. Scholefield—j ou | are a young man — now, upon your oath, 1 did you not know anyone who was in that chapel that night P — None, except Mr. ! O'Connor. What time did Mr. O'Connor go into the chapel ? — When my father went to Carpenters’ Hall. What time was that ? — It might be a little after seven o’clock. And he remained there till you went to bed at ten ? — Yes. Well, you saw persons pass the surgery window p — I say I heard them. I did not say I saw them. How many passed ? Five or six ? — I daresay. What time did they pass ? — About seven or eight o’clock. You cannot tell how many ? — No, sir. There might be a dozen P — There might for anything I know of. [When my father returned, he came into the surgery and remained there until I went to bed at ten.] Rolfe, B. : You say it was at five o’clock Mr. O'Connor wanted your father to go to Carpenters’ Hall ? — There was a discus- sion about whether he should go at that time. How long after that was it when your father went ? — About three-quarters of an hour. Cobbett : I do not know whether your Lordship has it that it was about six, or half-past six, his father went to Carpen- ters’ Hall. Rolfe, B. : About seven. John Northcote. — Examined by Cobbett. [Servant to Mr. Kiernan , the printer. Spoke to printing for Mr. Scholefield the bill headed, “ Procession and Meeting pro- hibited by the Authorities.” The younger Mr. Scholefield took a few of them before seven o’clock on the morning of the 17th. I took some up myself from ten o’clock to half-past. I saw Mr. Scholefield at half- past five o’clock, as nearly as I can re- member, at the office door. He came with an order for my master to print five hundred bills prohibiting the meeting and procession that were to take place that day. He appeared anxious to have them out soon. The quantity ordered was suffi- cient in the ordinary way to post the town, doubly sufficient.] Cross-examined by the Attorney General. Look at that and tell me whether your master printed that. ‘ {The placard, headed “ Run for gold ” was handed to the witness.) Attorney General: That placard is in evidence, my Lord. {To witness.) When was that printed ? Was it printed before or after Mr. Scholefield' s ? — It was printed before Mr. Scholefield’ s. It was printed on Monday the 15th. Who ordered it ? — I cannot say. Who came for them ? — I saw either three or four posters with them, but I cannot swear to them. The bill-posters came for those bills? — Yes, sir. Re-examined by Cobbett. [I believe my master prints all kinds of ! bills and placards. There might be half- a-dozen of different sorts of placards j printed in one week.] John Brook . — Examined by Cobbett. [A cabinet maker. Was at work for Mr. Scholefield on his premises on the 16th and 17th of August.] What sort of business were you about ? — Joiner’s work and painting. Were you in his house on the 17th? — Yes, in the house and about the premises. Did you observe how Mr. Scholefield was engaged that day, or the greater part of it ? — Yes, I went into his surgery for instructions concerning the work. Had you any gates to paint for him ? — Yes, sir. Was the chapel situated between those gates and the house ? — Yes. While so engaged painting the gates did you see anything of Mr. Scholefield ? — Yes, I saw him several times. He came down to me while I was painting those gates. Can you tell in what direction he came to you? — Yes, through the chapel from the surgery. Examined by O'Connor. Well, Brook, were you at work at Mr. Scholefield’ s on the 16th ? — Yes. At what hour? — On the 16th, I was there soon after five o’clock. Do you recollect me arriving there ? — Yes, I recollect Mr. O'Connor coming. You are a gentleman, I see. Do you recollect me waiting till Mr. Scholefield arrived from the printer’s ? — Yes, I opened the door for you to come in. I believe you did not expect me ? No. Do you recollect my going to bed? Yes. About what hour? — Soon after six, I think, sir, as near as T can recollect. Do you recollect at what hour I was called ?— I heard you telling Mr. Scholefield that you did not wish to be called till three o’clock in the afternoon. Are you aware that Mr. Scholefield has a raven ?— Yes. 1147] Trial of Feargus O’Connor and others, 1843. [114S Do you know that it is a common practice for that raven to be brought in through the chapel to be fed ? — 'No, sir, it is a jackdaw, not a raven. Well, it is the biggest jackdaw I ever saw. But do you know Ralph the raven F —Yes. Well, then, I suppose you call him a jackdaw? Attorney General: Not the raven. Witness: Mr. Scholefield has a jackdaw ■and a raven. O’Connor: Well, I mistook the raven for the jackdaw ; which is the conspirator ? (Laughter.) Do you know a man named Griffin ? — I 4o, sir. Do you recollect any time when Mr. Scholefield, out of charity, gave him some work to do ? — Yes. When you were at work with Griffin, had you any conversation about me ? — Yes, repeatedly. Now, did I ever speak a word to you in my life till you came up to me at the the station on 'Wednesday ? — No. Had you any conversation with me about this ? What about the trial ? — No, I never had any conversation with you since you spoke to me on the 16th of August. Well, what did Griffin say to you about losing his situation ? — He said he lost it, :and did not know what for. He said he would walk into you, and be revenged on you. I said, “You cannot upon Mr. O’Connor, man.” He said, “ But I can, and you will be surprised when you hear it.” When was this P — It was in August. In the beginning of August ? — Yes ; we were then painting Scholefield’ s chapel. Was this before I arrived in Man- chester ? — Yes. How long before ?— Weeks before. I cannot remember how long. But you heard him say he would walk into me, and be revenged of me ? — Yes. Attorney General: Now, Mr. Brook, go home and feed the raven and the jackdaw, and take care you feed the right one. John Cockshott. — Examined by Cobbett. [A butcher in Manchester. Was at Mr. Scholefield’ s house on the 17th of August last from ten till eleven o’clock in the morning for some medicine. Mr. Scholefield was in his surgery. He had a few patients in that he was giving bottles of medicine to.] Henry Holland. — Examined by O’Connor. What are you, Mr. Holland ? — I am a block cutter to calico printers at Burnley, and I also keep a temperance coffee-house. Previous to August last were the work- ing men in a state of great excitement in consequence of the factories working short time ? — Yes. Can you say of your own knowledge, that in consequence of that excitement there was strong apprehension of danger ? — Yes. Do you remember many public meetings of an exciting nature about that time ? — There was, sir. Now, sir, do you remember making any communication to me in consequence of that excitement — about the latter end of July, or the beginning of August — at all events about the 26th of July, when the Attorney General said there was a meeting at Mottram Moor ? — Yes. Do you remember having communicated with me as to the state of the district? — I do. Did you request me to go down, and endeavour to allay the angry feelings that existed?— I did. One of the defendants, now in Court ( Beesley ), and myself met together, in consequence of the excited state of the neighbourhood, and agreed to write to you, requesting you to come down as soon as you possibly could, to allay the excitement then existing in the neighb ourhood. On your oath, did I go down as soon afterwards as possible ? — Yes. Did you attend any meetings I addressed on that occasion ? — I did, sir, at Burnley, and at Colne. Were these meetings large ? — Yes. And numerously attended by all classes of the town ? — Yes. Now, sir, upon your oath, what was the general tendency of my addresses, both at Burnley and Colne ? — They were calcu- lated to allay the excitement. Was there some damage done to the mills before I went down? — There was, sir. There was a mill burned before you went down. I suppose it was the work of an incendiary. Placards were published and distributed, offering a reward for the discovery of the perpetrator of the crime. Did my speech tend to expose the abomination and wickedness of such prac- tices ? — It did. Did I not refer to that fact, and express detestation of it? — You did, most em- phatically. Did not I tell the people, that the way to impede the progress of the Charter was to commit violence of that kind ? Attorney General : My Lord, I object to that. O’Connor : Well, I will ask it in another way. I am afraid I am going to alarm you now. Was there a meeting of the shopkeepers and middle classes ? — Yes, a public meeting, called by public advertise- ment. 1149] Trial of Feargus O'Connor and others , 1843. [1150 At that meeting were all the points of the Charter adopted? — They were, sir. Unanimously agreed to by the meet- ing of shopkeepers ? — Yes, unanimously agreed to. O'Connor {to the Attorney General) : What do you think of that? ( To the witness.) Were all the points of the Charter adopted ? Attorney General : I object to that. O'Connor : Were the military and police sent out to repress violence ? — Yes. I ask whether or no my addresses at Colne went to allay the angry feelings of all classes ? — They did, sir, most effec- tually. Cross-examined by the Attorney General. When did the meeting at Burnley take place ? — I do not exactly remember the date, but I remember the circumstance very well. Rolfe, B. : Was it with reference to the strike ? — The meeting at Burnley was not with reference to the strike. Attorney General: I want to know the time. Do you remember any event that happened in the month of August ? Do you remember any procession going to Manchester ? — No, except on ordinary business. Did you hear of the strike and a pro- cession going there ? — Oh, I heard of that. I heard tell of those things. How long before that was the meeting ? — I do not mind the exact time. Was it before or after the strike ? — Oh, it was before. Where was the meeting at Burnley held ? — There were two meetings. How many people were there ? — One of them was out of doors. There might be fifteen thousand or twenty thousand per- sons at it. There was also a meeting in a tent erected for the purpose. Was it on Monday ? — It was. Was it in the month of August or July P — -I rather think it would be in the latter end of June. When Was the Colne meeting held? — The day following the meeting at Burnley. Sir Thomas Potter — Examined by O'Connor. Sir Thomas, you are a magistrate, re- siding in Manchester ? — I reside at Buile Hill, three miles from Manchester. Do you remember the excitement that took place in Manchester in August last ? —Yes. You were mayor last year, Sir Thomas ? — No ; I was mayor during the two years 1839-40 and 1840-41. Sir Thomas , what was the general character of that excitement, which I would rather that you would describe to his Lordship than put you to the trouble of answering questions ? What was the deportment of the people, the cause of it, in your opinion, and its general character ? — I conceive the general character of it, in the first instance, was a strike for higher wages. The people, when they came from Ashton and assembled in Manchester, commenced by turning out the mills ; the hands themselves seemed quite willing; in most cases there was no force used, at least I do not recollect hearing of any. About what time. Sir Thomas, did the angry excitement begin to terminate? — Upon my word I do not know. Oh, about ? — I think they did not re- turn to work generally for a month. Not generally to work for a month, because it was a strike for wages ? Attorney General: No, he did not say that. O'Connor : Are you aware, Sir Thomas , that a procession was to take place in Manchester on the 16th of August last ? — Yes. Are you aware of the reasons why that procession was abandoned? — Yes, I be- lieve I am. Then will you state them ?— I believe the magistrates informed some of the parties, I rather think Mr. Scholefielcl, that the p rocession would not be allowed ; and he at once stated that he would do everything in his power to put a stop to it, as I understood. I was in the Town Hall, but I was not one of the magistrates to whom he applied. Rolfe, B. : Then you do not know any- thing about it ? O'Connor: Now, during that time, during the strike, what was the deport- ment of the people generally ? — I consider it was very peaceable. Now, Sir Thomas, I believe you know the disposition and character of your townsmen and neighbours well ? — Yes, I chink I do. Do you remember processions taking place on the 16th of August previously ? — Yes, I have heard of them. Now, do you, in your own recollection, remember a more quiet 16th of August than the last? — Certainly not. Can you recollect shortly after that Pil- ling and another waiting on you ? — I re- collect two operatives waiting on me, but I do not recollect their names. But about the period of the strike do you recollect those two men calling upon you ? — Yes. Do you recollect the object of their visit ? — Yes. What was it ? — They stated to me that several manufacturers were paying very low wages, much lower than others, and 1151 ] Trial of Fear gus O’Connor and others , 1843 . [1152 they were exceeding anxious for an ex- planation. Well, now, did they ask for your services in any way ? — Yes, they did. In what way did they wish you to interfere ? — They wished me to try to procure a meeting. Between themselves and their masters ? Yes, between them and their masters. * I think, Sir Thomas, you stated that you were actively engaged at the Town Hall, in the discharge of your duties as a magistrate ? — Yes, I did. Rolee, B. : During the period of the turn-out ? — Yes, my Lord; for six or seven weeks the magistrates were there entirely. O’Connor: Do you recollect a police- man named Bell making any report to the magistrates on the 16th or 17th of August P Yes. I recollect a man coming to the police office and giving information. Did you think it necessary to take any precautions ? — Ho, I do not know that I did. Rolee, B. : Made a report to what effect?— That Mr. O’Connor had arrived that morning. O’Connor : How, Sir Thomas, what im- pression did the conduct of the people leave upon the authorities ; the people I mean on strike ?— Why, the impression was, I think, that the people were peace- ably inclined ; but they had proceeded to acts of violence in turning out mills, and prevented some individuals from working who were disposed to work. From your authority and long know- ledge of Manchester can you speak as to the condition of the working classes of that period?— Yes, I think I can give some account of it. I think that they were in a very deplorable condition in consequence of the high price of provi- sions, and the low rate of wages. Well, taking their deplorable condition in consequence of the high price of pro- visions and the low rate of wages into consideration, whether do you think their conduct was praiseworthy or otherwise ? Was it, or was it not, the admiration of the authorities ? Rolee, B. : I really do not like to inter- pose in this matter, but really I think it is not right to ask the question. O’Connor: Very well, I shall not press the matter further, my Lord. Cross-examined by the Attorney General. You are one of the magistrates ?—' Yes ; a borough magistrate as well as a county magistrate. I think we have already got it that the magistrates issued a proclamation ? — Yes. A sort of joint proclamation ?— Yes, we issued a proclamation in conjunction. What number of special constables were sworn in in Manchester ? — I do not just recollect. You can give me some notion of the number, how many scores or hundreds? ■ — At what periods do you mean ? At. any time after the 7th or 8th of August down to the 16th or 17th ? — I do not know that I can speak with any degree of certainty, but I should think about five hundred. Do you know how many troops were in Manchester? — We had during the first week about five hundred ; but a deputation of the magistrates waited upon the Secre- tary for the Home Department, and we had a considerable reinforcement. How many ? — I cannot say. When did you apply for mGre ? — The deputation went off on the Saturday. What Saturday? Rolfe, B. : The 13th? — Ho, my Lord, I think it was Saturday ; wait, Tuesday was the 9th. Yes, I think it was Saturday the 13th. Attorney General : How many more did you get ? — I really cannot tell exactly ; we had a detachment of the guards and some cavalry, perhaps about one thousand five hundred, but I cannot speak with accu- racy. I tvant no particular accuracy. Was it beyond one thousand five hundred alto- gether ? — I think so. Did you yourself personally attend as a magistrate at the Town Hall ? — Oh, yes. Are you able to tell me whether the magistrates attended day and night ? — Yes, I can tell you that they attended day and night. For how long ? — Oh, I think it was three or four weeks. Two or three magistrates were lodged at the adjacent hotel — indeed, next door — in readiness to be called up at any hour. How many weeks ? — I think it would be full four weeks. Where was the commander-in-chief of the district at the time ? — He was at the “ York Hotel,” close by the Town Hall. Where the magistrates were in atten- dance ? — Yes. Did the special constables attend at the Town Hall ? — Yes. Day and night ? — I do not know whether they were all night, though I think they were. Was there not a relay of them relieving each other so that there should be a party in constant attendance day and night ? — I believe there was. For how long ? — For at least a month. Did you see anything of what occurred in Manchester on Tuesday the 9th, and Wednesday the 10th of August ? — On Tuesday the 9th I was at my warehouse 1163] the whole of the day, but I heard of these things. I do not want to know, Sir Thomas , what you heard, I wane to know whether you saw anything of the state of Man- chester, the public streets, the shops, and warehouses, during those two days ? — I saw nothing particular on the 9th. On Wednesday there seemed to be a great deal of excitement. Were not all the shops shut? — I do not think many of the shops were shut on the Wednesday. Then were they on the Tuesday or the Thursday ? — No, certainly not on the Tuesday. Rolfe, B. : I thought you said you were in the warehouse all the Tuesday ? — So I was, my Lord. Then you do not know ? — I believe the shops were not shut up, but I do not know of my own knowledge. Attorney General : I want to know whether you were present at any of the violence, or at the stoppage of any of the mills ? — No, I was not ; I was the oldest magistrate, and they kept me principally at the Town Hall, with the exception that I once went at the head of the troops to the railroad. What was that for-? — We heard that they were attempting to destroy the rail- road. A troop of cavalry was called out, and I went with them, but another magis- trate soon came and relieved me. I suppose you went for the purpose of authorising the firing of the troops, if necessary ? — Yes. What time did that happen ? — I do not know, but I think it must have been a week after. And did you go with the troops ? — Yes. How many? — There was a troop of horse, about forty, I suppose. And have you no recollection, Sir Thomas ? Do not understand me, that in putting the question I have any other feeling than the greatest respect ; you cannot imagine that I have any other feeling P — Oh, certainly not. But you cannot tell what day you went with the forty troopers to protect the railway ? — I really cannot ; it was some time the following week. Who had the command of the troops in Manchester ? — Do you mean when the re- inforcements came. Yes ? — Sir Thomas Arbuthnot and Sir William Warre. Now, I want to know whether you were present at any meeting of the magistrates when any persons came to demand or to request assistance ? — Yes ; I believe I was. Were you present at any time when the o 67432. [115* magistrates advised them to stop their works for the present, and not to make any resistance, or anything of that sort? — Yes ; I think there was a general advice of that sort given. There was a general advice given not to resist ? — Yes. Why was that advice given, sir ? O'Connor: I have no objection, my Lord, to the fullest development of the case ; but is this evidence ? Attorney General : Then I will ask it. I will put it plump to him. Was not the state of the town such that you did not dare to advise the parties to resist ? Were you not afraid of bloodshed and tumult ? — Individually, I was never afraid. I do not impute to you personal fear, sir ; but I ask you whether the town was- not in that state, that the magistrates; advised them to yield to the mob, in order to prevent tumult and confusion ? — Why, the fact is they had no difficulty, for the parties seemed quite ready to be turned ; out, or to turn out. There was no force necessary, that is very well known. Come, Sir Thomas, that is no answer to my question. O'Connor : I dare say it is not the one- you wanted. j Attorney General : You were telling me' • you were present when the people came i for assistance, and they were advised not to resist. I ask you why was that advice given ? — I cannot say why. I re- collect a young man came asking advice whether he should fire upon the mob. He said he had cannon, and could destroy so many ; and I know we advised him to- do no such thing. Did not you or the magistrates recom- mend the persons not to resist the at- tempts of the mob ?— I do not remember' any particular recommendation ; but I know it was our opinion that it was better not to resist. And was it not to prevent bloodshed ?* — I think not. I do not think that the- magistrates were at all under the influence of fear. Then will you tell me .why you recom- mended them not to resist ? — I believe, in some cases, as at Mr. Birley's mill, they did resist effectually. Was that any reason why you should recommend them not to resist ? — I do not know whether we did recommend them not to resist. Why, sir, I ask you whether at every mill that effectually resisted, was not the- advice by the magistrates to give up re- sistance ? — Not in my hearing ; certainly not. Do you remember Messrs. Stirling and Bechton making an application ? — I was O O Trial of Feargm O'Connor and others, 1843. 1155] not present when they made any, though I believe they did make one. O'Connor : That will do, Sir Thomas. George Boyle Chappell. — Examined by O'Connor. I believe, Mr. Chappell,, yon are one of the oldest manufacturers in Manchester ? Rolfe, B. : You are an alderman of Manchester ? — Yes. I have been for more than fifty years an inhabitant of Manches- ter, though not the place of my nativity. Do you remember, about the time of the turn-outs, your mill being stopped ? -—Yes. What were the circumstances attending it when your hands turned out? — My Lord, is verbal communication from me, as a principal, evidence, because I was not at the mill when the hands turned out ? But you know your mill was stopped, because you went there and found it stopped ; that is all you know of your own knowledge ? — Yes. O'Connor: Now, Mr. Alderman Chap- pell, having understood that your works were stopped, was there any damage done to your works ? — Not a vestige. Was there any glass broken ? — Not a vestige. I understood, from the informa- tion given to me, that they did not want to do any injury to person or property, but demanded that the hands should leave ; and I think that the hands were quite as willing to leave as the men who made the application were desirous that they should. Now, after having been connected as an alderman and an authority, and a good- master with these people for fifty years, what was your impression of the whole character of these disturbances ? — There are two aldermen belonging to the town- ship of Chorlton-upon-Medlock. Rolfe, B. : We will ask about them afterwards ; answer the question ? — I want to make an explanation, to put my- self in the right place. O'Connor: His Lordship will put you in the right place. Reply to the ques- tion P — I conceive myself, from what I saw in the proceedings in which I was engaged personally, that the strike was for wages. Well, and what was the conduct of the people under the circumstances, their general conduct and behaviour ? — I must confess, after being in every mob for the last fifty years in Manchester, I thought a better behaved and well-disposed mobility I never saw before. (Applause in Court.) Rolfe, B. : If there is any more noise T must have that place cleared. I give that notice. O'Connor {to the witness) : On their be- [1156 half I thank you, I am sure. Now, Mr. Alderman Chappell, from your knowledge of trade for fifty years, and of the con- dition of the working classes, I ask what was their condition at the period of which you are now speaking ? What was their condition generally ? — There had been a general reduction from 1826 up to the present week. I took an account from 1826 of the price of food and the price of cotton, year by year, and it brought me to the conclusion that, at the present mo- ment, goods are just at one half the price they were then, and cotton is only about fifteen per cent, less than it was at that period. Rolfe, B. : A general reduction of wages from 1826 ? — My Lord, I said goods, not wages. O'Connor : He says, the reduction in the raw material was only fifteen per cent., as compared with the prices in 1826, while the reduction in the manufactured article was one half? — Yes. The price in 1826 was 2s. 2 d . ; yesterday the same articles were Is. 1 id. Then, Mr. Alderman Chappell, in con- sequence of the depression in trade, the falling off in profits of masters, was it im- possible for the masters to give the wages to the working men ?— Certainly. Then, was there a corresponding re- duction in wages ? — Wages must unques- tionably have been reduced; but still I think the depression arose more from the unemployed living upon the employed than from any deficiency in wages. Then, am I to understand that, in con- sequence of the small profits ? — There have been no profits at all for three years ; Then, a vast number of operatives were turned out upon the wide world? — Oh, unquestionably ; hundreds of thousands. Mr. Alderman Chappell, can you say, of your own knowledge, from the neces- sity imposed upon you of inquiring into the state of your own working men, gene- rally speaking, was the destitution great amongst the operative classes ? — Unques- tionably, they had not a sufficiency, such as every Englishman would like to see his neighbour enjoy. Did you go as one of a deputation to Sir Bobert Peel to inform him of the state of your part of the country ? — I must say that I am no member of the league, and never was. I never subscribed 6d. to any political institution in my life. I was re- quested by the manufacturers to be one of a deputation to represent the situation of the manufacturers and workpeople at that moment. I thought it a duty I owed to the town, having been so long in it, and I went with them. Did you represent to Sir Robert Peel that there was danger in the country in Trial of Fear gus O'Connor and others , 1843. 1157] consequence of the situation of the work- ing classes ? Attorney General: I should be very sorry to interrupt, but really I must ob- ject to that. O'Connor: I ask the Attorney General whether he will shut out this evidence P Rolfe, B. : Then, I think, Mr. O'Connor , that I shall be obliged to shut it out. Attorney General : Really, my Lord, it is impossible not to know that there was great distress. It is abundantly proved in the evidence already. O'Connor: Very well, then, I shall not ask the question. Attorney General : I have no question to ask you, sir. James Kershaw. — Examined by O'Connor. Rolfe, B. : You are mayor of Man- chester now ? — Yes, my Lord. O'Connor: Mr. Kershaw, you were a magistrate in August last, I believe P — I was. Have you resided long in Manchester ? — All my life. You have great interest in the preserva- tion of the peace ? — I have. Can you speak, from your own know- ledge, of the transactions which usually take place on the 16th of August in Man- chester ? — There has been usually a pro- cession in Manchester on the 16th. Do you recollect the 16th of August in previous years ? — Hot very distinctly. Do you recollect the last 16th of August ? —I do. Do you recollect about the time the magistrates issued a proclamation ? — I do. About what time was it, Mr. Mayor ? — I think on the Sunday before the 16th of August. Do you recollect the Queen’s proclama- tion succeeding it on the following day ? — I do. I believe it was on the following day. In consequence of the state of Man- chester, and the knowledge of the magis- trates that a procession was to take place upon the 16th, did the magistrates make any application to the active parties re- lating to that procession ? — I believe they did. In what spirit was that application met by the parties they made it to ? — I believe it was immediately said that the proces- sion should not take place. I believe, Mr. Mayor, you are a manu- facturer, employing a number of hands ? — -I am a calico printer. Were your works stopped ? — They were. About what time ? — I think on Thurs- day, the 11th of August. Tuesday was the 9th, on which the procession took place. Was there any damage done to your works ? — Hone. [1158 Did the hands in your employment re- quire any very great force to induce them to cease labour P — I believe my partner, who was at the works, when he found the parties coming up to insist upon them to desist from labour, advised the hands to go out. Did your hands go out willingly ? — I believe they did. And no damage whatever done ? — Ho. From your knowledge of the previous 16th of August and the last 16th of August, what was the general state of the town, making allowacnes for the number of idle people in consequence of the turn-out ? What was the general state of Manchester on the 16th of August last ? — It passed off much more peaceably than was antici- pated, and comparatively peaceably as having reference to other days. Do you mean on the 13th, 14th, and 15th ?— Yes. Then, Mr. Kershaw, as a magistrate, I believe that you and the magistrates gene- rally did consider that the 9th, 10th, 11th, 12th, and so on, were the most disturbed days ? — I think they were. The greatest excitement ? — Yes, in point of turning out the mills. How can you speak from your own knowledge of business as to the state of the working classes at that period ? — They were exceedingly distressed, no doubt. And, considering their distress, was their conduct good or bad ? — I think, speaking of them generally and as a whole, as to the body of the community, I think their conduct was good. There were ex- ceptions. Attorney General : I have nothing to ask you, sir. Oh, yes; where were your works ? — At Ardwick, near Manchester. How many miles off? — Oh, about a mile from the Exchange. How many persons came when they re- quested your works should be stopped ? — I was not there. But you stated that your partner ad- vised your hands to go away ? — 1 believe he told me there was no large number ; eighty or one hundred, but of that I am not sure. Sir Ralph Pendlebury was next called, and not appearing, Mr. O'Connor said that he understood Sir Ralph was ill, and had sent a medical certificate that he was not well enough to attend. O'Connor: I shall call no more wit- nesses, my Lord, to prove the state of Manchester. Isaac Clarke Pray. — Examined by O'Connor. You are the registered proprietor of the Evening Star newspaper p — Yes. o o 2 Trial of Fear gas O’Connor and others , 1843. 1159] Trial of Feargus O’Connor and others, 1843. [1160 Do yon recollect about the latter end of August the suppression of public meetings in London and throughout the country P — Yes. About that period, who was the editor of the Evening Star newspaper — about the 23rd of August ? — Mr. O'Connor. Did I receive, or would I accept, of any remuneration for my services as editor P — Not a penny. Do you recollect a notice being adver- tized in the newspaper to the effect that my letters should be addressed to the Evening Star office in the Strand ? Attorney General: What are you going to show P O'Connor : That all my letters, private and public, were opened at the Evening Star office ? Attorney General : Is that evidence P O'Connor : My Lord, I am charged with a conspiracy from the 1st of .August to the 1st of September, and will evidence be shut out to show that all my letters were addressed indiscriminately to the Evening Star office ? Rolee, B. : I think that evidence to show that there was no disposition on his part to conceal anything. O'Connor: Now, Mr. Pray, on your oath, was it not your custom, as pro- prietor, to open all letters addressed to the editor? — It was not the custom for me, but for the sub-editor; but I have opened hundreds of letters marked pri- vate. Now, sir, what were my general instruc- tions with regard to the matter that should appear in the Evening Star relative to the state of the country ? — That we should keep everything as quiet as possible, and that we should by no means admit any matter in favour of the strike, or of the excitement. The strike and the excite- ment were synonymous. Did you understand from the general tenour of my conversation with you that I was anxious, or otherwise, to preserve, as far as lay in my power, the peace of the country? — I always thought it was Mr. O'Connor’s desire to make the country as peaceable as possible, and I always thought him sincere in it. Who was the correspondent of the Evening Star then ? — Griffin. Did you give him orders to receive pay- ment in Manchester p— -I did. Upon whom P — Upon James Leach , who was one of our agents at Manchester. He received a weekly salary from him by my orders. Now, in consequence of my orders to you, did you exclude some of his matter from your paper p — Yes, I considered some of his matter so inflammatory that I cut out much of it, and sometimes I excluded it altogether. In fact, I considered that he wished to entrap me as proprietor of the paper. Do you recollect having opened a letter written to me from Griffin, requesting money from me to send him to America to prevent his giving information against me ? — Yes. Attorney General : I object to that. O'Connor : He cannot stop him now, my Lord. Rolee, B. : He objected, although you did not hear him. Cross-examined by the Attorney General. Is the Evening Star a daily paper ? — Yes, a London daily paper. What day did it begin ? — I think it was about the 16th of July. Mr. O'Connor did not live at your office ? —No. Where did he live ? — I do not know where he lived. I presume he had a private residence in London? — I presume he had. You cannot tell whether all his letters came to the Evening Star ? — I cannot tell. He lived in London ; he always came to the office and stayed there during business hours. I do not want to know where he lived, or to intrude upon his privacy, but do you know whether he lived in London or in the neighbourhood ? — I presume he did. O'Connor : My Lord, I wish you to ask the witness whether the Evening Star was not a paper that depended principally upon the operative classes in the manu- facturing districts for support. Witness : Yes, the paper depended chiefly on the operative classes, and was circu- lated extensively in Lancashire and the neighbouring district. O'Connor: My Lord, there are several other authorities from Manchester, whom I release from their attendance here, having gone sufficiently into that evi- dence. James Halliday. — Examined by O'Connor. I believe you are a manufacturer re- siding in Oldham P — A spinner, sir. How long have you known me ? — Since the contested election in 1835. Now, Halliday, have you, on various occasions, and at different times, attended meetings where I addressed the assembly.? — Yes. Now, Halliday, upon your oath, what has been the general tendency of my ad- dresses to the working classes ? Upon every occasion did I not enforce the ne- cessity of preserving the peace ? — I never 1161 ] heard anything in any of your addresses calculated to lead to a breach of the peace. Have you, on various occasions, heard me complain that my motives and views were grossly misrepresented, and that, in consequence of misrepresentation, great prejudices were created against me? — Yes, I have. Do you recollect at the time when the question of physical force was first mooted in the Chartist ranks, my having any con- versation with you, and to what effect ? Attorney General: Mr. O'Connor has a perfect right to get from any witness the general impression of his character, but not to refer to particular occasions. O'Connor : From your knowledge of me for eight years, do you think I would do anything calculated to lead to a breach of the peace through any pecuniary motive ? Am I an avaricious man, a covetous man, or a generous man ? — My Lord, in the ad- dresses of Mr. O'Connor, I always observed what I imagined to be generosity, sin- cerity, great zeal, and very considerable physical energy, without, of course, any reference to a breach of the peace ; and, certainly, I must say, I always heard him deprecate everything tending to a breach of the peace. On several occasions I have heard him giving addresses connected with electioneering contests. Attorney General : You speak yourself sometimes, do not you? — Yes, sometimes. Titus S. Brooike, jun. — Examined by O'Connor. Where do you live, Mr. Broohe ? — I live at Dewsbury. How long have you known me as a pub- lic man ? — For ten years ; personally for six or seven, I have known you, during very excited times. Has your neighbourhood been fre- quently in a state of great excitement ? — Yes. Rolfe, B. : What is your neighbour- hood ? — Dewsbury. O'Connor: Have you heard several ad- dresses from me ? — Yes. What was the impression which they were calculated to leave on the minds of the people ? — I have often heard you ex- hort them to peace, and it is the impres- sion of the neighbourhood that you always exhorted them to peace. Have they been led to believe that my speeches had the effect of promoting peace ? Attorney General : I object to that. O'Connor: Have you ever heard one sentence escape my lips calculated to lead to a breach of the peace ? — No. Do you think I use the terms “ Peace, law, and order ” [1102 Attorney. General: I object to this evi- dence ; it is open to Mr. O'Connor to give testimony as to his character. O'Connor: Very well, Mr. Broohe, what is my general character? — Among the working classes you are greatly admired. Rolfe, B. : As a peaceable man ? — Yes, my Lord. The middle classes do not ad- mire him. O'Connor: No ; that shows their taste. Rolfe, B. : What is your opinion of his general character ? — That he is a peace- able man. O'Connor: Have you ever heard me complain ? Attorney General: I object to these com- plaints ; they are not evidence. Cross-examined by the Attorney General. What are you ? — A druggist. John Farr. — Examined by O'Connor. Where do you live ? — In Port Robert, county of Cork. You are my steward there ? — Yes. How long have you lived in my family ? — Thirty years. I believe I have been in the habit of standing in the fields with my workmen, sometimes from one hundred to one hundred and thirty, for nine or ten hours a day for years ? — Yes. Now, from your knowledge of me, do you think I am a violent or peaceable man ? — I always knew you to be for peace. Do you remember the time of the out- break in Cork ? — Yes. Do you remember the resistance offered to the magistrates and military there ? — Yes, Do you recollect my interference, and the people giving up their arms to me, and my piling them up in my servants* hall ?— I do, sir. What was my conduct to my labourers and the poor in general ? — You built houses for your labourers and gave them free, and ground with them. Did I knock down mud cabins and build stone houses for them ? — Yes. I charged no rent? — No. Did you pay the wages every Saturday night ? — Yes ; and you raised the wages when the times got hard. O'Connor: My Lord, I am showing what my character is ; it is of importance to me that there should be no mistake on that point. The Attorney General said I might be deriving some benefit from the Northern Star. Now, I am showing my character through life, which is of great importance to me, my Lord. Attorney General : I deny that at once. Trial of Fear gus O'Connor and others, 1843. [1164 1163 ] Trial of Fear gus O'Obnnor and others , 1843 . I imputed no such personal motives to Mr. O'Connor. O'Connor : Well, that will do. (To wit- ness.) Did you ever know me to stop a single day’s wages from a sick man, whether he was working or not? — No, you paid him regularly the same as the man that was working. O'Connor: My Lord, I was examining this witness to meet what I thought an assertion made by the Attorney General , respecting my motives. I was astonished at it, because I knew it to be so much at variance with my whole character. That was the reason I examined the witness in the way I did. Rolfe, B. : I never understood the At- torney General to impute any such motives to you. O'Connor: I am happy to hear it, my Lord. Samuel Chambers. — Examined by James Leach. [Spoke to being at Leach's house on August 17, doing repairs and making a large board for a placard.] Do you recollect seeing a placard on that board on the 17th?— Yes. Would you know the placard if you were to see it ? — Yes. Is that the placard ( handing the witness the executive placard ) ? — Yes. At what time was it when you first saw it on the board ? — About eleven o’clock. Was that after I left home ? — Yes. Rolfe, B. : After he left home ? — Yes, my Lord, about an hour or two after he left. He went out at half-past ten or eleven, and I saw it after I came in. It was not put on the board till after he went out? — No, my Lord. Paul Pair dough. — Examined by James Leach. [A fruiterer and potato dealer. Spoke to being at Leach's on the 17th of August between eleven and twelve o’clock in the forenoon.] Do you recollect seeing a person come and place a large placard on a board at my door ? — I do. Would you know that placard now, if you were to see it ? — I think I should. Just look at that placard ( exhibiting the executive placard) ? — Yes, that is it. I should know it more by the appearance than by anything else. That is the man- ner it was hpaded. What time was that put up ? — About eleven o’clock. Rolfe, B. : Then Leach was not there at that time ? — No, sir. Leach: Was he a bill-poster who put it up P — Yes. Was I at home at that time ? Rolfe, B, : He says you were not. Leach : Did you see me at home any portion of that day ? — No part of that day. Cross-examined by the Attorney General: Did the man who posted the placard go- inside the house ? — No, sir ; he merely put the placard on the board and went away. He did not go into the shop at all ?- — No, sir. John Ardell. — Examined by O'Connor. I believe you are my clerk, and have been so from the first day the Northern Star was established ? — Yes. Do you recollect, a short time previously to the 16th of August last year, any wood- cut being sent to the Northern Star ? — Yes, I recollect a wood-cut being sent by Griffin as secretary to the Hunt's monu- ment committee. Do you remember another wood-cut which appeared in the Star being paid for in the beginning of June ? — I remember a wood-cut was paid for somewhere about that time, but I cannot recollect the exact date. I have the date in my book. Where is your book ? — i have it here. ( Witness produces the booh and reads : — ) “ July 22nd, paid for a sketch of the Man- chester massacre, five shillings.” It was furnished ' a fortnight before, and he (Griffin) paid for it on the 22nd of July. Are you aware that wood-cuts to repre- sent the flogging of soldiers, &c. are fre- quently given in newspapers ? — Yes. Are you aware that that wood-cut was- taken from one that was used before ? — Yes, I have the original here from which it was engraved. Have you ever had any communication with me relative to the impossibility of meeting my drafts upon you for the sup- port of poor people ? — Yes, several times. You received a general account from Heywood, Cleave, and other large agents. And do not you know that I have paid for Chartist purposes upwards of 20 1. a week ? — Yes, I have received such ac- counts. I know we have large sums to pay Mr. Heywood , running on for weeks. Do you not know that, on some occa- sions, I have incurred that expense in relieving the families of poor people who were incarcerated ? — Yes. And sometimes the prisoners themselves ? — Yes. NoW, have you not written to me some- times saying that, in consequence of such liberality, you were obliged to dishonour my drafts ? — Yes ; I have been obliged ta 1165] Trial of Fea,rgus O’Conrm - and others 1843. [116G dishonour your drafts frequently, and lat- terly to stop them altogether, as wo could not pay for stamps else. During the time you were in York Castle you did not receive, but paid, money to the Northern Star. Have not distressed operatives wishing to start in business called on me, and did I nob frequently give them a sovereign or two at a time P — Yes. Did you ever know, during the last five years, a man coming to me for money that my hand was not in my pocket to give it to him ? — I never knew a man to call for some without your giving it, or ordering me to give him some. Have you attended many meetings where I have been? — Very seldom. You did not take any part in politics, I suppose ? — Very little. What is my general character ? — I should think it very far from anything inconsistent with peace. Did you ever hear me denounced and complained of by many parties for stopping what might have led to a disturbance or breach of the peace ? Attorney General: I again object, my Lord. Rolfe, B. : I think we may hear this. O’Connor: Have I the character of stopping disturbances ? — Yes. Do we pay large wages P — Yes, we pay as large wages as any other printer of newspapers. Did I ever stop the wages of a sick man ? —No. Have you not known some to be sick for years, and receiving their wages the same as those at work ? — Yes. Atherton: My Lord, to complete the evidence, there is a part of the Northern Star of the 20th of August, which I relied upon, and it was not read. Attorney General : Here is the paper, my Lord ( handing the Star up to the judge), in which the paragraph is. He may read the paragraph, or it may be entered as read. Atherton : Let it be entered as read. Attorney General : Then I must call your Lordship’s attention to some other para- graphs in the same paper. O’Connor : Well, you may consider them as read. Attorney General: Very well, it will save the time of the Court. O’Connor : That is the case for the defence, and a very good defence it is, my Lord. Reply. Attorney General: May it please your Lordship, gentlemen of the jury, I sin- cerely congratulate you on the prospect that your labours will terminate this evening ; and I shall certainly endeavour to condense into as short a space as my duty will permit the observations I shall make on the evidence to which your atten- tion has been drawn during the course of this protracted trial. Gentlemen, I could wish, not merely that we were as- sembled in the court of this great county of Lancashire, but that the eyes of the whole nation were upon us ; and the ears of the whole people ready to hear every- thing that passes upon this occasion. I entirely agree with what has been stated,, that this is one of the most important trials that ever occurred; and if I felt considerable responsibility when I had the honour to address you several days ago, I must say that I do not feel that responsibility diminished by the evidence that has been given on the part of the prosecution, and by the statements that have been made by the several defend- ants. Gentlemen, it is impossible nob to feel the deepest sympathy with the distress that, no one can possibly doubt, so extensively existed in the neighbour- hood of Manchester, and throughout a considerable tract of country surrounding that large manufacturing place. I have no doubt that if you could quit the large public meetings that assembled, as it was said, “to quiet the country,” and could go to the dwellings of those who did not join in those exciting crowds, you would hear many a tale of heart-rending dis- tress, such as the defendant Pilling told, you yesterday — distress which it was im- possible to hear without the most enlarged compassion and the deepest sympathy — distress which produced in many persons around me emotions in which I shared, and I am not ashamed to say that I shared in them to an extent, which, in common with many around me, almost unmanned me, and prevented me from maintaining that demeanour that one ought to preserve in a court of justice. It might be well if all that was stated on this occasion were known through the whole length and breadth of the land, so that if anything could be done to arrest the progress of that distress and to bring comfort and consolation to those who are- suffering, it might be done. But, gentle- men, having, and with perfect sincerity, offered that tribute of sympathy which it was impossible to withhold, having given to those who suffered that distress with a fortitude which we admire, the tribute of my highest admiration, I must pass from that topic to the state of the country at the period when this outbreak occurred ; and I must call your attention for a moment or two to the alarming danger that threatened the peace and 11 ( 37 ] Trial of Fear gus O’Connor and others , 1843 . [1168 well-being, nay, I may almost say, the existence of society in this country. Gentlemen, we have the confession from Tilling himself, that he had gone from place to place and addressed not less than three hundred thousand persons at dif- ferent places. You have had it in evi- dence that there were outbreaks— I pause -not now to enumerate the numbers and the threats and intimidation short of actual violence, by which the acquiescence of the millowners and the labouring classes was produced — but you have it in evidence that from fifty to one hundred mills were stopped, and that labour ceased every- where. I might also take the placard headed, “ Gold ! Gold ! ! Gold ! ! ! ” in which it is stated that labour is suspended, and the credit of the country is gone ; and .1 ask you, gentlemen, what was the condi- tion of this part of the empire, when troops were paraded about to stop the tumult, -and special constables were sworn in by hundreds, ere the protecting providence of Heaven, the energy of the Executive Go- vernment and the local magistrates, suc- ceeded in restoring peace and order. Happiness and plenty of work and wages it was not in their power to restore. Gentlemen, were we at that moment otherwise than on the brink of a civil war ? Let me ask any of you to look back and say whether a man might -.not be a bold man and yet sicken at the danger, in which the country was placed during the whole of the month of August ? But one week more of apathy, but one week more of that spirit which induced the magistrates to say “It is better not to resist,” and you would have had the country divided into two large classes contending against each other for power, and for the existence of society. And has the defendant Pilling , or any man who has mourned over his son dying prematurely by the visitation of God through disease, and who has mourned over his own son and his family’s dis- comfort, considered what would have been the widespread horrors and miseries through the country if the masses had acted as I am satisfied it was the inten- tion of the executive address to induce them to act, an intention which I charge on all who published it, or gave it en- couragement and support, and, above all, on those who published the document which alluded to the propriety of en- forcing that address, pointing it out to the public as a manly, bold, and spirited address, which called on them not to speculate on political questions, but prac- tically to adopt those schemes which would - carry out the views of those who penned . that address ? .Gentlemen, it has been said that this is a political prosecution ; it has been said that this prosecution is levelled at the Charter and the Chartists. Gentle- men, I utterly deny any such statements. I know it was expected to be so ; that I am quite aware of. From the time that my learned friend Mr. Dundas , two days ago, undertook to defend the points of the Charter, and since then down to the time when the last man addressed us, personal hostility to the Chartists has been im- puted to me, and it has been said that this prosecution is levelled at the Charter, but, gentlemen, I beg to say that there is not one tittle of truth in, or foundation for any of those remarks. The speeches, therefore, in which the imputations were conveyed, must have been previously pre- pared ; and yet those who delivered them did not think it worth while to suppress the observations, though they found that I said nothing to justify those remarks. "Why, gentlemen, so far from calling on you to condemn the Charter, or to enter into the slightest question respecting it, I expressly disclaimed, as you, my Lord, and gentlemen of the jury, may remember, going into any political discussion at all. I stated that I had not to consider whether any proposed change would be for the better or the worse, but that it was my duty to call your attention to the fact that some change was proposed, and to ask you to consider the manner in which that change was proposed to be brought about. Certainly it is as well at all times that the advocate should make truth his object. Mr. O’Connor seems to have thought he had an advantage in bringing before you some passages of an address which I delivered to a jury, when Frost and his associates were under trial for high trea- son. Gentlemen, I know not whether you do me or Mr. O’Connor the honour much to attend to a speech supposed to have been delivered on a former occasion. One might, as an advocate, take some refuge in altered circumstances, and the fact of being placed in a different posi- tion, but I have never, as a member of the profession to which I have the honour to belong, resorted, or had occasion to resort, to any such excuse for what I have said. What I have stated on the occa- sion referred to I am ready, syllable by syllable, to repeat to-day, aye, gentlemen, even to my reference to the verdict when I said how desirable it would be even if a verdict of acquittal could be pronounced as a verdict of truth. Gentlemen, there is another subject upon which observa- tions have been made connected with the inquiry before you, and that is the in- dictment. My learned friend Baines ex- claimed, “ Did ever man hear of this sort of indictment p ” “ Here,” says my learned 1169] Trial of Fear (jus O'Connor and others , 1843. [1 170 friend, and the observation has beon re- peated, I think, by the several defendants who have spoken, “Here,” said he, “is a monstrous indictment.” Gentlemen, I beg to say that it must have been known that in the State trials in the reign of William and Mary, after the revolution, there were, I think, one hundred persons included in one indictment. (a) Why P Be- cause they were supposed to be all guilty of the same crime which was charged upon them. At the sessions at Salford, before the Chester trials came on, fifty- seven persons were included in one in- dictment ; and when those acting entirely on the part of the prosecution, out of regard to convenience, and with reference to the facts done — where a mob broke into the workhouse at Stockport — divided the persons accused into portions of six, seven, or eight in number, as the evi- dence applied to them more particularly ; the learned judges condemned that course of proceeding, and said that the break- ing into the Stockport workhouse and the carrying away of bread and money was one transaction, that they were all parties to it, and should be included in one indictment. I could excuse the ob- servations of the other defendants, but those of Mr. Baines, who is acquainted with the doctrine of indictments, I think from him at least were not to be expected. Another remark was made about con- spiracy ; my learned friend Baines began it, and Mr. O’Connor continued it. Now, I think it right, before I enter into an investigation of the evidence, to state to you what I apprehend to be — subject of course to my Lord’s correction — the legal doctrine of conspiracy. In the first place, a conspiracy imputes, neces- sarily, nothing secret, it may be secret or it may not. It might be as well, per- haps, if, in framing the indictment origi- nally, the word conspiracy was omitted, though I do not know whether it does not as well express, as any other word in the English language, that which is charged on the defendants. A conspiracy is a combination of a number of persons, either to do some unlawful act, or to do some lawful act by unlawful means. And whenever you find any number of persons, by agreement and concert, either doing an unlawful act, or doing a lawful act by unlawful means, these parties are guilty of what the law calls conspiracy. It is not necessary to constitute the conspiracy that this should be done secretly. It might be done in the open face of day, (a) See Proceedings against John Price, Esq., late Receiver of Ireland, and one hundred other Protestants tor high treason against King James, 1689, 12 St. Tr. 614. and the sun shining. If a man was un- popular in his neighbourhood, and a num- ber of persons went to the front of his house, using abusive language and breaking his windows, such parties would be guilty of conspiracy, although their acts might be done in public, if they were acting to- wards one common object, though they might not be personally known to each other, and though they never exchanged words with each other on the subject. There is no magic in the word conspiracy. Beyond the violation of the law and the opprobrium that everywhere attaches to a violation of the law, I am not aware that the crime of conspiracy is greater, or so great, as many others that might be mentioned. But it is averred that every man charged with conspiracy must go the whole length of every other one impli- cated in it. Gentlemen, that is not so. There never was a legal proposition laid down which had more incorrectness in it than that. Mr. O’Connor, who is a mem- ber of the bar — the Irish bar — and who, I understand, has practised for several years as a barrister in the sister kingdom, must have known that it was perfectly possible for one man to take a share in a transaction subordinate or inferior to others; but still, if they were all acting towards one common end and object, they were guilty of the crime of conspiracy. The very act of concurring in carrying out a design, knowing that others are bound together in pursuance of the same object, is sufficient to constitute a conspi- racy. You want no general meeting ; you merely want evidence of a common design; you merely want evidence that parties are acting together for some illegal objects : that is all. Now, having called your attention to the nature of the indictment, and to what I consider (subject to my Lord’s correction) to be the doctrine of con- spiracy, I propose to examine the his- tory of the events from about the 1st of August till a little later, in order that you may see what is really the question that is to be brought before you. Gentlemen, I did not take up your time in opening the case by mentioning the name of every individual, and the part he had in it. Now is the time for me to call your attention to the evidence laid before you, and fairly, and I trust ingenu- ously and candidly to ask your opinion on those points to which I called your atten- tion when I opened the case. Gentlemen, the whole story is told almost in two words : it is, tumult or intimidation out of Manchester, it is encouragement within Manchester. That is the case for the prosecution. Now, let us see how that case is established. What I charged by 1171] Trial of Feargus O’ Con nor and others , 1843. [1172 the evidence is this, that, before the 9th of August there ha.d been meetings in the neighbourhood of Manchester, and these meetings at first probably had no other object than to produce a strike with refe- rence to wages. But advantage was taken of the excited condition of the people; immediately the question of the Charter was brought forward ; and the people were invited to come to a resolution, the effect of which was, not merely that they should turn out as workmen, but that they should go from mill to mill, and from factory to factory, and stop other people from working. Gentlemen, is there any evidence of that ? I believe it is perfectly clear that some of the defendants, on the 5th of August, were in the ranks of the turn-outs, but having no more to do with them, as regarded their occupa- tion, than you or I, but perhaps less. Let me call your attention to this fact. Messrs. Bailey's men were, on Friday, August 5, dismissed by their masters ; and were told that, if they would not consent to the reduction, they had bet- ter go and take a holiday. I know it was said that that was delivered in a tone extremely offensive to the people. I hope that that was misunderstood. If it was uttered in a careless manner, as if sneering at the distress under which they laboured, I think it could not be too much deprecated. . I should hope that was not the case. I have no right to be- lieve it was intended to insult the distress which they profess they could not relieve. Gentlemen, there was a procession that very day. There was a meeting in the evening, and speeches were made, and who, think you, gentlemen, are found among the ranks who were at that meet- ing ? The defendant Fenton , the defen- dant Durham, the defendant Stevenson, and the defendant Mahon. I think from the evidence of one of the witnesses, a person named Brophy was there in the evening. "What had he to do with B alley's mills or his men ? Were they persons who turned out? Ho. What connexion had he or the other defendants whom I have men- tioned with Bailey's mills ? Hone. I do think that, with reference to that meeting, they were hovering about to deliver lec- tures and put themselves on any discon- tented body of men on whom they could fasten themselves. Three of these defen- dants were shoemakers, one a lecturer, — the occupation of the other I do not know — but not one of them was a cotton spinner, or bad any connexion with Bailey s men. On Saturday there was no meet- ing. I believe, on Sunday, there was a meeting. How, does any man suppose that I object to any persons assembling for the peaceable purpose of offering up their devotions, and hearing the pious exhortations of any person whom they may look up to as a pastor. Hothing like it. I do not object to that. Hor, gentlemen, do I suggest that that was a cloak for their other proceedings. I do not suggest that. I say it in perfect good faith. I am not insinuating that which I do not mean to avow. I have no doubt that when they sang the hymn, the large majority of them were joining in what they considered to be a religious exercise. And when they listened to re- ligious exhortations, they thought, no doubt, that they were profitably spending the Lord’s Day, or as much of it as was devoted to that purpose. But that was not all that was done ; when the singing was over, then came the resolutions and political lectures ; and to that, gentle- men, I decidedly object. An appoint- ment was then made for the following morning ; and, accordingly, the next day, we trace them goiug round stopping all the mills, turning out the hands, and compelling them to join their ranks, and on Tuesday morning they marched into Manchester. How, gentlemen, here I may perhaps observe upon those assemblies. I may be asked, what is a lawful assembly? Why, gentlemen, in the first place every assembly of the constituted authorities of the land, and, under their sanction, for any great public purpose, is undoub- tedly a lawful assembly. Persons may meet in those parish assemblies ; they may meet in the hundred court, or county cburt, for other purposes than to elect county members ; they may meet wherever there is any public business to transact. Men have an undoubted right to meet for public discussion as to matters that affect them, wherever such meeting is not ex- pressly forbidden ; as, I believe, in some instances it would be, with reference to a public discussion in the vestry of a church. But, in general, people have a right to express their opinions on public occasions in reference to public affairs. But it is not to be supposed that I assent to the doctrine that every man has a right to meet wherever he pleases. Gentlemen, I deny that men have a right to go in large numbers to a distance from their homes, and create alarm and terror to those whom they visit, when they have no lawful purpose of meeting. Above all, gentle- men, they have not a right to meet to the number of thirteen or twenty thousand under the pretence of “ quieting the neighbourhood.” You will judge from what you have heard, in the course of this case, out of that box, whether a meeting of that description can be a healing and pacific assembly. Giving the largest li- " -- ■ - 1173] Trial of Feargus O'Connor and others, 1843. [1174 cense to public meetings of every kind, let me ask whether those meetings in Ashton and Stalybridge, prior to the 5th of August, were lawful assemblies ? Were they all peaceful ? Was there no riot, gentlemen ? I do dismiss the charge of riot ; I do abandon the count for an unlawful assembly, and I will state to you why. I know it was said by Mr. O'Connor, “Why did you not indict the rioters for riot ; those who committed a breach of the peace for a breach of the peace ; those who had published a seditious placard, for a seditious libel P” But my object was to bring before you what I consi- dered to be the entire crime, which is not committing a riot in one place. It would be taking an extremely imperfect and partial view of what occurred in August last, to say that there was a riot on Monday at Ashton, and that a mill was stopped elsewhere, and that on Tuesday the hands were turned out at Manchester. This would be to take a very imperfect view both of the crime and danger that accompanied it. And with respect to prosecuting for a mere seditious libel, let me say, gentlemen, that the placard alluded to was a most improper publication, and calculated, being sent forth at a period of the greatest excitement, and having a tendency to pro- duce a practically evil effect on those who were already out on strike, and doing mischief and damage in various directions. I say that that placard ought not to be treated as a merely seditious libel, but as a part of the mischief going on, and which that libel was calculated — to borrow Its very language — “to extend and en- force.” And when I am told that I have collected a large number of defendants, I ask what else can I do P I have, I believe, no less than thirty persons in the indictment who were present at the con- ference assembled on the 17th of August last. Acting with that justice, fairness, and impartiality which becomes a public officer of the Crown, how could I present to your attention some, and leave out others, unless I was satisfied of their innocence ? And I put it to his Lordship, after the reprimand which we received at the special commission, when the vio- lation and plunder of the Stockport work- house were the subject of comment from the learned judges, who thought that we should have included all the parties in one indictment, whether I had the less reason to include those who were the members of the conference in this indictment before you. Talk of the monstronsness of the indict- ment ! An indictment must be adapted to the crimes it is intended to suppress ; and if there be a monstrous conspiracy — why, then the prosecution and the indictment must be adapted to the character of the offence, and the nature of the occasion. Gentlemen, we are told that the gaols are full. What are they full of? Gentle- men, unhappily crime is at all times too abundant ; but you cannot doubt, from the evidence given before you during the last two days, that there are persons in the gaol at Kirkdale, and at the castle at Chester, confined for offences of this description. And, gentlemen, where would be the manliness of sending those poor persons to pine in prison, who, at the bidding of those lecturers and agitators had gone out to do those deeds for which they have been prosecuted — where would be the manliness of prosecuting them, and passing by the enlightened members of the conference, allowing them to go perfectly free ? Yes, gentlemen, and they would use that as an argument, if they were so left : “ Oh, you cannot complain of anything now ; as you do not prose- cute us for this, we may do as we like ; there is an end of all prosecution and, indeed, one of them said, when the “executive placard” came out, “If the members of the f executive ’ are not in custody in twenty-four hours, it is because the Government dare not do it.” It would have been unmanly and unjust to seize upon the unhappy persons goaded by speeches to do the acts for which they were now suffering, and to allow those who goaded them to remain unprosecuted, and triumphing in the impunity they enjoyed. Gentlemen, let me call your attention to a few dates ; first, to the 9th of Au- gust, when the march on Manchester took place. I have no intention — I had not before and I have none now — to impute anything to Mr. Maude, or to the magistrates, beyond confiding in the faith of those who used the expressions, “ peace, law, and order,” and pledged themselves to preserve peace and order ; and who, the moment they had got into Manchester, broke themselves up into bands of persons, going about stopping all labour, and com- manding a complete cessation from toil of every kind. But this is now certain, that the military were withdrawn, by the consent, if not by the direction, of one of the magistrates. Says Mr. O'Connor, and some other persons, “That proves that the magistrates saw no danger in it.” Does it, gentlemen ? You saw Sir Thomas Potter in the box to-day, and he made this admission — an extraordinary admission, I think, for a magistrate to make : “ Ap- plication was made ” (says he) “ that we should assist persons in resisting the mob ; that we should give them protection. We did not give them that protection, and we 1175 ] Trial of Fear gus O'Connor and others , 1843 . [1176 advised them not to resist.” “What!” said I, “ ■were yon afraid of bloodshed P” Then the man seems to have been ronsed above the magistrate. ‘ ‘ Oh, no ; % I afraid ! I never was afraid of anything ; not at all ; I had no fear.” “Well, then, will you, Sir Thomas (I beg to ask you with per- fect respect), tell ine why you took that course?” “Oh,” said Sir Thomas , “the men were willing to turn out.” That was not quite a direct answer to the question. “Well, but that is no reason why you should not assist those who were not willing to turn out, where the masters came and said, 4 Pray assist us.’ ” I could get no answer from Sir Thomas Potter; and I cannot help thinking that Sir Thomas Potter had no good and sub- stantial answer to give. I have no doubt that it was the same temporising policy — which is ever fatal to tbe public peace — which induced the magistrates to with- draw the troops, that permitted the mob to march into a town like Manchester, and to hand it over to them for the space of forty-eight hours. “Well, but,” says Mr. O’Connor, “ down I came, and the moment I came, all was peace and Sir Thomas Potter and several other persons were called, by way of supporting that view of the case. I asked Sir Thomas Potter, “ How many constables did you swear in?” “Five hundred.” “What troops had you?” “ Why, five hundred at first.” “ How many at last ? ” “ About fifteen hundred.” “When did you send for more ? ” “We sent on Saturday, the 13th of August.” “ How long did you, the magistrates, watch night and day, with the special constables in attendance, relieving each other ? ” “ For four weeks at the least.” Why, gentlemen, that would bring us down into the first week in September, at the least. Gentlemen, this was the state of the town of Manchester when a procession had been advertised for the 16th of August, to commemorate, I think, the laying of the foundation stone, or the festival, of Hunt’s monument. On the 14th the magistrates put forth a spirited, constitutional, and proper proclamation, a proclamation tell- ing them in substance, that all assemblies whose object was not of a legal character — that is for the performance of some legal duty, and the tendency of which was to create alarm, and danger, should be pro- hibited. On the 15th a proclamation was issued from Her Majesty herself. Mr. Scholefield says he perused the magis- trates’ proclamation and immediately set about postponing his procession, and it was postponed ; and subsequently it was extracted from one of the witnesses that the tea party was also given up. Now, gentlemen, consider the state of things at this moment. I beg to call your attention to this state of things. We are told, “ Oh, there is nothing at all in this meeting of the conference. This meeting was in- tended six weeks or two months before, and the object of it was, first, the com- memoration of Hunt (which was aban- doned) ; next to heal our differences, and then to review our organisation, and see if we could make our body more legal.” Very good, but the public meeting ad- vertised for these purposes is given up, and the purposes themselves, you will see, are fairly abandoned ; for on the 17th not one word is spoken about healing differ- ences ; there were none to heal— not one word about Hunt’s monument — not one word about making their organisation more legal ; all these things were given up, and the business of the conference seemed to be to promote one common object, and that was, how they might turn the strike to the advantage of the Charter. That was the single object, and you can perceive that, gentlemen, beyond all doubt. At the meeting of the trades delegates these resolutions were passed : — “ That from the statements made before this delegate meeting it is evident that a tremendous majority in these great manufacturing districts are in favour of the People’s Charter becoming the law of the land ; and, in conformity with that opinion, it is at this stage of the proceed- ings necessary that a definite decision should be come to relative to the future course of action to be immediately adopted by the working classes, stating definitely whether labour be further suspended or again resumed.’’ “That the delegates here assembled recom- mend their respective constituencies to adopt all legal means to carry into effect the People’s Charter, and that they send delegates to every part of the United Kingdom to endeavour to get the co-operation of the middle and labouring classes to carry out the same, and that they stop work until it becomes the law of the land.'’ Eolfe, B. : Were these proved ? Attorney General: Yes, my Lord; you will find them in the evidence of Mr. Hanley, they are in his notes, {a) Your Lordship will find a copy of them which I handed up. Now, gentlemen, the lan- guage of this resolution is comparatively moderate ; and I quite agree that if it had been passed on some other 16th of August, although I believe it to be utterly illegal, it might not be of so much im- portance. But that resolution was passed that day, on the 15th of August. On the 16th Mr. O’Connor came to Manchester, and the question of putting forth the exe- cutive address becomes at this moment extremely important. You have already had detailed the imperfect history of it. That began with James Leach, who en- (a) Above, p. 1060. 1177] deavoured to disclaim the placard that was exhibited at his door, and called a witness to prove that it was put there. James Leach was one of the executive committee. I proved that. I proved that the executive committee consisted of five. His Lordship has taken down their names, and Leach is one. I asked the man who proved that executive placard was posted at Leach's door by somebody else, if the posting-man went into Leach's house, and he said no ; then it could not be he who deposited the other copy of the bill which was found on Leach's counter. But why did not Leach pull it down when he come home and saw it staring him in the face ? Is it nothing that he was president of the committee who issued that placard ? Is it nothing that this copy was put in his house, which copy the posting-man could not put there ? Does Leach feel the force of that address ? Does he think that he may arise, and by means of it lash the people to madness, and then divest himself of the responsibility by saying “ the posting- man put it there ? ” Why, I say, you are one of the executive ; it purports to come from the executive ; a copy of it is posted at your door, and another copy is found in your house. But where did the proof- sheet come from ? Where did the manu- script come from ? This implicates an- other person who has not appeared before us, though his plea is on the record. Murphy : I appear for him. Attorney General: We trace the original document from place to place to M l Douall. The MS. is burned ; and if you tell me that the witness Cartledge is not to be believed, then I confirm him by the ap- prentice boys. They tell where and how it came to them. They confirm the story altogether, and bring home to Leach and M ( Douall that executive address. Then you have it proved that the address was adopted by the conference the next day. When Scholefield came in and announced that Turner the printer had been arrested, Mr. O'Connor immediately says, “Now that justifies what I said last night.” What I said last night ! I daresay Mr. O'Connor did not want to be bolder than the occasion required ; and you may re- member one of the expressions attributed to him was this, “ Do not use the word * recommend,’ merely use the word ap- rove ; it will be more legal ; it will etter evade the law in the event of the strike not turning as we expect : ” which after all means this, “ I want to use language adequate to the occasion, but with so much caution and guard that, in the event of the strike not turning out as we wish, and the day of reckoning coming before a jury, I may have some little [1178 loop-hole to creep out at, something to offer, something to mitigate the sense in which I used this expression.” Gentlemen, M'Douall, one of the executive, is proved by incontrovertible evidence to have con- cocted and corrected that address. The copy is found at Leach's, where it was taken. It was there M'Douall was ; it was there the paper was taken, and there the corrected copy was found in the hand- writing of M'Douall O'Connor: I do not wish to interrupt the Attorney General, but I beg to refer to your Lordship’s notes to know if, in the evidence given by Griffin or Gartledge , any such observations were made by me in reference to the executive address. Attorney General: That is what Cart- ledge proved. He proved that at that meeting, when Turner's arrest was an- nounced, Mr. O'Connor said, “ That proves what I said last night.” (a) Where had I the means of proving that there was a meeting on the night there alluded to P I had not the means of proving that till to-day ; it was proved by young Scholefield , who said that on the night of the 16th there was a meeting in the chapel, and that Mr. O'Connor attended. There were several persons there. They came at seven o’clock and remained till ten. Young Scholefield went to bed then, and how long they remained he does not know. Mr. O'Connor's statement to-day throws light on what he was doing. I asked if the address appeared on Wednes- day, and he {Scholefield) said, “No; I did not see it till Thursday.” I believe, in point of fact, and so far as my evidence goes, that placard, although in a state of publication, had not been put forth till after that meeting of the night of the 16th. Then comes the meeting of the next day. O'Connor: I do not wish to interrupt the Attorney General, but the evidence, as your Lordship will find by a reference to your notes, is this, that the MS. was in the printer’s hands at ten. and that who- ever sent it could not wait to correct it ; and that it was out the next day between five and six. Attorney General : Yes, but whether it was out of the printer’s hands and before the public I do not know. Whether it was mooted and discussed at the meeting on the night of the 16th, or not, this is certain, that Mr. O'Connor says in re- ference to it the next day, “ That justifies the remark I made last night.” I find that the testimony of Cartledge and others on this point has been alluded to. Gentle- men, I do not stop to justify the violation of any promise that has been made in an honest cause. The defendants have called witnesses; they have no excuse for not Trial of Feargus O'Connor and others, 1843. («) Above, p. 1036. 1179] Trial of Feargus O’Connor and others , 1843. [1180 calling more. Johnson is acquitted, Wilde is acquitted, Allinson is acquitted. There was another reporter at the conference be- sides Griffin, and if what passed there is what can be avowed, what you and the public should approve of, why do not we get it? “Oh,” said Mr. O’Connor, “ why do not you put Griffin’s notes in' evidence ? I tell you, gentlemen, I wanted from Griffin nothing but the documents. I did not want their speeches. I wanted but the resolutions and address which I found in the Northern Star, nothing more. If you do not choose to get it from Griffin in cross-examination, do not complain that I did not make his notes evidence. When I put him into the box, if you knew what he proved at Manchester, or if he stated what was not true, there was another reporter at the conference, and why not call him? If the character of the meeting was misrepresented, why not call this person? There were forty at the conference ; they are not all in the indictment, and why are they not all called ? O’ Connor : The other reporter is a de- fendant. Attorney General : William Hill is the other reporter, and he being indicted they could not call him. But, after all, my remark is this: it is made a matter of complaint that I did not give evidence of Griffin’s notes. But if I had done so I should then be asked, “ Why not confine yourself to documents that cannot de- ceive ? ” But I have stripped Mr. O’Con- nor of that topic of remark ; I have de- prived him of that opportunity of com- plaining, by confining him to the evidence of documents where he cannot be deceived. This is the case. Let us see what is the state of Man- chester when the delegates assembled in conference at Scholefield’s chapel on the 17th of August. That placard was printed on Monday the 15th — “ Run for gold ; labour is suspended ; public credit is shaken ; paper is worthless.” Good God, gentlemen ! I cannot but be .addressing persons in that box who are acquainted with what the effect of that might be if there was a syllable of truth in it. It is not an uncommon thing for a report to become true by the mis- chievous consequences of its own propa- gation. “ Run for gold, every sovereign is now worth thirty shillings. Paper cannot be cashed. Run, middle classmen, trades, oddfellows, sick clubs, money clubs, to the savings’ banks and all banks for gold ! gold ! ! gold ! ! ! ” That was issued on the 15th. Then, says Scholefield , “ 0 spare me; I yielded to the authority of the magistrates. I put off the meeting at my chapel. Nothing of the kind was ito take place. It was stopped by public advertise- ment.” And, says Mr. O’Connor , and the rest of the persons with him ; “0 spare us ; we met ; we were at Mr. Schole- field’s chapel in Manchester. We met there to heal our differences, to organise our society, and to commemorate Hunt’s monument.” Was them a syllable uttered about healing differences? Was there one word about organising the body, and making it more legal ? Was there a word about Hunt’s monument ? No. “ They met in conclave for several hours, every man stated the views of his constituency and the state of his district.” The views of his constituency, and the state of his district ! Gentlemen, I do say here, that I consider that meeting — calling them- selves a meeting of delegates to represent districts, and the organ of the opinions of the people of England — I pronounce that, so far as I have any judgment, to be in itself illegal. (a) No man has a right to assume to himself any political function unknown to the constitution. No set of persons have a right, in defiance of the sovereign’s power, to create corporations. No set of persons have a right to act as a corporate body, without the sanction of the sovereign’s charter; nor have any persons a right to act as delegates for any political purpose or other, in a manner unknown to the constitution. I state it briefly and fearlessly. I think I am called upon to do so. The meeting itself was illegal. Well, then I am told, why do not you stop such a meeting, and such another meeting like it ? Why, gentlemen, it is perfectly true that I made the remark alluded to, at Monmouth, on the occasion of Frost’s trial, and I am not at any time unprepared to make it again when the occasion may call for it. There are periods when you cannot carry out the strict letter of the law to the last point of legal exactness and severity ; and it may be that an assembly of persons was per- mitted at one time to sit cheek by jowl with the House of Commons, bearding them, and discussing public questions and public measures side by side with the House of Commons. In my humble judgment, that meeting was perfectly ille- gal ; it was sanctioned by no constitutional authority. 'Every man has a right to act for himself in this free country ; he has a right fearlessly to express his opinions upon all subjects connected with his rights, — dealing with those rights in a legal and proper manner, and subject to (a) But see Rolfe, B., below, p. 1212. 1181] the question, whether he is abusing, or rightly using, the privilege of speech, — every man has a right to petition; but no man has a right to create a political organ, of which the constitution knows nothing ; no man has a right to consti- tute himself a delegate, or create delegates to meet other delegates, in a sort of con- vention, and to have a sort of imperium in imperio in this state ; and great danger must ensue from its being supposed that a meeting of this sort can take place with- out a violation of the law. There were delegates assembled in Manchester; and what did they do ? They passed a reso- lution. It was assented to in a mitigated shape. An amendment was moved, and that amendment was overruled. There was an understanding that the decision of the majority should bind the minority. I do not rest merely on the verbal evidence. An address was unanimously carried. I will presently call your attention to the language of that address, and to some of the passages that are to be found in it. What is the language of the meeting? What is it that Cooper says ? If my me- mory fails me not, Cooper said, “ For my part I am ready for the worst ; the Shak- spearians of Leicester are prepared to fight.” Gentlemen, it is for you to con- sider whether it be true, but, if it be true, what is the conclusion to which you should come? The puerile comments on the phraseology of the address about the God of battle (and to this address I shall pre- sently allude) are scattered in one moment, as soon a3 you hear Cooper in the meeting at which he referred to that address with approbation: “I am prepared for the worst,” said he, “ the Shakspearians of Leicester are prepared to fight. As Bolfe, B. : He stated that the Shak- spearian Chartists of Leicester were deter- mined to have the Charter, and that, as for his part, he was determined to fight for the liberties of the people. Attorney General: “ As for his part, he was determined to fight for the liberties of the people.” Why, gentlemen, that is a better commentary on the “ God of jus- tice and of battle ” than that suggested by my learned and pious friend Dundas ; or that suggested by some of the defen- dants, who said it was taken out of our much-admired liturgy. Here is the reso- lution of the conference delegates : — “ That whilst the Chartist body did not origi- nate the present cessation from labour, this con- ference of delegates from various parts of England express their deep sympathy with their constituents, the working men now' on strike ; and that we strongly approve the extension and the continuance of their present struggle till the People’s Charter becomes a legislative enact- ment, and decide forthwith to issue an address [1182 to that effect ; and pledge ourselves, on our re- turn to our respective localities, to give a proper direction to the people’s efforts.” The amendment that might have miti- gated that found but a few supporters, and they were out-voted. The conference also adopted an address, and the' execu- tive committee are referred to in that address : — “ Brothers, these are not times to hesitate ! The corn has a golden hue while your visages are pale, but hope for change and better times. We are fortunate in having an accredited execu- tive, bearing the confidence of all, at our head. “ They, too, have called upon you. You will read their address ; it breathes a bold and manly spirit.” I have shown you who the executive were : James Leach , M'Douall, Campbell , Bairstow, and Morgan Williams. The last- mentioned is not before you. ‘ ‘ It breathes a bold and manly spirit.” “ Why,” says Mr. O'Connor, “ if you were to speak of a crime as being a bold and manly and daring act, would that make you a party to it ? ” It might or it might not. I can well understand an occasion where, if you did speak of a crime in those terms, espe- cially the crime of treason, it would make you an accessory after the fact. If you were associating with, and harbouring, persons who did some bold act of treason, you would be considered a party to the crime. Gentlemen, Mr. O'Connor has alluded to the Chartist trials at Mon- mouth. I stood side by side with Mr. O' Connor watching the event of that pro- ceeding. Mr. O'Connor was there acting on behalf of the unfortunate persons im- plicated in that charge. To me, indeed, Mr. O'Connor might not have produced much of the evidence that he has brought forward to-day to prove that he is a person of warm and humane feeling, of active benevolence, and of the kindliest nature. I bear of him that willing testimony. You yourselves may have seen how, when Pilling was telling his story of distress, Mr. O'Connor melted over those woes that he had not participated in. I believe that when Mr. O'Connor came to Manchester he did not intend to publish that address ; but I say that, whether, seeing from the prospect before him, that the time was now ripe for joining in something like a general movement to carry the Charter ; or, whether he was carried away by others against his better judgment, in the stream of opinion, I know not. I do not accuse Mr. O'Connor of going down to Man- chester for that purpose ; but I do accuse him of this : of knowing what that execu- tive address was, and, possibly against his better judgment, joining in expressions in that address, in the resolution, and in Trial of Fear g us O'Connor and others, 1843. 1183] Trial of Feargus O'Connor and others , 1843. [1184 the executive placard, of the meaning of which you will have, presently, to judge altogether for yourselves. Gentlemen, I may, perhaps, owe to his Lordship and to you, some apology for what I have said with respect to Mr. O'Connor ; but I owe it to truth, and I have ever fearlessly proclaimed what I believe to be the truth, with respect to any man whose conduct I had occasion to speak of. I have never suppressed, under any circumstances, that which I thought might be advantageous, even to those whom I was called upon to prosecute. But I do say, gentlemen, not- withstanding what I have stated, that I believe, after hearing the evidence, and knowing what I do know, I believe that Mr. O'Connor came down with no inten- tion of joining that movement. But whether he was carried away, as I said, by the opinions of others, or thinking that the time was come for such a movement, I do charge him with publishing this executive address, this resolution, and the address of the Chartist delegates. I charge him with doing that for the purpose of inducing those who were then out on strike to con- tinue the measures they were adopting for the purpose of carrying the Charter. But then I am told about the words ‘ 4 peace, law, and order.” Gentlemen, on this subject I think Mr. O'Connor and the Chartists have made a great mistake in point of law — I may almost say in point of fact. They seem to think that, provided no bones are broken, peace, law, and order are preserved. Their notion seems to be that, if five thousand people march to a mill, and present their physical intimida- tion, bludgeons, &c., and with threats upon their brow, then, provided the par- ties go out without being forced out, it seems to be the opinion of those defen- dants that that is no violation of the law. They fancy that physical intimidation is moral force. They say they do no mis- chief ; but they go in such large numbers that no effectual resistance can be offered, and then they say, “ Don’t break windows or heads.” Now, subject to correction from his Lordship, I do not hesitate to pronounce this to be as great a mistake, both in point of fact and in point of law, as can be made. It is not necessary that you should have evidence of the pulling down and the burning of mills ; it is not necessary that they should have proceeded to such lengths as would make the country unsafe to live in ; any set of men (his Lordship will tell you whether I am laying down the law correctly) who may go in such numbers as to make their request an irresistible demand, are not conducting themselves consistently with peace, law, and order. Now, of this mistake I will give you one specimen. Evidence was given that some people were at work. I think they were doing some bricklaying work, and some of the mob said, “You are working, you must not go on with the work.” The man said, “ I mean to go on if I can ; I must not give up at your bidding.” So away they went and got another “lot” — I believe that was the expression — and then the work stopped. “ Well,” said the defendant Woodruffe, in cross-examining the witness with the simplicity of a person falling into the error — the Riot Act was read, mind — “Well, said Woodruffe to the wit- ness Maiden, was anybody hurt ? ” “ No,” said the witness. “ Was any property destroyed?” “No.” That is their no- tion of peace, law, and order. Provided you do not destroy life, inflict some bodily injury, or destroy property, they have a notion that peace, law, and order are preserved and that nobody has a right to complain. I have read to you, gentlemen, the only passages of the address, and of the resolution, that I think it necessary now to call your attention to ; but the placard itself has been the subject of a great deal of comment. I do not mean to go through it in the elaborate manner in which my learned friend Dundas has done, who commented upon it sentence by sen- tence. What do you think, gentlemen, of this, ‘ 1 Englishmen ! the blood of your brothers reddens the streets of Preston and Blackburn ” (in the smaller cony Halifax is put in) “ and the murderers thirst for more.” Now, this was too strong for my learned friend Dundas. None of the defendants thought proper to comment on this. My learned friend Dundas felt bound to do so. But, says my learned friend, it was wrong to call them “ murderers.” Well, you will find that with reference to that very event, one of the expressions used is this, that Englishmen had been murdered while they were peacefully agitating. As if surrounding the constituted authorities at Preston, and the military who were assist- ing them, as if surrounding them by a mob in front and rear and from parallel streets, throwing stones over the houses before and behind, as if that was a peace- ful agitation of the Charter. “Be firm, be courageous, be men ! Peace, law, and order, have prevailed on our side, let them be revered until our brethren in Scotland Wales, and Ireland are informed of your reso- lution ; and when a universal holiday prevails, which will be the case in eight days, of what use will bayonets be against public opinion ? ” That js overpowering the constituted authorities of the country by intimidation — that is public opinion. [The Attorney General read the rest of the executive address.] 1185] Now, gentlemen, the very identical newspaper in which this address and this resolution are contained, this reference to the executive placard was made, contains a passage which was read on behalf of the defendants for the purpose of show- ing what was the meaning of peace, law, and order. Your Lordship has a copy of that paper. Rolfe, B. : Yes, I have got a copy of the third edition. Attorney General : I will hand up a copy to your Lordship of the paper. I think you will find the passage referred to on the eighth page. FROM OUR THIRD EDITION OF LAST WEEK. “ FURTHER PROGRESS. “ Northern Star Office, “ Saturday morning, Two o’clock. “ When the wicked bend their bow, they not unfrequently shoot beyond the mark they aimed at. We to-day despatched our own reporter into the disturbed districts, to learn the real state of matters up to the latest moment ; and from his statement, which we subjoin, the League men appear to have done so in this instance. Their object, doubtless, in the forcing on and sustaining of this preconcerted strike, was to confine it to the adjuncts of machinery in mills and factories. We imagine that their purpose extended not further than the lightening of their present heavy stock of manufactured goods by a temporary cessation of productive power in that particular department ; while they might make it also serve the purpose of verifying their statements of the people’s discontent and their predictions of ‘ risings and riotings ’ for food ; and so of procuring for them another ‘ Extension of Commerce ’ for the keeping up of the golden showers to which they have become so habituated that they take badly to a change of weather ; while, as we have already said, their further object was to make it also a weapon against Chartism. They have over-reached themselves ! The wicked are taken in their own snare! and the sham-Chartist League strike seems, from our reporter’s statement, to have become a Chartist strike in good earnest, so far as Manchester, at least, is concerned. The trades generally have now followed out the mill hands. They appre- ciate the kind feeling of their League friends in forcing out their brethren ; they think what is good for some must be good for all ; and so have turned out for company. While they reason, truly and like statesmen, that their efforts might as well point to a primary as to a secondary benefit ; that there is little use in obtaining an advantage of which they may again be deprived to morrow ; and that there- fore the thing in which they are most interested is not so much the prevention of the present reduction, nor even the obtaining a present advance in wages, as the securing of that poli- tical power of self -protection which may enable them to bring their labour to the market free from the iniquitous and oppressive disadvantages which now beat down its value. This is a glo- o 67432. [1186 rious conclusion. It is a point worth struggling for ; worth suffering for ; worth passing through some risk and hazard for ; because, once gained, it cannot fail to compensate. “ Our opinion on the means now used for its attainment by the trades of Manchester was registered three years ago. That opinion has undergone no change. A cessation from labour to be effectual to the carrying of any political object, must be national and simultaneous ; it cannot theu fail to be successful, because it indicates the nation’s will, against which, in its full strength, whether positively or thus nega- tively manifested, no power can stand ; but a mere sectional display of this most decisive of all the forms of moral force, like a mere sec- tional displaj' of physical resistance, is sure to be overpowered by the strength of faction, consist- ing in its immense wealth and its organised physical resources. Now, gentlemen, this is is read for the purpose of explaining the intention of the executive address, the address to the Chartist body, and the resolution. "What is the meaning of this ? Does it not mean, “Do not destroy property, do not destroy life, but do not let the people work; stop the mills, make it national; go about with your large numbers and request the people, and if they see you strong enough they will attend to your request.” “ If, then, the strike is to be a Chartist strike it must become universal, not merely Manches- ter, but every town in England, Wales, and Scotland, must at once, as one man and with one voice, declare the purpose of the people to be free ; and such a declaration will be to those whom it concerns the fiat of omnipotence. But if Manchester, or even Lancashire, sustain the struggle singly, it will be unsuccessful, and in all probability retard the movement it .was meant to hasten.” I will read another passage from page five, column three. This really is the very life and soul of the question. Now, gentlemen, just listen to this for a mo- ment : — “ CIIORLEY. “ August 17. “ About eight thousand people entered Chorley yesterday about eleven o’clock in the forenoon, principally colliers by trade, and succeeded in stopping all the works in less than two hours. A great number have gone to Preston this morning. All the works are at a stand to-day ; none have dared to start their mills with the exception of Medcalf, the manager for the estate of Dobson. A public meeting took place last night, and a resolution was passed to have the Charter the law of the land before they worked again.” O'Connor ; I am sure the Attorney General does not mean to convey any mis- take ; the other was a leading article, this is correspondence. Trial of F tar gas O'Connor and other #, 1843. p p 1187] Trial of Feargus O’Connor and others, 1843. [118$ Attorney General : This is a statement of what was going on, which serves as a proof that the editor and proprietor of this paper knew what was going on. He knew it, for it is in the same paper which con- tains this advice. Hill : The latter part of the leading article was not read ; it is materially con- nected with, and explanatory of, the pre- ceding part which the Attorney General has now read, and should in all fairness come before the jury. Rolfe, B. : I wish you to mark passages considered of importance, as they have not been read before ; for otherwise I shall have considerable difficulty in distinguish- ing them. Attorney General : I entreat of you, gentlemen, to read the whole of that leading article which Mr. Hill has ad- verted to, and if he can find anything in it but the meaning which I pointed out, in the name of justice give Mr. O'Connor the benefit of it. (The remainder of the article was then read . ) “Xet the country see to this ; the men of Lancashire have done nobly ; let their brethren throughout the empire arouse ; let them speak out at once like men, and say, ‘ Yes ’or ‘ No ’ to the great question of ‘ shall we now strike for the Charter? No higgling, no hesitation, no waiting : — ‘ If, when done, ’twere well done, Then, ’twere well it were done quickly.’ “ Never, however, for one moment let it be forgotten by any Chartist that to be successful they must be peaceful. They have a right to strike, but they have no right to riot. They have a right to work or not to work, but they have no right to break windows, destroy pro- perty, or burn factories. “ Above all things, they have no right to insult, annoy, or fight with the police force or the soldiery. Every heliish invention will be practised to induce them to do this ; let the bridle be kept tightly on their tempers and even on their tongues ; let them even patiently bear annoyance, insult, and indignity ; resenting them only by the calmness of a manly contempt, the offspring of a loft}' purpose not to be turned aside. “ It rejoices us to see from our reporter’s statement that it is so now. That the people laugh at all efforts to bring them into collision with the soldiery. Right thankful are we that our often and again reiterated lessons of forbear- ance have been thus appreciated, even by a starving people, goaded as they are. Let but this spirit be still manifested ; the ‘ risings and the riots ’ left to the infernal hatchers of the plot ; the calm determination of the people held up to its point ; the enemy disarmed by peace- fulness ; and the strike becomes universal — England, Wales, and Scotland presenting at the same moment one workless workshop — while the dogs of war have no pretence to tear ; and the fiends of faction will soon ‘ scratch their heads,’ and knowing such an * asking ’ to be equivalent to ‘ taking,’ will give the Charter in a trice, and thankful to be thus let off. “ But mind ! to be thus effective it must be universal. The rolling of the ocean’s waters bears away the dam upon which, though running in the same direction, the rivulet makes no im- pression, and the stream expends its force in vain. “ Let nothing, therefore, be done hastily. By hastily we mean thoughtlessly, and without due consideration. ‘ The attempt, and not the deed, Destroys us.’ “ If the people are prepared to carry out a national strike let them do so ; but let them not attempt it without first knowing that they can carry it out. The vauntings and boastings of a few thousands of too zealous men; the passing of resolutions declaratory of their intention never to return to work until the Charter becomes law ; and then the failure of all this for want of due support ; and the finish of the whole by the ‘ going in ’ of these parties, without the Charter, and without any other practical advantage, pro- bably to the great disadvantage of many of them, would have a great tendency to dispirit the people ; to damp their ardour in the move- ment ; and to throw seriously back the Charter agitation. This no true patriot could desire j and yet from all the circumstances that we are able to see pf the whole case, we fear that this will be just the effect of a perseverance in the present movement. We see no chance of its becoming national. There has been no concert, save amongst the rascals of the League. There is no organisation for it. There are no means upon which for the different sections of the people to fall back for sustenance, while the flame spreads through the land. Ana it seems almost unnatural to express that the corrupt tree of Corn Law League plottery should produce any fruit so wholesome as the bending of the whole energies of the whole people at one time towards one point ; and again we repeat, that unless that be so, the whole will be, as far as Chartism is concerned, a miserable failure, and do us much harm. There is no power in any section of the country to remain out for any length of time, without coming in contact with the law. The people must have food. If a general cessation of labour in any given district be kept up for a considerable length of time, a great portion of the people of that district must obtain food by means which will bring them into collision with the authorities ; and this must end in the infliction upon many of them of at least a much greater amount of destitution and suffering than they before endured ; to say nothing of all the proscriptions, the imprison- ments, the transportings, and, perhaps, the hangings ; nothing of all the shootings and sabreings, to which it may be a prelude. An universal strike would be free from these risks for its very appearance and existence would at once paralyse the arm of power, and sicken the heart of faction, while a sectional one, of almost whatever magnitude, could only, and certainly [1190 1189] Trial of Feargus O'Connor and others , 1843. would only be productive of the evils we have just described. “ Dearly, therefore, as we should love to see the millions with one shout throw down their tools, and throw up their hands, and fold up their arms, while Faction stood, as she would then stand, amazed, dismayed and powerless, we yet fear that this will not now be the case ; and, therefore, we regret that the Charter move- ment should have been at all mixed up with the strike. We fear that it will eventually be found to have only served the purpose of the enemy. Loth would we be to damp the ardour, to the slightest extent, of any of our friends ; but we should be still more loth to permit them unwit- tingly to harm the cause without warning. We pretend not to infallibility of judgment ; we presume not to dictate a course of action. The people will determine on their own course ; but they have a right to our opinion, and while we have power of wielding tongue or pen, they shall always have it honestly, without fear or favour. We have, then, on this matter, given our opinion. Let the people give it its own value. They will weigh well the whole circum- stances, and determine for themselves upon the question of strike or no strike ; but if the strike is to be for the Charter, let it be national, and let it be simultaneous ; not progressing slowly, but at once bringing out every place ; or let it not be attempted. Let the Leaguers who have attempted the reduction be battled singty b} r the people of their districts ; and made to feel that a single Leaguer is as powerless against a large section of the people as a section of the people is against all the force of faction. Thus will the strike return to its original character, and be productive, if not of benefit, at least of less mischief than we apprehend from it should it remain sectional and yet tend politically. The question is one of the highest importance and greatest delicacy that the people can entertain. Let it not be entertained thoughtlessly ! Let them bring to it deep consideration and expan- sive views ; taking in the whole range of circum- stances, effects, and consequences ; and God speed them in their efforts for right ! ” If you want to know what is meant by certain expressions, you must inquire something more about them than merely what were the words used. « BINGLEY. “Several thousands left Bradford early on Tuesday morning, and proceeded towards Ship- ley, where thej r stopped all the mills without difficulty, there being no protective force. From thence they marched on to Bingley, where they commenced their work of putting a stop to all business. While the Skiptou mail was passing through, all persons got on that could find room and rode on to Keighley. “ Wednesday. “ Everything is quite at a standstill, and nothing is to be seen but the families of the turn-outs who are parading the streets.” Why ? There being no protective force. “ STAFFORD. “ Wednesday night. “ How matters will terminate it is impossible for one to tell. This part of the country is in an awful state of excitement. On Monday last all the shops in this town were shut up, and great excitement prevailed in consequence of a report that the colliers * were coming.’ Three hun- dred additional specials were immediately sworn in. The 12th foot were removed from this town this morning for the Isle of France, and were replaced by two troops of' the 34th. If matters do not assume a different aspect soon, the whole of the Stafford trade will beat a standstill, as it depends entirely on the Pottery and the northern districts ; indeed, many of the manu- facturers are already talking of stopping their shops. “ SKIPTON. “ Several thousands visited this quiet town on Tuesday, from Colne and other parts, and stopped the mills. The town remained quiet on Wednesday. On Tuesday the special con- stables captured, with the assistance of a few of the military, six of the turn-outs, who were committed to York. Mr. Garforth, one of the magistrates, was, we understand, much injured.” A witness was called to-day for the defence, who stated that he went from Burnley to Colne and held meetings- there, at which there were from fifteen to twenty thousand persons present, and that he did so in order to “quiet the neighbourhood.” “ KEIGHLEY. “ Great excitement prevailed here on Monday. Several thousand turn-outs poured into the town between ten and eleven o’clock, and proceeded to stop all the mills. Every precaution was taken by the magistrates, who issued a procla- mation requesting all peaceable inhabitants to keep within doors, and swore in upwards of four hundred constables, but for whose services there was not much occasion, not being backed by any military, who were all engaged in the neighbouring large towns. “ POTTERIES. “ Shelton and Hanley, “ Tuesday, Twelve o’clock. “ I have just heard that the military stationed at Burslem have begun firing on the people, and that two men have been killed, one from Stoke- upon -Trent, and the other from either Maccles- field or Congleton ; but reports are so rife at the present hour that the extent of the loss of life cannot be told. I also hear that numbers are wounded, but how great a number I cannot say, thus proving that the ruling few are determined at all hazards to perpetuate -their rule over the sons of labour. Where these things will end I cannot say, but this I do say, that neither life nor property is now safe in these districts. I would just make one remark before I close this, that, as a body, the Chartists have had no hand in the destruction of property that has been going on here, nor has the advice of the Char- iPP 2 1191] Trial of Fear gas O'Connor and others, 1843. [1192 tist speakers been attended to, for had that been the case, I can affirm that no such thing as loss either of property or life could ever have occurred. “ August 17th. “ I resume my narrative from where I left off - in my report of yesterday ; I perceive that I omitted to state that the residence of the Rev. R. E. Aitkins was set on fire some time about two o’clock a.m., and what makes this worse the rev. gentleman was a complete iuvalid, aad report says that the state of excitement into which he was thrown has terminated fatally, but this I cannot say that I positively know, nor can I rely on hearsay tales. I have also to report that the elegant mansion of W. Parker, Esq., has shared the same fate, and nothing is to be seen but a heap of ruins at either of those places. “A public meeting was suddenly called by the influential of Hanley and Shelton to devise the best means of relieving the distresses of the inhabitants of this once flourishing district. This meeting was addressed by Mr. Moses Simpson, W. Ridgway, Esq., Mr. John Richards, and Mr. Wm. Ellis, from Burslem. Much good speaking was the result, but just as the meeting was about to come to some definite conclusion the arrival of a body of military put a stop to any further proceedings, but not before the Chartists had passed a vote for the whole Charter. Mr. Ridgway earnestly requested the meeting to stand firm, as it was a legal public meeting conducting itself in a peaceable manner, and that the mili- tary had no right to interfere. A magistrate was with the military (I hear a rev.) and he, in true character, ordered the meeting to be dis- persed, which was done. The rev. gentleman then read the Riot Act, and gave strict orders that all persons found in the streets should be arrested. “ I have also omitted to state that there are pawnshops in the townships of Hanley and Shel- ton, and a number of persons of both sexes, but mostly females, surrounded the pawnbrokers, demanding the goods which they had pledged, and though several persons addressed them, urging that it would be unjust in them to take back by force what they had pledged unless they paid the money they had on those goods, yet the women would have no nay ; their clothes they would have, and being emboldened by consider- able numbers, forced their way into the pawn- shops and served themselves, getting not their own property but anything that came to their hands, and taking many things belonging to other persons. This morning I witnessed a spring cart full of females, guarded by both horse and foot, taken to Newcastle : and some men on foot, be- tween the sections of infantry, were likewise taken to the same place for examination before the magistrates, and no doubt but most of them will be committed for trial at the next sessions. “ In my last I stated that two men were killed at Burslem, it is now certain that one was shot dead, the other, though very seriously wounded, may still recover ; his name is Jerrold, a brick- slayer at Stoke -upon-Trent.” .Now, you will judge for yourselves what could be the meaning of these words, “ The God of battle/’ and this allusion to the inutility of bayonets, which I read from the paper itself. It is mockery to tell us that this was a mere tribute of adoration to the God who governs all events ; a mere expression, as Mr. Dundas has it, “ to the great Being who decides contests of the strong,” and means nothing. Gentlemen, what was it calculated to pro- duce ? I will tell you what it did produce. In page eight of the same paper in which the explanatory leading article is, you have this statement : — “ DEWSBURY. “ Wednesday night. “ While I am now writing, the turn-outs are just returned to town ; there cannot be less than twenty thousand — all sober, steady, straight- forward men — who apparently seem more de- termined than ever for the general stand. They have been round to Ossett, Horbury, Healey, Middletown, and Thornhill, where they have stopped all hands without the least interruption. “ The authorities have been sitting all day swearing in anybody they could for special constables. ‘“ The millowners of Batley have compelled their men to be sworn in as specials, so as they can commence work in the morning ; but, as far as I can learn, the assembled turn-outs in the town are determined to resist it. “ The town is completely in the hands of the turn-outs — all peaceable.” All peaceable, gentlemen ! Is that the peace that is meant by the words “ peace, law and order,” which you find on the executive placard ? All peaceable ! Yes, because they have it entirely their own way. “ The town is completely in the hands of the turn-outs — all peaceable. But I am afraid, if any interruption be offered, it will not be for long, as they appear determined to have their object before they return to work again.” I do not think it necessary, my Lord, to read more of this. I have called your attention to, I think, six or seven para- graphs, which I have marked, but, gentle- men, take the whole paper and read it for yourselves, and say whether j t ou believe that the words “ peace, law, and order,” do really mean peace, the protection of the law, and the preservation of order, such as every man in this country has a right to demand from those that govern the land, and from the authorities of the country, to protect him in. But there is another paragraph which I cannot help calling your attention to. Here is a para- graph by one Thomas Cooper. Against him it is no evidence ; but it is evidence against the proprietor and editor of the paper. I beg to call your attention to the heartless, hypocritical, sneering tone he 1193] Trial of Feargus O'Connor and others, 1843. [1194 has adopted. Cooper is supposed to say that he went on to Stafford : — “ In the afternoon, I got on by railway to Stafford. I found matters in a somewhat critical condition in this Tory-ridden borough. Mason and his companions in tribulation are confined in the gaol here ; one hundred and fifty colliers had been also lodged in it within the week — troops of soldiers had been marched, into the town — additional rooms were being built to the gaol — cannon, it was said, was to be planted upon the extreme towers — and everything looked so threatening, that when the friends here took a bill to the printer, announcing my lecture, he did not dare to print it. “ Great fears were entertained that I would he apprehended if I dared to stand up in the market-place that night. However, when seven o’clock had struck, there I was — mounted on a famous long bench, procured by the friends. The superintendent of police then took his station close by my right elbow, the Tory gentry and ladies threw up their windows to listen and hear the rebel Chartist commit him- self, and to see him pounced upon and borne away in the dirty claws of the raw lobsters. But no ! I showed how excellent it was to have a ‘ Sweet little silver-voiced lady,’ and pay our million and a quarter yearly to support herself and her establishment. I de- monstrated that loyal Chartists knew the land would he ruined if the civil list were not kept up, and that working men would all weep their eyes sore if Adelaide were to be bereft of her 100,000/. a year. I denounced any ragged shoemaker (Stafford, like Northampton, you know, my brave Shakspearians, is a famous shoemaking town) as a stupid fellow if he dared to talk about his aged grandmother being in a bastile and vegetating on skilly, while the Dowager had three palaces to live in. The satire completely blunted the talons of the blue-bottle; his hard face relaxed, his teeth separated, aDd at length he grinned outright, while the host of shopmates burst into laughter. “Well — what was to be done? I could not be taken up for treason, for my words ” — Words, words, words, — “ were ultra-loyal, with a witness ! Three vil- lainous red-coats, standing in the crowd, soon solved the difficulty.” (a) That is an instance of the hypocritical purposes for which certain language can be adopted. Now, gentlemen, I have a word or two to say upon the result of this trial. I have taken some pains with the evidence, and I want to state to you the effect of it. The executive placard was got out of the printer’s hands on the evening of the lGth, but it does not appear to have been very mucb abroad in Man- chester till after the 17th. Now I beg to tell you the names of the places where (a) Extract from a letter printed in the Northern Star of August 20, purporting to be addressed by Thomas Cooper, to the Shake- sperian Brigade of Leicester Chartists, from Manchester, August 17. that paper was made a rallying watch- word, not of what I call peace, law, and order, but of violence : Manchester, Stock- port, Hyde, Mottram, Oldham, Royton, Todmorden, Rochdale, Burnley, Bacup, and Blackburn ; eleven places in all. In every one of those places a copy of that resolution appeared. Let us see the effect of it. Before the march on Manchester the stopping of the mills had been com- paratively at a few places, but, from the 9th of August, you will find most of the acts of violence occurred. The attack on the Stockport Workhouse was after that — I think on the 11th. Acts of violence were also committed after that act in Mottram, Woollybridge, Broadbottom, Glossop, Todmorden, Rochdale, Burnley, Haslingden, Padiham, Skipton, Black- burn, and Preston. But what was the effect of the placard? Why, in all the places in which considerable violence occurred, the damage was done after the publication of the placard. Shipley's case was after the placard. O'Connor : That was on the 10th of August. Attorney General: It was on the 26th or 30th. Cooper's was on the 24th. There were several other acts of violence com- mitted as the effect of the publication of that placard. It was industriously circu- lated over the country. By whom ? By those who put it forth. There was none else to do it. It did great mischief. It altered the tone and general conduct of the turn-outs ; and they conducted them- selves not with the same respect for pro- perty and life, and feeling, as they did before. I beg, gentlemen, now to call your attention to another paragraph which I have read from that paper, as explaining- the meaning of the terms “peace, law, and order.” These words meant — ‘ Alarm, terrify, intimidate ; go in such numbers as to be irresistible, but do not destroy property, for that may bring you within the vengeance of the law. Property is protected by Acts of Parliament. Do not destroy it ; but go and intimidate as much as you please.” But, gentlemen, have you not evidence that affects everybody who was present at that conference meeting ? [The Attorney General reviewed the evi- dence affecting several defendants. If Scholefield knew the purpose of the dele- gates on the 17th, he is responsible for the use to which his chapel was put.] Several of the persons who attended these meetings were themselves mem- bers of the conference at Manchester. The mob marched to Manchester. Man- chester became one scene of riot and confusion. Meetings took place on the 16th and 17th. On the 17th the con- ference adopted their resolution and ad- 1195] Trial of Feargus O'Connor and others, 1843. [1196 -dress appended to that dangerous placard — the address of the executive, which calls upon the people to appeal to the God of battle. The strike went on, and continued for at least a fortnight or three weeks after that period. And when it is said that the presence of any one person, however extensive his influence might be among the lower orders ; or however popular and deservedly esteemed he might be for acts of kindness or zeal on their behalf ; or however much he might have won their confidence — I put it to you whether the presence of any such person had the effect of putting an end to those tumults? Whether they were not put down by the authority of the law ? And whether without that authority they would have ceased? Whether without the exer- cise of that authority they would not have terminated probably in a civil war? I charge that the conduct of that conference at Manchester was adopted for the purpose -of using language to advance, extend, and enforce that strike, -which strike frequently ■exhibited itself in great violence and in lawless disregard of the rights of property, and the constituted authorities— as an overpowering, intimidating superiority that none could withstand ; and then they call that peace, law, and order. Gentle- men, the charge in the indictment is for conspiring — that is, for agreeing together to produce a change in the constitution by, among other things, intimidation. It is not necessary for me to bring home to those individuals, some of whom, like Cooper, may have been ready to fight — others to put a bold front on and intimi- date— it is not necessary for me to show that all had contemplated what was done. It is necessary for you to consider that there was a general combination of persons to go from place to place to alarm, terrify, and intimidate so as to stop labour. I believe that that conference at Manches- ter, with Mr. O'Connor at their head, thought the time was come when certain language might be used to accomplish , by intimidation and cessation from labour, that change in the constitution which has been, in the course of this inquiry, so fre- quently adverted to. Why, gentlemen, could there be a stronger proof of the intimidation that was used than the evidence adduced respecting those li- cences which were given for the carrying on of labour ? One man was allowed to make mourning, and another was allowed to prevent goods from being damaged by leaving them in an unfinished state. There are two other classes of cases, one man said it should be mentioned to the meeting in the morning, in order that they might approve of what was done. This was one of the most alarming indications of the effects of this conspiracy. If anyone is offended with the word conspiracy, I do not want to confine myself to it, but it is a legal expression defining a certain crime. It is the combining together by act, and conduct, and co-operation, to produce a certain result. You will judge for your- selves, whether you can entertain a doubt that the defendants whom I first named did go about from place to place to pro- duce such a result. As to some of them, it would be ridiculous to call your atten- tion for a moment to the evidence against them ; but the great point is this, what think you of the conference ? If you think the executive placard, the resolu- tion and address of the conference, con- sistent with peace, law, and order, then do the defendants, who were present at that conference, the justice of acquitting them. But looking at the whole scope of theseflocuments, and the paragraphs which „ I have read to you from the Northern Star, it will be for you to say whether you can acquit them, or find them guilty. Other topics have been introduced with which I have nothing to do. I have nothing to do with the high names and great au- thorities which have severally supported either universal suffrage, vote by ballot, or annual Parliaments. I know there are great names for all these points of the Charter. And then there are electoral districts, payment of members, and no property qualification. Ho property quali- fication exists in Scotland, and the prac- tice is recognised, as has been observed, elsewhere. I care not if people go about endeavouring to promote measures, most beneficial and philanthropic as they think, but most mischievous as others think ; but I say they have no right to produce that state of things which others think contrary to the safety of the commonwealth. The question is, are we to live under the safety of the laws, is property to be protected, or are we to be at the mercy of large bodies of people moving from place to place ? Their conduct I admit was charac- terised by exemplary forbearance, they used the despotic authority they had as- sumed with great forbearance. I have little to do with the speculative - opinions of political economy ; I daresay no man more respects the right of the poor man to his labour, which is his property. It is property, and it is this you have to protect, you have to enable the poor man to labour as he thinks proper, and not to be told by his fellow men, whether he shall labour or cease to labour in order to further some political object about which he may think nothing. Labour is as much property and as much entitled to protec- tion as the estate of the wealthiest and loftiest peer in the realm. After all, what 1197] Trial of Feargm O'Connor and others, 1843. [1198 is the difference between what is com- monly called property aud labour P Labour is the property of to-day ; that which you may leave to your children after you is the labour of yesterday. The labour of to-day, if it has produced anything that can be laid by, becomes capital ; so that in reality there is a common interest in the protection of labour and property ; for property is the representative of labour, and labour is the only property which the poor man can command. These great elements of society are not to bo set in hostile array against each other. It is perfectly true also that without labour, what is called capital may be valueless. It is just as true that in an advanced state of civilisation labour would be quite as valueless if there were not capital to give it employment. These two great elements of the high state of cultivation in which we are placed ought not to be set in hostile array against each other. The one is necessary to support the other. Neither can do without the other. I trust in God, gentlemen, that the lesson of to-day, so far as this inquiry is capable of affording one, will go forth to the world. Let it be understood that labour and property ought to have one common protection, and ought both be directed to the common end of all, the happiness of the community, and the glory of God. I hear complaints made of the state of the poor, and comparisons made to the disadvantage of the rich. I will pass over these things, gentlemen. I know not what your feelings may be, but when I heard the intelligence, when I heard the eloquence — for frequently it was eloquent — when I heard the speeches that have been made, I cannot but feel dis- posed to be proud of the talent of the defendants, and of the effect of the educa- tion of the working classes of this country. We heard much yesterday that we must admire and approve of, in point of talent and in point of tone ; and I shall not now stop to quarrel with some expressions which I wish had been spared ; expres- sions carrying too much of a tone of de- fiance. I agree, gentlemen, with what was said by Chief Justice Tindal,{a ) that one should not too captiously weigh expres- sions, the probable import of which was nothing but to communicate that the man who uttered them was of a spirited and independent mind. I watched the speeches of the defendants, speech after speech, and I say now that the language uttered by me at Monmouth, in reference to Frost , is equally applicable to the present case. There is no price at which it would not be worth while to purchase the innocence of all the defendants, mixed up as their guilt (a) Below, p. 1413. is with much of the misery that probably may have contributed to it. But your duty is not to deal with questions of com- passion, but to deal with truth. As I said at Monmouth, so also I am prepared to say now, “ If you can, with truth, give a verdict of not guilty, be it so ; discharge that pleasant duty.” But if, when you come seriously to reflect, casting aside all political questions — aye, gentlemen, and all questions of political economy — and looking fearlessly but firmly and steadily to the simple discharge of your duty, if you find that there was intimidation out of Manchester for the purpose of producing a political change, then those who took part in that intimidation must of necessity be found guilty. And if you find that in Manchester there were persons who, while the excitement raged at the highest, used language on which you can put no other construction than that it was their inten- tion to encourage and incite others to that course of intimidation, then, gentlemen, it will be your duty to find them also guilty of that charge. They are bound up with the others in the evidence, and they cannot, because they were not on the spot, escape the consequences of their awn acts, and their own incitement, if you believe that those acts and that incitement were adopted for the purpose which this indict- ment imputes to them. With these obser- vations I leave the case for the prosecution in your hands, fully satisfied that you have given the utmost patience to it during the whole course of the inquiry. An expression from one of you was, I believe, quite misunderstood, and his Lordship was called upon to record it. As I understand, it was simply an inquiry Avhecher, as my Lord had taken notes of that which was evidence in the case, the jury were required to take notes of that which was not evidence in the case. That was the way in which I understood it. And I mention it because we must all agree that you have paid the utmost at- tention, and have exhibited the highest qualities, that jurymen could exhibit during so long and so painful an investigation. Certainly I believe everybody has observed the impartiality of the bench, an impar- tiality which everybody in this Court must believe worthy of all imitation ; perhaps I may be allowed to say, in the presence of his Lordship, that his conduct has been above all praise, and has drawn forth ex- pressions of approbation from all parties. In the course of this long and painful in- quiry I have endeavoured to discharge the duty imposed on me without mixing up with the prosecution anything that might occasion harshness of feeling, or give any offence to any person present or absent. This is the spirit in which a prosecution 1199] Trial of Fear gus O’Connor and others, 1843. [1200 ought to be conducted. It now remains for you merely to hear the direction of his Lordship on those points of law that are connected with this case, and I feel satis- fied that you will, in the face of this great county, and before the public, who very likely, as has been observed, are watching with considerable anxiety the result of this important inquiry, you will fearlessly, and without prejudice against any of the defendants, or favour towards the Crown — but still, remembering the solemn duty you have to discharge, and remembering that you are bound by your oaths to dis- charge that duty to the public, as well as to the defendants — yon will deliver that verdict which in justice and truth you can reconcile to your conscience by the evidence you have heard. Summing up. [Bourn, B., began by explaining the law of conspiracy to the jury.] G-entlemen, you have been told, over and over again, what no doubt is the fact, that what these defendants stand charged with is the crime of conspiracy, and with that only. (a) There were originally other charges in the indictment, which it is not necessary to discuss, as they have been withdrawn. What I would now call your attention to is the charge of conspiracy, and that alone. What, then, is that act, or those acts, which, in the eye of the law, constitute conspiracy. It has been said that there is great difficulty on this sub- ject, and great confusion in explaining what constitutes conspiracy. I do not see those difficulties to the same extent as they have been suggested by others. Doubtless cases may arise in which it might be difficult to say, if certain acts constitute conspiracy, why they do ; but, in the present case, there can be no diffi- culty at all ; because, for the purpose of this investigation, it is quite sufficient for us to define conspiracy as being a combi- nation of two or more persons, either to do, or to cause others to do, an illegal act, or to bring about a legal act by illegal means. You must not understand me, in stating that, as laying down, as a general proposition, that nothing can be a con- spiracy which does not come within such a proposition. Any of you may choose not to deal with John Smith, the baker, but if all of you combine together not to deal with him, but as far as you can prevent others from dealing with him, that would not be an illegal act, but, no doubt, it would be a conspiracy. I ,make (a) The fourth and fifth counts * on which some of the defendants were convicted are not for conspiracy ; but the learned judge treats the third and fourth counts as substantially the same, below, p. 1201. this observation to guard myself against laying down a rule that nothing is con- spiracy but what comes within this defini- tion. I define, in this case, conspiracy to be a combination of two or more persons, either to do, or cause others to do, an illegal act, or to bring about a legal act by illegal means. In this indictment there were originally nine counts. Two of them were put out of the question because they did not relate to a conspiracy ; so that there remained seven different counts, or charges relating to conspiracy only. I shall in the first place show what these counts are, and I think I shall be able, practically, to reduce the number much below seven, because several of them, in truth, turn out, in reference to the evidence, to be precisely the same. The first count charges — “ that Feargus O’Connor, together with divers other evil-disposed persons to the jurors un- known,” (that is to the grand jury) “ between the 1st of August and the 1st of September last, unlawfully did conspire, confederate, and agree by causing to be brought together divers unlaw- ful, tumultuous, and riotous assemblies of sedi- tious and evil-disposed persons, and by forcing and compelling divers of Her Majesty’s peace- able subjects, being then employed in their respective trades, to desist and to depart from their work, and by divers seditious and inflam- matory speeches, libels, placards, and other pub- lications, to create alarm, discontent, and confu- sion, with intent thereby unlawfully to effect and bring about a change in the laws and Con- stitution of this realm.” That is the first count. The second count is exactly the same, except, that instead of enumerating the different modes of violence by which they are charged with endeavouring to carry their object into effect, the count states that they did — “ conspire by force and violence and creating alarm.” That was meant to meet the possible case of the prosecution proving a conspiracy to cause a change in the laws and constitution of the country — which here means to make the Charter become the law of the land— but failing to prove anything like intimi- dating the workmen. But it is quite clear, that, if there had been a conspiracy to cause a change in the laws and con- stitution of the country, and violence was used for that purpose — that violence would consist in stopping labour. As it is clear, however, from the evidence produced, that the‘ ‘ force and violence ” here charged means the intimidation of other persons and preventing them from pursuing their occupations, this count is substantially the same as the first, and you are therefore to dismiss it from your consideration. The grand charge is contained in the third count — that the defendants conspired to- gether by seditious placards, riot3, and 1201] Trial of Fear gas O'Connor and other*, 1843. [1202 tumults in the country to bring about a change in the laws and Constitution. The framers of this third count probably said this: “ We may fail in making out that these disturbances and ‘ turn outs ’ were occasioned by any conspiracy of this sort ; it may turn out that the strike and tumults which took place were the result of some- thing with which the conspirators ” {if we may call them conspirators) “had nothing to do ; and, in order to meet this, we will put the charge in another shape.” They state that, at" the period in question, divers evil-disposed persons had tumultuously assembled, and, by force and threats, forced the subjects of Her Majesty to leave their occupations, and thereby impeded divers trades, to the great terror and alarm of Her Majesty’s subjects — and then the third count charges that Feargus O'Connor and the other defendants con- spired to aid and assist the same evil- disposed persons to combine in unlawful assemblies, to create alarm, and by 7'eason thereof to bring about a change in the laws and Constitution. The charge is similar to the first charge, except that it does not charge the conspirators with being the originators of the tumults and confusion, it charges the conspirators with having combined to aid and assist the “ turn-outs ” in their unlawful assemblies, and unlawful turning out of work, and so effect a change in the laws of the country. You will see that there is little difference between them. The third count charges that others having originated the outrages, the defendants conspired together to aid and assist them in the prosecution of their design. Then the fourth count merely varies the third in an immaterial way. It omits the word “ conspiracy ” altogether, but charges the defendants with “ aiding and assisting.” I do not think there is a material difference between the two. If a number of persons do <6 aid and assist,” it is not exactly the same thing as “ con- spiring to aid and assist,” but the differ- ence is so slight, that I think I shall be aiding you in putting it out of considera- tion. I'he charges in the first four counts substantially are : — 1st. That the defen- dants conspired by force and violence to bring about a change in the laws and Con- stitution ; and, 2nd, that others having caused workmen forcibly to depart from their labour, the defendants conspired to aid, assist, and encourage them in con- tinuing the violent stopping of labour, in order thereby to bring about a change in the laws and Constitution. The fifth count varied the charge in a different form. In one view of the case this count is exceedingly important, and demands your particular attention. It states that Feargus O'Connor, with divers persons unknown, conspired (sic) (a) to excite the Queen’s subjects to disaffection and hatred of her laws. Standing alone that is nothing ; these are mere idle words. You cannot charge persons with exciting hatred to the laws — for how is that done? You must have that explained. By what means is that done ? — you must not put that out of the question — by endeavouring to persuade and encourage the Queen’s sub- jects to unite, confederate, and agree to leave their employments, and produce a cessation of labour through a large por- tion of the realm, with intent thereby to bring about a change in the laws and Constitution. The charge here against the defendants is, that they endeavoured to persuade per- sons engaged in trade, and others engaged in labour, to cease from their labour till the Charter (for that, in short, is what is meant by “ a change in the laws and Con- stitution ”) should become the law of the land. This count differs from both the former charges in this material ingredient — that it does not charge upon the defen- dants the exciting to, or encouraging of, any violation of the laws whatsoever ; unless merely persuading workmen not to work till the Charter becomes law, be of itself criminal. How, gentlemen, you have heard it stated by one of the learned counsel at the bar, that a difference of opinion exists among very high legal authorities as to whether, under the comparatively recent Acts of Parlia- ment passed on the subject of combina- tions among workmen — merely persuading people not to work till the Charter became the law of the land is, or is not, criminal. For the purposes of this inquiry I should distinctly tell you to consider it criminal, for this reason, that one of the counts in the indictment charges no other criminality but that. And if you should be of opinion, in reference to all or any of the defen- dants, that that is all of which they have been guilty, then you will find them guilty cn that count only ; and it will be then for the Court of Queen’s Bench to say whether that count does, or does not, bring them within anything criminal ac- cording to the true construction of the law. You are aware that a great number of statutes were passed from time to time, from the earliest ages, rendering any combination among the workmen not to work under certain wages a very serious offence. Modern views of political economy. («) The fifth count contains no mention of conspiracy, but charges that Feargus O’Connor, &c., together with clivers other persons unknown, “ unlawfully did endeavour ” to excite Her Majesty’s liege subjects to disaffection, &c., above, p. 940. 1203] and perhaps I am not stepping much out of my path to say, very much more enlight- ened views, began to prevail about twenty years ago. This question then began to be mooted, whether it was equal and impar- tial justice to allow, as the law did within -certain limits, employers to meet together and say, “We will not pay more than ■certain prices for our work,” whilst it was unlawful for the workpeople to meet and say, “We will not work for less than a •certain price. ’ * In order to put both parties on an equal footing an Act of Parliament was then passed, the 5th of Geo . 4. c. 95. This enactment was found immediately u, fter it passed to be extremely inconve- nient and ineffectual for obtaining the object in view, and consequently in the following year (1825) it was repealed, and a new Act was passed (the 6th Geo. 4. c. 129. (a) regulating the subject ; and this Act is now the governing law on this point. By this Act all other Acts were repealed, and Sb provision was introduced making it highly penal for any persons to meet together in order by intimidation, threats, or violence, to interfere with others in the exercise of their judgment, as to the rate of wages for which they were content to work. [The learned judge read the third sec- tion.] The fourth section says ; — “ Provided always, and be it enacted, that this Act shall not extend to subject any persons to punishment, who shall meet together for the sole purpose of consulting upon and determining the rate of wages or prices which the persons present at such meeting or any of them shall require or demand for his or their work, or the hours or time for which he or they shall work in any manufacture, trade, or business, or who shall enter into any agreement, verbal or written, among themselves, for the purpose of fixing the rate of wages or prices w.hich the parties entering into such agreement, or an}' of them, shall require •or demand for his or their work, or the hours of time for which he or they will work, in any manufacture, trade, or business ; and that per- sons so meeting for the purposes aforesaid, or entering into any such agreement as aforesaid, shall not be liable to any prosecution or penalty for so doing ; any law or statute to the contrary not withstanding.” (6) That is the law on the subject, and I do not know that I am stepping out of my way in saying that it is as wise a provision as. could exist. Persons may meet together for the purpose of determining that they (a) Extended by 22 Viet. c. 34 Rep. 34 & 35 Viet. c. 32, which statute was itself repealed by 38 & 39 Viet. c. 86. Cf. Connor v. Kent, Gibson v. Lawson , Curran v. Tre- leavan (1891), 2 Q.B. 545. X&) For history of these Acts see Place MSS. 27798, and Stephen’s Hist. Cr. L. vol. 3, p. 205, &c. [1204 shall not work under 20s. a week, and that those of them who cannot get that must be out of w;ork. Just in the same way masters may meet together and say — “We will not give more wages than so- and-so, and if we cannot get workmen at that price we must be content to do with- out them and let the work stop. That is the law. Everybody is perfectly free to bring his capital into the market on such terms as he may think fit; and, on the other hand, everyone has a right to bring his labour into the market on such terms as he may think fit ; and, provided there is no interference with the free will of others, the law, in doing that, has done all it can do — all that it ought to do. That being the law, this fifth count charges the defendants with having endeavoured to persuade certain workmen engaged in the factories to confederate and leave their employment, and produce a cessation of labour in a large portion of the realms, with intent thereby to bring about a change in the laws and Constitution. How, the doubt that has existed on this subject is this : — It being lawful for per- sons to meet together, where no violence is practised, and determine not to work except upon certain terms, can it then be illegal, for others to combine together to persuade them to do so ? It has been sug- gested that . it is illegal ; first, because it does not necessarily follow that because it is legal for certain persons to enter into such an agreement, it is therefore legal for others to combine to persuade them to do so. (a) I do not know whether that will come within the law of conspiracy or not. Again, admitting a right to persuade others not to work without a certain rate of wages, is it not unlawful to make that a means of bringing about a change in the laws and Constitution P It is charged here as an illegality, and as such we will treat it. I thought it necessary that a satisfac- tory explanation of how the matter stands should be given here. I have therefore explained what is charged as an illegality here. [Having again enumerated the charges, the learned judge continued:] Gentlemen, there is another difficulty which may present itself to persons in your station, who are not conversant with legal pro- ceedings— a difficulty which necessarily besets a case of this sort, — it is this : that in order to convict parties of the offence of conspiracy, various modes may be adopted, differing as far from each other as the east is from the west. And that cannot be better illustrated than it is by (a) See Reg. v. Rowlands and Reg. v. Dujfield, 5 Cox, C.C. 436 and 504 ; 22 Viet, c. 34, and above, p. 1203(a). Trial of Feargns O'Connor and others , 1843. 1205] Trial of Fear g us O'Connor and others , 1843. [1206 the evidence in the present case. The charge — be it always present to your minds — is not that of having attended illegal meetings, or having uttered seditious speeches, or of having turned workmen from their employment or of having caused tumult, violence, and outrage (and if the defendants, or any of them, have been guilty of any of these, they are still liable to be indicted for such offence ; and their conviction or acquittal on this indictment will neither protect nor hurt them), but the sole charge here is, that they combined and conspired together to effectuate certain objects ; if they did so, from that moment the crime here charged is complete, even though not a single man has been turned ouc, or a single outrage committed. On the other hand, if there was a conspiracy, and some who took part in the proceedings resulting from it were ignorant of the conspiracy and the object of it, they are no more guilty of the charge contained in this indictment than those who took no part in it — not having entered into the combination or agreement. That being so, I say the difficulty, at the very outset, likely to present itself to the minds of those con- sidering subjects of this sort for the first time, is this. If the crime consists in the agreement to do certain unlawful acts, how are we to find that any such agree- ment has been entered into ? In the ordinary transactions of life, when parties enter into an agreement, they manifest it by reducing it to writing, or by making it verbally among themselves and the evidence of the writing, or the person who heard the agreement made, will be sufficient to substantiate it. But in order to convict persons of a conspiracy must we have the same sort of evidence ? Must we find the parties reducing to writing what they conspired to do ? Or, must we have the evidence of somebody who' was present and heard them, when they were entering into the contract? Certainly not. Perhaps the most satisfactory evi- dence would be that of persons who were present when the individuals charged with the crime had entered into the agreement, or when they did that which clearly amounted to such an agreement, but this is by no means necessary. Then, as to the evidence, you may con- vict parties of conspiring together to effect a certain purpose , although you may have no writing to show such combination, or agreement, or although you may not have the evidence of any party who was present, and heard such an agreement when it was entered into. You may infer that there was such an agreement from the acts which the parties committed. In the reply of the Attorney General , yesterday, he was alluding, in some degree, to this view of the case. I think his language went beyond what 1 have stated to you the law would warrant. Probably he meant the same thing that I did, but I think the expression made use of was calculated to mislead. He stated, (a) in substance — these are not his exact words — that if these parties were going about lecturing, and exciting parties to all those acts referred to in the charge, at Mottram Moor, Ashton, Hyde, Dukinfield, &c., and if they were all recommending the same line of conduct, that that would amount to a conspiracy. The only quali- fication I put on that in laying down the law is this : that that would not amount to conspiracy at all. It might be evidence from which you might infer a previous combination — it might be evi- dence leading more or less forcibly to that conclusion, according to all the surrounding circumstances. How, for instance, suppose there had been a very great desire to obtain a rise of wages ; and a very great desire to obtain the Charter ; suppose that, taking that state of things which has been represented as having existed, the leading people among the turn-outs at all the different towns are making this sort of lecturing and speechifying, and exciting the people to acts of violence, and to insist upon having the Charter — if that leads you to the conclusion that there has been — (I do not say that it is all necessary that there should be a meeting) — any arrangement by any sort of machinery that they should do this, then, not only would they be guilty of the acts committed at those meetings, but it might be a proof that there was such combination. On the other hand, it might be evidence that there was no such combination at all. The circumstances of unity of object, and sameness of views, would explain the fact of their taking the same course, and propounding the same objects ; and might show that no one knew at all what the other was doing. The nearer the parties are, the more they are in the habit of asso- ciating, the more probable their previous combination ; the more distant the parties are, and the less their intercourse with each other, the less probable is it that any previous combination occurred. How, gentlemen, in the present case, you see, there will be pressing on your minds particular difficulties arising from the facts proved as evidence of previous combina- tion. As to a great many of these de- fendants there will be no other evidence whatever, of previous combination or agreement, except so far as it is to be (a) Above, pp. 1169 and 1170. 1207] Trial of Fear gus O'Connor and others , 1843. [1208 inferred from their acts in attempting to carry the strike out. With regard to others of the defendants, it is quite clear they took no part at all in the actual carrying out of the strike ; and the only evidenoe against them would-be (I allude particularly to what are called the dele- gates in Scholefield’s chapel) their meeting together and entering into the resolutions and transactions of that meeting. So that as to a portion of the defendants you will have to convict them (if you do convict them) on one sort of evidence — the in- ference from their acts ; and as to the other defendants, you will have to convict them on evidence of a totally different character — on, I may say, d priori evi- dence — and that in spite of their non- participation in those acts which form the sole evidence against the other defendants. Before I call your attention to the evi- dence, it is extremely important that I should direct your minds to one point ; it is this. In order to convict all, or any, of the defendants, you must convict them of one and the same conspiracy. I do not mean that every one of the defendants must have used exactly the same influence. If you think that all, or any, of them com- bined together for the purpose of carrying the Charter, and some said, “ I won’t use any violence at all. I will give my countenance to nothing but a voluntary abstinence from labour,” while others said, “ I will encourage a voluntary abstinence from labour, and a forced ab- stinence also,” then, if all agreed sub- stantially in one and the same act, you may convict them all, but on different counts — those who declared for, or took part in violence, on the counts relating to violence, and those who stopped short of violence and took no part in it, upon the other portion of the indictment. It may be difficult to conceive such a state of things, because if a party knows that others are encouraging violence for the promotion of the common purpose, he must instantly know that he, by joining with those persons, is encouraging violence also, and that he is then combining in the whole, although he does not choose to say, “ X am combining in the whole,” and proof of that would be sufficient to enable you to say that it is one and the same con- spiracy, although they do not all go the same length, or all take the same active part in carrying out the common design. Gentlemen, what I mean by saying that it must be one and the same conspiracy is this ; —If you should be of opinion that in the first instance there was among some persons a combination to cause a riot for the purpose of raising wages, though they were no parties to any combination about carrying the Charter, they would be guilty of the offence of conspiracy. But if you are of opinion that the defendants, in- sulated it may be, entered into, and took part in, a movement resulting from a conspiracy in which they took no part whatever, the mere circumstance that what they intended to effect formed a part of the common object, will not enable you to convict them of the same offence. For instance, if A., B., C-, at Manchester, enter into a conspiracy to carry the Charter and other parties at Bukinfield and Hyde combine to raise wages, and both happen, to do the same acts, that will not be sufficient to convict the parties at Man- chester of the conspiracy at Hyde and Dukinfield for raising wages, although the parties in both places are guilty of the same description of acts. I cannot too often repeat to you the necessity of giving your attention to the evidence. You must always recollect that it is - to this the indictment points — that the parties combined together to effectuate these illegal objects. You need not be satisfied that they met together ; you need not be satisfied that any express terms were observed ; but that all of them, in some form or other, were as- sociated together for this common object. When I say <£ associated together” I do not mean that each one must come in con- tact with all the others, but that there was a common object with them all. If not satisfied of this, you will acquit the . defendants ; if you are, you will find them guilty . [The learned judge then reviewed the evidence. The evidence of the more or less tumultuous meetings and speeches at Manchester, Staly bridge, and elsewhere in the manufacturing districts could rot be used against the defendants unless the jury were able to infer from them a pre- vious combination. The fact that about the 8th of August, the turn-outs were discussing whether it would be a wage or Charter question, and that differences existed among them on that point looks rather against any expressed or implied combination among them. Up to a later period there certainly was very little like combination among them. Some were for one thing, some for another. Having read the evidence of Haigh, Brierly, Clay- ton, and Little the learned judge went on :] A great number of statements have been made respecting the words, “ Peace, law, and order I will not repeat the obser- vation which has been made, which must strike every man of common sense, that such expressions are nonsense if they are not in unison with the general tendency of the publ ication in which they appear. Ido not think that you are to pay too much atten- tion to a few inflammatory words which 1209] Trial of Fear gus O’Connor and others , 1843. [1210 may be in a publication, if the general tendency of it is to promote peace and good order. You should not pay too much attention to a few hasty or un- guarded expressions, if the. general result be what I have stated. And, on the other hand, you should not regard such words as, “peace, law, and order,” if the general tendency of the publication in which they occur be to promote violence or disorder. Gentlemen, I am labouring under a severe cold, and have much diffi- culty in addressing you. That closes the evidence for the first day. This evi- dence shows that in Ashton, Stalybridge, Dukinfield, and other places, in August last, there were several meetings, and al- lusions to other meetings, with excite- ments to riots and violence; that some- times it appeared as if the Charter were the object, and sometimes as if wages were the object. You will consider whether or not, the persons going about then had, or had not, entered into a combination for the purposes charged in the indictment. [The learned judge read the evidence of Joseph Sadler , Thomas Barrington, Wil- liam Moore, and James Crompton. It appears, from Crompton's evidence, that permission was given to one Robinson to finish his work. That is important ; not as establishing the charge of conspiracy, but as the strongest possible evidence that, but for this licence, the work would not be permitted. The learned judge then referred to Longson’s evidence.] This man put down what he has given in evi- dence when the matter was fresh in his memory. He is questioned about the accuracy of his recollection of what passed ; but I do not think that bears on the case ; but if it does detract from his accuracy, you are at liberty to think so. He gives you an account of Pilling, who gave that account of his family which all of us, I am sure, so deeply and sincerely felt : — “ After Wright had taken the chair, he pro- posed, that whoever introduced any subject not connected with that of wages should be put down ; he told them they must get their wages, and if they could not, they must ask their mas- ters why they could not give it to them ; and if they told them it was through the ‘ top shop,’ (the Government), they must ask their masters to go with them as commanders and sergeants, and find them with bread and cheese on the road; and to go to the Duke of Wellington; and if that would not do to go to Buckingham Palace, and the House of Commons, and the House of Lords, or whatever they have a mind to call it, and demand from them to take all restrictions off.” It would appear, from what he said, that he was connected with some other political party in the country. I do not see what that party has to do with the question at all. I have not understood what that introduction (made several times) of the name of the Anti-Corn Law League, and other parties connected with it — what it has to do with the present question at all. 'However, you have it before you, and it is quite competent for you to give it what weight you think fit. [The learned judge went through the rest of Longson’s evidence, and read the speeches attributed to Wright and Pilling in full, (a) and observed on Faraday's evi- dence :] You may infer from the evidence of Faraday that all the mills were stopped pretty much in the same way. I think I am called upon also to remark that although a great deal of violence was manifested in stopping the mills, yet we must not infer that all the people who turned out of the mills ivere turned out against their wills ; on the contrary, it appears from the evidence that a large portion of the workpeople were glad to be turned out ; some, no doubt, were sorry to be turned out ; others were not ; but we have no direct evidence who were acting from their own will or who were acting from violence. All we can say is, that there were some who did go out willingly , and that others were turned out against their will. [The learned judge referred to the rest of the evidence on the second and third days, and continued :] That is the evidence of the first three days. The evidence is then of a different class altogether, and the object of it is to connect the conspiracy (if conspiracy there existed) in the disturbed districts, with certain persons assembling in Man- chester, at Scholefield’ s chapel, including Mr. O'Connor, M‘Bouall, and several other persons, as the originators of it, or as having joined it after others had set the matter afloat. Whether the evidence does that or not I leaA r e you to determine. It is first proved, by way of foundation, that Mr. O'Connor arrived in Manchester on the morning of the 16 th, and went to Scholefield’ s house. Then it is shown that there was a meeting in the chapel that evening. The delegates tried to take a room at Noblett’s house, but find- ing the room unsafe, no meeting takes place on the 16 th — young Scholefield, who was called yesterday, gave a rather differ- ent account. Now with that foundation I will lead you to the testimony of another witness {Cartledge) on whose testimony the case very mainly — not mainly, but very mainly — rests against the defendants. Now, Cartledge was himself a delegate, and certainly an active Chartist. As a delegate at some meeting he was taken in custody, and brought here on the same (a) Abo\ r e, p. 985. 1211] Trial of Feargws O' Connor and others , 1843. [1212 charge as the other defendants. He comes here with all the odium attached to his testimony which can attach to a person who has betrayed his former associates. He says he does so because they ill- treated his wife. It may be he has thought that what he was doing is wrong, and that what he is now doing is right. He may be telling truth or falsehood ; and you will have to see whether his tes- timony is confirmed by, or contrasted with, the testimony of others. Whether you think the man more or less respect- able is not quite material, but it may lead you to the inference whether yon can safely trust him. You will now hear what his testimony is. I must also tell you this, that he was one of the parties actually included in this indictment ; but in point of law that difficulty has been, in my view of the case, got oyer, because he has been acquitted. It was thought that a nolle prosequi had been entered before, but, as that was found not to be the case, he was acquitted. He comes here with the odium attending him that he was one of the very parties accused, and he gives .his testimony as the price of re- moving that accusation. If that induces you to take his testimony here it is. [The learned judge read Cartledge’ s evidence.] Murphy : I am sure, my Lord, you will excuse me for interrupting you. At the end of my cross-examination of Cartledge I have got a question here, the last one of all, which does not appear to be in your Lordship’s notes : “I cannot say whether the resolution was put to that meeting, that the majority should govern the minority.” Rolte, B. : I did not think it necessary to take that down, what a person cannot know. I think it is troublesome enough to take down and read over all that is material. If a person says, “I cannot say,” then de non existentibus et de non apparentibus, eadem est ratio. It is quite clear that everything Cartledge says that bears in favour of any of the defendants may be taken as strongly in their favour, for he comes here for the prosecution. [Proceeding with the evidence the learned judge commented on James Leach's speech at the trades delegates meeting on the 16 th, as spoken to by the witness Hanley. George Candelet is repre- sented as desiring the people to go to the hills and take possession of the crops, but that is not the necessary construction. His expression may mean that there was plenty of crops to maintain the people. On Whiitam’s evidence the learned judge observed:] I do not place much credit on this threat to repel force by force which Whittam speaks of — “We have four double-barrel guns, and some single ones ” — now I do not think much of that, it is absurd. You will remember, I dare say, some of you, some evidence that was given on the trial of Watson for con- spiracy twenty-five years age, (a.) when it was stated that some three or four persons marched up with a pistol and dirk to take the Bank and the Tower. This is just as absurd. It is hardly serious ; it really may be a joke. [The learned judge then referred to the conference meeting.] A great num- ber of them are only charged with being present at the delegate meeting, and they do not deny it, they rather boast of it. And if they satisfy you that the fair result of what was done at that meeting was not at all to bring the people fairly within this indictment, that it was not at all to excite persons to violence in order that the Charter might become the law of the land, or to encourage those that were so doing, they cannot be amen- able to any charge because they avow themselves to be a meeting of delegates. It was said yesterday that such meeting was illegal ; on that I express no opinion. On that there may be some doubt. Allu- sion has been made to what was said by the Attorney General when addressing a jury on behalf' of persons under a charge of high treason. I think what he said there, was what every one must feel as to the legality or illegality of meetings for discussion. What numbers can make such a meeting illegal, what quantum of organisations and arrangements, what deputations from one to another, what quantum of any or all of these makes a meeting illegal is a question that must depend wholly on degree. It is very difficult to lay down any rule a, priori , and therefore I will not encumber the present sufficiently encumbered case by stating what my view of the law is, on that point. All I shall say is that some of the defendants assembled at Schole- field’s chapel as Chartist delegates— for of that there is undoubted and uncontra- dicted evidence— but if they did nothing else than that, they are guilty of no crime whatever of which we can take cognisance. Therefore if the Attorney General fails to satisfy you that what was done there was criminal, then he fails to bring them within the scope of this indictment. There has been a great deal of discussion about the right of those parties to vindi- cate their opinions respecting the Charter. It is perfectly competent for anybody to say he professes annual parliaments, vote by ballot, and universal suffrage, or any of those matters. I will say I was ashamed of hearing it urged that every one had that (a) 32 St. Tr. 1. 1213] Trial of Fearrjus O'Connor and others , 1843. [1214 right. I will not say I was ashamed when it was pressed forward by the defendants, but when it was pressed forward by others — it is a shame to assume that anyone of education held a contrary opinion. Every- one had a perfect right to his own opinions ; one might think such changes inexpedient, and another might think them expedient ; one might think that a man with such notions was a hair-brained and crack-brained enthusiast, and the other might think those who differed with him grossly dull and blind, and that they did not see so far as himself. But can anybody be so blind as not to see that that is not what the defendants are in- dicted for. Why, supposing the change the most desirable that could be con- ceived ; suppose it had been a combina- tion to cause the abolition of slavery (which took place some three years ago), or to cause a better Sabbath observance, or any the most innocent measure that could possibly be conceived, it would exactly in the same way be within the scope of this indictment if they tried to effect that by illegal means ; or if, within the fifth count, the conspiracy to force those who had voluntarily left work to remain out were criminal, as upon this indictment I shall certainly assume it to be. Accordingly, all that has heen said about this being an indictment to put down the Charter is a matter that I may dismiss without any further observation. You must also dismiss from your con- sideration that which, to my own mind, was of a painfully exciting nature. Several of the defendants, one in par- ticular, had described in the most affect- ing terms the trouble, suffering, and privation he had undergone which he attributed (rightly or wrongly) to the non-introduction of the Charter as the law of the land. He has not had the advantages of good education, and those who have had that advantage think the remedy proposed is absurd. Still there must be great compassion for those who, whether they entertained right or wrong notions probably entertained them quite sincerely ; and he was driven to suppose that from some reason or other which he- could not investigate, he is in a state of abject poverty, while he sees others around him rolling in affluence. What was done by him under this excitement must be- speak for him every favourable considera- tion possible, even though considerations of that kind, I must tell you, have not the slightest bearing on the question, which is not whether the defendants have a right to look for high or low wages, but whether they, or any of them, were parties in a combination such as was charged in the indictment. [The learned judge then read tho evidence for the defence of William Scholefielcl, John Northcote, John Brooke, John Cochshot, and Henry Holland .] This witness is called to show that the general tendency of Mr. O'Connor's addresses to the peojjle was not cal- culated to create any excitement, but, on the contrary, was calculated to preserve peace and good order. That was much insisted upon by Mr. O'Connor. The learned judge said that although he had not heard any of the public harangues of Mr. O'Connor, yet, as an appeal had been made to him, he must say that he had heard his speeches in another place, which always appeared to be characterised by zeal and energy. He must, however, take his account of Mr. O' Connor's speeches from the evidence.] I think, however, it is a fair in- ference that Mr. O'Connor has strongly in- culcated the Charter, and that that was the only remedy, as he supposed, for the evils of the people ; but that that had been ac- companied by general directions to them to preserve the public peace and order, and to respect property on their own account ; and that, unless they did that they never could hope to obtain the Char- ter. I think that is a fair inference from rhe evidence given. You are, however, to judge for yourselves of the tendency of Mr. O'Connor's speeches. The evi- dence of this witness {Holland) is only receivable in the nature of evidence to character. (The learned judge then read the evidence of Sir Thomas Potter.) The general tendency of his evidence is this, that he was acting as a magistrate in Manchester, and that he did not witness any violence such as we have heard had taken place. He is a magistrate, and a gentleman of considerable age ; but his stating that he did not see any violence is like the old joke of the person proved by one witness to have stolen an article because he saw him, and who, in order to disprove that evidence, called half a dozen persons to swear they did not see him take it. There can be no doubt that violence was connected with the turn-out, and the evidence of persons who did not see it is no proof of its non-existence. The evidence of the violence seems to have been most distinctly made out. But if you are to deduct from the turn- out the violence of turning out the people forcibly expelled, if you do not take that into account, then there has been exhibited throughout the whole of this county a most striking and most creditable absence of violence. I had the honour of being one of the judges at the special commis- sion at Stafford, and the acts perpetrated there were infinitely more terrible than here, although the distress, as far as I 1215] Trial of Feargus O’Connor and others , 1843. [1216 could learn, was not so great. But even there there was ample evidence to satisfy my mind of the great moral advance in the least educated and most suffering parts of the population of this country, because even there there was a steady absence from personal violence, though not from violence as to property. There were some statements of their getting bread from the shops, but to a very small extent. But here I have discovered a studied abstinence from all violence, ex- cept that — which I do not hesitate to call gross violence — the violence of forcing people to abstain from work. If you can come to any moral code whereby you can deduct that" from violence then there was none here — (in Lancashire). There seems to have been a singular, and I think creditable, abstinence from all violence except that, and when I say that, I except that sort of violence which I consider the most intolerable that can be practised. For though I said in the outset of my remarks to-day that I concurred in the wisdom of the legislature in having passed that Act of Parliament which gave to the workpeople the fullest power to combine together not to work for less wages than their labour was worth ; yet I also see the wisdom of the legislature in making it a highly penal act for one workman by threats or intimidation to compel another to take the same view of the value of his labour which others take. If the effect of all law be to protect property, is there any kind of property which ought to be more protected, or for the violation of which a greater punishment should be inflicted than labour, the property of the working man ? I say that the act of those who compel others to cease from work because they think it will have the effect of causing a rise in wages is vio- lence of the grossest description. But the working classes had a vague notion that what they did was in accordance with the wishes of those that were affected by it. But making allowance for the feelings of those persons, I certainly say in conformity to the testimony of Mr. O'Connor in the address he made to you, I do think, if I am to judge of the outbreak in this county by the testimony given in the course of this long trial, there was a singular and creditable ab- stinence from violence. (Having read the evidence of Alderman Chappell, the learned judge observed:) He said the manu- facturers had no profit for three years. I do not think that evidence tends much to show, what one of the. defendants sug- gested, that the manufacturers are hard- hearted. It only shows that they cannot sell their goods for that which would en- able them to give higher wages to their workmen. Instead of hard-hearted manu- facturers it might be hard-hearted pur- chasers who will not enable them to give the wages required. The manufacturers cannot force people to buy their goods, and they cannot employ people to make them if they cannot sell them. That is an observation which I would rather not have made. I consider it as stepping out of the way. [Having read the remainder of the evidence for the defence, the learned judge proceeded :] Gentlemen, I have turned anxiously in my mind what will be the mode of putting the case relative to each of the defendants so as to lead to a satis- factory result, and after much considera- tion I have come to the conclusion that the best course will be first of all to put in what evidence there is as to the case of those persons against whom there is direct evidence, if I may so call it, of conspiracy. — I allude to those who, it is alleged, were present at the Chartist delegate conference on the 17th of August, and then, next, to those (which will be a different con- sideration) who were present at the trades’ delegates conference on the 15th and 16th. I will not receive your ver- dict as to any till you are ready to give it respecting all. I intended to follow the example of Lord Chief Justice Tinclal in Stafford, who, in a case of not nearly the same difficulty or complexity as this, put into the hands of the jury the names of the defendants, and then told the jury what was the evidence affecting each. In that case twenty-six individuals were charged with having burned a house down. There was no difficulty as to the house having been burned ; but the only question was whether it' was proved that A. or B . was concerned. 1 cannot do so exactly in the present case, but I think I may present it to you in a manner less arduous, irksome, and laborious. How, I have, on this paper, a list of all the per- sons mentioned in the indictment {handing the list to the jury). How, you recollect the charge is that the defendants conspired to cause a violent strike ; or that, others having done so, they conspired to assist them, or that, putting violence altogether out of the question, they endeavoured to persuade others to abstain from labour till the Charter became the law of the land. If you find them not guilty of anything, then, of course, there is an end of it. If you find them guilty of a conspiracy to cause the Charter to become the law of ! the land by violence (that is a short word which you will understand), then it will be quite immaterial for you to consider, whether they combined to cause the strike, or whether, others having caused the strike, they combined to assist them in 1217] their violent measures, in order that the Charter might become the law of the land. There is no possible question as to either of these things being equally criminal acts. There is only a formal difference between them. It is different, if you find that they are guilty of endeavouring to persuade others to stand out, without violence, until the Charter becomes the law of the land ; for although that is laid down here as a crime, and although I tell you to deal with it as such, yet doubts may exist as to whether or not that amounts to a crime. If, then, that be the only offence of which you find them guilty, it will be necessary for you to distinguish whether in your opinion the defendants originated the disturbances, or only pro- moted that which others originated. I do not find it necessary to request you to distinguish between the other cases, be- cause they, virtually, amount to the same thing. [It is clear from the evidence that what might be called a forced strike for wages was going on at the time the con- ference met. It is also clear that the meeting of the conference had been con- certed originally, some six weeks before, for purposes unconnected with the strike. The met at Scholefield' s chapel, and voted resolutions and an address.] Now, as against those delegates, against whom there is no evidence but their concurrence in that meeting, do these acts, or do they not, bring them within any of the charges contained in this indictment P Does the evidence show either that they originated, or does it show that they remained to- gether to assist, the forced strike for wages till the Charter became the law of the land? Or that, by what they did, they encouraged persons to stand out until the Charter became the law of the land ? In order to enable you to come to a just conclusion on that subject, you must look to what was the purport of the resolution and the tenor of the address, and if you are satisfied that the fair interpretation of that address and resolution is to encourage a forced strike for wages, unquestionably everyone who concurred in that address and resolution is within that count, which charges them with aiding and encouraging the forced strike already in existence. Well, then, if you are of opinion that the fair tenor of that resolution and address was to show that the meeting did not encourage the forced strike for wages, but merely that the people should keep out till the Charter became the law, then you would find them guilty on the fifth count only. But all those parties who were present at the conference concurred in the resolution and address. Now, what is the meaning of concurring? The resolution was put to the vote and carried, but there o 67432. [1218 were several objecting. However, it was said that there was some understanding about the majority binding tho minority. Now, it was not necessary to say that, as that is usual at all meetings. I cannot, however, lay it down as a proposition of law that everybody who is at a meeting, simjpliciter , is bound criminally by what was done at that meeting. If, for in- stance, at Mottram Moor twenty thousand people assembled, of whom I am one, and somebody puts an absurd resolution ; sup- pose I walk away, am I bound by that resolution, although I walk away and do not think it necessary to oppose it ? If at that meeting we all propose what we think best, and any proposition is carried, then we are bound by that proposition, and it is not necessary to say that the majority are bound by the minority. It is not necessary to do that. That is the ordinary mode of doing it. If you propose a thing and carry it, and I do not agree with it, then common sense expects that I shall indicate by some act that I do not agree with it. The resolution and address were practically carried. A divi- sion took place, and that of itself implies that the minority was bound by the majority on this occasion. But this is not left to mere inference, for, according to the evidence of Griffin, it was said by some one that the minority should be bound by the majority. Though I do not like to call in aid what any defendant said, a respectable looking man — was it Harney or somebody else who addressed you? — said something amounting to that — “ I was against what was done, but still I yielded to the majority.” That must be the fair meaning of all acts of that sort done at meetings consisting of a limited number of persons assembling to discuss any par- ticular subject. In all cases the minority, unless in a strong and forcible manner they indicate that they oppose or dis- sent from the proposition carried, are bound by it, but here there was a decided acquiescence on the part of the minority that they would be bound by the majority, although they carried certain resolutions of which they (the minority) did not ap- prove. That, I think, is a fair construc- tion in point of fact, that the minority are to be bound by the majority. I will now call your attention to what Gartledge and Griffin represent as having passed at that meeting. (The learned judge read Cart- ledge’s evidence.) Now let us see what the resolution of the deleg ates is. This is evidently the resolution ; it was circulated widely : — “ Resolution of the delegates. — That whilst the Chartist body did not originate the present cessation from labour, this conference of dele- gates from various parts of England express Q Q Trial of Fear (jus O'Connor and others, 1843. 1219] their deep sympathy with their constituents, the working men now on strike ; and that we strongly approve the extension and the con- tinuance of their present struggle till the People’s Charter becomes a legislative enact- ment, and decide forthwith to issue an address to that effect ; and pledge ourselves, on our return to our respective localities, to give a proper direction to the people’s efforts.” Is that, or is it not, an act of encourage- ment to the people then out upon strike ? Does it indicate that the persons who passed that resolution had entered into an agreement with one another, call it what you please, to give encouragement to a forcible strike, or a strike without force ? For if it does, I must tell you clearly, in point of law, it is not the less a conspiracy because it was merely the offspring of the moment. In order to constitute a conspiracy it is not necessary that it should be anything secret. We read of conspirators in melodrama meet- ing in dark and gloomy caves at midnight, and so on ; but, in law, a conspiracy means the combining together. If, then, those parties combine together, to aid and encourage others in this forcible strike, they are guilty. It seems to me, certainly, that that must be the construction put upon this, and not unreasonably, if you adopt that view as being the fair construc- tion, that all this means to indicate, on the part of the conference, their concurrence in the act of abstaining from labour. If that were so, it would bring them within that count of the indictment, which charges them with encouraging the persons out on strike to abstain from labour, but without force. A great deal of stress has been put on the particular wording of the resolution. I do not think the fair way is to spin out from particular words anything of crimi- nality or innocence, but rather to look at the whole. I confess I feel extreme diffi- culty, wishing to do everything I can to point out, on behalf of those defendants, many of whom have no other counsel than the individual now addressing you — I feel the greatest difficulty on earth in pointing out how you can say that a man who concurs in a resolution like that must not be taken, at all events, to encourage the people not to work till the Charter be- comes the law of the land, and thus bring them within the indictment. I do not think it by any means so clear that the party issuing the placard meant to en- courage them to commit any acts of violence, of which they had then been guilty. That, however, is for you to say. If the meaning is, “ we issue an address to direct you in the present struggle,” meaning the forcibly compelling the people to abstain from labour, that undoubtedly brings them within the less mitigated [1220 count. The address is then voted, and it must be taken as a part of the whole ; and we must see what is paramount in the address. The address is printed in the Northern Star, which comes out at the end of the week. It was circulated at the time, but, of course, it was circulated at the end of the week. [The learned judge then read the report of the conference, and the conference address from the Northern Star of August 20. (a)J That, gentlemen, is the address. If that were a correct representation, there was a perfect concurrence and ac- quiescence in the address. I thought it right to read the whole of it to you. A great deal of it has no bearing upon the subject, but there are certain passages that have, or you may think they have, a considerable bearing ; such as, “ They have struck, not for wages, but for principle.” That is a mere representation of this meeting, that the strike was for the Char- ter rather than for anything of any other character. “ We are fortunate in having an accredited executive, possessing the confidence of the people. You will read their address ; it breathes a bold and manly spirit.” It is an address generally to the Chartist body, clearly in some sense approving of the other ; but it may be a fair question with you whether it is that they mean to express approbation, and consequently agree to encourage the strike as a forcible strike, or whether, finding that the people had been out, it merely means to recom- mend them not to work till the Charter became the law of the land. I cannot suggest any interpretation which does not encourage them to stand out till the Char- ter becomes the law of the land, but whether it approves of forcing the people out unlawfully, is a question which I must leave you to decide. [The learned judge proceeded to com- ment on the executive address, which', he said, was clearly brought home to two members of the executive committee, James Leach, from whose house it came, and M‘Douall, who wrote and corrected it. Bairstow and Campbell were both dele- gates, and had identified themselves with it at least as far as the rest of the meet- ing. I “ Rally round our sacred cause, and leave the decision to the God of justice and of battle.” I do not hesitate to tell you, that if there was nothing more in this than that sort of expression about the God of justice and of battle, although it is very intem- Trial of Feargus O'Connor and others, 1848. (a) Above, p. 952. 1221] perate language, and very improper, I do not think too much reliance ought to be placed on that. People in excited times, as was said by Chief Justice Tindal, must not measure too nicely the expressions in their speeches, and certainly, though not with the same latitude of allowance, you must not measure the language in written and printed addresses too nicely. The Attorney General told you very properly, not to let the flimsy gauze veil of such words as “peace, law, and order,” deceive you, if the whole tendency of the docu- ment be against peace, law, and order. I say, just in the same way, if a placard has no serious mischief in it, and merely some expression which I daresay the writer thought very sublime, it would be a great; deal too much to dwell with too much minuteness on an expression of that sort, in reference to a crime of such magnitude as you have now to consider. But there are other expressions in this document which do not admit of the same observa- tion. I can quite pardon the expression — “Leave the decision to the God of justice and of battle but what is the meaning of this, which I marked when the placard was sent up to me as being, I must say, the worst part of this address P “ Englishmen, the blood of your brothers reddens the streets of Preston and Blackburn, and the murderers thirst for more.” That is only vulgar and inflammatory ; but, now, what do you make of this p “ Peace, law, and order have prevailed on our side.” That struck me as one of the most important statements in the placard, be- cause it led me to the conclusion that the persons who prepared and issued it did not think it any breach of peace, law, and order, to commit the outrages of which they must have been cognizant, and of which charity itself could hardly suppose that those who drew up this address were not aware — namely, that great tumultuous bodies came to this town, and forcibly compelled persons to desist from work. I do not say this is the necessary inference. I would always make very favourable allowances for lan- guage used in excited times. I would put the most favourable construction upon it. It is possible that all they meant was (rejecting these words) nothing else but calling on the people out on strike to this effect:— “ Now that you are out, continue out till the Charter becomes the law of the land.” If that be so it would only bring the parties within the minor charge— a doubt- [1222 ful charge, and not that one accompanied by violence. [The learned judge read the whole of the editorial article headed, “ Further Progress,” which appeared in tho third edition of the Northern Stan' of the 13th of August, and also in the first edition of the 20th. (a)] Gentle- men, I read the whole of that because one of the defendants thought it ma- terial. You see it is plain that the same observations which have been made with reference to the other documents also apply to that. Does it, or does it not, seem a necessary inference, that it means to encourage anything more than that they should remain out till the Char- ter became the law of the land ? I do not mean to decide, whether it has one or thef other of those meanings. Gentlemen, that is the documentary evi- dence as relating to those defendants. That is the evidence that applies to those, the twenty -four defendants who have been proved to be at that meeting, and against whom no other evidence has been given. Amongst these Mr. O'Connor is the first defendant. I am not aware of anything else that affects him, beyond his being at that meeting. The next of the defendants, as I have got them on this list, who are proved to have been at the meeting, are Peter Murray M‘Bouall, James Leach, John Campbell, and Jonathan Bairstow. That may be stated, I think, as being all which really affects them. They are proved to be members of the executive committee, and therefore may be taken to be the parties who issued that address, though it would not follow that every one is responsible for an address issued in their name ; but it will be for you to say, whether it was not issued with their con- currence and approbation. The resolution clearly approves of it, and though merely approving is not per se necessarily identi- fying yourself with the sentiments, it is impossible not to say, that issuing an address, approving of a placard is pretty much the same thing as issuing the pla- card itself. That is the evidence against Mr. O'Connor, M'Douall, Leach, Campbell, and Bairstow. Against Bairstow, the young man who .made a very powerful address to you two or three days ago, there is this additional circumstance : he said, if the Government did not take up the executive committee, in forty-eight hours, they would not dare to do it. I do not think that amounts to much. It showed that he believed that great alarm would be excited ; but I do not think it implicates him in the conspiracy any more than if he had said nothing of the sort. The next that I have on my list as (a) Above, p. 1185. Q Q 2 Trial of Feargus O'Connor and others, 1843 . 1223] Trial of Fear gus O'Connor and others , 1843. [1224 amongst the conspirators there, so to call them, is M‘Cartney. Against him there is other evidence besides — (I am sorry I have not quite the use of my tools here, but it is difficult, being so late at night.) He is proved by the witness Nathaniel Fryer, to have been at the Bridgewater Works and at Eccles in the afternoon of the same day, namely, the 11th, a week before the meeting of the 17th, when he thus addressed the mob— “Fellow-slaves, this is the beginning of the end; a struggle between rampant capital and prostrate labour ; the struggle is strictly poli- tical, and all work shall cease till the Charter becomes the law of the land.” I think he is also proved to have been one of the parties who took part in the trades meeting, which took place in Car- penters’ Hall on the 15th of August, when the chair was taken by Alexander Hutchinson; but he is not proved to have been there on the 16th, when the resolu- tion was passed. Then, as to John Aitkin, there is nothing against him but being there at the conference. Richard Ottley the same. George Julian Harney the same. Richard Pilling{a) the same. Wil- liam Hill the same. Robert Brooke, be- sides being there, has against him the fact, that in his possession were found those papers, which prove nothing but that he was at the meeting; and he is also proved to have made a most violent speech at Todmorden, after the meeting, in which he talked of ten thousand men and the soldiers. He certainly seems to have uttered sentiments very inflamma- tory. There is John Hoyle ; there is nothing against him except that he was there. Norman and Beesley are also men- tioned. Beesley was apprehended with seventeen copies of resolutions upon him. After all, having resolutions amounts to nothing, except as indicative of what is proved by other testimony against him. Samuel Parkes the same. Thomas Rail- ton the same. Robert Ramsden the same. Mooney the same, except the ridiculous story about the double-barrelled guns ; that may be left entirely out of the ques- tion. John Leach of Hyde. Against him there is the fact not only that he was at one of the meetings of the delegates, but, you will recollect, that in the early evi- dence, he was proved to have been at meetings without end, at Hyde and other places, beginning by treating it as a wage question, but using the most in- flammatory and vulgar language, as to the quantity of provisions used by the Queen, &c, I need not go into this. I do not think it would be useful to go into (a) Pilling’s name was probably mentioned here by mistake for Cooper’s ; see below. detail, for you will probably recollect the style of his speeches. He began by making speeches on the wage question, and took part after that against the Charter. About a week after the turn-out com- menced he went to Hyde and Stockport, and in the latter place headed a mob up to the workhouse to get the prisoners released. There is no other evidence against him. Then, as to Bavid Morrison. There is against him the evidence of Mr. Nasmyth as to what took place at Eccles ; and Fryer also mentioned him as having been present at the meeting, and telling the workmen that they thought they were well off, but they would soon find they were not. Against John Arran there was nothing but his being present. James Skevington, the same. Christopher Boyle, besides being present, is proved to have been one of the speakers at Stockport. He was also at a meeting at Nobletfs house. He was proved to be at a meeting at Stockport by the witness Moore, and at another meeting in Stockport by the wit- ness Crompton. Crompton said, “ I took notes of what Boyle said.” [The learned judge read the speech attributed to Boyle. (a)] Now, gentlemen, that is the last, note these names down. They are the first twenty -four. There are other names to which I can speak afterwards — the trades’ delegates. Now the question is whether the evidence satisfies you that they are guilty upon either, or upon which, of the charges in this indictment ? Does it satisfy you that they either conspired to cause this forcible turn-out and violence, so as to make the Charter become the law of the land, or, if you adopt that con- struction, that, there being violence in existence, they conspired to aid and en- courage the parties in carrying out that violence ? or you may say that, as to all and some of them, there is not necessarily such a construction to be deduced from their acts and documents; that all they meant was to encourage the parties who were actually out, whether right or wrong, to remain out till the Charter became the law of the land. That would bring them within the minor charge — the charge con- tained in the fifth count of the indictment. If you think they are not guilty, even of this, then you will acquit them ; but I confess there is a difficulty to me to sug- gest such a construction to you ; but it is what you have a fair right to do. You will consider it, and it is the duty of jurors in considering acts, where there is not a fair warrant to force your conscience to say something — if you do not see your way as clear as daylight — if the matter (a) Above, p. 982. 1225] Trial of Feargus O’Connor and others, 1843. [1220 bears a double construction, — it is your duty to give it that construction which is most favourable to the prisoners. If the fair construction is, that they meant to encourage nothing more than remaining out till the Charter became the law of the land, then find them guilty of the minor charge ; but if you find, looking, as I have done with considerable anxiety — looking rather with the ingenuity of a practised mind than that of an ordinary man, that their acts are capable of the other construction, and that you have no doubt as to their aiding and encouraging a forcible turn-out, then you will find them guilty of the larger charge in the indictment. If you have a fair doubt you will give them the benefit of that doubt, and act accordingly. Gentlemen, I will not take your verdict now. I will do as Lord Chief Justice Tindal did. You will decide there, and when you do so, let me know. I do not want you to give me your verdict now, but to let me know that you have decided. One of the jurors asked for the counts of the indictment. Bolfe, B. : Here is an abstract of the counts. The fifth count is what I call the minor count. The two last counts are entirely gone, and the four first you will see, substantially, are the same thing. They charge the defendants with en- couraging violence to obtain the Charter. The fifth count charges them with en- couraging them to keep out without vio- lence, for the obtainment of the Charter. A Juror : My Lord, we will not be able to come to a decision, without some con- sideration. Bolfe, B., handed the jury an abstract of the counts of the indictment. The jury retired. In a few minutes the foreman returned and asked his Lordship a question in a low tone of voice. Bolfe, B.': It would not be proper that anything like a private conversation should pass between us. The Foreman : I will only trouble you to tell me whether we can find them guilty of conspiracy with violence, or without it. Bolfe, B. : Yes. Attorney General : Violence includes in- timidation, my Lord. Bolfe, B. : Oh, they understand that. The jury having deliberated for about an hour, returned to Court and signified that they came to a decision on the evi- dence respecting the twenty-four de- fendants whose names were submitted to them. [The learned judge referred to the evidence respecting Gandelet, Taylor, Woodruffe, and Woolfenden. Candelet’s speech at the trades’ meeting did not necessarily and fairly bear the meaning the reporter had put upon it; but at all the meetings in which he took part Gandelet advised the people to remain out until the Charter became the law of the land. The learned judge read Taylor’s speech at Boyton on the 16th, and Woodruffs’ s at Ashton in July. There was very little against Woodruffe, except that he was one of the trades delegates at Manchester, and, whatever the jury might think of the Chartist delegates, the evidence altogether failed to show that the trades delegates were a combination or conspiracy for the same purpose. Wool- fenden’s speeches were characterized by great ignorance and conceit, but there was not much to show any conspiracy.] Attorney General: Has your Lordship mentioned the name of Gooper ? Bolfe, B. : Yes, he is in the list. Sir G. Lewin : We did not hear the name. Bolfe, B.: He is one of the twenty - four.(u) A Juror : Must we now decide upon the evidence as to these four P Bolfe, B. : Yes, I think you had better. If you think you can carry in your minds the substance of the evidence as to any more of them will you tell me ? A Juror : My Lord, there are three or four of us who have taken notes, and I think we will have no difficulty in giving a conscientious verdict. Bolfe, B. : Then there are two or three more you may dispose of without difficulty. I will now read the list of those that remain (I believe twenty-four of them), against some of whom you will find there is no evidence at all. Attorney General : Any suggestion from your Lordship would induce me at once to consent to a verdict. Bolfe, B. : David Boss ; there is nothing against him. !Now, you may strike him out ais not guilty. James Taylor; that may be struck out. Joseph Glarhe was not at all mentioned. Sir G. Lewin : He went to Turner’s. Bolfe. B. : It was a man named Glarhe. It may be the defendant or not. John Massey ; he is not mentioned. Thomas Browne Smith, Thomas Frazer, James Rasmith, James Chippendale, and John Lomax have never been mentioned. Sir G. Lewin: No. Bolfe, B. : Robert Lees : there is a man named ‘ ‘ General Lees.” Attorney General: Lees is proved by (a) Cooper’s name does not occur in the twenty-four, but the learned judge appears to have substituted Filling’s name by mistake ; see below. 1227] more than one witness to be known as “ General Lees” Eolfe, B. : You are right in pointing attention to that, for I have omitted a note of it. In stating the case pro and con, I would be glad to be reminded of any such omission. [The learned judge reviewed the evidence affecting Schole • field.} He certainly cannot get over the fact that he lent them his chapel. He knew they were coming for a purpose which he thought to be a lawful purpose, and accordingly he lends them the use of his chapel. He lends them a table. He passes in and out once or twice during the day. This, probably, is not conclusive evidence under the circumstances, perhaps not evidence at all, to connect him with anything that may have taken place at that meeting. In my mind, it is extreme ly weak evidence; at the same time, you may come to a different conclusion. Then, gentlemen, leaving out this great list that has been struck out, all the rest are parties as to whom this general observa- tion will apply ; that, if you convict them, it must he* solely upon the ground of the criminal acts in which they were indivi- dually engaged. A participation in those acts is certainly not at all conclusive proof of any participation in the previous con- spiracy. Indeed, the more ignorant, vul- gar, and outrageous parties are, and the coarser their speeches and conduct, to my mind, I must own, the less probable it is that they are carrying out any direct or indirect plot in which they were more or less participating. That, however, is a matter for you to decide. The next defendant to whom I shall direct your attention is Thomas Mahon . The first witness that speaks to him is Brierly. (His Lordship then read the evidence of Brierly, and remarked that the same evidence would apply to Stephenson, Fen- ton, Grossley, and Durham.) All those meetings on the Haigh, are Stalybridge meetings, and all these parties attended them, some more, and some less. They were all encouraging the strike for wages, and it is for you to say whether you believe, from their conduct, that they were engaged in any such conspiracy as that charged in this indictment. The next witness who speaks to these is Buckley , to whom I have already adverted. He speaks of meetings at Hyde, where Gross- ley, Fenton and Durham were. They addressed them on the wage question. Some of the people were for the wage question and some for the Charter. Then there is evidence given by Jamieson, about the granting of licences to parties to carry on their work. Stephenson, Fenton , and Durham were proved to be in the room where the licences were given. That [1228 proves their participation in those acts. I believe that is substantially all the evidence relating to those persons. Fenton and Durham sat at the “ Mosley Arms,” Stalybridge, where licences were granted to the people to carry on a portion of their works. Aitkin was one of those who attended at that early meeting where they spoke of “ the dark nights coming on.” With regard to Challenger, there is evi- dence that he and Aitkin went over to Preston. Samuel Bannister, high con- stable of Preston, says they attended a meeting in Preston on the evening of the 12th of August. A resolution was passed that the people of Preston would not go to work till the Charter became the law of the land. Challenger said the cotton lords of Preston were the greatest tyrants in the country, and Aitkin said he had suffered in the cause of the people and had already been imprisoned, but would do anything more he could to assist them. I do not know, gentlemen, that there is anything more material. That is the substance of their evidence. The evidence against Lees is that of Matthew Maiden , the constable of Ashton. Lees was heading up a crowd to Barrow’s new buildings on the 18th of August, and desired the bricklayers to desist from work. There is no doubt that Lees was taking an active part in a riot on the 18th of August. Sir G. Lewin : Samuel . Turner is an- other, my Lord, who speaks to Lees. Eolfe, B. : I can assure you it is a very difficult matter, by any arrangement, to get regularly through a thing so compli- cated as this. I will put a query under the name of Robert Lees, as there may be a question whether he is the same person here spoken of. [Reads Turner’s evidence.) Lees has been guilty of very criminal acts ; but, at the same time, it is for you to say whether they are such acts as can conduct you to the belief that they were the result of a conspiracy. It is one thing to be participating in a riot and another to be participating in a combination to cause a riot. I cannot say whether it may not strike another in a different light. Cir- cumstances that strike some as affording very little evidence strike others as afford- ing very strong evidence. I now come to John Lewis, Thomas Storah, Patrick Murphy Brophy, and William Booth. The evidence against Lewis is that of Joe Cooper. IBrophy and Storah do not seem to have taken any very active part in the movement. Booth appears to have advised the people to draw their money out of the clubs, and to have spoken about the expenses of the royal household.] How, there is one defendant whom I accidentally omitted. It is that man [Pilling) who gave us that melancholy tale yesterday. Trial of Feargus O'Connor and others , 1843. 1229] Trial of Feargws O'Connor and others , 1843. [1230 He is represented as speaking very strongly at the Stockport meeting and at several other places. The witness Oliver speaks to him and Challenger. He said they en- couraged the people to remain out till they obtained a fair day’s wages for a fair day’s work, and until the Charter became the law of the land. Pilling is also spoken to by Turner. With regard to Pilling, it seemR to me that the general tendency of his addresses, as described by the witnessess, was very much in con- formity with what you heard yesterday from himself ; consisting more in describ- ing the masters as hard-hearted towards the workpeople, and that they should get more wages, rather than forming part of any conspiracy. I will make no apology for omitting to read the evidence respect- ing him. I think there is no reason to go over it again. You have now the case of all. Scholefield's case stands by itself. Other defendants have attended those meetings, and taken more or less an active part in them. Then there are the defendants who acted as delegates at Man- chester ; and then all those defendants whose names are not struck out, and who appear to have attended those various meetings, and spoke with more or less violence at them, some being for political and some for other objects. Now, does the evidence as to all, or any of them, satisfy you that they were parties to some general conspiracy to effect certain ob- jects? If it does, then by no means hesitate, or shrink for a moment from declaring all of them guilty. But if you think it can fairly be explained in any other way, and that you have no reason to suppose that the defendants were parties to any general combination, then it will be your duty to find them not guilty. Bearing in mind that, if you acquit them of con- spiracy, you by no means acquit them of punishment ; for by the testimony here, which is not answered, some of the de- fendants are certainly guilty of outrageous and scandalous violence. But that is not the question here now, but whether they are guilty of the offence of combining to effect a certain object. If you think they are, then find them guilty ; but if that charge is not, to your mind, made out by reasonable proof, then return a verdict of not guilty. Sir G. Lewin: I believe the jury has not the name of Chippendale. Bolee, B. : Yes, they have. The jury retired about six o’clock, and in half-an-hour returned into Court and gave in their verdict. Aitkin, William — Guilty on the fifth count. Arthur, James {alias M‘ Arthur ) — Guilty on the fourth count. Arran, John — Guilty on the fifth count. Bairstow, Jonathan — Guilty on the fourth count. Brooke, Robert — Guilty on the fourth count. Beesley, William — Guilty on the fifth count. Campbell, John — Guilty on the fourth count. Cooper, Thomas — Guilty on the fourth count. Challenger, Alexander or Sandy— Guilty on the fifth count. Candelet, George — Guilty on the fourth count. Durham, John — Guilty on the fourth count. Doyle, Christopher — Guilty on the fourth count. Fenton, James — Guilty on the fourth count. Harney, George Julian — Guilty on the fifth count. Hill, William — Guilty on the fifth count. Hoyle, John — Guilty on the fifth count. Leach, James — Guilty on the fourth count. Leach, John — Guilty on the fourth count. M ( Douall, Peter Murray — Guilty on the fourth count. M‘Ca,rtney, Bernard — Guilty on the fourth count. Mooney, James — Guilty on the fourth count. Morrison, David — Guilty on the fourth count. Norman, John — Guilty on the fifth count. O'Connor, Feargus — Guilty on the fifth count. Otley, Richard — Guilty on the fifth count. Parkes, Samuel — Guilty on the fifth count. Railton, Thomas — Guilty on the fifth count. Ramsden, Robert — Guilty on the fifth count. Skevington. James — Guilty on the fifth count. Taylor, Frederick Augustus — Guilty on the fourth count. Woodruff e, William — Guilty on the fifth count. The jury found the following defendants not guilty : — Patrick Brophy, William Booth, Joseph Clarke, James Chippendale, John Crossley, John Fletcher, Thomas Fraser, James Grasby , John Lomax, Robert Lees, John Lewis, John Massey, Thomas Mahon, Rich- ard Pilling, David Ross, James Scholefield, Thomas Browne Smith, William Stephenson, Thomas Storah, James Taylor, and Albert Woolfenden. 1231] Trial of Feargns O’Connor and others, 1843. [1232 The following defendants had been pre- viously acquitted by consent: — John Allinson, James Gartledge, George Johnson , Thomas Pitt, William Scholefield , John Thornton, and John Wilde. Rolfe, B. : I presume the jury mean to say that those guilty on the fifth count would be guilty on the fifth count only, and that those guilty on the fourth would be guilty on the fifth also. The Foreman : Yes, my Lord. Murphy thanked the jury for the patient attention they had paid to the case. COTJET OF QuEEN'*S BENCH. May 4, 1843. Present : Lord Denman, L.C. J., Patte- son, Williams, and Coleeidge, JJ\ The Attorney General prayed the judg- ment of the Court on the defendants. Bundas, Murphy, Serjeant Bodkin, and Atherton moved in arrest of judgment. The fourth count in the commencement of it states a material fact to be tried by the jury without any venue ; the unlawful meetings are stated to have been held at divers places only, and therefore the count is defective — (Com. Dig. Indictment, s. 2) — and this defect is not cured by verdict — Bex v. Haynes, (a) Bex v. Mathews ,(b) BexY. Holland.(c ) The count does not charge an offence at common law ; it does not charge a conspiracy, but merely an aiding and abetting. To make that criminal there must have been a substantive offence, the commission of which the defendants were aiding and abetting, and it must have been committed within the jurisdiction of the Court. The tumultuous assembling here stated may have been in Scotland or in Ireland. Patteson, J. : If the words aiding and abetting imply personal presence, the offence the defendants are charged with aiding and abetting must have been com- mitted in Lancashire. Taking the whole together, it may be no more than an imper- fect statement of venue. Lord Denman, L.C.J. : Personal presence is usually averred, and ought it not to have been charged that the defendants were wilfully aiding and abetting P The fifth count is without any venue, and does not show that the offence was committed within the jurisdiction of the court which tried it ; the statute 7 Geo. 4. c. 64. s. 20, applies only where the venue is improperly or imperfectly stated— R. v. Hart, (d) (а) 4 M. & S. 214. (б) 5 T.R. 162. (c) 5 T.R. 607. ( d ) 6 C. & P. 123. Patteson, J. : That was before verdict ; the question was considered as if the de- fendant had been allowed to withdraw his plea of not guilty and demur. This count only charges an attempt to persuade others to do what they might lawfully do. The description of the nature of the offence is too vague — B. v. Peck, (a) B. v. Bowed.{b) Rule nisi. May 26, 1843. The Attorney General, the Solicitor General, (c) Worthy, Sir G. A. Lewin, Waddington, B. G. Hildyard, and W. F. Pollock showed cause. First, as to the fourth count. The indictment states that — “ divers evil-disposed persons unlawfully and tumultuously assembled together, and by vio- lence, threats, and intimidations to divers other persons, being peaceable subjects of this realm, forced the said last-mentioned subjects to leave their occupations and employments, and thereby impeded and stopped the labour employed in the lawful and peaceable carrying on by divers large numbers of the subjects of this realm of certain trades, manufactures, and businesses^ and thereby caused confusion, terror, and alarm in the minds of the peaceable subjects of this realm.” The count then goes on to charge that the defendants, “ in the parish and county aforesaid, with divers other evil-disposed persons to the jurors afore- said as yet unknown, did aid, abet, assist, com- fort, support, and encourage the said evil-disposed persons in this count first mentioned to continue and persist in the said unlawful assemblings, threats, intimidations, and violence, and in the said impeding and stopping of the labour em- ployed in the said trades, manufactures, and businesses, with intent thereby to cause terror and alarm in the minds of the peaceable sub- jects of this realm, and, by means of such terror and alarm, violently and unlawfully to cause and promote certain great changes in the Con- stitution of this realm.” The offence charged in the latter part of the count is stated with a perfect venue. The inducement, or preceding part, did not require a venue even at common law, and, at any rate, is not prejudiced by the want of one since the Act of 7 Geo. 4. c.64. s. 20. The Court will not assume that the facts described in the inducement took place out of the realm ; nor, indeed, are the averments consistent with that supposi- tion ; and, if the facts did occur out of England, the allegations in the latter part of the count still show an indictable offence. If the defendants in England abetted or encouraged the commission of (а) 9 A. & E. 686 ; 1 P. & D. 508. (б) 2 G. & D. ; 6 Jur. 396. (c) Sir William Follett. 1233] unlawful acts in France, or Ireland, with the intent here stated, that is an offence against our law. A misdemeanor may bo made up of acts committed in several counties, and the venue may be laid in any. In Bex v. Burdett,(a) Holroyd , J., says : — “ I think the jury may inquire into, and take cognisance of, those facts which are done out of their county, for the purpose of finding a defen- dant guilty, not only of so much of the crime as was committed within the county, but also of the remainder of the aggregate charge, in those cases where so much of the misdemeanor charged as is proved to have been done within their county is of itself a misdemeanor. “ And this is established to be the law in the cases of conspiracies and nuisances, in both of which the juries do not confine their verdicts of guilty to such criminal acts or consequences as occur in the county where the conspiracy or erection of the nuisance is laid and proved, but extend them to such further acts and con- sequences of conspiracy and nuisance, as may occur or arise in another county ; and judgment and punishment are in such cases given and awarded to the full extent of the aggregate offence. The cases of felony have been urged as bearing on the present case, particularly those provided for by the statute of Philip and Mary ; but those are, I think, distinguished from, and do not apply to, the present ques- tion.” The distinction between felony and mis- demeanor is fully considered by Abbott , C. J., in the same case, (b) and is commented upon in 1 Stark. Orim. PL 31 (2nd ed.). where it is said : — “ In cases like that, it appears clear that the agency of the defendant in a foreign country may be inquired into at common law in the country where the principal act is done.” And again at page 26 : — “ The rule of the common law restraining jurors from inquiring into facts arising in another county does not appear to have been at any time so strictly observed in misdemeanors inferior to treason and felony as in capital cases.” Supposing, however, that the omission of avenue to the facts laid in the indictment be a fault, it is only the “ want of a proper or perfect venue ” which is cured after verdict by the Act of 7 Geo. 4. c. 64. s. 20, “ where the court shall appear by the indict- ment or information to have had jurisdiction over the offence.” Now a complete offence is alleged here, as committed by the defendants in the parish of Manchester, namely, that they did, with a certain evil intent, unlawfully “ aid, abet, assist, comfort, support, and encourage ” other persons who had been [1234 committing misdemeanors “ to continue and persist ” in so doing. To aid, abet, and encourage are substan- tive offences ; and, where they are charged, they, and not the commission of the act aided in or encouraged, are the material fact, to which the venue is principally important. The effect of the words “ aid, abet, encourage,” and the like, is shown in 2 Inst. 182 ; Jacob's Law Dictionary, tit. “ Abet ” ; M ( Daniel's case. (a) In cases of solicitation, the endeavour to induce commission of a crime is the substance of the charge; it is not necessary, to com- plete the misdemeanor, that the solicita- tion should have been acted upon— Bex v. Fuller, (b) Bex v. Higgins,(c) Bex v. Lady Lawly,(d) and other cases, cited in the first volume of Starhie's Criminal Pleading, pp. 145-148. It may be, in the present case, that the illegal acts abetted and encouraged in Lancashire were done in another county ; but if persons in Cheshire were committing a riot, it could not be said that persons standing close by, but within the borders of Lancashire, and encouraging the rioters by words and shouts, were not indictable in Lancashire. The offence would be complete there, as to act and intent : and whether the rioters proceeded to commit further misdemeanors on the encouraeg- ment given, or not, would make no dif- ference. The fifth count is certainly bad for want of venue, unless the defect is cured by the statute 7 Geo. 4. c. 64. s. 20. But the words “ county palatine of Lancaster” in the margin of the indictment do imper- fectly supply a venue; the objection, therefore, is only the want of a “ perfect venue,” and that is cured by the statute, which, being remedial and to prevent failure of justice, must be construed libe- rally. 16 & 17 Gar. 2. c. 8. s. 1 (which appears to have been contemplated in framing the clause now in question) enacts that judgment shall not be stayed or re- versed after verdict, “ for that there is no right venue, so as the cause were tried by a jury of the proper county or place where the action is laid ;” and in Skinner v. Gunton,(e ) “ the Court said that, if there were no venue, yet, after verdict, it is aided by the new statute’ of 16 & 17 Car. 2. c. 8., the cause being tried in the proper county where the action was laid.” The same effect was given to this statute (a) Post. 121. (b) 1 B. & P. 180. (c) 2 East, 5. ( d ) Fitz-G. 122, 263 ; where, however, this point is not noticed. (e) 1 Saund. 228. Trial of Feargus O’Connor and others , 1843. (а) 4 B. & Aid. 95, 138 ; 1 St. Tr. N.S. 124. (б) 4 B. & Aid. 179 ; 1 St. Tr. N.S. 147. 1235] Trial of Fear gus O'Connor and others , 1843. [1236 in Tyson v. Pashe.(a) The marginal venue may be looked at to “help” a venue imperfectly stated in the body of a decla- ration (and there is no reason that it should be otherwise with an indictment), but not to “hurt,” where a good venue appears in the body of the count — Mellor v. Barber. (Z>) In Buncan v. Passenger (c) a venue appeared in the margin, but none was indicated in the body of the declara- tion, except by the words “then and there and this was held, on special demurrer, to be a sufficient allegation of place, the word “ there” applying to the county named in the margin. A county is a sufficient venue since the Act of 6 Geo. 4. c. 50. s. 13, has directed that the jury “ for the trial of any issue whatsoever, whether civil or criminal,” shall be returned from the body of the county. The same doctrine has prevailed as to the venue in civil cases, since stat. 4 Ann. c. 16. s. 6; Ware v. Boydell.{d) That the marginal venue, if correct, may aid the statement in the count, even in criminal cases, appears from an Anony- mous (e) case in Keilwey, Leach’s cas e,(/) and Bex v. Butler. (g) Here, then, is an imperfect statement of venue in the in- dictment, but a sufficient venue in the margin, showing “ the Court to have had jurisdiction over the offence.” Patteson, J., mentioned Bex v. Bur- ridge, (h) Coleridge, J. : The count here makes no reference to the county in the margin. Your argument must be merely that the jury would not have inquired into the facts alleged, if they had not appeared to be in that county. Attorney General : If a jury of that county has found that the crime was com- mitted, the words of the clause are satis- fied. When a grand jury of the county has found a bill, the Court, that is the judge and jury, will have jurisdiction to try : if it appear by evidence that the facts did not occur within the county, that is ground of acquittal (as it would be even if the count gave a perfect venue) ; but the jurisdiction is not affected. Coleridge, J. : The Court ought to be able to say before the trial whether juris- diction exists or not. Attorney General : Jurisdiction does (а) 2 Ld. Raym. 1212. (б) 3 T.R. 387. (e) 8 Bing. 355. (d) 3 M. & S. 148. (e) Keil. 33 b, pi. 6. If) Cro. Jac. 167. (g) 2 Keb. 203. ( h ) 3 P. Wms. 439, 496. appear, if there be a proper statement of a venue in the margin. Patteson, J. : The statute assumes that there will be some cases in which the Court would not appear “by the indict- ment or information ” to have had juris- dition. Attorney General: That would be so if the marginal venue wer e Lancashire and the facts were laid in Cheshire. Patteson, J :There the fault would be an improper venue. Attorney General: Want of jurisdiction may appear, not only by the venue but by the nature of the charge, as if a bill be found at quarter sessions, or under a special commission, for an offence not triable there, Bex v. John Minter Hart {a) was cited in moving for the rule ; but there the objection was not taken “after verdict.” The Court directed an acquittal. Patteson, J. : I suppose the judges thought the indictment would be clearly bad on motion in arrest of judgment, and therefore ordered an acquittal. Lord Denman, L.C.J. : Many criminal cases are so decided, under the impres- sion that, if the prisoner will be ultimately entitled to go free, he ought to go free at once. In Beg. v. Mitchell, (b) which may also be cited, the venire was wrong ; and that was clearly a defect not cured by stat. 7 Geo. 4. c. 64. s. 20. Attorney General : As to the nature of the offence charged by the fifth count, it does not charge conspiracy but that the defendant — “unlawfully did endeavour to excite Her Ma- jesty’s liege subjects to disaffection and hatred of her laws, and unlawfully did endeavour to persuade and encourage the said liege subjects to unite, confederate, and agree to leave their several and respective employments, and to pro- duce a cessation of labour throughout a large portion of this realm, with intent, and in order by so doing, to bring about and produce a change in the laws and constitution of this realm, against the peace of our said lady the Queen, her crown and dignity.” It is an offence to endeavour to per- suade others to commit an offence. The ' words “ endeavour to persuade ” are to be found in Hardy’s indictment for high treason, and in B. v. Higgin’ s ,{c) B. v. Philipps. (d) The count does not state the names of the persons whom it was sought to per- suade, or that their names were unknown, because the attempt was to persuade the Queen’s liege subjects, the public at (а) 6 C. & P. 123. (б) 2 Q.B. 636. (c) 2 East. 4. c. 21 n. Id) 6 East, 464. 1237] Trial of Feargus O'Connor and others, 1843. [1238 large, and the charge could not be more particularly stated. The meaning of the count is that the defendants, with intent to bring about a change in the laws and constitution, endeavoured to persuade the liege subjects to confederate and agree together to leave their work and produce a cessation of labour throughout a large portion of the realm ; that is, that the defendants endeavoured to persuade the liege subjects to enter into an unlawful conspiracy. Conspiracy, confederating, or union to adopt a particular line of conduct detrimental to an individual or to the public is an offence. It was said at the trial that every man has a right to cease labour, if he pleases, and 6 Geo. 4. c. 129. was referred to ; but that statute expressly guards and prevents workmen from combining for any purpose except for themselves ; there is no general licence given to combinations in respect of work for all cases. (Counsel read 6 Geo. 4. c. 129. s. 4, cited above, p. 1203.) If the object of the meeting be to compel other persons, or to influence any person who is not at the meeting, then it imme- diately ceases to be privileged under the Act, and is open to indictment at common law. Now the Court is perfectly aware that many acts are in themselves perfectly legal which would be unlawful if done in com- bination with others. A man cannot be compelled, for instance, to till his own land, but the moment several persons agree together that they will leave their lands untilled, with a view to injure either the parish or the parson, the act becomes illegal. So an officer may re- sign his commission, but it was held in Vertue v. Lord Clive, (a) that it was an illegal act for a number of officers to com- bine to throw up their commissions with a view of obtaining increased allowances. Again, there can be no doubt that a man may attend an auction, and bid for the articles put up for sale, but it was held by Mr. Baron Gurney in Levi v. Levi,(b ) that it was an indictable offence for a number of persons to go to an auction room, having previously agreed that only one of the party should bid for each particular article. What is substantially charged in the fifth count is that the defendant endea- voured to persuade the liege subjects to enter into a conspiracy to stop labour, and that their object in doing that was to pro- fa) 4 Burr. 2472. (6) 6 C. & P. 239. Overruled by the Judicial Committee, per Parke, B., in Doolubdass v. Ramloll, 1850, 15 Jur. 257, and 5 Moo. Ind. App. 109. duco a change in the constitution of the realm. A combination to stop labour is an indictable offence. The welfare of the community is essentially dependent on the continuance of public labour, and any combination to produce a cessation of la- bour among a large class of the com- munity is an injury to the whole. A com- bination, therefore, among a large class of persons to abstain from labour is an offence; and to incite others to such a combination for the purpose of thereby effecting a change in the laws of the land, instantly becomes a very grave offence against the State. June 3, 1843.— The Court directed that counsel, in supporting the rules, should confine themselves, for the present, to the question of venue. Lord Denman, L.C.J., mentioned Rex v. Stott, (a) as a case apparently much in point. June 3. — JErle,{b) JDundas, Baines, Mur- phy, Serj., Bodkin, and Atherton sup- ported the rules on behalf of different defendants. The principal offence charged in the fourth count is the riotous assembling and impeding of labour. The acts charged against the defendants are such as would clearly have made them accessories only, if the indictment had been for felony. If, then, the offence charged against the principals is not properly laid, the whole count fails. It is consistent with the averments that the principal offence was committed, or to be committed, abroad, in which case the aiding or encouraging here would not be an offence, unless made so by some par- ticular statute. There may, it is true, be a complete misdemeanor, independent of the principal offence, as by soliciting ; but the present case is not of that kind. And, even assuming that such a distinct offence were here alleged, still the riotous assembling and impeding of labour are es- sential facts ; and, in an indictment, “ the time and place ought to be repeated to every material fact” — Com. Dig. Indictment (Gr. 2.), citing Buckler s cas e,(c) and Rex v. Hollond,{d ) The Lady Russell's case,(e) Rex v. Haynes, (/) 1 Starkie's Criminal Pleading, 62, 2nd ed. The passage cited on the other side from Rex v. Burdett(g) adds nothing to the argument. Where a charge is made up of several transactions, each of which is a misdemeanor, the in- ( а ) 2 East, P.C. 751, 753, 780. (б) Afterwards Chief Justice of the Common Pleas. (c) Dy. 69a. (d) 5 T.R. 627, 620, 625. ( e ) Cro. Jac. 17. (O 4 M. & S. 214. (g) 4 B. & Aid. 138 ; 1 St. Tr. N.S. 1. 1239] dictment may be preferred in any county where a substantive misdemeanor, alleged in the indictment, was committed ; and the venue assigned to the other facts will be unimportant unless they are local in their nature ; but every material fact must have a venue. Bouehe's cas e(a) and note (3) to Mellor v. Walker (b ) point out the rules on this subject. The argument on behalf of the Crown, that the statements of aiding and encou- raging may be treated as allegations of a substantive offence, and the previous nar- rative of unlawful assembling, &c. as mere inducement is not borne out by the cases.; for the allegation, that the defendants did unlawfully— “ aid, abet, assist, comfort, support, and en- courage ” the parties first mentioned to continue doing the acts already stated, cannot be separated from the narrative of those acts so as to constitute an independent charge of misdemeanor. In Rex v. Fuller(c) the endeavouring to seduce was an act made penal in express terms by a statute, on which the indictment was framed. It was indeed held, in Rex v. Higgins, {d) that so- liciting and inciting a servant to embezzle goods of his master was well laid as an indictable offence at common law, without any averment of an actual theft ; but that is a clear and definite charge, and implies at least communication with the person who is intended to commit the crime. Patteson, J. i “ Support and encou- rage ” here seem to imply some aid given in what the party was actually doing. Erie : Rex v. Lady Lawly(e) does not af- fect this case; the indictment charged that she, knowing that J. C. was indicted for forgery, endeavoured to keep away a ma- terial witness for the Crown. The endea- vouring there was the gist of the offence, and appears to have been laid with suffi- cent certainty. Lord Denman, L.C. J. : It would have been no offence if no trial had been pending. Erie : Daniel's cas e(f) shows that abetting, and other words descriptive of such conduct as makes an accessory before the fact in felony, do not necessarily imply immediate personal communication. Patteson, J. : There may be a misde- meanor in soliciting, though it be not shown that the suggested offence was committed ; but I do not see how, in such a case, a person could be charged as an accessory before the fact. (а) Cro. Eliz. 200. (б) 2 Wms. Saund. 5c, d, e , 6th ed. (c) 1 B. & P. 180. (d) 2 East, 5. (e) Eitz-G. 122. 263. (/) Fost. 121. [1240 Erie : Ho instance of the kind can be found. The case of Rex v. Stott(a) is thus stated in East's Pleas of the Crown : — “ The indictment against a receiver of stolen goods need not allege time and place to the fact of stealing the goods ; it is sufficient if they be alleged to the fact of the receipt. This was ex- pressly decided upon consideration in Sottt's case, upon an indictment against him as a re- ceiver of pieces of iron, which was removed into B.R. by writ of error after judgment against him of imprisonment by the quarter sessions, though ultimately the Court gave no opinion on the rest of the case, the writ of error being abandoned by the prisoner. It appeared, on in- quiry of the clerks of assize of the Western and Oxford circuits, and of the clerk of the arraigns at the Old Bailey, that such had always been the form of indictment used by them.” It appears tbat the prisoner there was indicted for the substantive misdemeanor, created by statute, (6) of receiving “ sto- len ” iron, knowing it “ to be stolen.” If he had been charged as an accessory, the time and place of the stealing must have been shown. But in the case there pre- sented the term “stolen” merely implied a quality of the goods which, by the sta- tute, made it unlawful to receive them ; it was as if they had been averred to be French, or of a particular colour. And the case is at any rate anomalous ; no grounds are assigned for the supposed de- cision ; and the defendant appears to have abandoned his writ of error for a reason not affecting this point. Coleridge, J. : The precedents in 2 Star - kie's Criminal Pleading, p. 483, 4, of in- dictments for misdemeanor in receiving stolen goods, appear to be framed on Stott's case.(c) Erie : A party may commit the offence of receiving stolen goods without knowing the circumstances of the theft ; therefore in Reg. v. Caspar, {d) where the indictment stated that “a certain evil-disposed per- son” stole, and certain of the defendants feloniously received, they were held to be sufficiently charged with a substantive felony ; but, in the case of another de- fendant, charged as accessory before the fact, the same inducement was held not sufficient. Stott's case,(e) if correctly stated and rightly decided, is an exception to general rules, which rules, according to Lord Hale,{e) cited by Bayley, J., in R. v. Burdett,(f) extend to misdemeanor as well as to felony. (а) 2 East, P.C. 758, 780. (б) 29 Geo. 2. e. 30. s. 1. See 2 East, P.C. 751. (c) 2 East, P.C. 751, 753, 780. (d) 2 Moo. C.C. 101 ; 9 C. & P. 289. (e) 1 Hale. P.C. 203. (/) 4 B. & Aid. 155 ; l St. Tr. N.S. 135. Trial of Fear gus O'Connor and others, 1843. 1241] Trial of Fear gus O'Connor and others, 184.3. [1242 It is shown in 4 Hawk. P.C. 18, B. 2. c. 25. s. 34 (7th ed.), that a proper vonne is necessary to give jurisdiction to the grand jury, and that for this reason, if it do not appear by the indictment that the offence arose within the county, &c. for which the grand jury was returned, it is a fatal exception, and their finding even of a collateral matter, expressly alleged to have happened in a different county, has been considered void. It is added : — “Some have holden that if the county be expressed in the margin of an indictment, the vill or vills in which the offence is laid, shall be intended to be in the same county. But the greater number of authorities require a greater certainty.” That the marginal venue, though it may help the want of averments in a declara- tion, will not aid in a criminal case, where the facts are not alleged with a proper venue in the body of the indictment, ap- pears from Hammond v. The Queen, {a) Bex v. Yarrington,{b) Shelley v. Wright, {c) and J. M. Hart's case(d) ; and this doc- trine appears to have been recognised in Bex v. Fraser, (e) where the indictment was found in Middlesex, and was held bad for want of jurisdiction, because those parts of the indictment in which a venue should have appeared were left blank. Bex v. Con - nop(f ) also bears upon this point. The Anonymous(g) case in Keiltvey, and Leach’s cas e,{h) cited on the other side, contain nothing on the present subject but extra- judicial dicta. The decision in B. v. But- ler(i) also cited for the Crown, was that the Court would not “intend” a place named in the body of the indictment with- out the word “preedict.” to be the same with that named in the margin. And it is well established that no such reference by in- tendment will be made to the marginal venue in an indictment, though in a de- claration it may. This distinction between civil and criminal cases is pointed out in Beg. v. Bhodes,(j) Anonymous(h) case in 2 Lord Baymond, Bex v. Burridge,{l) Shelley v. Wright, (m) note (1) to Bex v. Kilderby,(n) (a) Cro. Eliz. 751. (5) 2 Keb. 302. (c) 2 Com. 562. (d) 6 C. & P. 123. (e) 3 Burn’s Justice, 383, ed. D’Oy. & Wms. tit. Indictment IX. (4^ ; 1 Moo. C.C. 407. (/) 4 A. & E. 942. (g) Keil. 336, pi. 6. (V) Cro. Jac. 167. (0 2 Keb. 303. If) 2 Ld. Raym. 886. (£) 2 Ld. Raym. 1304. (0 3 P. Wms. 496, 496. (m) 2 Com. 562. (n) 1 Wms. Saund. 308, 6th ed. and Lenthal’8 cas e(a) and Child’s case, (6) there cited. The marginal venue in a de- claration shows whore the action is laid; in an indictment it merely refers to the caption, and shows where the grand jury found the bill, not where the offence is supposed to have been committed. This appears from 2 Hale P.C. 165, 166, Part 2, c. 23. Bex v. J. M. Hart (c) is a case in point. The objection there was not raised by demurrer, and must clearly have been considered as if taken after verdict. The last cited decision, and the pre- ceding observations, if correct, show that the objection to the fourth count in this case is not cured by statute 7 Geo. 4. c. 64. s. 20, which remedies only the “ want of a proper or perfect venue, where the Court shall appear by the indictment . . . to have had jurisdiction over the offence.” Want of a proper or perfect venue does not mean the omission of any venue. The defect would be such as the statute con- templates if it were alleged that the defen- dants broke and entered the house of A. situate at the parish of B., because, the house being there, it must be taken that the breaking was committed there. So, if a vill were described as a parish. The ambiguity in Ogle’s cas e(d) would probably come within the meaning of the statute. When it is said that the Court must appear by the indictment to have had jurisdiction, “the Court” does not mean the grand jury, but the justices who sit under a cer- tain commission to try ; and they are to ascertain the jurisdiction, not from the marginal venue, which only relates to the caption, but from the body of the indict- ment, where the jurisdiction must appear from two circumstances, the nature of the offence, and the place where the facts are stated to have occurred. If the jurisdic- tion depended on the venue named in the margin, the Court would always have juris- diction, as to place, from the mere circum- stance of the grand jury having found a bill. The supposed analogy to cases under statute 16 & 17 Car. 2. c. 8. s. 1. does not hold. By that clause the objection, “ that there is no right venue,” shall not prevail after verdict, “ so as the cause were tried by a jury of the proper county or place where the action is laid.” - The intention there was to meet the objec- tion that there had been a mistrial in cases where some material fact was alleged with a wrong venue or none, provided that the (а) Cro. Eliz. 137. (б) Cro. Eliz. 606. (c) 6 C. & P. 123. (d) 2 Hale, P.C, 180. 1243] Trial of Fear gus O'Connor and others, 1843. [1244 cause of action was laid with a proper venue and the trial was had according to such venue. Skinner v. Gunton{a) shows this. Statute 7 Geo. 4. c. 64. s. 20, does not make a corresponding provision for criminal cases, which therefore stand in the same situation as civil cases before the statute of Charles, and the courts Would not then have pre- sumed after verdict that the jury had authority to try, merely because a right venue appeared in the margin of the declaration. The fifth count which contains no state- ment at all as to place, is clearly bad, unless the marginal venue aids it, and may be imported into the count without any words of reference. Cur. adv. vult. Lord Denman, L.C. J. : In Trinity term (June 7th), 1843, delivered judgment as follows : — We are now to dispose of the objections arising from the want of a venue. None is stated in the fifth count ; and at common law it is plainly a bad count for that reason. Every material fact must be stated with time and place in order that the grand jury may appear to have juris- diction to find the bill, and also that the petty jury may be drawn from the proper county to try the case. This is laid down in all the books and authorities cited at the bar, and indeed the count was scarcely defended at the bar as good at common law, seeing that it neither contained any venue within itself, nor referred to the county written in the margin. Recourse must then be had to statute 7 Geo. 4. c. 64. s. 20. enacting that no judgment after verdict, or confession, or default, shall be stayed “for want of a proper or perfect venue,” provided it “ shall appear by the indictment that the Court had jurisdiction over the offence.” Now, whether a total omission of venue can be considered as cured by those words , or whether they are to be confined to cases where some venue is stated, though imperfectly or improperly, in either case the condition on which the remedy is given by statute 7 Geo. 4. c. 64. is that the Court shall appear by the indictment to have had jurisdiction over the offence. If this means local jurisdiction, the fifth count does not show it, for no place is mentioned in the body of it, and we cannot, as already stated, import into it for this purpose the county noted in the margin, as has been done in civil actions. To hold this would be to say, as was indeed said by the Solicitor General, that, wherever a grand jury of any county has found a bill of indictment for a crime cognisable under the commission, a trial which takes place upon it in that county must be good after verdict, though the indictment may not show the Court to have any local jurisdiction over the offence on which condition only the defect is cured by the statute. The argument drawn from sta- tutes 16 & 17 Car. 2. c. 8. and 4 Anne c. 16. was that, as in civil actions the total omission of a venue is cured by the former under the words “for that there is no right venue,” so the total omission of venue in criminal cases may be cured by statute 7 Geo. 4. c. 64 , under the words “ for want of a proper or perfect venue.” But the defect cured in civil actions is not the total omission of venue, but a wrong venue, and it is cured by the statute of Car. 2. if “the cause were tried by a jury of the pioper county or place where the action is laid.” Now the action in every civil case is laid in the county stated in the margin ; and, if the trial take place in that county, the condition is fulfilled. By statute 4 Anne , c. 16. the remedy is extended to cases of judgment by default— all the defects which would have been cured by any of tne statutes of jeofails in case a verdict of twelve men had been given in such action, being expressly cured by the second sec- tion of that statute. To bear any analogy to these statutes the statutes of 7 Geo. 4. should have cured defects of venue where the cause was tried by a jury of the county in which the indictment is preferred. The venue in the margin may show this, but certainly does not make the indictment show that the Court had jurisdiction to try the offence, unless it be specially referred to in the body of the indictment. The distinction between civil and criminal cases in this respect has been established in so many cases that it is impossible for this Court to overlook or neglect it ; R. v. Bliodes, {a) LenthaVs case, {b) B. v. Bur - ridge, (c) and B. v. Fosset,(d ) there cited. - Other cases were referred to in the argu- ment. As, then, the Court cannot connect the body of the indictment with the margin in this case for want of such special refe- rence, it does not appear by the indictment that the Court where the indictment was found had jurisdiction, and the defect is not cured by the statute 7 Geo. 4. c. 64. s. 20. The Court has considered whether the words of that statute may not admit of a different and a wider meaning, viz., that the offence shall appear to be of such a (а) 2 Ld. Raym. 886, (б) Cro. Eliz. 137. (c) 3 P. Wins. 439. (d) 3 P. Wms. 497. (a) 1 Sauud. 228. 1245] Trial of Feargus 0 Connor and others , 1843. [124G nature that the Court has authority to try it; and a strong argument in favour of this construction arose from the apparent impossibility of giving effect to the words in any other manner. But we are satisfied that such is not the case, and are convinced that defects of venue are not intended to be cured, unless the jurisdiction of the Court in respect of locality is made to appear. One consideration is decisive on this point. Persons accused might be punished for offences committed in another realm, if the quality of the offence alone gave jurisdiction. This clearly was never in- tended. Mr. Dundas referred to a case reported not quite correctly in the last edition of Burn's Justice. (a) It is also reported in Moody's Crown Cases. (6) I have now before me the very case on which the opinion of all the judges was taken, and a copy of the indictment itself. The prisoner was tried for bigamy at the Old Bailey, in 1833. The first marriage was alleged to have been contracted in Kent ; the second in Surrey ; he was alleged to have been apprehended on a day named ; but of the place or county in which he was apprehended no mention was made. The conviction was held bad, the felony being proved in Surrey, while the venue in the margin was Middlesex. But no suggestion was offered that Mid- dlesex could be drawn from the margin into the body of the averment of his ap- prehension, though that would have un- questionably cured the defect, (c) Nor was it suggested that the Court appeared by the indictment to have jurisdiction over the offence of bigamy, which would have cured the defect, if the reference had been to the quality of the offence, and not to the place where the offence was committed or the prisoner apprehended. The objection on the score of omitting a local venue is not merely technical, but is real and important ; for the allegation of material facts as occurring within the county is not only that which alone authorises the grand jury to entertain the bill of indictment, and generally empowers the Court to proceed against the offenders, but is also the sheriff’s warrant to summon the petty jury who must pass judgment between the Crown and the prisoner. The (а) Bex v. Fraser, 3 Burn’s Justice, 383, ed. D’Oy. & Wms. tit. Indictment IX. (4). Patte- son, J., at the conclusion of the present judg- ment, said that the error in the late edition of Burn was imputable to himself, the note of B. v. Fraser , as printed, having been given to the editors by him. — (Reporter’s Note.) (б) Page 407. See Beg v. Hinley , 2 Moo. & R. 524, 530. (c) Stat. 9 Geo. 4. c. 31. s. 22. trial of witnesses for perjury might be greatly embarrassed, and justice defeated, if jurymen were to be empannelled to try without authority. To make the act of trying confer the right to try, without some express provision against those con- sequences, would be a change so violent that we cannot believe it to have been intended by the legislature. We are therefore of opinion that judg- ment on the fifth count must be arrested. ' An objection was also taken to the fourth count on the score of venue, a material fact being alleged without place. Stott’s case, (a) reported in East’s Pleas of the Crown, was thought to bear directly on this doctrine, and was not successfully distinguished in the argument. But the Master of the Crown Office has found the paper book in that case, in which AshurSt, J., took his note of the argument, con- ducted by Lord Abinger on the one side, and the late Mr. Justice Vaughan on the other, in Michaelmas term 17y8. The in- dorsement of that learned judge intimates that the case stood for further argument. The prisoner was convicted in April, and then sentenced to twelve months’ impri- sonment, more than half of which had expired before the argument ; and there is every reason to suppose that Sir E. H. East is mistaken in reporting that case as decided. Indeed, he himself intimates, (&) that, if there was error in the sentence, it might possibly have been amended by being changed into transportation for fourteen years, a strong reason for not pressing the argument further. We think, however, that here the statute of 7 Geo. 4. applies a remedy, as the con- duct imputed as criminal to the defendants is stated with a venue. The count avers unlawful assemblies at divers places not named, as introductory of the charge against the defendants, which is a charge of aiding and assisting persons to continue the said assemblies ; and that aiding and assisting is laid in Lancashire. The count, therefore, has avenue, though an imperfect one, because the introductory averment of a material fact is without place, but the charge against the prisoners has a" venue, and refers to the former part of the count, which former part may therefore be fairly said to have an imperfect venue ; and, as the offence is laid with a proper venue, the Court appears by this count to have jurisdiction over it. We are hence of opinion that this count may be supported by force of 7 Geo. 4. c. 64., notwithstanding the objections to its venue. (а) 2 East’s P.C. 751, 753, 780. (б) Page 753. 1247] Trial of Feargus O'Connor and others, 1843. [1248 Judgment arrested on the fifth count. In the same term, June 9th, counsel were further heard in support of the rule for arresting judgment on the fourth count, but no judgment was ever given. (6) Materials made use of. — The indictment is copied from Out Counties Indictments, Michael- mas, 6th Viet. 24. The report of the trial is taken from the verbatim report published by Feargus O’Connor. It is dedicated to, and con- tains a portrait of, Rolfe, B., whom O’Connor (6) On June 9, 1843. Erie, on behalf of M‘Douall, contended that the fourth count did not charge any offence known to the law. The first part of the count charged that certain other persons as principal offenders were guilty of an offence, and the second part charged the de- fendants as accessories with aiding and abettihg them. The first part of the count disclosed no offence ; it was not a charge of conspiracy or of riotously assembling. The description was that “ divers persons unlawfully and tumultuously assembled together.” To make a riotous assem- bly three or more must be charged, Co. Lit. 176 ; 1 Ventr. 176 ; Salk. 934. The purpose of the assembly must have been to disturb the peace, or the count should have gone on to show some act done in common which would in itself con- stitute a riot or a breach of the peace. In this case they might have assembled for the purpose of festivity or electioneering, which were lawful assemblies, and merely adding the word “ un- lawfully ” would not make the count good. The count further charged that by violence, threats, and intimidation divers other persons, being peaceable subjects of the realm, were incited to addresses as “ Just Judge,” declaring himself well satisfied with the result of the trial. The report is followed by an affidavit, prepared for the purpose of proving that the Anti-Corn Law League, and not the Chartists, were the real authors of the disturbances. This affidavit the Court refused to receive in Cooper’s case. The affidavit is followed by a lengthy argument to the same effect. The report of the proceedings in the Queen’s Bench is taken from 5 Q.B. 16 and the unpublished shorthand notes. The re- ports in 7 Jur. 719 and in the Times have also been consulted. leave their employment, and thereby labour was impeded ; but merely impeding labour was not an indictable offence ; the count did not charge any acts of violence. The count was bad for generality ; it was too indefinite ; it was so de- void of all particulars that the defendants liadj not reasonable information as to what they werej , called upon to answer ; there never was a count’ r more bare in specifying any particulars ; the words were, “ divers persons, at divers times, and in divers places.” To what part of England could the attention of the defendants be directed ? !j Who were the principal offenders ? Where were | they ? What Avas the time ? What was the offence ? Counsel referred to R. v. Gill , 2 B. & Aid. | 204 ; Reg. v. Peck, 9 A. & E. 686 ; R. v. Gibbs, I 1 Str. 496 ; R. v. Fowle, 4 C. & P. 592 ; R , 1 v. Richardson , 1 Moo. & Rob. 402 ; R. v \j Biers, 1 A. & E. 327 ; R. v. Seward, 1 A. & E { 706. During the argument in O'Connell v. Thi Queen (1 Cox C.C. at p. 462) Lord Den- man, L.C.J., said that the Court considered this count too general, but gave no judgment, as the parties were never brought up for judgment. 1249] The Queen against Cooper and others , 1843. [1250 THE QUEEN against COOPER AND OTHERS. Trial of Thomas Cooper( are influenced by any such motives. You < have needlessly occupied the time of the Court by reading papers and documents* which have and can have no possible con- nexion with your case, and I cannot com- ply with your request. Cooper : I feel myself physically in- competent to proceed with my case this evening. I trust that your Lordships will allow me to conclude to-morrow morning,, as I have the most important part of my case to go into. Lord Denman, L.C.J. : The Court has determined to sit this evening until you : conclude your case. Cooper proceeded to read extracts from, the writings of Dr. Bowring and others in the Anti-Bread Tax Circular, and asked why Dr. Bowring and those who supported- that paper were net prosecuted ? If this gigantic monster had been allowed to increase until its shadow darkened the-* land, why was he to be selected for a dun- geon ? This could not be just. He had not taken up the time of the Court wantonly or perversely ; he had only battled. the case as he was compelled to do in justice to himself and to the demo- cratic body to which he belonged. Had his strength permitted he would have de- («) “ So he beat me out of my naughty design of making them sit two days : and in another hour and a htlf I concluded ” — Coopt.’s Life, p. 235. 1323 ] The Queen against Cooper and others, 1843 . [1324 fended the principle of the Charter, but he had not strength left to do it. The principles were not new ; they were the same as were entertained by Fox, Burhe, and other persons of great talent, many years since. Even Mr. Pitt had said these principles were glorious and great. In conclusion, he said, that whatever tbe judgment might be, his faith in the prin- ciples of democracy would remain un- shaken, and would so remain, and what- ever course might be taken to put down the democratic feeling the struggle would be vain. Truth was abroad in every cot- tage, and, if the clergy would not teach the people, the people were taught by some means or other. The schoolmaster was abroad ; light was dawning in every corner of the kingdom. The people felt that it was a wrong to be compelled to drag on an existence and work as they did to pamper those who did not work, and who tyrannised over them. Let the Go- -vernment become fatherly and the pro- lectors of the country, and a change would soon take place in the minds of the working classes. But so long as the -evil remained their Lordships must not expect that this will be the last Chartist trial. Their Lordships must understand that the moment he came out of prison he would sound the note of the People's Charter. It was not for the sake of se- dition, or from a wish for a new state of things, or because they were men of desperate fortunes — men who had nothing to lose — it was because they had hearts that felt for their fellow creatures. The poor were suffering, and though they had not spoken such strong language as that used by the witnesses against them, they bad spoken because their hearts were torn by the distresses of their fellow men. •Surely, then, they might ask for a mitiga- tion of their sentence. Lord Denman, L.C.J., called upon coun- sel for the Crown to address the Court in •aggravation, although it was -half-past six o’clock ; the Court ought not to give more time to this case. Talfourd then addressed the Court. Cooper had told the rioters that they had done right in turning out the hands. He could not conceive how any man who passed a resolution to this effect, thab work- ing men were to be forcibly turned out, and that no man was to be permitted to work till the Charter was obtained, could ask for a mitigation of punishment. If such a proposition was advocated by the defendants, and that was most conclusively -established, then he ( Talfourd ) maintained that Cooper was guilty of an overt act of high treason. There was a direct connection between the speech of Cooper at the meet- ing at the Crown Bank and the acts of outrage which immediately followed the breaking up of the assembly. With re- spect to Richards, although not at the meeting to which he referred, yet he was with Cooper when he received the accounts of the depredations of the mob. There was no doubt that Richards had used lan- guage having a direct tendency to excite the people to acts of violence, and ought to be hold responsible. Cooper had not during his trial called a single witness to prove that there was the slightest con- nexion between these outrages and the language used by the members of the Anti- Corn Law League. He did not wish ,to press heavily upon the defendants, but that there were acts of violence committed and that these men were directly con- nected with them there could be no ques- tion. There was not a doubt upon that point. Having taken part in the trial of these men in Staffordshire, he could not do otherwise than state to the Court the reasons why he thought the Court ought to pass judgment without any mitigation of punishment. Patteson, J., then delivered judgment of the Court in the following words : ThomOjS Cooper and John Richards, you have been convicted upon an indictment which, charged you with unlawfully, wickedly, and seditiously conspiring, combining, and confederating with divers other persons unknown to raise and make routs, riots, and seditious and tumultuous assemblies, and meetings of large num- bers and bodies of persons in the breach of the public peace, and to incite, pro- voke, and procure large numbers of per- sons at those meetings to meet to resist and obstruct by force of arms the exe- cution of the laws, and, for the more effectually carrying out the said purposes to come there armed with guns, pistols, and other weapons. That is the charge laid in the indictment, and it goes on to say that in furtherance of the conspiracy you and other persons, did, with force of arms at Burslem, unlawfully and sedi- tiously address and speak, and in the hearing of divers subjects of the Queen, divers false, libellous, scandalous, and inflammatory speeches with the intent then and there to excite and persuade them to discontent, hatred, and disaffec- tion to the laws and Government of the realm, and to resistance and violation of the laws and constitution of the Govern- ment. The charge, therefore, is that of having conspired together for the purposes here stated, and the indictment goes on to state that, when the assemblies did take 1325 ] The Queen against Cooper and others, 1843 , [1320 place, the seditious speeches were made in furtherance of that conspiracy, but the indictment is not for the speeches but for the conspiracy. I mention this because it is of great importance that it should be known what the charge against you was, because you particularly, John Richards, in addressing the Court have laid before us your opinions with respect to certain political matters which you call the People’s Charter, as if you supposed you had been prosecuted either for entertain- ing those opinions or expressing them. The case is not so. The indictment does not charge the holding of any such opinions, or expressing such, or en- deavouring to persuade others by argu- ment and discussion to entertain those opinions also. No such indictment has been preferred ; therefore all you have said with respect to your right to enter- tain them, with respect to their being right or wrong, is nothing to the purpose in the present charge. Every man has a right to entertain such opinions as he may think fit with respect to the insti- tutions of the country, and with the re- spect to the possibility of their being made better by alteration, provided that he entertains honestly, and chat, if he disseminates them, he does so in a pro- per manner, and relying on the change being made by v those who by the con- stitution of the country are entrusted with the power of making it. All the people in the country have no right to make that change. The charge, therefore, is not entertaining any opinions with respect to the People’s Charter, or of giving publicity to those opinions. Again, in the address made by Cooper to the Court at very great length, you have entered fully and at large into a statement respecting speeches and publica- tions supposed to have been made by other persons, and which are supposed to con- tain very strong, very seditious, and very inflammatory language. You have at length entered into them, and the Court was unwilling to prevent you doing so, because you seemed to consider it was material that you should enter upon that line as your defence — not as a defence to this indictment, because you are not now making your defence — but were here ad- dressing the Court after conviction in mitigation of punishment, and not on any motive to set aside the verdict of the jury, nor on the supposition tha.t the verdict was contrary to the evidence — but to urge such things upon the Court as might induce them to see if they could, as they are always glad if they can, miti- gate the punishment. Yon made many statements with respect to the publica- tions of other persons, and particular observations, to show that a great many speeches and publications had taken place by persons you call the Anti-Corn Law League. It is not quite clear with what object precisely those observations were laid before the Court. If intended to inculpate the Corn Law League, to bring any charge against 'them, to hold them up to censure, they are not before us, and we cannot take it as a fact that these things were published by them at all. If we had seen your affidavit stating that these things had been so published by them, it would be the height of injustice that the Court should allow persons who were absent to be inculpated and censured by anything that might pass in this Court, without their having an opportunity of meeting the charge, or showing it to be false ; and therefore it would be wholly improper for us to suffer such observations and accusations to be put on the files of this Court by way of affidavit. If these observations were made with a view of inducing the Court to believe that you had been partially dealt with, as it seemed to me they were, because you said the Government had acted partially by pre- ferring an indictment against a poor man, and passing over what had been published by other persons in a higher station in life ; if that was your object, then we will suppose for a moment that such pub- lications have actually taken place, and we might do so without casting any imputation on any person supposed to have been the author of them ; but this Court has nothing to do with that ; it does not deal with the rich in one way and with the poor in another. Any accusation brought against a man, be he rich or poor, the Court will deal with as the law of the land requires it should be dealt with, without reference to .the question of wealth or poverty. This Court does not institute proceedings against any man ; they are brought by others, and therefore the Court is not to be charged with administering the law one way for the rich and another for the poor, because the rich man has not been brought before the Court at all. If these things did actually take place, it would be the duty of other persons to bring be- fore us the parties so acting, and then it would be our duty to deal with them ; but it can be no excuse for any man found guilty of an offence to charge other per- sons with having committed a similar offence who are not prosecuted and brought before the Court ; that can be no excuse for any man. 1327 ] The Queen against Cooper and others , 1843 . [1328 The passages you have read and the language which you say has been used on various occasions appear to have been of a very strong, inflammatory, and wicked description, and I do not hesitate to say that, if persons have been suilty of using that language deliberately and inten- tionally, and it is brought clearly home to them, no doubt they would have com- mitted a serious offence for which they could be severely punished ; and it may be that they ought to be brought before the Court, but the Court cannot tell that such things have taken place. If, indeed, any evidence had been produced on the trial to show that these publications had already taken place, that they had been disseminated among the people whom you addressed in the month of August, and that those people had been excited to acts of violence by these publications ; or, if it could have been proved that agents had been in that neighbourhood stirring up the people to acts of violence ; if you could have shown that they committed acts of violence at the instigation of others, and you had nothing to do with the others, it would have been a ground for an acquittal, or it might afterwards have been a sub- ject for the consideration of this Court as to the punishment they were to pass upon you ; but there is not such evidence to be found of anything of the sort, nothing but a mere surmise on your part, with which the Court cannot deal. Then, supposing that there was some evidence of the people having been excited before, if that were known to you at the time, it made it in- cumbent on you to take care you did not, in adverting to the People’s Charter, add to that excitement and discontent. Take it in any way, there is not any evidence which enables this Court to fix upon any person as haying been the instigator of what took place, or that can form any de- fence, any reason why we should pro- nounce our sentence upon the supposition of any other persons being concerned. In the course of your address you have re- peatedly urged that the jury were induced to find a verdict against you, as if it was a wrong verdict, because it appeared you had, in the course of your address on the 14th of August, spoken very strongly with respect to the clergy and bishops, and therefore you thought rhat it was to have been taken that you had instigated the mob to set fire to Dr. Vale's house ; but no such argument took place at all. It is clear from the report of the proceed- ings that the jury found their verdict upon the general evidence, upon the whole case taken together, upon the conviction that there was a combination between you two and others and with respect to any speeches made or language used towards the clergy, it was a mere circumstance, not proving that you had been the cause that induced the people to commit the de- struction. We see here the state of things which at the time existed, and which has been stated by the learned counsel —how, before you went into the Potteries in the month of August, there had been many people out of employ, there was great dis- tress in the country, much dispute between masters and workmen with respect to wages, great hostility existing as early as A^ril. It appears there were a great many out of employ, and it was put to the jury with respect to the circumstance in the most favourable view for you that could possibly be, because the learned judge told the jury a workman had a right to demand what wages he thought his labour entitled him to, and that he was not obliged to work for any lower wages ; that he had a right to stipulate for what wages he would have ; and no doubt, workmen, if they agree as to wages, if it is done peaceably and without intimidation, may do so, and not commit a breach of law. but then, when we come another matter, your recom- mending all persons to abstain from work at all, not to insist upon having any par- ticular wages, but recommending ail per- sons to abstain from working altogether until the Charter became the law of the land — that matter is a very different one in- deed. The Court does not say it is lawful for any men to combine not to do any work at all, and it is clearly illegal for persons to compel other workmen throughout the whole country to abstain from work until the Charter becomes the law of the land. That is an act which has been characterised as an overt act of treason ; at all events it is most unlawful. When we consider the number of persons that were at that time ready to commit any mischief, and who did commit all sorts of outrage, al- though you say they were not Chartists, the mischief done by addressing a large number of persons indiscriminately be- comes apparent. It might have been different if you had been addressing your own club. Several meetings were held at which you addressed the people ; and even after you had heard of the outrages you addressed them, but you did not say, “I will not have anything more to do with you : you are not the men I took you for.” It is clear the jury were well warranted in their verdict. You told the people not to steal, but you told them not to work, and they must have a subsistence, and the inference therefore was clear. As to the defendant Richards, it appears that he 1329 ] The Queen against Cooper and others , 1843 . [1330 used words with respect to Her Majesty — that he said, “ To hell with her,” and other language equally improper, and it is clear that you were combining together for the purpose charged against you. Taking all the circumstances into con- sideration, and that you, Richards, are much advanced in years, and have already been confined some time, the Court thinks it right to make some distinction in your punishment. The sentence of the Court is, that you, Thomas Cooper, be imprisoned in Stafford gaol for two years, and that you, John Richards, be imprisoned in the same place for one year, and in the meantime be com- mitted to the custody of the Marshal of the Marshalsea.(a) Materials made use of. — The above re- port is compiled from the Staffordshire Adver- tiser, the Times, and the Morning Chronicle. The indictment is copied from Indictments, Out- Counties, Michaelmas, 6th Viet. 23. The sum- ming up is from the Staffordshire Advertiser. (a) In prison Cooper wrote his poem. “ The Purgatory of Suicides.” lie died July 15, 1892, in his eighty-eighth year. Shortly before his death he was awarded a grant of 200J. on the recommendation of the First Lord of the Treasury in recognition of his literary work. 1331] Lopez against Bur stem, 1843. [1332 LOPEZ against BURSLEM. Manoel Francisco Lopez and Others - Appellants AND Lieutenant Godolphin .James Burslem, the Officers and Crew of Her Majesty’s Ship “ Viper/’ and The Queen The Ship fc Guiana.” On Protest against the reception of an Appeal from the Vice- Admiralty Court at Sierra Leone to the Judicial Committee of the Privy Council, November 28 and 29, 1843, before Lord Langd ale, Lord Campbell, (a) Knight-Bruce, . V.C., and Dr. Lush- ington. (Reported in 4 Moo. P.C.C. 300.) The brig Guiana was seized and condemned in the Vice-Admiralty Court at Sierra Leone at the suit of the respondents, the officers and crew of H.M.S. Viper , for a breach of the Acts against the slave trade ; and Manoel Lopez and others, the shippers of goods on hoard, were found liable to the statutory penalty of double value thereof. The shippers, who were Brazilian subjects, appealed to Her Majesty in Council, but did not obtain an inhibition until more than twelve months from the date of the sentence. The respondents entered a protest against the reception of the appeal on the ground that section 29 of the Act 5 Geo. 4. c. 113. enacted that no appeals should be prosecuted from any sentence of any Court of Admiralty or Vice- Admiralty, touching matters provided for by that Act, unless an inhibition were applied for and decreed within twelve months from the time of the decree of sentence being pronounced. (6) Held by the Judicial Committee — Parliament. — Foreigners. — Lex fori. The appellants, though foreigners, were bound by the limitation. Parliament has no general power to legislate for foreigners outside the dominions and beyond the jurisdiction of the British Crown, (c) but it can by statute fix the time within which application for redress must be made to the tribunals of the Empire. This is a matter of procedure and part of the lex fori, by which all mankind are bound. (а) Afterwards Lord Chancellor; (б) Rep., except as to India, 26 & 27 Viet. c. 24. s. 24. See now s. 23 of that Act, and 36 & 37 Viet. c. 88. s. 5, and 52 & 53 Viet. c. 27. ss. 2, 6. (c) See dictum of Parke, B., in Jefferys v. Boosey, 4 R.L.R. 815, and Macleod v. A.-G. of New South Wales [1891], A.C. 455. Respondents. This was a cause originally instituted in the Vice- Admiralty Court at Sierra Leone, on behalf of Lieutenant G.J. Burs- lem, the Commander, and the officers and crew of Her Majesty’s schooner of war Viper, and our Sovereign Lady the Queen, against the brig or vessel Guiana, seized by Her Majesty’s said ship of war on the 26th of March 1840, together with her tackle, apparel, and furniture and the goods, wares, and merchandise laden on board her, for forfeiture and condemnation and penalties ; by reason of her being at the time of such seizure engaged in the slave trade, contrary to the provisions of the statute 5 Geo. 4. c. 113. Proceedings having been taken against the said brig on the 12th August 1840, the Acting Judge and Commissary of the above Court on the 17th pronounced her to have been at the time of the seizure thereof engaged in the slave trade, contrary to the provisions of the above statute, and as such liable to forfeiture and condem- 1333 ] Lopez against Bur stem, 1843 . [1334 nation ; and condemned the said brig, her tackle, &c., as forfeited; and pronounced that the shippers of the goods, wares, and merchandise laden on board the said brig, were liablo to the legal penalty due by law, that is to say, double the value thereof, and that the said goods, wares, and merchandise should be held in deposit until the said penalty was paid, and on the 19th day of the same month the said Acting Judge decreed that the cargo should be sold, evidence having been given that the same was deteriorating in value. In October 1810 information reached the owners of the vessel that she had been condemned ; but, in consequence of delays in the transmission of the process, copies of the proceedings did not reach this country until the 20th July 1841. In the meantime, and on the 30th June 1841, an appeal from the decree or sentence was interposed before a notary and witness by the appellants’ proctor, on behalf of James Logan and John Moore, the owners of the brig Guiana : as also on behalf of Manoel Francisco Lopez and others, Bra- zilian subjects, the owners of the cargo. On the 16th July 1841 the appeal, together with the usual petition to Her Majesty in Council, praying that the same might be referred to the Judicial Committee, was lodged in the registry of the High Court of Admiralty, and for- warded the same day by the Registrar to the Privy Council. (a) This petition was laid before the Queen in Council on the 11th of August, one day before the expira- tion of the year from the date of the sen- tence or decree of condemnation, and re- ferred by Her Majesty on the same day to the Judicial Committee. Notice of such reference was not, how- («) The documents were forwarded to the Law Clerk of the Privy Council with the follow- ing letter, hut no notice Of urgency was given : — Registry of the High Court of Admiralty and Appeals, Doctors’ Commons. July 16, 1841. Logan and others against Our Sovereig7i Lady the Queen. Sir, I have the honour to transmit herewith a petition praying that the above appeal may be referred to the Judicial Committee of the Privy Council, and to request that Her Majesty’s pleasure when taken thereon may be notified to me. I am, Sir, Your very obedient servant, H. SwABEY, Registrar. ever, given to the appellants’ proctor before the 13th, the day on which the Registrar of the Court of Admiralty re- ceived information thereof. In the meantime, and on several occa- sions subsequent to the 16th July, when the appeal and petition had been lodged, the appellants’ proctor attended in the Registry of the Court of Admiralty and Appeals,^ and requested the Registrar to attend before some surrogate to the Judicial Committee of the Privy Council, in order that the usual inhibition might be decreed ; but the Registrar declined to do so, on the ground that, until the appeal and petition had been answered, it was incompetent for any surrogate to decree an inhibition or to do any act in further- ance of the appeal. In consequence of this refusal on the part of the Registrar, and because no notice was given of the reference by Her Majesty in Council until 13th August, the inhibition could not be decreed until more than twelve months had elapsed from the date of the decree. The usual inhibition, cita- tion, and monition were decreed on Sep- tember 3rd, 1841. The respondents appeared under protest on the 21st of April 1842, and a proctor was assigned to bring in his Act thereon. On the 27th of April the respondents’ proctor brought in his Act on protest, setting forth the circumstances of the seizure and condemnation of the vessel for a breach of the Act of 5 Geo. 4. c. 113., and submitting that, inasmuch as the in- hibition served was not decreed within twelve months after the date of the sen- tence of the Court of Vice-Admiralty, by the express words of the Act, no appeal could be prosecuted therefrom. (a) The 5th Geo. 4. c. 113. s. 29. is set forth in the opinion pronounced by Lord Camp- bell. 1 The appeal of the shipowners, Logan and Moore, both British subjects, came on first, and on November 29th, 1842, judgment was given sustaining the respondents’ pro- test, because the inhibition had not been, decreed within the year as required bv the statute. (b) The present appeal which was heard twelve months later, November 28th and (а) These appeals were assigned to the Privv Council by 3 & 4 Will. 4. c. 41. s. 2. (б) See Logan v. Burslem, 4 Moo. P.C.C. 234. After this decision a Bill intituled an “ Act to make further regulations for facilitating and hearing appeals and other matters by the Ju- dicial Committee of the Privy Council,” was brought into the House of Lords in 1843. Clause 11 of this Bill provided “That in all 1335 ] Lopez against Burslem, 1843 . [1336 29th, 1843, was brought by the owners of the cargo, who were Brazilian subjects ; and the respondents again appeared under protest. The question raised by the protest against the right to appeal, and argued, was whether the appellants, the owners of the cargo on board the Guiana, were amenable to the provisions of the statute 5 Geo. 4. c. 113, they being Brazilian sub- jects, and the vessel having been captured at sea. The appellants contended that they were amenable only under the treaties en- tered into between this country and the Brazils for the suppression of the slave trade, and that, consequently, the Yice- Admiralty Court at Sierra Leone had no jurisdiction under the statute t.o make any decree whatever, so far as concerned the cargo ; and that, if any breach of treaty had been committed, it should have been referred to the British and Brazilian mixed Commission Court at Sierra Leone, as the tribunal especially appointed and provided for that purpose. The respon- dents submitted that the suggested dis- tinction between the present appeal of the cargo-owners, and that of the shipowners already decided was not such as to warrant any difference of judgment in the two appeals. Thesiger(a) and Addams in support of the protest; Burge and Phillimore{b) for the appeal, relied upon the following authorities : — The Le Louis(c ) ; The Her- cases wherein a petition shall have been here- tofore lodged as aforesaid, but the usual in- hibition and citation shall not have been de- creed within the aforesaid respective periods, the Judicial Committee and their surrogates shall have full power to proceed, and the said Judicial Committee shall report, and Her Majesty shall adjudge on such report, in like manner and as if the said inhibition and citation had been decreed within the aforesaid respective periods, notwithstanding any pro- test entered into or determined upon by the said Judicial Committee.” When the Bill was sent down to the House of Commons a Select Committee was appointed by that House “ to inquire into the facts attending the delay in extracting the inhibition in the case of the ship Guiana , and dismissal of the appeal, in the said case, by the Judicial Com- mittee of the Privy Council.” The Select Committee, after examining witnesses, reported to the House that there did not appear sufficient grounds to sustain the above section (which had been imported into the Bill to meet the exigency of the case of the Guiana). The clause was accordingly struck out of the Bill, the rest of which passed as 6 & 7 Viet. c. 38. — (Reporter’s note.) (a) Afterwards Lord Chancellor. (ft) Afterwards Sir Robert Pliillimore. (c) 2 Dod. 210. cules(a ) ; The Fabius{h) ; The Garell and Magdalena(c ) ; The Gazador.(d) Lord Campbell: This is an appeal by certain persons, alleged to be Brazilian subjects, and owners of the cargo laden on board the British ship Guiana, against a sentence of the Yice- Admiralty Court at Sierra Leone, by which that ship was con- demned as forfeited, for being engaged in the slave trade, contrary to the provisions of the statute 5 Geo. 4. c. 113. and the shippers of the goods on board were found liable to the penalty of double value thereof. An objection has been made that the appeal cannot be received, on the ground that the condition imposed by the 29th section of that Act, respecting the prose- cution of appeals, has not been complied with ; and the only question now to be decided is, whether the appeal can be received. . I need not say that their Lordships must lean strongly against any such objection, and that it would be particularly satisfac- tory to them that the appellants should be heard against the sentence in this case, as they are said to be foreigners. But we can only, to the best of our ability, put a construction on the statute by which our jurisdiction is regulated ; and if it appears to us that this statute forbids us to receive the appeal, we are bound, however reluc- tantly, to dismiss it. The statute 5 Geo. 4. c. 113. was passed to consolidate the Acts relating to the abolition of the slave trade ; and the 29th section enacts that — “ no appeals shall be prosecuted from any decree or sentence of any Court of Admiralty or Vice- Admiralty, touching any of the matters provided for in this Act, unless the- inhibition shall be applied for and decreed within twelve months from the tune when such decree or sentence was pronounced, except where such decree or sentence shall be passed in any Vice- Admiralty Court at the Cape of Good Hope, or to the eastward there- of, in which case eighteen months shall be allowed for the prosecution of the said appeal.” In this case the sentence was pronounced by the Yice-Admiralty Court at Sierra Leone, on the 17th of August 1840, and the inhibition was not decreed till the 3i d September 1841. Their Lordships have already decided that for this reason the owners of the ship were not entitled to prosecute their appeal. The counsel tor the owners of the cargo have attempted to distinguish their case from that of the owners of the ship on several grounds ; but I regret to say that (a) 2 Bod. 353. (ft) 2 Rob. A. 245. (c) 3 Rob. A. 58. (d) 2 Moo. P.C.C. 15. 1337] Lopez against Barsiem, lv843. [1338 their Lordships, after great deliberation, think that the cases are not distinguish- able, and that the former decision (to which they adhere) must govern the pre- sent. In the first place, it is contended that the owners of the cargo are not bound by the enactment, because they are foreigners. The British Parliament certainly has no general power to legislate for foreigners out of the dominions and beyond the juris- diction of the British Crown, but it cannot be doubted for a moment that a British statute may fix the time within which ap- plication must be made for redress to the tribunals of the Empire. This is matter of procedure, and becomes the law of the forum. On matter of procedure all man- kind, whether aliens or liege subjects, plaintiffs or defendants, appellants or respondents, are bound by the law of the forum. If a law were made upon this sub- ject working oppression and injustice to the subjects of a foreign state, that state might make representation and remon- strances against this law to our Govern- ment; but while it remains in force judges have no choice but to give it effect. Had it been shown to us ever so clearly that in this case the condition required could not have been complied with, if it has clearly, absolutely, and universally been imposed, we should have no power to dispense with it. At the same time it is a great conso- lation to us to consider that the enactment in question leaves ample time for the effectual prosecution of such an appeal, and that it may well be defended on the principles on which there are laws of pre- scription in all civilised countries, fixing the time within which suits shall be com- menced, or appeals prosecuted. In the present case nothing has been said of the circumstances which led to the delay in decreeing the inhibition ; but in the former case it appeared that the delay mainly arose from the laches of the agents of the appel- lants in not sooner taking the proper steps for obtaining it. The appellants, as owners of the goods, must rely upon a part of the sentence, by which it is declared that the goods shail be held in deposit till the penalty is paid. This, they contend, is contrary to the Act of Parliament, therefore not provided for in the Act ; and therefore, they say, it entirely takes the case out of the operation of the 29th section. But the question at present is, not whether the sentence is justified by the Act, but whether it touches any of the matters provided for in the Act. Now, the 4th section of the Act provides that a ship employed in the slave trade shall be forfeited ; and the 7th section provides that the shippers of goods to be employed in the slave trade shall forfeit double the value. The sentence below finds that the Guiana , at the time of her seizure, was employed in the slave trade contrary to the provisions of the 5th Geo. 4. c. 113. and condemns her as for- feited, and pronounces that the shippers of the goods on board are liable to the penalty of double the value of the said goods as the penalty due by law ; and that the goods shall be held in deposit till the penalty is paid. Whether this sentence be, or be not, according to the Act, are the appellants justified in saying that it is not a sentence touching any of the matters provided for in the Act ? The judge of the Vice-Admiralty Court may be mistaken in supposing that a lien could be claimed on the goods for the penalty ; but can it be successfully contended that the remedy for the penalty on the goods, in respect of which the penalty was incurred, was not a matter touching the penalty and the goods ? Are we to have a previous argu- ment, as to whether this part of the sentence ought to be reversed, before we decide whether the appeal can be heard ? The construction of the clause of limitation contended for by the appellants would render it perfectly nugatory ; for in every case it might be contended that the clause does not apply, if the sentence be errone- ous ; and the sufficiency of the sentence would, be argued and determined on the protest against receiving the appeal. If, indeed, the sentence contained a separate and distinct matter, not touching any of the provisions of the Act, although it did con- tain other matter touching those provi- sions, we think the clause would not apply to the sentence so far as the former matter is concerned, and that pro tanto the appeal might be received, although the condition about the decree of the inhibition had not been complied with ; but we can- not consider that the holding of the goods in deposit for the penalty is any such separate and distinct matter, and we make no doubt that it touches the penalty which the Act imposes. If this part of the sen- tence is utterly void, as contended for, the goods cannot be lawfully detained for the penalty, and the question may perhaps be tried in an action of trover, or for money had and received. Their Lord- ships think that it cannot be tried on this appeal, either alleged as a substantive ground for reversing the sentence, or as a ground for receiving the appeal. We know, by experience in this place, that the sentences of the Vice- Admiralty Courts are often very informal, and it would be most perilous to captors and seizors, if such informalities might be taken advantage of, by appeal, at any distance of time. It was probably to guard against this that the Legislature has anxiously made the limi- 1339 ] Lopez against tation as to the time of appealing to apply in language so comprehensive to all sentences touching any of the matters provided for by the Act ; and we are of opinion that we should by no means be justified in putting a construction upon it, which would entirely defeat its object. It was further argued that the Vice- Admiralty Court at {Sierra Leone had no jurisdiction in this case, and that we ought, therefore, to reverse the appeal ; and, indeed, it was said we ought at once to receive the sentence, or to declare it null. I did not exactly understand how we were to come to the conclusion that the Vice- Admiralty Court had no jurisdiction over this British ship for an infraction of the British statute, or how the ca'se could have been brought before the mixed British and Brazilian Commission. But the appel- lants do not deny that there are supposable facts which would give the Vice-Admiralty Court at Sierra Leone jurisdiction over the whole case; and till the appeal is received and heard, how-can we know that these facts did not actually exist, and were not the foundation of the sentence? But suppose that a total want of jurisdiction were established the clause of limitation is not confined to sentences of Courts acting within their jurisdiction ; and this sen- tence, if it were pronounced by a court not having jurisdiction, would not the less be the sentence of a Vice- Admiralty Court, touching matters provided for by the Slave Trade Abolition Act. A number of cases were cited to us, showing what that great Judge, Lord Stowell, had said and done when he had to review sentences of Vice-Admiralty Courts bad for want of jurisdiction ; but all those cases were regularly before him, upon an appeal duly brought and prose- cuted, and in none of them did the ques- tion arise which we have to decide, whether the appeal ought to be admitted upon the construction of an Act of Parliament for limiting the time for appealing. I apprehend, therefore, that in this stage of the proceedings, the argument arising from a supposed want of jurisdiction Burslem, 1843 . [1340 in the superior Court must, be quite un- availing. In the pardonable excess of a very laudable zeal, a power was imputed to this court, which the learned counsel for the appellants on reflection must be aware does not belong to us. It was said that as a supreme tribunal, acting on the Law of Nations, we were to remedy all grievances of foreigners, arising from the acts of Colonial Courts, which may in any shape be brought before us. But, in reality, we are now sitting merely as a Court of Appeal from a Vice -Admiralty Court, strictly bound by Acts of Parliament as much as the lowest Cburt of Justice in the kingdom. We cannot reverse or alter a sentence, until it is regularly before us on appeal, and we cannot receive an appeal if, as in the present case, a previous con- dition prescribed by the Legislature has not been complied with. I, for one, should have been well pleased if an attempt which was made in the last session of Parliament to allow this appeal to be heard by altering the law for these particular appellants had succeeded. A clause in a Bill for this purpose passed one House of the Legislature without opposition, but was not approved of by the other, (a) on the ground, as I was informed, that on inquiry it was found that if the agents employed had done their duty, the inhibition might easily have been obtained in due time. But, however that may be, the general law stands unaltered ; and upon the just con- struction of that law their Lordships are of opinion that the appeal cannot be received. They will therefore humbly recommend to Her Majesty in Council that the appeal should be dismissed, as prayed by the respondents. Materials made use oe. — This report is taken from 4 Moore’s Privy Council Cases, 300. The printed cases, and the minutes of evidence before the Select Committee of the House of Commons, have also been referred to. («) See ante, note (6), p. 1335. 1341] Appendix A. [1342 APPENDIX A. Other Trials betvv The following cases, tried within the period covered by this volume, were submitted to the Committee by the Editor, but were not thought of sufficient importance to be fully reported in the collection. The Queen against Bronterre O'Brien and others. February 29, 1840. James A yre, Bron- terre O'Brien, in') Thomas Devys, John Mason, and William Thomason, were indicted before Coleridge, J., at the Newcastle Spring Assizes, .1840, 1st, for unlawful assembly on July 7, 1839 ; 2nd, for seditiously meeting to raise dis- content, and breaches of the peace, and by inflammatory speeches to obstruct the execution of the laws ; 3rd. for conspiracy with the like objects. There is a full report of the trial in the Northern Star of March 7, 1840. O'Brien applied to sever. Coleridge, J. : You have made an applica- tion to me to be tried separately, and, however inconvenient to me the course adopted might be, if it were warranted by authority, or likely to prevent injustice, I would listen to it. But I know of no authority, and I have consulted my brother Erskine upon it, who says he knows of no authority ; and, looking at the state of business of the assize, and conceiving that it will not operate to your prejudice to be tried with the others, I cannot comply with the application. Dundas having opened the case for the Crown, James Henderson, a reporter on the staff of the Tyne Mercury, was called, and deposed that he attended a meeting at New- castle on July 7, 1839, after news had arrived of the disturbances at Birmingham, (6) at which O'Brien delivered the following speech : — “ The first blood has been shed, and I am glad to see it was not the people’s blood. It was the blood of men who were the hired agents of bloodthirsty men, who were called out by dagger and torch men. I told the people several years ago that there would be a desperate struggle to obtain their just rights. At that time 1 stated that the middle classes would shed the blood of half the population rather than that they should have their rights. The time is at hand when the prophecy will be accomplished, and I hope all are pre- paring for a rainy day. I never advised you to arm for the purpose of advancing the interests of any particular class, but I have advised you to agitate, agitate. I advised you to form your- selves into associations as far as convenient with one great end— not to break the law, but to stand on the very outside of it. My friends, you knew that our opponents will not submit, but will suspend the laws. You know what the authorities will do — that the Habeas Corpus Act will be suspended, that trial by jury will be suspended, and that in some instances it has been suspended. You know they will destroy every vestige of the constitution. If they do (а) See Place MSS. 27, 821, p. 230. (б) See Reg. v. Howell; Reg. v. Collins; Reg. v. Lovett, 3 St. Tr. N.S. 1087-1188. EEN 1839 AND 1843. not accede to your demands, I do advise the people to arm to a man to put down by force the traitors who dare to use force. You have here a fair statement of the position of the people. I call upon you to arm with all possible means, and, if you are not allowed to meet, to read the newspapers — if you are to be met by the military and police, there was only one argument that [ can use. When a people are actually massacred it is time to ask them to be prepared. The time is arrived. A large proportion of the Convention is in gaol already. Many of them have been arrested for riots which the authorities have caused them- selves. Under the direction of the local authori- ties at Birmingham, the police first commenced to take persons into custody before the Biot Act had been properly read. It was they who made the riot, and if anything like law existed they would now be in gaol instead of the parties whom they arrested. There is no law but for the seven hundred thousand of the middle classes, and they would put the working classes down by laAv. I know there is a warrant out against me. Seven hundred thousand living on rents and plunder ! Bather than submit to that he would massacre the whole of England, Talk not to me of the Whig Government, of the power of the Queen — they are but mere bugbears — a mere tale for the time being. Ministers had no power but from the House of Commons, and the House of Commons, but from the seven hundred thousand conspirators who could stay the course of legislation. (Here the witness said a slight disturbance prevented his catching a sentence or two.) I am sure there is no person present who believes I would make such a charge against any person so far as he belongs to the middle classes. Every person who would give me the same rights as himself is an honest man, but I speak of the majority, for they have used means to prevent them being obtained even to the least extent. And as they have taken that which belongs to others, they are as well traitors as robbers. Now, if the Mayor and Common Council of Birmingham had not been enemies of the commonweal, they would not have allowed the Government to send down armed assassins to prevent the people reading news- papers. They are answerable for the acts of the military. They called out the soldiery and they read the Biot Act. 1 will tell you, if you assemble and you are interfered with, you should go behind quarters — behind the Corporation of Newcastle. If the mayor and corporation allow armed ruffians to take the lives of the people, then they are answ r erable for it with their lives and pro- perty. Your enemies are scattered over the w T orld, they make the Government and the House of Commons, and the House of Commons and Government are alone answerable to seven hundred thousand. If you are resolved to be free, and not to be killed -with impunity, you must look to the traitors in the town who pay the blood money, and without whom the assassins -would not act. If you would preserve the peace 1343] of the town— if you would act so as to prevent bloodshed, the men of Newcastle would be ashamed if they had not one good musket. Unless I see the people properly armed I shall renounce the movement. I will not risk my life if you do not know your rights. And if you know them, I will retire from the Convention, if you are not prepared to act after being refused them. Men who know their rights are miserable cowards if they do not take them without loss of time. The middle classes never petition you for their rights, they make the Parliament themselves. They are ready to shed the blood of the people ; and if seven hundred thousand of the electors out of nine millions, take the power without consulting you, there can be no crime in your doing the same. If they are the wise men you say they are, there will be no harm in your following their example. The National Petition has been courteously received, (a) Mr. Attwood is about to move something, and they are about to bring in a Bill ; and your business is now to keep quiet, to put your trust in Providence and keep your powder dry. You have no right to assume that anyone will be so mad as to exclude nine-tenths of the people from making the laws they are called upon to obey, but your business is to prepare for a rainy day. "When you see the arguments by which they are preparing to meet your arguments, it is your duty to arm to the teeth, in order that the fate of your friends at Bir- mingham may not be yours. I understand that some of the gentlemen present intend to propose resolutions. I have not seen them, but 1 trust they will be worthy of the high character of the men of Newcastle. I call upon the men of Newcastle to put them- selves in readiness ; and if the Mayor of New- castle shall attempt to deprive you of your political rights, that shall be the signal for a rising in the town. I do not wish you to vio- late the law, but to keep peace with the autho- rities as long as they keep the law, but, if the attempt was made to disperse you, you must not meet again, except with arrows in your hands. I advise you not to let one week pass without procuring arms to defend yourselves, your Queen and Constitution, and above all your rights as Englishmen.” The witness further spoke to other speeches at the meeting, and to a resolution being carried, “That the Government have committed high treason against the Queen and Constitution by attempting to disperse the people of Birming- ham while discussing their mighty grievances.” In cross-examination the witness made several admissions tending to show that the above was not a full and accurate report of O’Brien’s speech. Coleridge, J., in summing up said the defendants seemed to have mistaken the ground of prosecution. It was not, as seems to be supposed, for using seditious words. The first charge is for seditiously assembling, and then by seditious speeches endeavouring to excite the parties to whom they were addressed, to hatred and contempt of the Government and the laws of the country, and to create riots, [1344 routs, and insurrections, and also to persuade them to arm themselves for these purposes. Now if that charge is supported it is an illegal offence. Persons may assemble for any purpose, but then they must not use language calculated to excite contempt for the laws of the land. The learned judge proceeded to comment on the evidence of Henderson, the reporter of the Tyne Mercury , who was, he said, the only wit- ness against the defendants. Henderson was not sent to the meeting at the instance of the authorities, but was reporter for a newspaper, and the paper not being favourable to the Chartists, was not likely to give a very favour- able representation of what was said. He went to make an article for a newspaper, and acted, no doubt, honestly, but then he did not expect to be made a witness in such proceedings as these. The distinction was this — they had had not got a man who went to take a full report, and knew that he would have to detail all that passed in a court of justice, but one who went to a meeting merely to take notes of such parts as would do for his purpose. If a person were indicted for a printed libel, he had a right to insist upon its being all read ; and on the same principle, if it was sought to make a man answerable for what he had said, the whole should be given to the jury, or, at least, so much as Avould enable them to judge of the tenor of the whole. The question, then, was whether they had sufficient of the speeches before them in this instance to enable them to judge of the tenor of the whole of them. The defendant O’Brien had cross-examined the witness, and it turned out that the defendant took part in favour of the Government, but this was not stated in the report, and the accuracy of the report being a very material question in this case, it was for the jury to draw their own conclusion respecting it. From what he had from Mr. O’Brien to-day, he thought he would not have used some of the language imputed to him, for he would be likely to talk common sense, which he was not exactly made to do in that report ; “ The language he admits using is very strong, but the question is, not whether he has used strong and intemperate language — for in this country a man cannot be punished for that — but whether, upon the whole, it was calculated to produce the effects charged in the indictment. The procuring of fire-arms is not an unlawful act, the people have a right to have arms ; but the question is whether they were to get these arms for the purpose of using them against the public peace. The question is whether he meant that, after what had taken place at Birmingham, all law was gone — that the seven hundred thousand middle classes whom he mentioned had taken up arms against the lower classes — that all law and order was gone, and society reduced to its original elements, and then, if so, there can be no doubt that the people had a right to arm in their own defence. The very first law of nature is self-defence. But I must here remark what a dangerous thing it is to incite the people to arm, and to make them the sole judges of whether they had a right to interfere. The defendant admitted that he ad- vised the people to keep the peace as long as the authorities themselves keep the law ; but this I must observe is a most dangerous doc- Appendix A. (a) See below, Appendix G. 3345 ] Appendix A. [1346 trine, because it is a most dangerous thing to make the people judges whether the law had been kept. If the authorities break the law, it is still the duty of the people to yield obedience. What a dangerous state of things would exist, for instance, if when the authorities were going, as the people thought, beyond the law, they were to take up arms against them.” The jury acquitted the defendants. (a) The Queen against Peddie and others (Jthe Bradford Chartists'). March 11, 1840. Robert Peddie, William Brook, Thomas Drake, Janies Holdsworth, and Paid Holdsworth were indicted before Erskine, J., at the York Spring Assizes, for seditiously conspiring to create a riot and disturbance at Bradford on the 27th January, and for seditiously meeting and arming for the purpose of carrying these intentions into effect. The case is fully reported in the Northern Star. The Attorney General (Sir John Campbell ) in opening the case stated that it would be proved that on the evening of the Saturday, the 25th of January, there was a meeting at a Mrs. Har- greaves's, in Bradford, where schemes which had been previously planned were again dis- cussed ; at this meeting the prisoners Peddie and Brook were present. Now, the schemes laid were of the most alarming character, and would astonish those who were not accus- tomed to courts of justice. But — as was said by Lord Tenterden, when an attempt was made to take the town of London by two men(6) — they over-calculated the support they were likely to obtain. So in this case, they saw no obstacles in the way, and plunged into their schemes, which were abortive, being determined to resort to physical force for the purpose of obtaining the Charter. They were to proceed to the neighbourhood and take possession of cer- tain ironworks, called the Low Moor Ironworks, which were in the possession of Messrs. Daw- son and Hardy. In those ironworks were some cannon, and they expected to get some pieces of artillery, which would assist them in their proposed scheme ; then they were to go to Dewsbury ; and afterwards they were to proceed to the metropolis, and take possession of the Government. It was agreed on that occasion that they should meet on the Sunday evening, at a place called Lidget Green. They accord- ingly met there, when Peddie and Drake and Brook were present. Upon that occasion they further discussed and matured the details of the plan. They agreed that they were to come armed ; and it was resolved that they should provide a considerable quantity of ammunition and arms. They were to meet at an earlier hour at the house of a person called Smith, who (а) During the same assizes Bronterre O’Brien, together with the Rev. Wm, Vickers Jackson, dissenting clergyman, and three others, was con- victed, at Liverpool, for seditious conspiracy, unlawful assembly, and seditious speeches at Manchester. O’Brien was sentenced to eighteen months and Jackson to two years’ imprisonment, and to enter into recognizances in 500^., with two sureties of 150 1. each, to keep the peace for three years. (б) Rex v. Watson, 32 St. Tr. 578. o 67432. kept an orange shop. They were to wait till two in the morning, aud then sally forth ; then go to the market place and carry the scheme into execution. They accordingly met at Smith's, the orange shop, and there were present besides those he had mentioned the two Holdsworths. They remained there for a con- s’derable time, and then sallied forth with Peddie at their head. Peddie had on his person a military belt and a dagger, and the others were armed with different kinds of weapons, and a considerable quantity of ball cartridges had been provided. They met a watchman named Croft, whom they took prisoner. He (the Attorney General ) was thankful they had not the barbarous scheme of assassinating all whom they met on the way ; and it gave him pleasure to state that on behalf of the defendants. Then they met a man called Hillingworth, a special constable, whom they took a prisoner. But at this period of the transaction the constables came up, and followed the mob, which imme- diately dispersed. James Harrison, one of the witnesses for the Grown, who admitted being in the employ of the Bradford police, gave evidence as to meet- ing at Hargreaves' beershop on Saturday, January 25 : I was in a room upstairs, and Peddie and Brook were there with others, about a dozen in all. They were all delegates or councilmen, and mentioned as such in the presence of Peddie and Brook. Peddie and Marsden were strangers to me ; when I went in they were introduced to me by Brook and Flinn as being the two men from Leeds. They shook hands with me. Peddie then told me he had just come from Edinburgh to Leeds, Bradford, and Dewsbury to take the command of the men of the North Riding of Yorkshire. Peddie said he understood some of the parties had the com- mand, some of ten, and others of twenty, but he would not take the command, unless they all gave up to him, as, where there were so many commanders, things never went on well. It was agreed by those present to give up the command to Peddie. It was agreed that we should have another meeting on Sunday evening at Turner's, at Lidget Green. Peddie said it was necessary that all parties in the neighbourhood should know how to come to this meeting on the Sunday It was then ordered that notes should be written to different distant parts of the neighbourhood, and notes were v'ritten by George Flinn ; four or five of them were given to me ; one was to go to Halifax, one to Queens- head, one to Horton, and the other on the road. The men to whom these w r ere to be delivered w~ere delegates, or principal men, who had the command of the men. I remained at Har- greaves's till near ten o’clock on that night ; after I had made my report, Peddie said he was glad to hear that the Queenshead people were ready. In the course of a quarter of an hour Brook came in and said he had been at Queens- head, and that he was in the schoolroom when the man came out to me. Brook said w r e must not expect the men that night, for their ammu- nition was damp, and it would take half a day to dry it. Peddie said it was time for those to go who had any distance to go, and that they U U 13471 Appendix A. [1348 were all to meet in the Green Market not later than two o’clock the next morning. The Green Market is one of the principle squares in the town. Peddie said, “ Before we part you must all be aware to come as near the time as possible ; those who have the command of a hundred must bring fifty without waiting for the rest, and those who have the command of twenty or thirty must bring half of them and not wait ; if you meet with a watchman or con- stable in the street bring him with you if he will come quietly, and, if he will not, leave him so that he will not make a noise.” When they got to the Green Market they were to take posses- sion of the Bazaar ; the Piece Hall was to put their ammunition in ; the News Room was to be the depdt for the body of men. Peddie said he would soon get some picks, and set the colliers to work to make the hole through the wall to put the cannon through. They were to get all the food and clothes ; for, said he, my men shall neither want food nor clothes. They were to go with bread, butchers’ meat, and what they could get. They were to go from Bradford to Dewsbury, and they would gain strength as they went. Their five hundred in the morning would become two thousand before night. They were to go on to London, “ and after the first storm,” he said, “ you will give me leave of absence. I will then take a post-chaise and four, and go to meet Dr. Taylor and his army in the north.” The witness proceeded to describe the failure of the attempt, as opened by the Attorney General. The defendants were found guilty and sen- tenced on March 26 following. Peddie was sentenced to be imprisoned at Beverley for three years and kept to hard labour, and at the expiration to be bound over to keep the peace for three years, himself in 30/. and two sureties in 10 1. each ; Wm. Brook to be imprisoned at Northallerton for three years, and after to enter into his own recognizance of 30/. ; Thos. Drake to be imprisoned at Beverley for eighteen calendar months, and to be bouDd over in his own recognizance of 30/. ; Paul Holdsworth to be imprisoned at Northallerton for one year with hard labour, and afterwards to enter into his own recognizance of 20/. to keep the peace for three years. The Queen against Holberry and others (the Sheffield Chartists ). Monday, March 16,1840. James Duffy, Samuel Holberry, Thomas Booker, and William Wells were indicted before Erskine, J., at the Spring Assizes at York, for having unlawfully conspired and confederated with other persons, at Sheffield, on the 12th January 1840, to create a breach of the public peace ; and for obtaining arms and other instruments for the purpose more effectually of accomplishing their object. There is a full report of the trial in the Northern Star. The Attorney General (Sir John Campbell), in opening the case for the Crown, stated the facts as follows Gentlemen, you have already heard that the defendants stand indicted for having entered into a conspiracy to violate the law, to create insurrection, and to disturb the public peace. The offence of which they are charged is one of the most grave and serious nature ; indeed, it borders on the highest offence known to the law of England, the offence of high treason. The charge against them is that they entered into a plan which, if they had per- severed in it and had been able, by the measures they contemplated, in any degree to carry it into effect, would certainly have subjected them to a prosecution for high treason. Luckily for them, their plans were disconcerted ; two of them, however, were actuall}' committed for the crime of high treason — Holberry and Booker. After some mature consideration, and in concurrence with my learned friends, I have thought that the ends of justice did not require that the prosecu- tion should be conducted in that shape. I hope my conduct in this respect will not be blamed by the Government ; I am sure it will not be blamed by the defendants or those who represent them. There were established in the town of Sheffield societies called Chartist. These societies at first were probably of an innocent nature, because at first they merely entertained opinions which they conscientiously thought should be carried into effect ; but, gentlemen, by-and-by, being deluded by designing men, they certainly laid a plan of the most dangerous and mischievous nature. They were resolved, not by constitutional and legitimate means, but by force and violence, to carry that plan into effect. For this purpose they were divided into classes — each class had a leader — and they met at certain places in Sheffield and the neighbourhood, orders being communicated to them by their leaders. Gentle- men, in the beginning of January of the present year, they formed the plan which is the subject of this prosecution, which was to prepare fire- arms, to assemble at a given time, to take by force possession of the Town Hall and “ Ton- tine Hotel,” of Sheffield, aDd to enter and fortify those places against the troops that might be brought against them ; and to have a general rising in Sheffield, which was to be accompanied by a rising of a similar description in other parts of the country. The time fixed for the accomplishment of this scheme was the night between Saturday the 11th and Sunday the 12th of January. The class leaders were to bring their men to the appointed place, and this plan of operation was to be brought into effect, at- tended with circumstances of violence, which I have refrained at present from speaking to you about. If they were defeated in the attempt to get possession of the Town Hall and “ Tontine Hotel,” then they were to set fire to the town. Luckily, however, the magistrates received in- formation of this plot — not of its details — but they were aware that something of a dangerous nature was in agitation. Accordingly measures were taken to prevent it. The military and police were called out and actively employed on the night between the Saturday and Sunday, and, luckily for Holberry , he was arrested at midnight. There were several attempts at riot made, but the rioters did not come out in large numbers — only from twenty to thirty, and, as soon as the alarm was given, they were dis- persed, the ringleaders were apprehended, and the public tranquillity was restored. Now, gentle- men, if there was such a plot as this in existence, 1349] Appendix A. [1350 there can be no doubt at all that the corpus delicti is fully established, and the only question will be whether these four individuals who have pleaded not guilty were implicated in the trans- action. Now, with regard to Holberry, it will be proved that lie was the principal leader ; he attended the class meetings ; he attended at a place called Fig Tree Lane, where the delegates used to attend ; he attended the meeting in Lambert Street, where the details of the plan were arranged. He was, in short, I may say, the principal contriver of the scheme. He was arrested between eleven and twelve o’clock on the Saturday night. He was found in bed with his clothes on, excepting his shoes, and he then entered into an explanation, making no secret of his intentions. When he was arrested this dagger (the learned gentleman here exhibited the dagger which was found upon the prisoner, and which was a most formidable weapon) was found upon him. I will not detail the conver- sation which then took place ; that you will hear from the witnesses ; but I will tell you that there were found in his house a large horse pistol, twelve hand grenades, two bomb shells, half-a-dozen fire-balls, forty ball cartridges, several tin cases for powder, three torches, a quantity of tow used in the manufacture of those articles, from 100 to 200 iron bullets, and an iron pot. Gentlemen, I believe this basket con- tains the articles found in Holberry's house. Now for what purpose will Mr. Watson (the defendant’s counsel) say these were col- lected — for what purpose was the defendant lying in bed at that time of the night with a dagger in his bosom ? With respect to j Booker, it appears that he attended those meetings, and that he took an active part in them. He was out on the night in question, and was arrested about four o’clock in the morning at a place called Crook’s Moor, and near where he was arrested was found a great quantity of arms of a similar description to those found in Holberry's house. Gentlemen, William Booker, that young man who is now standing next to him, is his son. He was arrested about four o’clock in the morning in his father’s house, and there were found this pike head upon a stick, and a quantity of ‘ cats.’ Here is a specimen of this most dangerous weapon, which was for the purpose of defend- ing themselves against the attacks of cavalry. They are so ingeniously constructed that, throw them which way you will, a point will be sure to turn upwards. On the following day an immense quantity of iron pikes were found concealed under the bed. There were also found, when the prisoner was apprehended, two guns, a loaded pistol, three hundred and ninety-one ball cartridges, two large bombs two inches in diameter, two hand grenades, four daggers, and a great quantity of pike shafts sharpened at one one end ready to receive the heads. Now, gentlemen, these are a specimen of what was found at the houses of Holberry and the two Bookers. I now come to the case against the defendant Duffy, who is to be defended by Sir Gregory Lewin. He was also a class leader, and was to have brought his men up that night, but was not so punctual as was expected. He took a part in carrying the plan into effect. He is an Irishman by birth, and he was to bring up his countrymen who were to be named his class. A quantity of arms were found deposited in a place where they had been secreted by him. You, gentlemen, will probably wish to know how all this is to be proved. I shall prove it by witnesses whose testimony cannot admit of the slightest doubt. I shall likewise call witnesses who were implicated in this case. I have no doubt but that my learned friend will cross-examine these witnesses, and call upon you to receive their evidence with suspicion, and will very probably call other witnesses to disprove what they may advance, but inde- pendent of these I apprehend there is sufficient to establish the charge against them. But that you and the public may know all the mischief which was contemplated I will present before you two witnesses of the name of Thompson and Foxhall, who intended to have joined in this outbreak, nay, who did join it. Gentlemen, in cases of this description it is impossible to learn anything of the plans and intentions of secret bodies unless through the medium of accomplices or spies. Their testi- mony, however, will be corroborated in the most important particulars by other witnesses who are not accomplices, and then, according to the rule of the law, you wiil be required to give the fullest credit to the testimony of these two persons. Gentlemen, under these circumstances I again confess my astonishment that the de- fendants should for a moment question the evidence ; they have, however, an undoubted right, as I before observed, to put us upon proof of the charge, and I think there cannot be the smallest difficulty in giving that proof. The only defence which appears to me can be attempted will be that they are not guilty of a misdemeanor, because they are guilty o*f high treason. Gentlemen, that is a defence to which lam sure my learned friend will not resort, and if you should be of opinion from the evi- dence which will be given that they are guilty of high treason, it will be your duty to acquit them of the present charge, but it will be my duty, as the public prosecutor, to take care that they do not escape public justice with impunity. The defendants having been convicted, on March 26 Erskine, J., pronounced sen- tence as follows : — Samuel Holberry, Thomas Booker, William Booker, James Duffy, you have been tried and convicted of a seditious conspiracy for the purpose of obstructing the law, and of making riots and disturbances, and a breach of the peace. The conspiracy which was proved against you by the clearest evidence shows that you have been guilty of an offence for which you might have been called upon to forfeit your lives, for I have no hesitation in saying that there was evidence produced on the trial from which the jury might have been warranted in drawing the conclusion that you had actually levied war against the Queen, and had been guilty of high treason. Happily for you you now stand at that bar to receive judgment for a misdemeanor, and you should be thankful to those who have taken the most merciful consideration of your case UU 2 1351] and have not placed you in that peril which your own conduct had brought upon you. You will, I have no doubt, fancy, and others may be encouraged to think, that you are brought here to be punished for the opinions you are said to entertain with respect to some political question which you have imbibed, as it was said, in defence of what you call your Charter, but you, and those who are under that impression, should be undeceived. You are not called upon to answer for any opinions you may entertain, for you have a right to entertain them, and a right to enforce them all by con- stitutional means. You have a right to meet, you have a right to consult peaceably and quietly, and you have a right to use all the energies of your minds to enforce those principles if you think them worthy of the consideration of the country. You are not condemned for entertaining those opinions, but because you have sought by un lawful means to enforce them, by means which, if encouraged, would bring destruction and death upon yourselves, and even if partially success- ful would bring destruction and ruin upon your country. It is a privilege of every English- man to maintain his own opinions with energy of mind so as to bring others to adopt them. It is also the right of every Englishmen to have arms for his own defence, but it is not therefore that you are to be allowed to procure arms for an unlawful purpose, and to assemble with others for the purpose of carrying those unlawful purposes into execution. If arms are produced for the purpose of resisting the constitutional government, and of maintaining by force and violence, and of extort- ing from others the adoption of those opinions, and of forcing them upon the Government, then the very procuring of arms, the very assembly in which those purposes are discussed, become unlawful, subject the parties to punishment, and if they are attempted to be carried out by armed force, then will follow the heavy punishment of high treason. You and others seem to have entertained the doctrine that peaceable and constitutional means of enforcing your opinions are no longer to be abided by — that you have a right to exercise what you are pleased to call physical force for the purpose of obtaining your ends. But in this you are not only con- travening the law and the constitution of the country, you are not only placing in peril the interests of the country, but you are waging war with Him who rules the universe supremely by all moral power, and who will defeat your plans as long as they are con- trary to His laws. You say the people are the force of the country, and that they must rule. You might as well say that the arm is the force of man, and it must rule ; but it is not the arm, it is the mind that rules. So it is in the political body ; it is not mere numbers that can rule ; the Government must be under the influence of that moral power which the Almighty exercises in national as well as indi- vidual cases. When you were assembled in numbers, armed with power sufficient to put down the few individuals who took part against you, what made you take to your heels and [1352 run away ? Was it force ? Was it the arm of the constable that seized you at your posts ? No, it was your conscience that told you you were doing wrong and unnerved you, and de- feated your purpose. Such purposes will always be defeated, and if you could hope to obtain by. force of numbers a temporary or even lasting success, what must be the consequences ? Would you form a better government ? Do you think that the man who stood at the head of you and said he would blow the brains out of every Chartist he saw out after ten o’clock at night would rule more mildly than the laws of your country ? What tyrant ever pronounced such a threat as that ? You talk about liberty and submit to be threatened in this manner. It has always been the case when someone has gained the ascendancy, by the exercise of force, that it has introduced a system of anarchy and confusion, and disorder, and has led to a spread of tyranny more hateful than that from which those who followed him fancied they had been relieved. Let me, therefore, before I pass sentence, advise you to consider what you are about. Some of you have pleaded distress had urged you on to the enterprise. What would have been the consequence of your success ? To what do you owe anything you have ? Is it not to the national prosperity ? If that were destroyed it would make the rich poor, and the nation actually a nation of despicable paupers, and would crush the power which England has hitherto exercised in the face of the whole world. The learned judge proceeded to sentence Samuel Holberry ,(a) as the leader of this con- spiracy, to be imprisoned in the House of Cor- rection, at Northallerton, for the term of four years, and at the expiration of that time to find sureties for keeping the peace himself in 50/., and two sureties of 10/. each ; Thomas Booker to be imprisoned in Northallerton House of Correction for three years, and afterwards to be bound himself in 30/. and two sureties of 10/. each ; William Booker to be imprisoned at Northallerton for two years and to find sureties in 20/. ; James Duffy to be imprisoned for three years in Beverley House of Correction, and then to be bound himself in 30/. and two sureties of 1 0/. each to keep the peace. The Queen against Fear gus O’Connor. 1840. March 17. This was a criminal information filed by the Attorney General against the de- fendant for publishing certain seditious libels in the Northern Star of July 13 and 20, 1839. There is a shorthand note of the trial before Coleridge, J., and a special jury at York, and of the subsequent proceedings in the Court of Queen’s Bench in the Treasury Solicitor’s Papers, 2694. The information set out a speech of the de- fendant at Rochdale, reported in the Northern Star of July 13, 1839, of which the material parts were as follows : — “ Mr. O’Connor, then came forward amid protracted cheers. He said that it was some time since that he was last among them ; he had been in Birmingham, and (a) Holberry died in prison ; see Gammage, History of the Chartist movement, pp. 233, 234. Appendix A. 1353 ] Appendix A. [ 1354 * when he arrived there on Monday last he saw mischief was brewing, meetings were con- stantly being held in the Bull King, and heavy fines were inflicted by the magistrates for attending them. The Convention decided against interfering, but when he saw so many assembled there in the evening, he did address them and tell them his opinion as to the legality of the meetings. He said that the law would protect those who were agitating in their own parish when it would not throw the same pro- tection round a stranger as he was in their town. He asked them to follow' him to Gosta Green, where he and Frost addressed a meeting of at least forty thousand. Four hundred special constables and dragoons followed them, and as soon as the people had all left the Bull Ring, they immediately took possession of it to prevent them from assembling again. But Scholefield and Muntz, and the rest of the clique, had now got what they wanted, and the first use they made of their newly-acquired power was to turn it against the people. (Shame !) As it was in Birmingham, so it Avas everyAvhere else ; the local aristocracy in every village were doing their utmost to put doAvn the cause of the people by physical force. Could they think of opposing physical force by moral force ? (Hear.) No, but the contrary ; Avhen physical force Avas brought against them it would be their duty to give it a Avarm reception. (Cheers.) They were iioav so organised through- out the country that they would have little to fear from the rogue, the spy, or the traitor. (Loud cheers.) It Avas only folly that could endanger the cause. . . . Should the consti- tutional meetings of the people become necessary he (Mr. O' Connor') would require better laAvs than royal proclamations for suppressing torch- light meetings. But if they relied on a sacred holiday, (a) they might depend on it they Avould do nothing. If they demanded that iioav, they Avould do the very thing the masters desired. Their store-houses Avere Avell filled, and they had so much machinery that the population Avas a mere drug in the market and they could do Avithout the people during the sacred month very well. Let their labour become valuable, and then let the Avhole of the country strike on a given day and never return to their call- ings till they have Avorked out their political and social salvation. ... He had just al- luded to a fair day’s wages for a fair day’s work. The land belonged to the people ; those Avho by their labour and capital cultivated it had a right to its productions, but no man has a right to more than his share of the soil itself, Avhich upon every principle of justice belonged equally to all the inhabitants of the country. . . . He never would descend to catch a fleeting popularity by going too far, but the moment they were provided w r ith arms they Avould be in a condition to defend those rights Avhich were still left to them, while the Govern- ment would be induced to give up those of Avhich they had been deprived.” The information also set out a report in the same number of the Northern Star of July 13 of a speech delivered j by Bronterre O'Brien at the New Lecture Room at Newcastle.(a) “Mr. Ayre presided and Mr. O'Brien Avas the principal speaker, avIio certainly made mince- meat of the matter, lie concluded his harangue by advising the people not to let one week pass over, or one hour of it if possible, Avithout pro- curing arms to defend their Queen, the Consti- tution, and above all their OAvn rights and liberties. The resolutions passed Avere the fol- lowing, and the speaker advised no one to hold up his hand for them Avho was not fully pre- pared to follow up his signification of assent by his future actions. They Mere carried unani- mously and, especially the second, Avith loud and tremendous cheering. “ 1. That the Government have committed high treason against the Queen and the Consti- tution by attempting to disperse the people of Birmingham when discussing their mighty griev- ances. “ 2. That in case the Government shall persist in dispersing the meetings of the people by physical force, Ave, the men of Newcastle, putting our trust in God, and resting upon our rights and the Constitution, are determined to meet an illegal force by constitutional resistance. “Mr. James Ayre, in proposing meetings every evening in the Forth, exhorted them to arm themselves with pikes and with muskets, with the firebrand and the torch, and when the property of their opponents was destroyed they would be as poor as themselves and equally vulgar.” Among the passages set out in the informa- tion, from the Northern Star of July 20, 1839, was the report of a speech of William Taylor , the Chartist leader at Manchester : “ Your Avill will be God’s will, and God’s will is tbat his people should be free. What are Ave to do ? We are to be free, and no mistake ; we are to be free, and no doubt about it ; we are to be free, whatever it cost ; we are to be free, however great the struggle ; Ave are to be free, however mighty the contest ; Ave are to be free, hoAvever great the difficulty to accomplish it ; avc are to be free, though we Avade through streams of blood, though we pass through streams of trouble ; we are to be free by the best means Ave can ; Ave are free only by the means we have left. Now the people may ask, what are the means left ? I am not going to blink the question; I am not going to teach you a doctrine I don’t believe in myself. We will go back again to the old Book, and I will ask you or any minister, whether Ave read in ancient or modern history of any nation in bondage becoming free Avithout the use of physical force.” The information also set out passages from a speech of Bronterre O'Brien at Stockport, re- ported in the same number : “ Let not a needle or a spade be used unless to dig some tyrant’s grave ; let not a shuttle moA'e unless to weave the Avinding sheet of some monster robber, some profit-monger Avho dared to attack the people’s Parliament. All Avill soon be even.” . . . “ He had an important question to ask them. Were they up to the mark ? By that lie meant (a) See below, Appendix G. (a) See above, p. 134, 1355] were they provided with all legal and constitu- tional appliances to bring those cursed profit- mongers to their senses ? He could tell them no plainer, but if they did not understand what he meant, why they would very soon.” O’ Connor defended himself in a speech which lasted five hours, (a) and denied that he had ever advocated physical force or the spoliation of pro- perty ; he complained of the Attorney General’s action in proceeding against him by way of information, and declared that the prosecution was owing to his opposition to the Government. “ You will say from what motive I have opposed them. From eight to ten thousand pounds I have expended in this cause since I began to establish the Northern Star. I established it because the people should have an organ through which they might be heard. He (the Attorney General ) has not ventured to tell you that he be- lieves I would have shrunk amidst danger. He knows that his Government is supported by men- dicant beggars, and that they make their free- holders live upon potatoes and scraps ; he knows I never received a single farthing from ‘ Wat Tyler ’ or the Radicals, neither by subscription or payment of expenses in my life ; he does not dare to accuse me of wishing to destroy any of the property that belongs to the aristocracy, I am a friend of and my relatives are among the largest landowners in the kingdom. I am on very good terms with them all, and it is not likely that they would remain on good terms with me, unless they were satisfied that the Attorney General's imputation was groundless. I look upon the aristocracy as a part of the Constitution of the country, and I look upon a man who lives at home, and spends his money among his neigh- bours, as a more valuable subject than the Attorney General who prosecutes his country- men.” Complaining that he had been singled out for prosecution, while others who used stronger language were allowed to go at large, he read the following letter : — “ Sir, — Fairplay for the people of Old Eng- land. The Parliament men are going to thumb- screw freeborn Britons. Why? Because might is right, and when one can’t get one’s rights by law we must take ’em by force. Very good ! If that’s their word, stand by, and let us have a fair fight : the sooner they stretch Howard and Stockdale on the rack the better, for the sooner will we merry men give the tyrants a taste of their own physic after the good old sledge- hammer school of argument. I hear the French- men pulled down the Bastile awhile ago. We’ll do the same with Newgate, and when our hands are in, belike we may go further and lay our quarterstaves over the haunches of the Parlia- ment men themselves. If we arn’t to have law, we won’t have law makers. Yours resolutely.” “What Feargus O’Connor ? No. Published this in the Northern Star ? No, in the Morning Herald , and signed £ Wat Tyler’ If it had (a) The speech, as revised by O’Connor, is reported at length in the Northern Star of March 21, 1840. The above extracts are taken from Mr. Gurney’s Shorthand Notes in the Treasury Solicitor’s Papers. [1356 been published in the Northern Star, I should like to know how much more the Attorney General would have devoted to these lines, how much venom would he have said in every line, how much more time would he have spent in descanting on this ? ” The defendant proceeded to read various extracts from O’Connell’s speeches. “ Gentlemen, amongst my plans for obtaining justice for Ireland is the adoption of a petition to the Queen to the effect that £ We the under- signed being of fighting age ’ ” — I am sorry the Attorney' General is gone. No doubt he knew nothing of the battle that is here alluded to, but I shall have an opportunity of returning to it again — ££ £ We the undersigned being of fighting age (men from 14 to 64 years old) humbly approach your Majesty and entreat and pray that you will be so good as to put us on an equality with the people of England — (cheers). I propose that this petition shall be signed by at least one million and a half of the inhabitants, that two pacificators shall in each parish in Ireland upon a given day procure the names of the parishioners all to be sent to Dublin. Do this, and I defy the combined power of Lords, Commons, Church and Radicals, and Wellington and Peel to boot, to resist Ireland.” Now, gentlemen, of course I need not tell you that that is from the moral fore e, Daniel O’ Connell. Five hundred thousand men ! What for ? To. advise the Throne, to tell the Crown that they shall not change their advisers — not to send a secretary to Ireland, but to tell her what secre- tary she shall not send ; to tell Her Majesty that five hundred thousand men, from fourteen to sixty-four, are ready to fight her if she does not follow their advice. This is moral force, and mine is physical force. We told the people that they were not to fight, and that arms were in the hands of those who from wealth and position must necessarily hold the power over them, and that every physical revolution has been against the interests of the poor, and it was because our - moral strength was becoming sufficiently strong to overcome our opponents that they used phy- sical force against us. I was reading a passage of O’Connell’s. I should find abundant material for that observa- tion, and now I have passages collected here in order to show the distinction between that gen- tleman’s mode of carrying on a peaceful agita- tion and my mode of carrying on what he calls physical force agitation ; and again I ask you to ask yourselves upon retiring and returning to the box again, whether you will be satisfied by being told he has nothing to do with the prosecution. If the Attorney General’s object is to preserve peace, let him prosecute every one who is endeavouring to disturb it ; he can- not come into court with clean hands if he lets others pass by who have been more guilty than I have, if I have been guilty at all, which I deny. Here comes a speech of O Connell’s. “ Hereditary bondsmen,” — and so on his usual motto, — ££ Though I am old, my arm is not yet too withered to wield a sword in defence of Ire- land’s rights. So help me God! I would rather see her green fields crimson with gore, and her streams runniug with blood, than see her mise_ Appendix A. 1357 ] Appendix A. [1358 ries continued” — O'Connell at the Drogheda dinner. “ Let me have the petitions of five hun- dred thousand fighting men, and let them run thus, and then I will get your prayer granted, ‘ We five hundred thousand fighting men do hum- bly pray your Honourable House,’ and let the House know that you are determined to fight” — O'Connell at the White Conduit House, I heard him myself. “ Oh, if we had hut a Parliament sitting in College Green the Kildare boys would walk in some fine morning with their short sticks when the House was about to divide to teach their members how to vote” — O'Connell in Dublin. “ The English working classes never •will join you ; they are an overfed, selfish, savage race, opposed or indifferent to everything Irish O'Connell at Cork. “ The shopkeepers have votes but the people have the money. Let no man spend his money with an enemy ; let every man, then, only deal with him who will support the repeal of the Union ” — O'Connell at Youghall. “ Let a general run be made for gold, it is the only means by which the people can show their influence ” — O'Connell's letter to the people in 1834 , which caused the run upon the Cork banks. He was reviled in the House of Commons for it ; he justified the act. The learned Attorney General will say if he remembers that I opposed him — and again he says, “Let every man’s door be marked who shall oppose the people ; at all events let us have the satisfaction of knowing our friends from our enemies” — O’Connell in Kerry. I never recommended that. “I am young enough to fight for a repeal of the Union, and where is the cowardly Irishman who would not fight in so glorious a cause ? — O’Connell at a dinner in Cork. Now, gentlemen of the jury, they have not prosecuted O'Connell for any of these.” “ The Attorney General charges me with three things. First, to rob the aristocracy of their property and give it to the people, and with preaching the torch and dagger to them. I declare to you solemnly that the word dagger has never escaped my lips, nor did I ever use the wordfe “torch and dagger” since I was born, but having some popularity every word circulated through this paper goes as from me. If you find a bloodthirsty letter in a paper you would not say “ This comes from the editor,” but you hear my name constantly associated with such productions, and that they were a set of bad men, a set of desperate men, the poor men who joined me. I admit every physical word I have spoken ; it must fall upon the shoulders of some one, and in spite of all this slander I will stick to the cause still. I have fought for reform, and I now fight for the fruits of the Bill ; give us the Bill, and all the Bill, and nothing but the Bill, and we will fight for you. I am not the schoolmaster who has led to these physical doctrines, but Lord Brougham, Lord Grey , Sir John Cam Hob- house, and Sir Francis Burdett, whom I may boast to call friends, they inculcated into the minds of the working classes what the Reform Bill was to give. Do you credit the Attorney General that I could make the people, if they were well fed, believe that they are ill fed ; or if well clothed believe they were ill clothed, or if protected by the law believe that they were out of the pale of the law ? Those who now pro- secute for these things are those who sowed the first seeds of them. I have no hesitation in saying that if the present Government existed for three years, revolution and anarchy would prevail in the country. I have no hesitation in saying that they ought not to exist, and that they cannot exist ; that they are traitors to their own declarations. I have no hesitation in saying that the present Government have done more to estrange the love of the working classes from those who govern them and from the Queen than anything I have said or any of the most imflammable Chartists. The At- torney General may well hold down his head ; he knows that what I say is true; he knows this is what I am indicted for ; it is not always for what a man does he is indicted. There was an Irish farmer’s boy who got half- a-crown to go and make merry at a fair on St. Patrick’s day, and he took his mother with him. The first tent he went into he changed the half-crown and got a bad shilling. When the eighteen pence was gone he went back and requested them to change the bad shilling ; they would not change it. On going home the mother and the boy got into an affray and the mother was killed by a stray stone. When the police came up they asked the boy who killed his mother ? “ Come to the tent and I will tell you ; ” he took them to the man that gave him the bad shilling, and he stood to it before the magistrate and the judge at the trial ; but not liking the manner in which he gave his evi- dence, as he was going down, the judge said, “ By virtue of your oath is that the man who threw the stone that killed your mother ? ” “ By the virtue of my oath that is the man that killed my mother.” “ By virtue of your oath did you see that man throw the stone that killed your mother ? ” “ By the virtue of my oath that is not the man that killed my mother ; but, my Lord, by the virtue of my oath that is the man that gave me the bad shilling.” That is the case with the Attorney General; he knows I am not guilty of these offences ; but he knows I am the man that gave the Whigs a bad name, and with me there is no surrender.” After reading lengthy extracts from his speeches to show that he had always advocated moral as distinct from physical force, the defendant went on to argue that his land scheme was not in- tended to rob the landlords. “ A poor man without a field whereon to expend, and a market wherein to barter his labour, never can be a judge of his real position and exact value. The man Avho works exclu- sively for another is ignorant of the value of his labour when mixed with the capital, the speculations, and commercial ramifications of his employer, and, therefore, to illustrate my position, I shall apply labour to resource, and thereby prove that each working man repre- sents in his own person twenty times as much property as any of your order. My Lords and gentlemen, that I may be perfectly understood, I shall contrast the present mode of employing your land with its most profitable application. Wc take, then, one hundred acres of land 1359] tenanted by one farmer and see what its capa- bilities are. One hundred acres of land will support a farmer, his wife, five children, three labourers, and a pair of working horses. This, with a small interest for his capital, and the pleasing reflection which responsibility ever carries with it, is all that is left from the nice manner in which leasing calculations are made. The same one hundred acres, sub-divided into lots more convenient for the expenditure of the most profitable labour, would render as fol- lows : — Twenty farms of five acres each would support one hundred persons in comfort, health, affluence, and contentment. We will take five acres ; five acres of land will give healthy em- ployment and wholesome food to a man, his wife, and three children, and will yield as fol- lows : — 0-3 potatoes, 0 - 2 fallow, 1*1 wheat 0 • 4 kitchen garden, 2 - 0 grass, 0 • ^ vetches and clover, 0 • £ barley — total five acres. The pro- duce of the above would afford to the labourer for sale, barter, and consumption as follows : — Four stones of flour, three stones of potatoes, fourteen pounds of bacon, two and a half pounds of butter per week, eight stones of lard, two stones of sausages, two hives of honey, four lambs, milk of one cow, eight pounds of lambs’ wool, sixty pounds of flax, produce of six hens, produce of six ducks, thirty-six stones of malt, together with apples, bush fruit, and an abun- dance of all sorts of vegetables per year. Your share of the above produce would be 51. only, while you represent the entire. You may say this land is worth more than 1/. per acre, so much the better ; if 3/. better still, the rent is but an item. The same labour and less seed does for good land ; the yielding is greater ; more- over, you will bear in mind that my plan at once relieves the land of every description of taxa- tion ; the wholesale value of the above produce would amount to about 50l. The retail value which it would receive from the application of the family’s labour would amount to about 90/., of which 90/. you would represent the rent, say 5/., while the labourer would represent 85/., that is 17/. for every 1/. represented by you. Now if profit was made by the several classes they would respectively stand thus : — Profit of labourer 50/., profit of cloth manufacturer, flax manufacturer, of the miller and brewer 11. 10s. Profit of the baker, butcher, woollen draper, linen draper, beerseller, and the huckster 27/. 10s. By this scale you will find that the several classes represent wealth as follows : — The labourer as producer and manufacturer 90/. The labourer as producer only 50/. The manufacturer 7/. 10s. The shopkeeper 27/. 10s., and the landlord 5/. By this scale you will find that every labourer should have seventeen votes for your one, that the manufacturers should have three votes for your two, and the shop- keeper eleven for your two. (a) You may now naturally ask why a farmer should not make an equal profit on his one hundred acres of land. The answer is easy. Firstly, your conditions to annexed leases operate as an artificial (a) As to O’Connor’s land scheme, see Somerville’s Book of a Diligent Life, p. 225, and Gammage’s History of the Chartist Movement. [1360 barrier while the employment of a hundred per- sons would be looked upon as beyond the means of profit, the producers not having so good a retail market as if every man was his own grower, his own manufacturer, and his own consumer. Moreover, there is that instinctive quality implanted by nature in each man’s breast which makes his own concerns dearer than the concerns of a neighbour.” After again repudiating physical force the defendant went on to denounce the agitation against the Corn Laws. You h^ve heard of the distress of the manu- facturing classes. Look at virtuous poverty suffering with patience. If the people Avere of the description that has been stated, all the gaols would not have been able to hold them. See these virtuous people now denying their assistance in raising anything like a demand for a repeal of the Corn Laws because I have told them that it Avould lead to a revolution — though a madman, I have told them what it would come to. Are you for a revolution ? No, then do not repeal the Corn Laws. Now there are other moral philosophers, gentlemen, who do not know the meaning of what they are talking about, whose mouths are full of cheap food ! cheap food ! cheap food ! and I believe the At- torney General is one, he is for a repeal of the Corn Laws. Why, if he was a member for an agricultural district he would be against it, but it is the best electioneering claptrap in the Avhole world ? “ The repeal of the Corn Laws,” and if it was done, every stack in the country would be on fire to-morrow.” In the course of his reply the Attorney Ge- neral (Sir John Campbell) said : “ No, gentle- men, he was not tried at Warwick nor at Mon- mouth, nor yesterday among the Sheffield Char- tists, but does that show that he has always conducted himself well in those affairs to which I must strictly and rigorously confine myself? Does it show that he has always conducted himself as a good and peaceable subject ? May he not haA^e excited others ? Gentlemen, may not the trials at Warwick, at Monmouth, at 5fork, at Chester have arisen from the publica- tions and exhortations of Mr. F ear gus O’ Connor ? Although he does not put himself at their head, although the general may be absent upon the day of battle, although it may be convenient to keep at a safe distance and to urge others into difficulties and into dangers, it is easy, gentle- men, for a man to enjoy the boast that he has not been tried for treason or riot. He can keep at a safe distance from the disturbance he has instigated and you may perhaps judge, as Mr. O'Connor has invited you to the investiga- tion, whether that has not been his safe and prudent course. But, gentlemen, however cau- tious he may be not to have mixed up himself with these disturbances, if he has used language that can be considered as an instigation to insubordination, as inciting to a breach of tfye peace and as inciting to riot, as leading to an attack on property and to a treasonable viola- tion of the law, he is mistaken if he supposes that he can escape with impunity. Now, gentlemen, the defendant complains that he is prosecuted by an ex officio information Appendix A. f 1361 ] Appendix A. [1362 instead of an indictment being preferred against him before the grand jury. Gentlemen, really it is not necessary that I should make any apology for that proceeding because it is the undoubted right of the Attorney General re- presenting the Crown and the public to in- stitute such a prosecution without the inter- vention of the grand jury. It has belonged to the Attorney General from the earliest times, it is a power of which he has never been deprived ; it is a power which he may necessarily and judiciously exercise for the preservation of the public tranquillity. Gentlemen, Mr. O'Connor challenges me to show the necessity for resorting to this mode of prosecution in the present instance. If it was necessary I could do it. These libels were published on the 13th and 20th days of July last in the county of York, and before the last day, the 20th of July, before I could have cognisance of the contents of these newspapers, the grand jury of York had been discharged; and it was simply impossible for me to resort to a prosecution by indictment without waiting till the Spring Assizes of 1840, so that a proceeding by indictment would neces- sarily have delayed this trial till the following assize's in the county. In the present state of the country with outbreaks daily, caused, I say, by these publications, was not that a sufficient ground why this arcanum imperii should be resorted to ? “ I can say for my own part since I have held the office of Attorney General , which I have now unworthily filled for a longer period than any individual during the present century, (a) I have had brought before my notice no publi- cations in the slightest degree approaching what I must call the atrocity of these numbers of the Northern Star, and I should have thought I was guilty of gross dereliction of my duty if I did not bring Mr. O'Connor before a jury to answer for these publications. Gentlemen, he is grossly mistaken if he supposes that I feel such anxiety as he supposes respecting the event of this prosecution. I have done my duty, I have acted according to the best of my judg- ment ; if I am mistaken I shall not be ashamed ; I shall not be cast down as he supposes ; I shall suppose I differ from you, that I have committed an error in judgment, but I shall have the con- sciousness of having acted as my conscience dictated. “ Now let me just consider what it is that the defendant sets up as his justification. I really say, without affectation, I am at a loss to know what I am to grapple with. I say so most unfeignedly, for he has not brought forward, as far as I can judge, one single argument to show that these publications are innocent. That is a question that he has not touched upon. I supposed, at all events, he would have gone through his own speech as reported in the number of the 13th of July, and have shown that he dissuaded from physical force and pointed out a better mode in Avhich the soil could be cultivated and that this was for the three orders — the aristocrats to (a) Appointed 1834. See returns of infor- mations for blasphemous and seditious libels, &c. between 1808 and 1834 in St. Tr. N.S. 1386. which Mr. O'Connor belongs — his own order ; the capitalists, and the labourers. Hut, gentle- men, he has entirely abstained from any such analysis, he has shrunk from any such attempt, knowing that it would he utterly useless. What has he done ? Why, he has been allowed, with- out interruption, and I am sure he will not com- plain he has not been fully heard, when, in strictness, I might have interrupted him when he proposed to read articles from the Northern Star of the last two years. Anything in these two numbers he had a right to read, and, if there had been any antidote to the poison conveyed in these publications charged as criminal, he had an undoubted right to resort to them ; and you may remember that he rather threw out a promise that he would do so, because there was a little discussion whether I had a right to read a part that was not set forth in the information. My Lord intimated that I had, and he threw out that Mr. O'Connor had a right to read anything that appeared in the Northern Star, and I rather supposed that Mr. O'Connor intimated that he should avail himself of that right to bring for- ward something in the course of his address which was to neutralise that part of my case. He not only has not read one single line from these tAvo newspapers or either of them, but he has most cautiously abstained even from an allusion to the libels set out in them. “ Then, what has he done ? He is in love with his own performances, and as an orator he can never satiate himself ; he is in love with his own compositions ; as a man of letters he can never tire of them ; he has read various extracts from his speeches made at Huddersfield, Brighton, and Glasgow, when he was returned to the House of Commons ; he has read extracts from various leading articles in which he says he dis suaded physical force. I think one of them said, I was not very strictly attending to all he read, but one of them stated which I did hear, that they were not to use physical force until they had exhausted all that could be done by moral means. That there was a time when for- bearance, according to his own statement, was to cease ; that when they had exhausted all moral means, physical force was to be resorted to, and by physical force we understand the dagger and the torch. That is a passage he brings forward in his own vindication, but it is very unnecessary to enter into any analysis of these passages, the reading of which I might have interrupted, but I declined in order that Mr. O'Connor might have no reason to complain. But what do they amount to? Suppose they had preached up submission to the law, is a man to be allowed once a month to say, “ Be obedient to the law, do not violate property,” and, then, during the three weeks that intervene, to publish doctrines that are subversive of all law, and which inevit- ably lead to the subversion of the principles upon which property is protected ? Gentlemen, that cannot be permitted for one moment — there may be very wholesome admonitions in other numbers of the Northern Star. It is just as well, perhaps, that we have not got here the law of France where they try a journal upon its general tendency. I do not know that the de- fendant would derive much benefit from that, if 1363 ] Appendix A. * [1364 it was introduced into England. According to that law you bring a charge against the journal for its general character and conduct, and if we examine all the numbers of the Northern Star, published for the last two years, I must be allowed to doubt a little, notwithstanding the extracts Mr. O'Connor has read, whether he would derive much advantage from that mode of prosecution, but that is not a mode of prosecu- tion that the law of England sanctions ; a party is confined to particular libels published at par- ticular times, and the question submitted to the jury under the direction of the judge is whether those particular libels, aye or no, are to be condemned. If they are, then, gentlemen, no publications, either prior or posterior* can be allowed to redeem the author from the conse- quence of the offence he has committed.” Alluding to the report of a meeting at New- castle, one of the alleged libels, the Attorney General went on : “ Now, gentlemen, I say that this Northern Star holds up James Ayre as a hero, sanctions and adopts and praises his sen- timents, and the resolutions James Ayre is supposed to have given forth to the world ; and the necessary tendency of that is that those who read it may be deluded by it, and prepare a musket and firebrand and torch. I say that such paragraphs as these explain the scenes we have in courts of justice, the firebrand and torch, and the firebomb and bombshell, which, I believe, Mr. O’Connor himself saw exhibited yesterday in the adjoining court, (a) Gentlemen, you see that such articles not only have a tendency to induce a violation of the law, but unhappily have had that effect, and I say the tendency may be fairly inferred from the con- sequence that has arisen. Gentlemen, it has been said that the law is laid down by the judges here in a manner to please Mr. O’Connor. I believe the law has been laid down, as might have been expected from those reverent judges, most correctly and properly; but has it ever been said by any judge here or elsewhere that arms and a whole armoury might be collected and stored up for an illegal purpose ? Has any judge ever said that shells, and torches, and fire-balls were in- nocent ? No, gentlemen, the judges have laid down, and all will bow most respectfully to the law propounded by them, that a man has a right to defend himself and his dwelling, and that arms obtained for such a purpose are lawful arms ; but if they axe kept to violate the law I will venture to say that every procuring and keeping of arms for such a purpose is in itself a crime, for which the law would give a remedy, and punishment might be inflicted. The law upon the subject has been most lamentably misrepresented and misunderstood. It is said by the Bill of Rights an Englishman may carry arms, but that is for his defence ; it is not that he is to prepare combustibles and ball cartridges, that he is to lay in ammunition for the purpose of heading an insurrection and taking posses- sion of the town hall or an inn, and then barricad- ing the town hall and inn, or to get cats or (a) See the trial of the Sheffield Chartists above. spikes that may be thrown about for the wounding of the horses of the cavalry. I think that no one will say that that is sanctioned by the Bill of Rights. No one will say that such a procuring of arms is not highly criminal and subjects those who resort to it to condign punishment.” Verdict guilty. On May 11, 1840, O'Connor was brought up for sentence in the Court of Queen’s Bench. He put in numerous affidavits testifying that he had always advocated moral, as distinct from physical force. Littledale, J., delivered the judgment of the Court. Having read and commented on the lihels set out in the information, he proceeded : Now upon this information you have been found guilty by the jury, and certainly there is nothing to satisfy the mind of the Court that they have come to a wrong conclusion, because it is impossible, after what has been stated, that the jury could have found otherwise upon the information that has been charged against you, and upon all the counts ; two of them I have not stated, because they only relate to a part of the libels. Now you have come to receive the judgment of this Court, and you have been heard in mitigation of the punishment which must follow from the verdict, and you have yourself made an affidavit, and there you begin by stating that “ for the last eighteen years this deponent has taken a very active part in political agitation both in England and Scotland and Ireland, and during all the time this deponent declares be has never delivered any speech or published any matter whatever directly or indirectly to lead to a breach of the peace ; on the contrary, he at all times has most strenuously and ener- getically opposed every article tending to induce the working classes to have recourse to violence, and that he this defendant, during the period aforesaid, never entered into any secret asso- ciation whatever by which the peace of this country was likely to be endangered ; that he has remonstrated against all secret and illegal associations, and that he has also impressed upon the minds of the people the perfect in- utility of any attempt to express their grievances by physical force ; and further, he says that he verily believes that the working classes would have resorted to physical force on many occa- sions but for him ; and he further says in 1837 he first established and published at Leeds a paper called the Northern Star and Leeds General Advertiser , which he has continued up to the present moment, and he further says that different articles from time to time have been copied from other newspapers under the super- intendence of the editor, and it is the duty of the editor to insert such articles, but he denies that he has ever inserted any article calculated to incite the people to any breach of the peace, or to resort to unconstitutional means for carry- ing their objects into effect.” You then refer to the report of a speech pub- lished in that paper on the 10th February 1838, in which you allude to the cause of the people being injured by resorting to physical force, and that recourse to arms would place the people 1365] in jeopardy, &c. Now, with regard to the moral force, I own it appears to me from your own statement as contradistinguished from physical force that moral force means that power which means how much the mind can bear in a man’s own conscience which is next door to physical force.(a) I think that is the account you give of moral force as against physical force. You might mean that every man’s monitor, and his conscience should regulate him when the cup of endurance was full, and then it was time for him to resort to physical force. Then there is a number of other extracts from a variety of publications of the Northern Star coming down to the 6th July, which is a week immediately before the publication of these libels, and your affidavit goes on to say that you have always discouraged and dissuaded the people from re- sorting to unconstitutional means, and then you allude to further extracts, and in your affidavit you give full credit to the Northern Star for having endeavoured to instil moral principles into the minds of the people ; and then, in con- clusion, you say, “ This deponent says that he verily believes in the report of the speeches de- livered by him the words were not actually used by him on the occasion before mentioned, the deponent on every occasion at all places having, when addressing public meetings, exhorted the people to obey the laws and respect the consti - tuted authorities of the realm, and beyond all to avoid resorting in the slightest degree to physical force, and that he has, of course, his own particular views upon particular questions.” Now no doubt you, as well as other subjects of this realm, have a full right to a free discussion of all political questions whatever. You have a right, no doubt, amongst others to advocate the doctrine of universal suffrage or any other po- litical doctrine, and every person has a right to exercise his own opinion and to resort to consti- tutional means to discuss their rights, provided in these various discussions and in the speeches you may make you do not promote a breach of the public peace or anything subversive of the laws, the constitution, and the government of the country. Every man has a right to do that, provided he does not transgress the proper limits. Now besides your own affidavits, there appear to be a great many other affidavits, all of which say that in the speeches you have made you have always advocated these principles that you have mentioned, and we give you full credit for that. But, however, whatever may have been your own opinion prior to the 13th of July in these various numbers of the Northern Star and in the various speeches you have made, un- fortunately we are sorry to observe that in the speech you have yourself made, as contained in the paper of the 13tb July — and I have more particularly adverted to that on account of the date, because it is your own speech which you have adopted, and we therefore cannot say that it is incorrect — we take it to be your own statement as the substance of that which you delivered on that occasion — we cannot help thinking, w'hatever you may have done before that speech, however moderate the course you [1366 may have pursued, that in the speech of Mr. O'Brien and in the details of the statement made in the two libels of the 20th July the law has been departed from. Now with regard to the Sacred Month, why you restrained that is fully explained — that it would not answer the purpose for which it was intended. Now with regard to what I have just mentioned, what you said about moral force and what you have stated about an equal distribution of property among the people at large in the country, you say that you never meant any such thing as physical force to be resorted to. It is difficult to say what you intended to say, but I think it is impossible that the great mass of people could come to any other conclusion than that you intended them to avail themselves of physical force. Now, then, it remains for me, as you have been convicted by the jury, to pronounce the judgment of the Court upon you. The sentence of the Court is this : We do order and adjudge that for this offence you be imprisoned in Her Majesty’s Castle at York for the space of eighteen calendar months, and you give security for your good behaviour, yourself in 300/. and two sureties of 150/. each, for your good behaviour during the space of two years, (a) The Queen against Vincent, (6) Frost, (c) and Edwards. This was an indictment for a se- ditious conspiracy tried before Gurney , B., at the Monmouth Spring Assizes, 1840. There is a short report in 9 C. & P. 275. Part of the headnote is as follows: — “On the trial of an indictment for a conspiracy to procure large numbers of persons to assemble, for the purpose of exciting terror in the minds of Her Majesty’s subjects, evidence was given of several meetings, at which the defendants were present, and it was proposed to ask a witness, who was a superin- tendent of police, whether persons complained to him of being alarmed by these meetings : — Held, that the evidence was receivable, and that (а) O’Connor’s treatment in York Castle is described in the report of the governor in Par- liamentary Papers, 1840, 600 : — “ Feargus O’Connor, Esq., being sick, was not subject to the rules of the prison. The surgeon saw him the day after his arrival, and ordered him tea twice a day, and animal food for dinner. He continued in a common day-room a few days with two prisoners, whom he requested might remain with him, and who were ordered to do all menial services for him except making his bed ; he now occupies the best room in the gaol, above the hospital, finds his own food, wine, &c., bed, bedding, and furniture, coals, candles, &c. ; has a spacious yard to take exercise in from seven in the morning till seven at night, and then a long passage to walk in till nine o’clock, when locked up ; he is allowed pens, ink, and paper, books and newspapers ; is visited by his friends, and has a turnkey to wait upon him, who makes his bed, and sleeps in a room ad- joining him, at his own request. His letters are inspected by the governor.” (б) 3 St. Tr. N.S. 1037. (c) See above, p. 85. Appendix A. (a) The shorthand note is here unintelligible. 1367 ] Appendix A. [1368 it was not necessary to call the persons who made the complaints.” The Queen against Jones. June 27, 1840. Richard Jones was tried and convicted before Richards , B., and Ball, J., at a Commission of Oyer and Terminer, held at Green Street, in the city of Dublin, on an indictment under 2 & 3 Viet. c. 74., for belonging to a Ribbon Society, the members of which were bound together by secret passwords. There is a full report of the trial by M. J. Martyn, Law Student. In passing sentence Ball, J., observed : “ You have been found guilty of belonging to an association, an organised body of persons of the working classes, carrying on its proceedings with its president and other officers, and hold- ing meetings in the city of Dublin. That association appears by the evidence to be affiliated with numerous societies of the same character, not only in Ireland, but in different parts of Great Britain. It appears to be exclu- sive in its character, being confined to persons of one religious creed. It also appears that it holds its meetings in secret conclave, and that money is obtained by its heads or leaders as contributions from its members. There are other characteristics of the association appear- ing from the evidence. It manifests no definite intention or object for attainment, but at the same time it appears capable of being made instrumental for any purpose, or the attainment of any object, requiring combined movement and unity of action. Again, harmless though it may apparently be in this absence of any manifestation of ascertained aim or object, it is formidable in its adaptation to any purpose, however criminal, which through design or accident its leaders might be prompted to undertake. Such an association so constituted is one which no Government deserving the name could suffer to exist in this country, if by legal means its suppression could be accom- plished.” The learned judge proceeded to sentence the prisoner, whom he stated to be the leader of the association, to be transported for seven years. The Hastings Peerage. 1840, July 16. 1841, March 25, 27, May 4. This was a claim by co-heirs to an ancient barony in abeyance referred to the Committee of Privileges. The case is reported in 8 Cl. & F. 144. The head- note is as follows : — “ It is now a settled law that a sitting in Parliament in pursuance of a writ of summons constitutes in the absence of a patent a dignity descendible to the heirs general of the body of the person summoned ; and that in claims to ancient dignities a summons and a sitting in Parliament are reqnired to be proved.” (a) The usual evidence of a writ of summons is the enrolment, and of a sitting, the parliamen- tary roll or journals of the time. (a) The Vaux Peerage, 5 Cl. & F. 526, and the Braye and Camoys Peerages, 6 Cl. & F. 8, pp. 757 and 789. Where writs of summonses or enrolments of them, and the journals of remote times are wanting, a memorandum entered on a parlia- mentary roll, of a grant to the king in his Par- liament named, “ et cateri magnates et proceres tunc in Parliamento existentes,” is sufficient evidence that a person named therein sat as a lord in Parliament, although there be no proof that he was summoned to that particular Par- liament. Instruments purporting to be acts of peers, but not acts done in Parliament, and not neces- sarily the acts of peers of Parliament, are not evidence that a person named in them ever sat in Parliament, although he was certainly sum- moned. In a claim to an ancient barony it was proved that Henry de H. was summoned by a special writ to Parliament in the 49 Hen. 3, but there was no proof that he ever sat, there being no rolls or journals of that period. His son and heir, John de H., sat in Parliament of 18 Edw. 1, but there was no proof that he was summoned to that Parliament,* there being no writs of summons or enrolments of them extant from 49 Hen. 3 to 23 Edw. 1 . To the Parliaments of 23 Edw. 1 . and to the several subsequent Par- liaments he was summoned, but there was no proof that he sat in any of them. Held, that it might well be presumed that John de H. sat in Parliament of 18 Edw. 1 . in pursuance of a summons on the principle that “ omnia presumuntur legitime facta donee pro - hetur in contrarium. Length of time is no bar to a claim to a dignity; yet if a series of persons, of right entitled to it, do not enjoy it or assert their right a presumption may arise against the right on claim by their descendants, unless the ab- sence of enjoyment or claim is satisfactorily accounted for. Where four hundred and fifty years elapsed from the death of the last predecessor of a dignity, and during the first two hundred and fifty years a question was pending whether the heirs male of the half blood or the heirs female of the whole blood were entitled to succeed, and before that question was determined the dignity fell in abeyance, and remained in that state for the residue of the time. Held, that these were sufficient reasons to rebut the presumption arising from the long omission to enjoy or claim the dignity. The doctrine that possessio fratris, appli- cable to lands, does not affect the descent of a dignity by writ first held in the Grey de Ruthyn and Fitzwalter baronies(a) confirmed. Glynn v. Houston. (b) Jan. 25, 1841. This was an action of trespass and false imprison- ment against the governor of Gibraltar, tried before Erskine, J., at London sittings, after Trinity Term, 1839. The case in the Court of Common Pleas, on an application for a new trial is reported in 2 M. & G. 337. The head-note is as follows : “ In an action against the governor (а) Collins 195, 286. (б) See also as to discovery this case, 1 Keen. 329. 1369 ] Appendix A. [ 13/0 of Gibraltar for assault and false imprisonment, it was proved that a party of soldiers under the command of his military secretary, surrounded the plaintiff’s house, and that, while a search was making in the adjoining house for a Spaniard, who was suspected to be concealed there, the plaintiff, in attempting to leave his house, was prevented from doing so by a sen- tinel placed at the door, who compelled him to return. It was also proved that the defendant had repeatedly expressed a desire to apprehend the Spaniard, that his secretary, being unattached, could not employ the troops on such a service except by his directions ; and that the defen- dant had never called his secretary to account for what had occurred. It further appeared, on the evidence of the plaintiff’s brother, that the plaintiff had told him that the defendant expressed to the plaintiff his regret at having been obliged to direct the search. No evidence was given on the part of the defendant. The jury having returned their verdict for the plaintiff, it was held that they were warranted in coming to the conclusion that the defendant had ordered the search, and that the act com- plained of was a necessary consequence of the defendant’s orders.” The Queen against Brown. July 15, 1841. This Avas an indictment for refusing to aid and assist a constable in the execution of his duty in quelling a riot arising out of a prize fight. The case is reported in Car. & M. 314. The head- note is as follows : — To support an indictment for refusing to aid and assist a constable in the execution of his duty in quelling a riot it is necessary to prove, 1st, that the defendant saw a breach of the peace committed ; 2nd, that there was a reasonable necessity for calling on the de- fendant ; and 3rd, that when duly called upon to assist the constable, the defendant, without any physical impossibility or lawful excuse, refused to do so ; and in such a case it is no defence to say that for the number of the rioters the single aid of the defendant would not have been of any use. Referring to the last point, Alder son, B., told the jury : — Whether the aid of the defendant, if given, would have proved sufficient or useful is not the question or the criterion. Every man might make that excuse, and say that his in- dividual aid would have done no good ; but the defendant’s refusal may have been, and perhaps was, the cause of that of many others. Every man is bound to set a good example to others by doing his duty in preserving the public peace. Verdict, Guilty. The Queen against Lady Emily Ponsonby and others. April 23, 1842. This case, which raised the question of the liability of the occupants of rooms in Hampton Court Palace to be rated for the relief of the poor, is reported in 3 Q.B. 14. The headnote is as follows By permission of the Crown certain persons occupy apartments in Hampton Court Palace, which was formerly a royal residence, but in which the Sovereign has ceased to reside. A housekeeper employed by the Crown has the superintendence of other apartments, containing pictures (which the public are allowed to see), and lumber. The housekeeper resides with her family in the palace for this purpose, and has also the power of entering the apartments first mentioned. In other respects the occupiers of these have ex- clusive possession of them. Before the entry of each occupier his apartments are put into ordinary repair by the Crown ; but afterwards the occupiers themselves perform such repairs as are considered necessary by the Crown sur- veyor. They reside there with their families and servants, providing their own furniture, and in some instances (but without the sanction or privity of the Crown) have allowed others, on payment of a sum of money, to use the apartments. Held, that the occupiers by permission of the Crown are rateable to the poor in respect of the apartments so held by them. (a) Shore v. Wilson.(b ) 1839, May 13, 14, 15, June 25, 26, and 28. 1842, May 10 and August 5. This was an appeal to the House of Lords from a judgment of Lord Lyndhurst, M.R.,(c) delivered February 5, 1836, affirming a judgment of Shadwell, V.C., which removed the existing trustees, being Unitarians, of certain charities founded by Dame Sai'ah Hewley in 1704 for the benefit of poor preachers of Christ's holy gospel and other charitable purposes, and substituted Presbyterians and Congregationalists in their places. The case is reported in 9 Cl. & F. 355, and there is also a published report of the argu- ment in the House of Lords from Mr. Gurney's shorthand notes. The main question was as to whether Unita- rians were capable of benefiting under the trust deeds of the charities, but Knight-Bruce and Kindersley for the respondents took the further ground that all Unitarian trusts were bad. The denial of the doctrine of the Trinity is unlawful by common law. The Toleration Act, l Will, and Mary, s. 1. c. 18, allowed preaching and teaching by those who were opposed to the Established Church on certain conditions and under certain restrictions, but it did not legalise anything which by Common Law, indepen- dently of anterior statutes, was forbidden. So with regard to the “ Blasphemy Act,” 9 & 10 Will. 3. c. 35, that only imposed certain pecu- niary penalties on peculiar offences ; it left the common law exactly where it was. The 19 Geo. 3. c. 44. substituted certain conditions as to preaching and teaching for the conditions which were imposed by the Toleration Act, 1 Will, and Mary. That also left the Common Law exactly where it was. The statute of 53 Geo. 3. c. 160, reciting in a very singular manner the Act 19 Geo. 3, but not going on to make any encroachments with reference to the 19 Geo. 3., simply strikes out of the Toleration Act the declaration that that Act did not extend to (а) See further A.G. v. Dakin 3 4 L.R. H.L. 338. (б) See A.G. v. Bunce, L.R. 6 Eq., 574; and A.G. v. St. John's Hospital , Bath, 2 Cli. D. 567. (c) Afterwards Lord Chancellor. 1371] persons who by preaching or writfhg denied the Trinity, and it also took away the operation of the Blasphemy Act as to such persons, leaving, as Lord Eldon has specially and plainly de- clared, the Common Law exactly where it stood. The courts will not support a trust for the pro- pagation of unlawful views. Lord Lyndhurst : Is not that question agi- tated in The Attorney General v. Pearson(a) by Lord Eldon. Kindersley : He refers to it, he does not decide it. Lord Lyndhurst: It was agitated in that case ; he does not decide it. Kindersley : He refers to it certainly, and those accustomed to his manner may see the bearing of his mind ; and if this was to be gone into, the dicta of Lord Eldon would he part of the authorities, and no unimportant part, we should have to cite to your Lordships ! Lord Lyndhurst : Lord Tenter den and Lord Wynford, when Chief Justices of the Common Pleas, laid it down as their opinion that the denial of the Trinity is contrary to the Act of Parliament, and subject to legal proceedings. Is not that so ? Attorney General ( Sir John Campbell) : I am not aware of it, in the slightest degree by any tradition, or printed report. Lord Brougham : I have some notion that Lord Tenter den decided it at Guildhall, when Sir Samuel Shepherd was Attorney General , and prosecuted Hone for publishing parodies ; but that was obiter, it did not raise the question, and there was ribaldry there ; it was not an argu- ment and sober denial, but a ribaldrous denial ; but I think that he lays down that doctrine. Attorney General : I was not aware that it was ever laid down by any judge, living or dead. Lord Lyndhurst: That Act merely repeals the penalties, and left the law as it was before. Lord Brougham: He viewed the clause in the Act as taking away the penalties, and leaving the Common Law as it stood before. He said it was ribaldry. Attorney General: The statute repeals the former statute, and leaves the Common Law where it stood. Lord Brougham : The question was not raised, it was merely obiter. Attorney General: I think that Lord Tentei'- den must have known that heresy was not a crime known to the law of England. While the writ de comburendo hceretico was in force, any Unitarian might be burnt. Lord Brougham: According to my notion, Lord Tenter den laid down that the Act 53 of the Geo. 3 only repealed the penalties, and left the Common Law where it stood. I think he went a step further, and that is the notion on the Bench. Attorney General : I was not aware that on the prosecution of Hone and Carlile it was laid down by the learned judges. (b) Though Christianity (а) 3 Mer. 353 ; see also 7 Sim. 290. (б) The unpublished notes of Hone’s trials before Abbott, J., and Lord Ellenborough in 1871 contain no reference to the subject ; the reference is probably to the rulings in Richard Carlile’s trials in 1819, as to which see below, Appendix F. [1372 is part and parcel of the law of the land, and to revile it is an offence at Common Law, any per- son may decently contravert any doctrine of the Church, and, though it may be heretical, it is not a misdemeanor of which the civil magistrate can take cognisance. Lord Brougham : I think that is a sounder opinion, if you ask me my opinion, if not, half the books that are sold are liable to be proceeded against. Attorney General : Yes, my Lord; and more than that, every Unitarian assembly might be indicted, and the Arians the same, because they deny the Divinity of our Saviour as Avell as the Unitarians. Lord Lyndhurst : I think we shall find the case. You had better suspend the discussion till we have looked. Attorney General : I am not aware of it. Kindersley : I am sure your Lordships will allow me to draw your attention to a distinction of very great importance upon this part of the argument on the other side, that according to law, a man cannot be indicted for maintaining pro- positions contrary to the Trinity, that that is not a subject of a criminal proceeding, that heresy is not an offence cognisable to the law of England : but let me draw your Lordships’ attention to this distinction. It is widely different, whether a man may be indicted for holding opinions which are heretical and Antitrinitarian, and the question whether a Court of Equity, for such your Lord- ships are, will say that a trust delivered for such purposes, can be upheld according to the public policy of the law as it stands upholding the Church as part of the State. The Attorney General in reply : Here then, my Lords, arises a question of fearful im- portance, which T was little aware was to be agitated at this bar, but which has been very gravely brought forward; and your Lordships are called upon, if every other defence, or if every other grounds that my learned friends bring forward should fail, to say that Unitarians are not now tolerated by law ; more than that, my Lords, that they are guilty of a crime for which they may be indicted, for the only ground upon which it is contended that they are not tolerated by law is that they violate the law, that they are guilty of blasphemy, that they are liable to be prosecuted and punished. My Lords, what is the foundation for such a doctrine ? I admit at once, my Lords, that to deny the doctrine of the Trinity is heresy ; but heresy, my Lords, is not a crime known to the civil magistrate ; it is to be punished in an ecclesiastical court. While the writ de hceretico comburendo was in force, at least after a con- viction in the ecclesiastical courts, the civil magistrates might be called in to enforce that sentence, and the heretic might be burnt at the stake ; but in the reign of Chas. 2 that writ was abolished, (a) and such proceedings are no longer lawful. Therefore, showing that this is heresy does not show that it is a crime, but, on the contrary, my Lords, your Lordships are well aware that it is laid down by all the writers on criminal law that heresy is not a crime of (a) 29 Car. 2. c. 9. i Appendix A. 1373 ] ■which civil magistrates can take cognisance. Blasphemy, my Lords, is, and very properly is held to be such ; but what is blasphemy ? My Lords, blasphemy is to deny the existence of a Supreme Being ; it is to deny the Christian religion ; it is to revile the person of our Saviour. All these, my Lords, most properly are crimes to be punished by the civil magis- trate. In a case that occurred before Lord Hale, which is mentioned in Ventris,(a) and other cases of that sort, the words were “ reviling our Saviour,” speaking of him in language that your Lordships are aware of, and which it is unnecessary that I should repeat, but, my Lords, it is laid down most expressly that it is only reviling, talking contemptuously, contumeliously, using ribaldry and libellous expressions towards our Saviour that can be considered as blas- phemy ; but merely with decency and respect to criticise the Scriptures, and draw from Scrip- ture any doctrine however erroneous, may be heresy, but it is not a crime known to the Common Law of England. My Lords, there having been some intimation that Lord Tenter den and the judges of King’s Bench, in the trials that took place in Lord T enter den’ s time, had intimated an opinion to the contrary, I have diligently referred to the books upon that subject, and I will venture to say that there is no such case to be found, and that no such dictum is to be found. There is a case. King against Wadding ton, (l)} and what is there decided ? A publication stating “ Jesus Christ to be ” (I am obliged, my Lords, with pain and horror, to read the words) “ an im- postor and a murderer ” is a libel at Common Law. Now during this trial a question was asked by a juryman of the Lord Chief Justice, whether a work that denied the Divinity of our Saviour was a libel ? Now does Chief Justice Tenterden say. Aye ? Quite the contrary. “ The Lord Chief Justice answered that a work speaking of Jesus Christ in the language used in the publication in question was a libel.”(c) Your Lordships have heard what that language was. And then, my Lords, when this question came to be discussed in Banco , upon the motion for a new trial, the Lord Chief Justice says, “ I told the jury that any publication in which our Saviour was spoken of in the language used in the publication for which the defendant was prosecuted was a libel. I have no doubt what- ever that it is a libel to publish that our Saviour was an impostor and a murderer in principle.” Now, with regard to The King against Car- lile, that was an indictment for blasphemy, and there was a motion in arrest of judgment, (d) upon the grounds that since the 9th and 10th of Will. 3. c. 2. was repealed, such an indictment could not be supported. Now, what says the Lord Chief Justice there ? “I consider it to be perfectly clear that the 9 & 10 Will. 3. c. 32. did not take away the Common Law punishment for this offence ” (and I say, God forbid that it (а) R. v. Taylor. 1 Yent. 205. (б) 1 B. & C. 26, and 1 St. Tr. N.S. 1339. (c) 1 St. Tr. N.S. 1341. (d) 3B. & Ald. 161, and see extracts from the unpublished notes of the trial, below, Ap- pendix F, p. 1423. [1374 should) ; “ its title is * An Act for the more effectual suppressing of Blasphemy and Pro- faneness,’ and the preamble recites the object to be, ‘ for the more effectual suppressing of the said detestable crimes,’ and for this purpose it imposes certain disabilities on persons convicted which are of a very high and severe nature. But it appears to me that the Legislature in- tended, not to repeal the Common Law on this subject, but to introduce certain peculiar dis- abilities as cumulative upon the penalties pre- viously inflicted by the Common Law. The very severe nature of these disabilities might well induce them to introduce provisions of the nature contained in sections 2 and 3 of the Act. Now, I take it to be a general rule ” Then he goes on to show that this did not alter the Common Law, which rendered, and most properly rendered, blasphemy an indictable offence. My Lords, Mr. Justice Bayley and Mr. Justice Holroyd and Mr. Justice Best followed in the same strain, but without intimating any opinion, for which there would have been no foundation, that merely with respect and reverence to moot any question of controverted divinity was an indictable offence. Where then is the authority for it, my Lords ? I have looked into Hale ; I have looked into Blackstone ; I have looked into Hawkins ; I have looked into East ; I have searched the reports. I can find nothing in any text writer ; I can find no decided case in the slightest degree to countenance such a doctrine. Lord Eldon, in The Attorney General v. Pearson, (a) says that he has an opinion, without intimating that opinion. If that great judge had intimated an opinion ever so strong, that it was an indictable offence to profess Unitarian doctrines, my Lords, I should have said that that opinion was entitled to no regard whatsoever against the multiplied authorities that teach the contrary doctrine ; one would only lament that so great a judge should have his mind clouded and obscured upon a particular subject ; and, with all the reverence with which we must regard his memory, if he had such an opinion, he cannot be supposed to have escaped the reproach of bigotry. At the conclusion of his argument the Attor- ney General again referred to the case of The King . against Carlile, which, he argued, con- tained nothing to countenance the notion that dissenting from the doctrine of the Trinity was blasphemy. Lord Brougham : I am quite with you upon that, as far as regards the books, and nobody can doubt it who reads the books ; but the question did not arise. The words were, not for examining soberly and respectfully, but re- viling — and everybody admits that will be a libel. Attorney General : Certainly, my Lord. Lord Brougham : Just as it would be sedi- tion to attack the Government in a ribaldrous manner. But still I am confident that it was the opinion of Westminster Hall at the time, that Lord Tenterden held that doctrine. (6) I have heard that. Attorney General: It must, my Lord, have been a misapprehension, and may have arisen (а) 3 Mer. 353. (б) But see below, Appendix F. Appendix A . 1375 ] Appendix A. [1376 from the answer he gave to the juryman's ques- tion above. The House subsequently proposed six ques- tions for the opinions of the judges. The sixth question was as follows : — Whether such (z'.e., Unitarian) ministers, preachers, widows, and persons are, in the present state of the law, incapable of partaking of such charities, or any of them ? Erskine, J. : As to the sixth question, if your Lordships should decide that the language used by Lady Hewley is sufficiently extensive to include Unitarians as objects of her bounty, I am of opinion that there is nothing in the present state of the law to prevent their partaking of the benefits there provided for them. For, although the repeal by the statute 53 Geo. 3. c. 160. of the incapacities and penalties imposed by the earlier statutes has not made any diffe- rence in the truth or error of their tenets, and cannot, in my opinion, reflect back any light upon Lady Hewley’ s intentions in 1704, it has removed the only obstacle that could have inter- cepted her bounty if they had been originally objects of it. It is, indeed, still blasphemy, punishable at common law, scoffingly or irreve- rently to ridicule or impugn the doctrines of the Christian faith, and no one would be allowed to give or to claim any pecuniary encouragement for such purpose ; yet any man may, without subjecting himself to any penal consequences, soberly and reverently examine and question the truth of these doctrines which have been assumed as essential to it. And I am not aware of any impediment to the application of any charitable fund for the encouragement of such inquiries. Coleridge, J. : My answer to the only re- maining question of your Lordships, under- standing it to refer, as *1 do, to charitable foun- dations similar to Lady Hewley’ s, not the same, is that ministers or private individuals of the Unitarian persuasion are not in the present state of the law disqualified from enjoying the benefit of any such. It appears to me, in order to arrive at this conclusion, not necessary to break in upon any of those dicta by which Chris- tianity has been declared parcel of the Common Law, nor to extend the operation of the different Toleration Acts beyond the literal meaning of their language. But Unitarians profess to be Christians as much, and, we doubt not, as sin- cerely, as Trinitarians, and I apprehend that there is nothing unlawful at Common Law in reverently doubting or denying doctrines parcel of Chris- tianity, however fundamental. It would be diffi- cult to draw a line in any matters according to perfect orthodoxy, or to define how far one might depart from it without offending the law. The only safe and, as it seems to me, practical rule is that which I have pointed out, and which depends on the sobriety and reverence and seriousness with which the teaching or believing, however erroneous, are maintained. The other judges answered the sixth ques- tion in the same way, but without assigning reasons. (a) (a) See further, Shretvsbury v. Hornby , 5 Hare, 406, and 7 & 8 Viet. c. 45, passed in The Attorney General against Donaldson. June 9, 1842. This was an information of intrusion against the defendants, the Commis- sioners 6f Sewers, for intruding and making entry into Kensington Palace. The case is re- ported in 11 M. & W. 117. The headnote is as follows : — An information of intrusion stated, that the defendants intruded, and made entry on a certain messuage or dwelling-house, situate, See., and being parcel of the Royal Palace of Kensington, then in the occupation of our Lady tbe Queen, and which was in the hands and possession of the Queen, in right of her Crown. The defendants pleaded, in the form given by the stat. 23 Hen. 8. c. 5. s. 11, that they com- mitted the trespasses under the authority of a commission of sewers for tax assessed by the said commission. Held, on demurrer, that this form of plea was not allowable in an information of intrusion at the suit of the Crown. A distress cannot be levied for sewer rates within the precincts of a royal palace, occupied as the residence of the Sovereign ; and Ken- sington Palace is within this description. (a) But semble, that the averment in this inform- ation did not sufficiently show the palace to be the residence of the Sovereign. The Queen against Francis. June 17, 1842. Trial of J ohn Francis for high treason at the Central Criminal Court before Tindal, C.J., Gurney, B., and Patteson, J. Counsel for the Crown : The Attorney General (Sir Frederick Pollock), the Solicitor General (Sir William Follett), Adolphus, Wad- dington, and Gurney. Counsel for the prisoner : Clarkson. Gurney opened the indictment, which was for high treason, and charged the prisoner with compassing the death of the Queen. The first overt act charged was that he, on the 30th of May, maliciously and traitorously did shoot off and discharge a certain pistol loaded with a cer- tain bullet, which he in his right hand held at and against the person of our said Lady the Queen with intent thereby and therewith maliciously and traitorously to shoot, assassinate, kill, and put her to death ; and thereby he then and there made a direct attempt against the life of our said Lady the Queen. In the second overt act the pistol was stated to be loaded with gun- powder and certain destructive materials and substances unknown. The third overt act was for having discharged a certain loaded pistol. There were also four other overt acts, the same as the former ones, only charging that the prisoner discharged the pistol against the person of our Lady the Queen, whereby her life was endangered. consequence of the decision in the above case, which provides, s. 2, that the religious doctrines or opinions, for the promotion of which meeting houses and other trust property may be held, shall, unless expressly stated in the trust deeds, be collected from twenty-five years’ usage. (a) See further A.G. v. Dakin, 4 H.L. 354 ; and Ex parte Postmaster General : Re Bonham, 10 Ch. D. 601. 1377] In opening the case the Attorney General , after explaining the law and briefly stating the facts, said that he understood that no plea of insanity would be set up ; but the prisoner would be admitted to have been in the full possession of his faculties at the time The purchase of the pistol, and a previous intention of employing it, would be proved, but not the purchase of a bullet ; nor, as it had been fired towards an open space, could any be found. But there were thousands of substances that would serve the purpose of a bullet — as a pebble, a child’s marble, or any irregular piece of lead. If it were to be argued that that gave the pri- soner the benefit of a doubt, neither the life of the Sovereign nor that of anyone else would be safe. It was, he understood, to be alleged in defence that the act Avas a mere frolic ; but the prisoner was admitted to be sane, and no sane person could be guilty of such heartless wicked- ness for the sake of a joke To admit such plea would destroy all safety for people’s lives. Colonel Charles James Arbuthnot gave evi- dence as follows : — I am one of the equerries of Her Majesty. My general position is about five yards in the rear of Her Majesty’s carriage. Before Ave left the Palace on Monday I had received an inti- mation which induced me to ride as close to Her Majesty as I could ; and Colonel Wylde, Prince Albert's equerry, rode in the same posi- tion on the other side. Between six and seven o’clock we were coming doAvn Constitution Hill ; when about half way down the hill I observed the prisoner, on the carriage reaching him, take a pistol from his side and fire it in the direction of the Queen. As quickly as I could I pulled up my horse and gave the prisoner into custody. The prisoner had before this caught my atten- tion as appearing 'anxious to see Her Majesty. The utmost distance he could have been from the carriage at the time he dreAv the pistol was seven feet. The pistol was fired just as the carriage Avas passing. The carriage had been going at the rate of eleven miles an hour ; but in passing Constitution Hill, being apprehensive an attempt would be made at Her Majesty, I had given instructions to go faster, and the postillions were driving as fast as the horses could go, I should say at the rate of tAvelve or thirteen miles an hour. I had received some intimation before I left the Palace, and the ladies usually in attendance on Her Majesty were not with her on this occasion. Her Majesty would not take any of them Avith her. There was no one in the carriage but Her Majesty and Prince Albert. The Queen was sitting on the back seat of the carriage, on the side nearest the prisoner. The pistol seemed to me to be pointed in the direct line of Her Majesty. I heard the report, and saw the smoke and the flash decidedly, 1 mean the fire emitted from the pistol. A policeman stood within three yards of the prisoner. I said, “ Secure him,” which was done, and I ordered the pri- soner to be taken to the Palace. I saw him at the police station in Gardener’s Lane, and there he declined saying anything to the policeman on duty. Henry Allen : I am a private in the Scots’ n 67432. [1378 Fusilier Guards. I Avas twelve or fifteen paces behind the carriage. I had seen the prisoner leaning on the pump in Constitution Hill just before ; and as the carriage eaine up 1 saw him step forward and present a pistol at the carriage. I heard the report and suav the flash. I have been in the army eighteen months, and have experience in firing Avith ball and blank car- tridge. I should say that the pist >1 was loaded with ball ; it makes a sharper sound than a blank cartridge. Colonel Arbuthnot , recalled, stated in answer to the Court : — “ The report was sharp and loud, but I did not hear the Avhiz of a ball in consequence of the noise of the carriage and eight horses. My opinion is that the pistol Avas loaded with some- thing more than the poAvder and Avadding, from the sharpness and loudness of the report. That is a mere matter of opinion. I do not think that powder only AA r ould have made such a sound ; a blank cartridge is a mere evaporation of pow- der. I cannot swear it Avas loaded with more than gunpoAvder and Avadding rammed on it, bat it was the report of a pistol well rammed doAvn and charged . Lieut. Patrick Fitzgerald and Colonel Wylde, equerry to Prince Albert, corroborated Colonel Arbuthnot' s eAudence. William Trounce, a police constable of the A Division, had seen Francis loitering about for half an hour before the occurrence. He ob- served that as he looked at him, Francis went behind a tree. Trounce Avas not more than one yard from the prisoner when he heard the report of a pistol ; he looked round and saw Francis in the act of presenting it. He seized him at once. Other evidence was giA’en relating to the previous movements of the prisoner. George Pearson , a A\ r ood-engraver, saw him present the pistol at the Queen on the previous day, Sunday, May 30, as she was returning from the Chapel Boyal ; he neither dreAv the trigger nor attempted to fire, nor anything. When the carriage passed he returned the pistol into his bosom and said, “ They may take me if they like ; I don’t care ; I was a fool I did not shoot her ! ” Joseph Robert Street, shopman to Mr. Ravener, a pawnbroker in Tothill Street, spoke to selling the pistol produced to the prisoner, on the 27th May, for 3s. Richard Pritches , an oilman in LoAver Eaton Street, Pimlico, spoke to selling him a flint for 1 d. the same day, and to fitting the flint to the pistol. Thomas Gould, of York Street, Westminster, spoke to selling him a halfpennyworth of gunpowder on the 27th, and Anne Briggs an ounce on the 30th, in Brewer Street ; he paid 2d. Cecilia Forster deposed that the prisoner had half a bed with another young man in her house, 106, Great Ticlifield Street, for 3s. a week ; he left her lodging on the 27th May ; having been out of work for some time before. He was a carpenter by trade. William Gore. — Cross-examined by Clarkson. I am one of the Queen’s grooms. I was present when this attack was made on hep, and distinctly saw what passed. I was examined Appendix A. x x 1379 ] Appendix A. [1380 before the Privy Council. I was riding behind Colonel Arbuthnot, who was riding immediately close to the Queen’s carriage, covering the Queen’s person. I think I was riding six or seven yards from the hind-wheel. I saw the prisoner discharge the pistol ; he discharged it between Colonel Arbuthnot and myself. I should think the pistol was pointed to the centre of the hind-wheel of the carriage as nearly as possible. Clarkson, for the defence, commented on the evidence with a view to prove it inconclusive of the charge. He expressed some indignation that he should have been supposed capable of suggesting that the pistol had been fired as a mere feu-de-joie. Was not the case disgusting and abhorrent enough without that ? Francis ’ previous distress, and his courting detection after the attempt, would prove his intent. Had the pistol been loaded with any destructive missile, it was impossible that it could have been discharged without injuring the Queen, Colonel Arbuthnot, or his horse. Two years ago the morbid feeling and vanity of another person had induced him to commit the desperate act of firing two loaded pistols ; he had been taken care of and provided for ; and was it impossible that the prisoner, in the distressed state in which he Avas proved to be, unable to pay his lodging, with only a penny in his pocket, should have committed the act in the hope of being provided for in a similar manner? He relied on the clemency and mercy of the jury. The Solicitor General replied, contending that though there was no direct proof of the pistol’s having been loaded, the jury could come to no other conclusion, and, whatever Francis’s mo- tive, he must have had a criminal design. Tindal, C. J., in summing up, told the jury that, if they were satisfied that the pistol was loaded with a bullet that would be proof of the criminal design ; or even if it was loaded only with wadding, but fired so close to the Queen as to do her severe bodily harm, an overt act of high treason would be made out. The jury retired at twenty minutes to four o’clock. They returned into Court at five min- utes past five ; when the foreman stated that they found the prisoner “ Guilty.” Tindal, C.J. : Gentlemen, do you find him guilty of the first overt act, charging that he fired a pistol loaded with gunpowder and a bullet ? Foreman : No, my Lord. Tindal, C.J. : Do you find him guilt}*- of the second overt act, that it was loaded with powder and some other destructive materials and sub- stance. Foreman : We do, my Lord. Tindal, C.J. : Then you think the pistol was loaded with more than the mere ramming down and wadding, but that there was some other destructive substance. Foreman : Yes, my Lord. Sentence of death in the usual form, in cases of high treason, was then pronounced, but was afterwards commuted to transportation for life. The above report has been abridged from the Sessions Papers, C.C.C., 1841-2, p. 316, and the report in the Annual Register, 1842, Chron. Gahan and others against Lafitte. February 12 and 15, 1841, and July 6, 1842. This was an appeal to Her Majesty in Council from a judg- ment of the Royal Court of St. Lucia, by which the respondent recovered 3,000/. damages from the appellants in an action of trespass and false imprisonment. The case is reported in 3 Moo. P.C.C. 382, and 6 Jur. 841. The headnote is as follows : “ Action for trespass and false impri- sonment maintained against persons exercising the office of judges of the Royal Court of St. Lucia under commissions from the governor not issued conformably to the Orders in Council of June 20, 1831, and the instructions to the Governor.” The case arose out of a conflict between Colonel Bunbury, the Governor, and Reddie, C.J. and Lafitte, J., the respondent on the appeal, members of the Royal Court of St. Lucia, A vacancy having occurred . in the Royal Court, the Governor appointed a provi- sional second Puisne Judge by a special commis- sion limiting his jurisdiction to certain classes of cases. The Chief Justice refused to recognise the limitation in the commission. The Governor thereupon suspended him, and appointed Mr. Gahan, one of the appellants. Chief Justice. The respondent, Mr. Lafitte, refused to swear in the new Chief Justice, and the Governor caused a letter to be addressed to him, in which it was stated that his conduct was tan- tamount to a resignation and abandonment of his functions as judge, and that his -resigna- tion had been accepted. The respondent wrote a letter in . reply in which he denied that he had resigned, or that his refusal to do an illegal act could be construed into an abandonment of his duties. The three appellants were appointed and sworn in by the Governor as Chief Justice and Puisne Judges of the Royal Court. They proceeded to summon the respondent before the Court to answer a contempt by openly denying and opposing the rights and powers of the court to administer justice, and to answer for a breach of the peace in having published a certain scan- dalous and wicked libel on the Court and the Governor, meaning the letter above referred to. The respondent having failed to appear was arrested, and convicted of a gross contempt in denying the jurisdiction of the Court, and sen- tenced to be imprisoned until the contempt should be purged. He remained in prison from January 10 until March 25, 1838. He was then released on habeas corpus by Chief Justice Reddie, who had been reinstated by order of the Secretary of State, and was himself reinstated in his office of Puisne Judge. The respondent brought an action of trespass and false impri- sonment against the appellants and recovered 3,000/. damages on the ground that the appel- lants when sentencing him w r ere not a pro- perly constituted court under Articles 4 and 5 of the Order in Council of June 20, 1831 ; Gahan, the Chief Justice, not having been sworn in before a judge of the Court, and being there- fore incompetent to sit himself or to swear in his colleagues ; and further, because the appoint- ment of the appellant Cox as first puisne judge was illegal and irregular, the respondent never having vacated the office. Pemberton, Sir William Follett, and Martin 1381] Appendix A. [1382 for the appellants, Burge and Blunt for the re- spondents, referred to the following authorities : Reg. v. Mayor of Canterbury fa') Biyhton’s case, (6) Reg.x. Bailiff' of Ipswich, (c) Com. Dig. Officer, K. 2, p. 151, ib. Mandamus, 1). 3, Mar- gate Pier Co. v. Hannan, (d) Dicas v. Lord Brougham, (e) Garnett v. F errand ff) and Garnettx. Tanner fg) Donegani v.Boneganifh) In the course of the argument the Court referred to the Royal Instructions accompanying the Orders in Council of June 20, 1831, by which the governor was required before pro- ceeding to suspend any officer to “ signify by a statement in writing to the person about to be suspended the grounds of the intended proceed- ing against him, and to call on him for a state- ment in his defence, and to transmit both state- ments to the Secretary of State. On June 20, 1842, the appeal was re-argued by one counsel on each side by order of the Judicial Committee. On July 6, 1842, Lord Brougham gave judg- ment, but without assigning reasons, affirming the sentence of the Court below, but reducing the damages to 1,500/. The Queen against Holyoake. August 15, 1842. This was an indictment for blasphemy, tried before Erskine, J., and a jury, at the Gloucester Summer Assizes, 1842. There is a printed report of the trial published by the defendant. The indictment charged the pri- soner with the using the following words : — “ I do not believe there is such a thing as a God : I would have the Deity served as they serve the subalterns, place him on half-pay.” Evidence was given that the words were spoken at Cheltenham, on May 24, 1842, in the course of a lecture on Home-Colonisation, Emigration, .and the Poor Laws, in answer to a remark from one of the audience that the lecturer had been speaking of their duty to man, but had said nothing of their duty to God. In summing up the learned judge read the following from Paley : “ Serious arguments are fair on all •sides : Christianity is but ill-defended by re' fusing audience or toleration to the objections of unbelievers. But whilst we would have freedom of enquiry restrained by no laws but those of decency, Ave are entitled to demand, on behalf of a religion, that holds forth to man- kind assurances of immortality, that its credit be assailed by no other weapons than those of sober discussion and legitimate reasoning.” “ Our laAv,” the learned judge continued, “ has adopted that as its rule, and men are not per- mitted to make use of indecent language in reference to God and the Christian religion without rendering themselves liable to punish- ment.” The defendant Avas found guilty and sentenced to six months’ imprisonment. Ear- lier at the same assizes George Adams had (а) 1 Str. 474. (б) 1 Ventr. 82. (c) Ld. liaym. 1232 ; Salk. 434 ; 1 Ventr. 143. id) 3 B. & Aid. 244. (e) 6 C. & P. 249. (/) 6 B. & C. 611. ig) 6 B. & C. 624. Ck) 3 Knapp, P.C. 63. been convicted of publishing a blasphemous libel, by selling No. 25 of Tlte Oracle of Reason (Avhich Avas edited by the defendant Holyoake), and sentenced to one month’s im- prisonment. The Queen against John William Bean. August 24, 1842. (a) Trial of the defendant at the Central Criminal Court before Lord Abingcr, C.B., Williams, J., and Rolfe, B., for assaulting the Queen Avith a pistol on July 3 previous. Counsel for the Crown : The Attorney Gene- ral, the Solicitor General , Adolphus , Wadding- ton, and R. Gurney. Counsel for the prisoner: Horry . Gurney opened the indictment, which charged that the prisoner, being a person of a turbulent and seditious mind and greatly disaffected to our said lady the Queen, and unlawfully and Avick- edly contriving and intending to vex, harass, and alarm our said lady the Queen, to disturb and break the public peace of the realm, and to ter- rify the faithful liege subjects thereof, assaulted the Queen, and presented a pistol, loaded Avith gunpoAvder and Avadding, at her, and attempted by pulling the trigger to fire off the pistol. The second count AA r as for presenting the pistol at the carriage. The third count charged an attempted assault upon the Queen by presenting, &c. the pistol at the carriage. The fourth count charged an assault upon the Queen simply. Charles Edward Bassett : I am an oil and colourman. On Sunday, the 3rd of July, I went into St. James’s Park about a quarter to twelve. I saAv the royal carriages and the Queen and Prince Albert coming from Buckingham Palace to go to the Chapel Royal, St. James’s. I was stand- ing about half Avay doAvn the Mall near the watering place, which is a kind of pump. I believe the Queen Avas in the last carriage ; she always is. Just as the last carriage was passing, I observed the prisoner come in froDt of the croAvd, draAV a pistol from his breast, and present it towards the last of the carriages. He seemed to come from the back of the crowd towards the carriage. I heard the sound of the click of a hammer striking against the pan, but there Avas no explosion. I heard the click AAdiile the pistol Avas elevated towards the carriage. I seized the prisoner, and, assisted by my brother, took him across the Mall, and offered him to Police Con- stable A 56. A great number of persons fol- lowed us, and asked me to give the boy back his pistol, as they belieA r ed it was a hoax ; they did not believe it was loaded. The policeman refused to take him into custody. He said it did not amount to a charge. I offered him also to Police Constable Flaxman, A 134, Avho likeAvise refused to take the prisoner. The pressure of the crowd became so great, and most of them sided Avith the prisoner, that he was forced from me and escaped. I myself was soon after taken into custody by policeman A 136. I had the pistol at that time in my hand, and aftenvards, as the people Avere charg- ing me with an attempt to shoot the Queen, (a) Mr. Gurney’s shorthand note of the pro- ceedings is preserved at the Treasury. x x 2 1383 ] Appendix A. [ 1384 ? a policeman took the pistol away from me, and I was taken to Gardener’s Lane'. I saw, when the prisoner pulled the pan up, that it was full of coarse gunpowder. I put the pan down, and half-cocked the hammer to save what remained, but a portion of it had got out. Cross-examined by Horry. The royal carriages were going very fast . I do not think there was much laughing in the crowd. Some called out that the pistol was not loaded. Frederick Augustus Dassett, the younger brother of the last witness, corroborated his evidence. When my brother took the pistol the hammer of it had gone down, the pan was shut as it is when it is being let off. I did not notice anything until my brother spoke to me. I then looked and found him holding the prisoner’s wrist ; he said, “ There is a young gentleman going to have a pop at the Queen.'’ John James, a builder, the uncle of the two Dassetts, and William Jones, a wood turner, saw Charles Dassett seize Bean. James Tor- rington Partridge, constable 136 A, said that he took the pistol from Chhrles Dassett , and gave it to Inspector Martin. George Martin , Inspec- tor of the A Division, received the pistol from the last witness and unloaded it. There was a small quantity of coarse powder and two small pieces of pipe and four small pieces of gravel ; it was rammed down with paper, it appeared to be properly cammed down; the powder was not sufficient for an ordinary charge, it was about half a charge. The bits of pipe were very small ; one of them is about the size of an ordi- nary shot. William Penny, Inspector of the T Division, produced a letter given him by the prisoner’s father, and Thomas Warhoy proved it to be in the prisoner’s writing : — “Dear Father and Mother, “ Thinking you may feel surprised at my prolonged absence, I write these few lines to acquaint you I am seeking employment, which if I do not Gbtain I will not be dishonest, though I may be desperate. It is useless to seek for me. Please give my love to my brothers, though they never used me as such .... “ Your unhappy but disobedient son, “ J. B.” William John Bird, general salesman, of Exmouth Street, Spa Fields, spoke to selling the prisoner a pistol (produced) on the Thurs- day or Friday before the 3rd of July ; and Bean afterwards came for a flint to it- The pistol was very old, rather rusty, but capable of being fired if properly loaded. George J ohn Whitmore spoke to oiling the pistol for the prisoner on the Saturday before it had the flint put to it, but could not clean it. Witness tried the pistol before it had a flint; he put in a bit of stone and got a spark, but not strong enough to light the powder. Benjamin James was in atten- dance with the third of the Royal carriages on the 3rd of July; the Queen was in the carriage, with the Prince and a lady. Henry Webb policeman of the A division, spoke to arresting Bean at his father’s house in Somers Town ; he said that he had been on Sunday in Barnsbury Park Islington, and the Regent’s Park. Horry, for the prisoner, objected that the first count charged an assault upon the Queen, amounting to high treason. An indictment for a misdemeanor could not be pleaded in bar to an indictment for high treason, and, therefore, the prisoner might be tried twice for the same offence. The second count disclosed no offence at common law ; there must have been a criminal intent, and terror and alarm must have been created, whereas, for anything that appeared, the Queen was wholly unaware of the attack. In this case, too, the shot, if it had exploded, could never have reached Her Majesty, and therefore it was no assault— Stephens v. Myers, 4 C. & P. 349 ; Beg. v. St. George ; 9 C. & P. 483. (a) Lord A binge r, C.B., overruled the objection without calling on the Attorney General. The objection that the first count is [for a misde- meanor but charges high treason is upon the record and can be taken before the Court above. I think the second count could be sustained without any objection of law or fact, and that is enough to dispose of the objection. But I do not agree that every assault upon Her Majesty would be a case of high treason. One may put a case of an assault without being high treason. I do not wish to put the cases, but they may suggest themselves to every gentleman’s mind — some insult — some rudeness — some improper familiarity which might indicate anything but an attempt to endanger her life — but any assault, any attempt to molest, impede, or to disturb the peace of the Sovereign is a misdemeanor of a very high character. (6) It is within my memory that a man was indicted for grinning at His Majesty George 3. as he passed through the park on his way to prorogue Parliament. Ho objection was made to that indictment, and a conviction took place. Williams, J., concurred, and observed that any attempt to explode a pistol in a crowd of two or three thousand people at a time when Her Majesty was passing, and in a manner cal- culated to inspire terror and alarm in the liege subjects, was a misdemeanor. Henry Hawkes, printer, of Brunswick Road, City Road, was called for the defence, and stated that he was about six feet from Bean and Dassett when Bean was seized, and he did not see him present a pistol at the Queen, although he thought he must have seen it if it had been done. Bean could easily have got away. After Dassett seized the pistol he was playing with it, trying the lock. He appeared to me to be treating the matter very lightly — laughing and smiling ; the people about were laughing and smiling, and joking too. Thomas Vosport, a painter out of work, living at the “ Running Horses,” in Duke Street, Gros- venor Square, swore that the prisoner did not present a pistol at the carriage. Cross-examined by the Solicitor General. He said that he saw the prisoner with the pistol in his hand some ten minutes or a quarter of an hour before the carriages came out of Buckingham Palace, and waited to see the result. (а) But see as to this case Reg. v. Brown, 10 Q.B.D. 381 ; and Reg. v. James , C. & K. 530. (б) See Stephen’s Dig. Cr. L. art. 65 ; and Hawk. P.C. bk. 1. c. 6. 1385] Lord Abinger, C.B. : If you saw the boy with the pistol in his hand ten minutes, and were waiting to see the result, and that result you thought possibly might be some attempt on Her Majesty, how came you not to interfere your- self and take hold of him ? — My Lord, I had not the self-possession ; at least, I did not think anything of doing that. I did not know whether there was mischief in it or not. Did it not occur to you to have gone to the boy and said, “ What are you going to do ” ? — I did not give it a thought. I looked at the carriages, but looked at the boy, expecting some result. David Hatton, a newsvendor, and several other witnesses, gave Bean a character for mildness, among them was the prisoner’s father, who wept bitterly. In his reply the Attorney General con- tended that to present a pistol under any cir- cumstances, if it was apparently loaded, was an assault, and whether loaded with ball or blank cartridge, was a matter of no importance. Lord Abinger, C.B. : Is it not an assault to present a loaded gun at a man when he is asleep ? — I think it is, but Mr. Horry contends the contrary. Lord Abinger, C.B., in summing up com- mented severely on the conduct of the witness Vosport , and stated that, if he spoke the truth, he had been guilty of a misprision of treason. The jury found the prisoner guilty on the second count. Lord Abinger, C.B., then proceeded to pass the sentence of the court, as follows : — John William Bean, you have been convicted by a jury of your county of an attempt to harass, vex, and grieve your Sovereign, Her Majesty the Queen, and to create alarm amongst, and to disturb the peace of Her Majesty’s faith- ful subjects, by presenting a pistol loaded with powder and wadding at the carriage in which she was seated, and with attempting to cause that pistol to. explode. If you had succeeded in that attempt, nobody can doubt you would have accomplished those intentions with which you are charged in the indictment, namely,— of harassing and vexing the Queen, and of breaking the peace, and disturbing the tranquillity of Her Majesty’s loyal subjects, for when proceeding from Buckingham Palace to the Koyal Chapel at St. James’s for the performance of those sacred duties which the day imposed, what must have been her concern and grief to have found amongst the numerous body of her subjects, which had assembled on that occasion, one in- dividual who had the audacity to present a loaded pistol at the carriage in which she was seated, for the purpose of annoying, alarming, and vexing her, and of exciting tumult and confusion ? What would have been the feelings of those loyal subjects by whom Her Majesty was sur- rounded? Would not every sentiment of their hearts have been excited to protect, surround, j and assist her in those devotions she was about to perform, if they had found her passage dis- turbed by an explosion of the nature you attempted ? That your attempt is highly criminal, and that you have been guilty of an abominable crime, no man can doubt. The jury j have given a most careful consideration to the ! case-t he evidence on both sides has been fully [1.386 examined, and I believe I state the impression of the whole of this auditory, when I say that the verdict of the jury corresponds with the conviction on the mind of every other man in this Court. That you loaded the pistol with the intention imputed to you, that you levelled and presented it with that intention, no individual can hesitate for a moment to believe, and I know of no misdemeanor more alfecting the public peace of the kingdom, of greater magnitude or deserving more serious punishment, than that of which you have just been pronounced guilty. Any circumstance which involves the tran- quillity and repose of the Sovereign — more especially upou such an occasion, and on such a day as that you selected — must be one which deeply affects the feelings of all classes of this realm. What shall be said of a man who, on his own wanton, wicked, or, if you like, capricious view, should aim at something mischievous in order to attain a kind of ignominious notoriety, or an asylum for the rest of his days, and should make an attempt which was calculated to strike the bosom of every loyal subject with alarm, terror, and agitation ? It was not confined to the peace of those assembled on the occasion, but it involved the peace and happiness of the whole nation. Under these circumstances, the crime being short of high treason, I would not have it to be supposed that the common law of this realm, which was intended to protect the meanest subject in the enjoyment of his tran- quillity, property, and life, was defective to protect the Sovereign from attempts of the nature of that which you have made. I wish, however, I could say that the law at the time this your offence was committed, had provided a punishment adequate to that offence ; but I will take this opportunity now to state publicly, that if any desperate character should follow your example, he may, if not convicted of high treason, by which his life would be forfeited, gain another species of notoriety by being publicly whipped at a cart’s tail through any street in the metropolis. All the Court can now do is to pass that sentence which the common law justifies ; and I should do violence to my own feelings, as well as to the feelings of all loyal subjects, if I should treat your offence with any mitigation of punishment. The sentence of the Court is, that you be imprisoned in Her Majesty’s gaol of New- gate for the space of eighteen calendar months. The above report has been abridged from the Sessions Papers C.C.C., 1841-2, p. 734, and from the report in the Times of August 25, 1842. The Queen against Shellard. The defendant was tried before Patteson, J., at the Monmouth Spring Assizes on an indictment found at the Monmouth Special Commission.(a) The case is reported in 9 C. & P. 277. The headnote is as follows: — u A. was charged with having con- spired with W. J. and others unknown, to raise insurrection and obstruct the law. It was proved that A. and IF. J . were members of a Chartist lodge, and that A. and IF. J. were at the house of the latter on a certain day, on the even- ing of which A. directed the people to assemble at the house of IF. J. to go to the race-course at P., whither IF. ,/. and other persons had (a) See above, p. 87. Appendix A. 1387] gone : — Held, that on the trial of A., evidence was receivable that W. J. had, at an earlier part of the same day, directed other persons to go to the race-course ; and it being proved that W. J. and an armed party of persons assembled, went from the race-course to the ‘ New Inn,’ it was held that evidence might be given of what W. J. said at the “ New Inn,” it being all one transaction.” The Queen against Hands and twenty-eight others. This was an indictment for feloniously demolishing the Rev. Doctor Vale's house at Longtorr, near Stoke-upon-Trent, during the riots in the Potteries on August, 1842, and was. tried before Tindal, C.J., at the Stafford Special Com- mission. The case is reported in Car. & M. 661, where the headnote is as follows: — “If rioters destroy a house by fire this is a felonious demolition of it within the stat. 7 & 8 Geo. 4. c. 30. s. 8, and the persons guilty of such an offence may be convicted on an indictment founded on that enactment, and need not be indicted for arson under s. 2 of that statute. If in a case of feloniously demolishing a house by rioters, it appears that some of the prisoners set fire to the house itself, and that others carried furniture out of the house, and burnt it in a fire made on a gravel walk outside the house, it will be for the jury to say, whether the latter were not encouraging and taking part in a general design of destroying the house and furniture, and if so, the jury ought to convict them.” The Queen against Simpson, Ellis , and sixteen others. This was an indictmeilt under 7 & 8 Geo. 4. c. 30. s. 8. for feloniously demolishing the house of the Rev. R. E. Aitkens during the riots in the Potteries, and was tried before Tindal, C.J., at the Stafford Special Commission in October, 1842. The case is reported in Car. & M. 669, where the headnote is as follows: — “ A prisoner had been committed on a charge of high treason, and afterwards the grand jury returned a true bill against him with others for feloniously demolishing a house, under the stat. 7 & 8 Geo. 4. c. 30. s. 8. He pleaded to that indictment, and wished to be tried after the other prisoners, who were indicted with him for feloni- ously demolishing the house, on the ground that he had had no copy of depositions as to that charge. But this was not allowed, as the prosecution might have been commenced without going before any magistrate, and then there would have been no depositions. If a house be demolished by rioters by means of fire, one of the rioters who is present while the fire is burn- ing may be convicted for the felonious demo- lition under the stat. 7 & 8 Viet. c. 30. s. 8, although he is not proved to have been present when the house was originally set on fire.” The Queen against. Badger and Cartwright. February 11, 1843. This was an application in the Court of Queen’s Bench for a criminal information against the defendants, who were magistrates of the county of Stafford. The application was made on behalf of Arthur George O'Neill, a Chartist speaker, appre hended in the preceding August for seditious language, and brought before the defendants, who required him to find bail in two sureties of [1388 100Z. each for his appearance to take his trial. O'Neill tendered two town-councillors of Bir- mingham, possessed as such, of a statutory qualification of 1,000/. over and above what would pay their debts,(«) but the defendants refused to receive them, on the alleged ground, that they had attended Chartist meetings. A rule nisi was granted for an information, but afterwards discharged, though with costs against the magistrates. The case is reported in 4 Q.B. 468, where the headnote is as follows: “ In the case of a bailable misdemeanor, bail if otherwise sufficient ought not to be refused on account of the personal character or opinions of the party proposed.” In giving judgment discharging the rule Lord Denman , L.C.J., after referring to- the disturbed state of things in the Potteries, and the propriety of O'Neill's committal by the magistrates, continued: — Standing charged with a misdemeanor, O'Neill claimed the right of every man, so charged, to be released from prison, and admitted to bail on producing sufficient sureties. He says he tendered such to the magistrates, who refused to receive them not from an objection to their sufficiency, but from corrupt, partial, and arbitrary motives,, with the determination to keep him in prison, when their duty required them under the cir- cumstances to bail him and release him out of' custody. We have first to consider whether this refusal was a lawful act, a point on which no serious doubt was entertained. Neither of the learned, counsel who opposed the rule contended that a magistrate can lawfully reject bail at his own discretion, or is at liberty, when bail is offered, to enter into an investigation of the character and opinions of such bail, provided he is satisfied of their sufficiency to answer for the appearance of the party in the amount reasonably required. The law is clear and is as- old as the Statute of Westminster the First, 3 Ed. 1 . c. 15. Lord Coke in his commentary upon that statute (2 Inst. 191) says that “to deny a man plevin, that is pleviable, and thereby to detain him in prison, is a great offence, and grievously to be punished, and Lord Hale(by adopts the same remark ; and Hawkins (Part 2, c. 15, s. 13) speaks of the refusal of bail as an indictable offence. Blackstone, referring (4 Comm. c. 22, p. 297) to the ancient statute, the Habeas Corpus, (c) and the Bill of Rights, (cZ) calls it an offence against the liberty of the sub- ject. If, then, such refusal took place from improper motives, it might be treated as a cri- minal offence and made subject to an indict- ment or information.” The learned judge re- ferred to the affidavits, and observed that the resolution of the county magistrates not to accept as bail persons who had taken part in the Chartist agitation, was illegal, but that as the defendants had acted in good faith and in ignorance that they were breaking the law, the Court, in conformity with the rule regulating its practice, would decline to interfere by criminal information. Rule discharged, but with costs against the defendants. («) 5 & 6 Will. 4. c. 76. s. 28. (Z>) 2 P.C. p. 135. (c) 31 Car. 2. c. 2. (2 1427] Appendix G. [1428 APPENDIX G. Note on the Chartist Movement {contributed by the Editor). (a) The following is a brief chronological note of some of the principal events in the Chartist movement referred to in the trials between 1839 and 1843: — On February 27, 1837, a meeting was convened at the “ Crown and Anchor ” tavern in the Strand by the Working Men’s Association, an organisation of London radicals, “ to petition Parliament for Universal Suffrage, No Property Qualification, Annual Parliaments, Equal Representation, Payment of Members, and Vote by Ballot.” The' prayer of this petition is stated by William, Lovett{b ) to have been the origin of the People’s Charter, which was afterwards drawn up, mainly by Lovett him- self, and published on May 8, 1838.(c) It was entitled “ the People’s Charter,” being the outline of an Act to provide for the just repre- sentation of the people of Great Britain and Ireland in the Common’s House of Parliament, embracing the principles of Universal Suffrage, No Property Qualification, Annual Parliaments, Equal Representation, Payment of Members, and Vote by Ballot.” In an address from the Working Men’s Association to the radical re- formers of Great Britain and Ireland, prefixed to the Charter and written by Lovett, it was stated that these six points had been recom- mended as early as 1780 by a committee ap- pointed by the electors of Westminster to take into consideration the election of members of Parliament. On May 14, 1838, the Birmingham Political Union, which had been revived in 1837, put forward the National Petition, {d) containing five of the six points, but omitting equal electoral (а) For a detailed account of the movement see Gammage’s History of the Chartist Move- ment, Lovett’s Life and Struggles, the Place MSS., and Mr. Conner’s article on the Early History of Chartism, English Historical Review, October 1889. (б) In his collection of Chartist documents, British Museum, 8138a. (c) See above, 341a. {d) The petition contains the following refe- rence to the Reform Act of 1832 : — “ It was the fond expectation of the friends of the people that a remedy for the greater part, if not the whole, of their grievances would be found in the Reform Act of 1832 . . . They have been bitterly and basely deceived. The fruit which looked so fair to the eye has turned to dust and ashes when gathered. The Reform Act has effected a transfer of power from one domineering faction to another, and left the people as helpless as before. Our slavery has been exchanged for an apprenticeship to liberty, which has aggra- vated the painful feelings ot social degradation bj r adding to them the sickening of still-deferred hope. We come before your honourable House to tell you with all humility that this state of things must not be permitted to continue.” I districts. On May 21a large meeting was held at Glasgow, attended by delegates from the London Working Men’s Association and the Birmingham Political Union, at which both documents were adopted, and the agitation for the Charter may be said to have begun. On August 6 a large meeting was held in Birming- ham at which delegates were elected to attend a Chartist Convention in London during the next sitting of Parliament. In the autumn torchlight meetings took place in Cheshire and Lancashire, at which the de- mand for the Charter was combined with de- nunciations of the New Poor Law, and the factory system, (a) and the people were urged to arm. Disturbances and destruction of pro- perty followed, and on December 27 the Rev. John Rayner Stephens , a Wesleyan minister, and a prominent speaker at these meetings was arrested and committed for trial. In February 1839 the National or General Convention of Chartist delegates met in London at Johnson's coffee-house, Bolt Court, Fleet Street, to consider means for carrying the Charter. In the same month the name of John Frost, President of the Convention and ex- May or of Newport, was removed from the com- mission of the peace after a correspondence^) with the Home Secretary, Lord John Russell , regarding the speeches attributed to him. In March the Birmingham delegates withdrew from the Convention. Among the measures adopted by the Convention was the despatch of “ mis- sionaries ” into different parts of the country to obtain signatures to the National Petition. On May 3 a Royal Proclamation was issued against illegal drilling, which was said to be going on in different parts of the country, and active preparations were made by General Sir C. J. Napier, commanding the northern district, against an apprehended rising.(c) On May 7, Henry Vincent, one of the Convention “mis- After stating that capital must no longer be deprived of its due profit, or labour of its due reward, and that the laws which made food dear and money scarce must be repealed, the petition went on to demand situated at the foot of a hill, the out Offices topping the budding 7 distant from the Barracks upwards of hedf 2 GROUND PLAN OF THE WESTGATE HOTEL, NEWPORT, MONMOUTHSHIRE, lacked, by a targe booty of Chartists and defended by asm-alt party of the 45*1, on Monday the 4- 1 Novi - , 1839, at ± to 9 A.M. The Premises capable of the best defence, situated/ at the foot of a hill, the oat Offices topping the building, distant from the Barracks upwards of half ctmile. COMMERCIAL STREET i r a Portico, b Ball. c Bar d Passage. e Public Boom- Point of Defence Iff ft by -33. f Coffee Boom. |g Private Parlours. h Pantry. i Kitchen,. k VertuicLth leading to DP 1 Stable 9 dead, bodies. m Stables. n DustBole. p Steps. (j TUclcet back, entrance. r Roman Catholic Chapel. Cbu/lding.) s (butt Yard t Gateway to DP u Coach Bouses. 1429] sionaries” was arrested in South Wales and committed for trial on a charge of seditious con- spiracy. (a) On May 13 the Convention decided to adjourn to Birmingham, where they met again on the 17th. A “manifesto of ulterior measures, ”(6) in the event of the National Petition being rejected by the House of Com- mons, was now put forward, and on May 25, Whit Monday, meetings were held in many parts of the country to pledge the people to adopt the suggestions of the manifesto, which were, that, at the request of the Convention, they should (1) withdraw their money from the savings banks, and (2) convert their paper money into gold and silver; (3) that, if the Convention should determine on the necessity of a Sacred Month to prepare the millions to secure the Charter of their political salvation, they should firmly resolve to abstain from their labour during that period as well as from intoxicating drink ; (4) that they should state whether they had prepared themselves with arms to defend the laws and constitutional privileges of their ancestors ; (5) that at the next election they should elect Chartist candidates by a show of hands ; (6) that they should deal exclusively with Chartists ; and lastly, that they should obey the just and constitutional requests of the Convention. On June 14 the National Petition, alleged to have been signed by 1,200,000 persons, was presented to Parliament by Thomas Attwood and ordered to be received; on July 12 Ait- wood's motion that the House should go into committee to consider the petition was rejected after debate by 235 to 246. (c) In July occurred the disturbances in the Bull Bing, Birmingham, which are described in the trials of Howell , Collins , and Lovett.(d) In the same month Feargus O'Connor was convicted at York for a seditious libel reflecting on the administration of the New Poor Law,(e) and in August Vin- cent was tried and convicted at Monmouth, and Stephens at Chester^/) (а) See his trial, 3 St. Tr. N.S. 1037. (б) Printed in Lovett’s Life and Struggles p. 209, and see Ann. Keg., 1839, Chron. 73. (c) Hansard, vol. 49, p. 220. 0 d) 3 St. Tr. N.S. 1087, 1149, 1177. (e) Ih. 1299. (/) Ih. 1037, 1189. [1430 The Convention fixed August 12 for the beginning of the Sacred Month, but afterwards abandoned it on the ground that the people were not prepared to carry it out. On September 14 the Convention, which had again removed to London, declared itself dissolved. The inci- dents of the night march on Newport on No- vember 4, 1839, and the conflict with the military at the “ Westgate ” hotel are fully described in Frost's trial for high treason before the Special Commission. (a) Other abortive attempts, at Sheffield and Bradford are described in Appendix A.(6) At the Spring Assizes, 1840, large numbers of Chartists were tried and convicted, especially on the northern circuit, before Coleridge, J., and Erskine, J.(c) At York Feargus O'Connor was found guilty on a criminal information for publishing seditious libels in the Northern Star of July 13 and 20, 1839, and was subsequently sentenced to 18 months’ imprisonment in York Castle. The movement revived with the release of the imprisoned leaders at the end of the summer of 1841. In the autumn of 1842 an endeavour was made to take advantage of strikes in the Lancashire and Cheshire manufacturing districts, and in the Potteries, to bring about a universal cessation of labour as a means of carrying the Charter. The disturbances in Lancashire and Cheshire, commonly known as the “ Plug Biots,” and the action of Feargus O'Connor and the Chartist Conference in regard to them are fully described in the trial of Feargus O'Connor and fifty-eight others before Rolfe, B., at Lancaster in March 1843. (d) The simul- taneous occurrences in the Potteries appear from the trial of Thomas Cooper at Stafford before Erskine , J., in March 1843. (e) After this time the agitation for the Charter again subsided, but revived for a short period in 1848, and gave rise to other trials, which will be dealt with in a future volume. J. P. Wallis. (а) Above, p. 89, and see 138w. (б) Above, pp. 1345 and 1347. (c) See Appendix A. 1341, 1345, 1347, 1352, 1366 ; and Appendix C., Beturn of Political Prisoners 1839-40, above, p. 1405. (d) Above, p. 935. (e) Above, p. 1250. Appendix G. 1431] Index of Proper Names. [1432 INDEX OF PROPER NAMES. ABINGER, C.B.— Charge to the Liver- pool Grand Jury on Chartist outbreak, 1842 - - 1416 motion in House of Commons regarding - - - 1422 See also Reg. v. Frost and others , Reg. v. M'Naughton, Reg. v. Bean 467, 477, 47 9n, 849n, 1382 ADDAMS (R.)— Counsel in Hill v. Biqqe and others , and Lopez v. Burslem - - 725, 1335 ADOLPHUS (JOHN LEYCESTER) — Counsel in Reg. v. Oxford , Reg. v. Earl of Cardigan, Reg. v. M‘N aughton, Reg. v. Francis, Reg. v. Bean - 500, 608, 849, 1376, 1382 ALDERSON, B. — See Reg. v. Frost and others , Reg. v. Oxford, Viscount Canterbury v. Reg., R 1193, 1341, 1347, 1352 0ASTLER (RICHARD) — “ The Factory King ” - - 1098 O’BRIEN (BRONTERRE) (CHAR- TIST LEADER) AND OTHERS — Trial of, for un- lawful assembly and conspiracy 1341 O’CONNELL (DANIEL)— Speeches quoted - 1356 904 1441] O’CONNOR (FEARGUS) — Trial for seditious libel at York, 1840 speech for the defence trial for seditious conspiracy at Lancaster, 1843 speech for the defence OFFICERS OF STATE (SCOT- LAND) — See Dnnglas v. Officers of State OXFORD (EDWARD) — Attempt against the Queen. Trial for high treason - - - PADDOCK —See Paddock v. Forrester 557 PALEY — On blasphemy cited - - 1381 PARKE, B. — See Reg. v. Frost , Kielley v. Carson - - - 87, 676 judgment in Calder v. Halkett - 491 Kielley v. Carson - - - 685 PARKES (SAMUEL)-See Reg. V. Feargus O’Connor - - 939 PATTESON, J.- See Reg. v. Francis , Reg. v. Sherrard - 1376, 1386 sentence in Reg. v. Cooper and others - 1324 PEDDIE (ROBERT) AND OTHERS — Bradford Char- tists. Trial for treasonable conspiracy at York, 1840 - 1345 PEEL (SIR ROBERT) — On blas- phemy prosecutions - 580 on pensions - 763n his secretary murdered. See Rex v. M'Naughton - - 847 PEMBERTON (THOMAS) (AFTERWARDS LORD KINGSDOWN) — Counsel in Presbytery of Auchterarder v. Kinnoull, Kielly v. Carson, Lord Advocate v. Lord Dun- glas, Gahan and others v. Lafitte - -10,673,752,1380 PHILLIPS (SIR THOMAS)— Wit- ness in Reg. "V. Frost - - 204 PHILLIMORE (R.) — Counsel in Lopez y. Burslem - - 1335 PILLING (RICHARD) - — Chartist. Defendant in Reg. v. Feargus O’Connor and others - - 1097 his striking speech - - 1097, 1108n PLACE (FRANCIS)— His MSS. in the British Museum referred to 341n the agitation for the Reform Bill - 321li the origin of the People’s Charter - 341ll, [1442 PLATT (AFTERWARDS BARON OF EXCHEQUER) — Counsel in Howard v. Gossett - - 841 POLLOCK, A.G. (AFTERWARDS L.C.B.) — Counsel in Presbytery of Auchterarder v. Kinnoull , Reg. v. Frost, Reg. v. Oxford, Reg. v. Hetherington, Lord Advocate v. Lord Dunglas, Viscount Canterbury v. Reg., Ferguson v. Kinnoull, Howard v. Gossett, Reg. v. M ( Naughton, Reg. v. Feargus O’Connor and others, Reg. v. Francis - 10, 98, 500, 565, 750, 767, 790, 842, 850n, 938, 1376 speech for defence in Reg. v. Frost 313, 1129, 1141 speeches for the Crown in Reg. v. Feargus O'Connor and others - 941, 1165 P0NS0NBY (THE LADY EMILY) — See A. G. v. Ponsonby - 1369 “POOR MAN’S GUARDIAN Paper published by Hethering- ton - - - - 574n POTTER (SIR THOMAS)— Witness in Reg. v. Feargus O’Connor and others - 1149 PRIS0T, J. — His dictum in Year Book on the recognition of the laws of Holy Church, misquoted - 577 QUEEN VICTORIA - Attempts against. See trials of Oxford, Francis, and Bean 497, 1376, 1382 RADNOR (EARL) — See Reg. v. Earl of Cardigan - - - 646 RAY (DR.) — Treatise on Medical Ju- risprudence referred to 878 REES (JOHN) — Sentence for high treason. See Reg . v. Frost - 458 ROBERTSON (DR.)— The patronage question - - - 41 R0LFE, B. (AFTERWARDS LORD CRANWORTH, L.C.)-^. v. Feargus O’Connor and others, Reg. v. Bean - 938, 1199, 1382 ROLLE’S — Abridgment (loss by fire) referred to - - - 775 R0SC0E — On the defence of insanity - 885 his premature death, tribute to - 885 Index of Proper Names. - 1352 -1355 935 1109 737 497 342n the Chartist National Convention, 1839 - 351n Feargus O’Connor - 937ll Bronterre O’Brien - 1341n SADLER (JOHN) — Witness in Reg. v. Feargus O’ Connor and others - - - - 975 SADLER (M. T.), M.P.-His Ten Hours’ Bill - - - 1098 o 67432. z z 1443] Index of Proper Names. [1444 SCHOLEFIELD — Defendant in Reg. v. Feurgus O'Connor and others, 954 SHADWELL (AFTERWARDS VICE-CHANCELLOR OF ENGLAND)— Argument in Murray v. Benbow - - 1409 SHAFTESBURY (EARL)— See Reg. v. Earl of Cardigan - - 602 SHELLARD — Trial for conspiracy at M onmouth - 1386 SHELLEY — Trial of Moxon for pub- lishing “ Queen Mab ” - - 694 SHORE -See Shore v. Wilson - - 1370 SIMPSON AND OTHERS-Trial for feloniously destroying a house at Stafford - - - 1387 SOMERSET (LORD GRANVILLE, CHANCELLOR OF DUCHY OF LANCASTER) — Witness in Reg. \. Frost - - 379 SOMERVILLE (ALEXANDER)- Author. Account of Chartist plans in 1839 and 1842 referred to 138n, 937n SPANKIE, S.L. — Counsel in Colder v. Halkett - - - 488 STARKIE (THOMAS), a.C.-On evi- dence, cited - 241 on law of blasphemous libels - 582 STEIN (CHARLES ) — Messenger of the House of Commons. See Howard v. Gossett - 839 STEPHEN V. (POPE) — Rescript of 886 A.D. referred to - 18 STEPHEN (SIR JAMES FITZ- JAMES, BART.) — On M‘Naughton’s case - - 932ll TALBOT— Counsel in Reg. v. Frost - 98 TALFOURD, S.L. (AFTERWARDS JUSTICE OF C.P.) See Reg. v. Cooper, Reg. v. Frost, Reg. v. Moxon - 98,693,1250 speeches for the Crown in Reg. v. Cooper and others 695, 1252, 1323 speech in defence of Moxon - 695 TAYLOR (J. S.) — Counsel. See Reg. v. Oxford - - - 500 speech for defence - 510 TENTERDEN (LORD) — On treason by levying war - 420 his alleged ruling on the law of blasphemous libel 590, 590n, 1370 his rulings on Carlile’s trial, 1891 - 1423 THESIGER (F.) (AFTERWARDS LORD CHELMSFORD, L.C.) — Counsel in Lopez v. Burslem - 1335 THOMAS (R.)- —Counsel in Reg. v. Frost, Reg. v. Moxon - 98, 693 TINDAL, C.J. — See Reg. v. Frost Pad- dock v. Forrester and another. Reg. v. M‘Naughton, Reg. v. Harris , Reg. v. Simpson and others - - 87,439,560,849, 930, 1387 charge to Monmouth grand jury - 87 summing up and sentence in Reg. v. Frost - - 439, 456 charge to Liverpool grand jury, 1842 - 1411 letter to Lord Normanby as to practice in reserving points for the judges - -» - 47 9ll answers to questions of the House of Lords re M‘Naughton’s case 929 TWISS (H . ) — Counsel in Viscount Canterbury v. Reg. - - 770 URCtUHART (DAVID) — Account of Monmouth rising referred to - 138ll VINCENT (HENRY)-Trial for sedi- tious conspiracy at Monmouth, 1840 - 1366 WADDINGTON (H.) — Counsel in Reg. v. Earl of Cardigan, Vis- count Canterbury v. Reg., Reg. v. M‘Naughton, Reg. v. Francis, Reg. v. Bean - 608, 770, 849, 1376, 1382 WALPOLE (SPENCER)— History of England referred to - 4ln, 321n, 1108n WALTERS (CHARLES) —Sentence for high treason. See Reg. v. Frost - 458 WELSH (DR. EX-MODERATOR) — Further protest on behalf of the non-intrusion of members of the Assembly - 1406 WILDE (SIR THOMAS, S.G.) (AFTERWARDS LORD TRURO, L.C.) — Counsel in Reg. v. Frost, Reg. v. Oxford, Reg . v. Hetherington, Canter- bury v. Reg. - 98, 415, 500, 565, 770 reply in Reg. v. Frost and oihers - 415 Reg. v. Oxford - - 545 WILDING (JAMES)— witness in Reg. v. Cooper and others - 1283 WILLIAMS, j.— See Reg. v. Frost and others, Reg. v. M‘Naughton, Reg. v. Bean - 87, 849, 1382 1445] Index of Proper Names . [1446 WILLIAMS (ZEPHANIAH)— Sen- tence for high treason. See Reg. v. Frost - - - 452 WINSLOW (FORBES) — Witness. Reg. v. M‘ Naught on - - 923 WILSON — See Shore v. Wilson - 1370 WIGHTMAN (W.) (AFTER- WARDS JUSTICE OF ftUEEN’S BENCH) — Coun- sel in Reg. v. Frost, Reg. v. Oxford , Reg. v. Hetherington - 98, 500, 565 W00LFENDEN (ALBERT)— Char- tist. Sec Reg. v. Feargus O’Connor and others - - 939 WORTLEY (HON. J. S.) (AFTER WARDS RECORDER OF LONDON)—* Counsel in Fer- guson v. Kinnoull, Reg. v. Feargus O’ Connor and others - WRANGHAM, D.L., S.L.-Counsel in Reg. v. Earl of Cardigan - WYNFORD (LORD) — See Reg. v. M l Naughton - YOUNG (REV. ROBERT)— Pre- sentee to Church of Auchterar- der. See Presbytery of Auch- terarder v. Kinnoull and Fer- guson v. Kinnoull 797, 938 608 934 785 z z 2 1447] Index of Subjects. [1448- INDEX OF SUBJECTS. ACTIONS AGAINST JUDGES-See Colder v. Halket, Ferguson v. Kinnoull , Gdhan v. Lafitte - 481, 785, 1380 ADULLAMITES — Chartist use of term - - - 962 AIDING AND ABETTING A MISDEMEANOR-See Reg. v. Feargus O'Connor - - 935 ANTI-CORN LAW LEAGUE-Re- ferences to 978, 1009, 1035, 1049, 1055, 1248, 1291 Cooper’s trial passim ATTORNEY GENERAL-Right of reply - - - 752 right of audience in the Common Pleas - 558 origin of office - - 560(a) BAIL — In misdemeanor, if otherwise sufficient, (not .to be refused on account of the political opinions of the party proposed - - 1388 BISHOPS —at trial of peers - 659(a) BLACK ACT (English) - - 610 (Scotch) - 1393 BLASPHEMOUS LIBEL - 1. — Test of Criminality — Evidence of Publication — Attacks on the Old Testament .] Haslam’s “ Letters to the Clergy of all Denominations ” were sold at the defendant’s shop in the Strand, and his name appeared on the title page of each Letter as one of the publishers. In Letter 8 the Old Testament was referred to as “ wretched stuff,” and “a disgrace to ourang outangs,” and its author described as a “ random idiot.” Indict- ment for blasphemous libel. Verdict, guilty. Ruled by Lord Denman, L.C.J., that the ques- tion in prosecutions for blasphemy is not al- together a matter of opinion, but in a great degree of tone, and style, and spirit. A differ- ence of opinion may subsist, not only as between different sects of Christians, but also with regard to the great doctrines of Christianity itself, and discussions upon that subject, if they be con- ducted in a sober, and temperate, and decent style, may be tolerated, and may take place without criminality attaching to them ; but if the tone and spirit is that of offence and ridicule, which leaves the judgment really not free to act, and therefore cannot be truly called an appeal to the judgment, but an appeal to the wild and improper feelings of the human mind, more parti- cularly in the younger part of the community, BLASPHEMOUS LIBEL — continued. in such a case the jury would hardly feel it possible to say that such opinions so expressed did not deserve the character affixed to them in the indictment. On an indictment for blas- phemous libel, evidence that the libel was sold in the defendant’s shop, and that his name ap- peared on the title page as one of the publishers, >is evidence of publication. Held by the Court on motion for a new trial — It is indictable at common law to publish a blasphemous libel of and concerning the old testament. Reg. v. Hetherington - - 563 2. — In 1840 Edward Moxon published an edition of Shelley’s Poems, containing the poem of “Queen Mab.” He was indicted for pub- lishing a blasphemous libel and found guilty, but was not called up for judgment. Reg. v. Moxon - - - - - 693 test of criminality — Lord Denman’s ruling - 590 Lord Tenterden’s opinion - 590(a) Coleridge and Erskine, JJ., on - 1375 no copyright in - - - 1410 BLASPHEMOUS WORDS-See Reg. v. Holyoake - 1381 CASES COMMENTED UPON Acker ley v. Parkinson - - 491 Ashby v. White - - - 822 Attorney General v. Pearson 1371, 1374 Auchtermuchty , case of - 79, 1399 Beaumont v. Barrett - - 690 Burdett v. Abbott - - - 691 Bushel’s case - 487 Burgesses of Rutherglen v. Leitch - 823 Cameron v. Kyte - - - 732 Campbell’s Trustees - - 760 Crowley v. Impey - 814 Culross case 80, 1400 de Clifton, Gervaise, case of de Clifton, Robert , case of - 780, 782 Boswell v. Impey - 814 Brewe v. Coulton ■« - 822 Bunse case 79, 1400 Button v. Howell - - - 735 Bund.as, Lord, v. Zetland Presby- tery and another - 56, 81 Enfield v. Hills - 822 Fabrigas v. Mostyn - 729, 731, 734 1449] Index of Subjects. [1450 CASES COMMENTED UPON— continued. Free v. Burgoyne - 833 Green v. Bucklechurches 814, 816 Gray v. Forbes - 822 Gwynn v. Poole - 490, 491, 494 Haldane's case - 830 Harman v. Tappenden - 801, 822 Innes v. Magistrates of Edinburgh 800, 806 Isaac v. Impey - 814 King's Advocate v. Magistrates of Kirkwall - 754, 758, 760 Kiltarlity case - 80 Lanark case 80, 1400 Levi v. Levi 1237n Lenthal's case 1241, 1244 Lowther v. Earl of Radnor - 494 Lords of Treasury v. Campbell' s Trustees 758, 760 Miller v. Seare - 491, 813, 814 Miller Trustee v. Hope - 817 Moravia v. Sloper - - 494 Mostyn v. Fabrigas - 487 Nicholson v. Mounsey - 772 Pike v. Carter - 494 Presbytery of Ayr \. Lord Dun- donald - - 81 Presbytery of Falkirk v. Lord Cal- lander - - 81 Presbytery of Paisley v. Erskine - 81 Presbytery of Strathbogie v. Sir William Forbes - 81 Reg. v. Rhodes 1241, 1244 Rex v. Archbishop of Canterbury - 819, 832 Rex v. Bishop of London - 819, 832 Rex v. Bishop of Lincoln - - 820 Rex v. Bishop of Ely - 820 Rex v. Blooer - 832 Rex v. Burdett 1238, 1240 Rex v. Burridge 1241, 1244 Rex v. Butler 1235, 1241 Rex v. Churchwardens of St. . Bar- tholomew - 831 Rex v. Fosset - 1244 Rex v. Fraser - 1241 Rex v. Hart - 1241 Rex v. Kilderby - 1241 Rex v. Mayor of Ripon - 822 Rex v. Stott - 1245 Rich v. Picklington - 808, 822 Rowe v. Brenton - 559 Specot's case 44, 832 Starling v. Turner - 806 Sutton v. Johnston - - 806 Tandy v. Earl of Westmoreland - 726, 729, 733 Taaffe v. Downes - 488, 493 CASES COMMENTED UPON -continued. Troutbeck case - 752 Tubervill v, Stamp - 770, 776, 777 Vaughan v. Menlovc 770, 777 CASES RESERVED FOR THE OPINION OF THE JUD- GES — Practice before establish- ment of Court for Crown Cases Reserved - 47 9n CHRISTIANITY — Questioning truth of - - 589, 590(a), 1375 CHARTISTS — Insurrection at New- port, 1839 — See Reg. v. Frost - 86, 138(a), 480(a) attempts at Bradford and Sheffield, 1840 - - - 1345,1347 Newcastle Chartists - 1341 origin of Charter - 341ll National Convention, 1839 - 351(a) O’Connor’s trial at York 1840 - 1352 National Charter Association - 947n Vincent’s second trial at Monmouth 1840 - 1366 conspiracy of 1842 — See Reg. v. O'Connor , Reg. v. Cooper - 935, 937n, 1250 disturbance at Preston - 1000 Committees of Public Safety - 1063 account of disturbance in Northern Star - 1185 Lord Abinger on the Charter - 1417 note by the Editor, Appendix G. - 1427 CHURCH OF SCOTLAND — 1 . — Act of Assembly infringing 10 , Anne, c. 12. — Illegal rejection of Presentee by Presbytery — In- fringement of Civil Rights of Patrons — Juris- diction of Court of Session .] In 1711, the right of lay patronage in the Church of Scot- land, which had been abolished by the Act of 1690, c. 23, was restored and confirmed to the ancient patrons by 10 Anne. c. 12. On May 31, 1834, the General Assembly of the Church of Scotland passed an “ interim act,” declaring it to be a fundamental law of that Church that no pastor should be intruded on any congregation contrary to the will of the people, and providing that if at the “ moderating in a call ” a majority of the male heads of families, members of a vacant congregation, and in full communion with the church, should disapprove of the person presented to the living by the patron, such disapproval should be sufficient ground for the Presbytery rejecting such person, and he should be rejected accordingly. Pursuant to this act the Presbytery of Auchterarder rejected and refused to take on his trials the Rev. Robert Young, who had been presented to the church of Auchterarder by the Earl of Kinnoull, the legal patron. The superior Church courts, the Synod of Perth and Stirling and the General Assembly, having on appeal confirmed the action of the Presbytery, the Earl of Kinnoull and the Rev. Robert Young instituted a suit in the Court of Session against the Presbytery of 1451 ] Index of Subjects . [1452 CHURCH OF SCOTLAND — continued. Auchterarder for trials and settlement according to the presentation. Held by the House of Lords on appeal from the Court of Session — That the General Assembly of the Church of Scotland had no authority to pass any acts or regulations infringing the rights of civil patrons as restored by the Act of 10 Anne, c. 12, and that the interim act of 1 834 was xdtra vires and void, and that the Presbytery were bound to take the presentee on his trials and had no dis- cretion in the matter. That in refusing to pro- ceed to the trials and settlement of the presentee on the sole ground that a majority of the male heads of families, communicants in the parish, had dissented without reason assigned from his admission as minister, the Presbytery of Auch- terarder had acted illegally and in violation of their duty. That such refusal being an in- fringement of the civil rights of patronage, the Court of Session was competent to entertain a suit for trials and settlement of the pastor ac- cording to the presentation. Presbytery op Atjchterarber against Kinnoull - 1 2 . — Failure to perform Legal Duty — Action for Damages — Joint Liability —Majority of Corporation or other Body — Judicial Func- tionaries and Ministerial Acts — Liability of Presbytery for Refusal to take Presentee on Trials.'] After the judgment of the House of Lords in the Auchterarder case the Eev. Robert Young, who had been presented to the church of Auchterarder by the patron, the Earl of Kinnoull, again applied to the Presbytery to take him on trial of his qualifications, in accord- ance with the judgment of the House. The Presbytery by a majority of its members referred the application to the General As- sembly. The patron aod presentee instituted a suit in the Court of Session for reparation and damages against the majority of the Presbytery, and obtained an interlocutor. The defenders appealed. Held by the House of Lords — If the law casts any public duty upon a person, which the refuses or fails to perform, he is answerable in damages to those whom his refusal or failure injures. If several are jointly bound to per- form the duty, they are liable jointly and severally for their failure or refusal. Where the refusal is the act of the majority of a cor- poration or other body, the members of the majority are individually liable. Persons having judicial functions, but being also required to perform ministerial acts, may be sued for dam- ages occasioned by their neglect or refusal to perform such ministerial acts, and no allegation of malice is necessary to support the action. Taking a presentee to a church in Scotland on his trials is a ministerial act which the Pres- bytery is bound to perform, and members of the Presbytery refusing or neglecting to perform it are liable, jointly and severally, to make com- pensation in damages to the parties injured 785 claim, declaration, and protest of, anent the encroachments of the Court of Session - - 1389 disruption of 1406 abolition of lay patronage in - 1(b) other cases as to - 84 CIVIL LIST ACTS-Construction of 765 Provisions of - - 745 et seq. COLONY-1 . — Colonial Governor — Liability to Civil Suit — Liability to Arrest — Governor not a Viceroy — Fabrigas v. Mostyn.] The appellant, whilst holding the office of Lieutenant- Governor of the Island of Trinidad, was sued to judgment in Trinidad by the respondents on a bond executed before the date of his entering on the governorship. Held on appeal — An action will lie against the governor of a colony in the courts of the colony, while he is such governor, for a cause of action unconnected with his official capacity. Semble : — Though judgment be given against such governor, his person is not liable to be taken in execution. Lord Mansfield’s dictum in Fabrigas v. Mostyn , “ the governor is in the nature of a viceroy, and, therefore, locally during his government no civil or criminal action will lie against him,” disapproved. Hill AGAINST BlGGE - 723 2. — Legislative Assembly , Powers and Privi- leges of — The Prerogative — Beaumont v. Bar- rett — Burdett v. Abbott.] Edward Kielley was arrested under a Speaker’s warrant, brought to the bar of the Newfoundland House of Assembly, and committed to prison for an alleged breach of privilege and contempt in using threatening language and gestures out of doors to a mem- ber of the House. Kielley brought an action against the Speaker and others in the Supreme Court of Newfoundland. The Court gave judg- ment for the defendants on demurrer. The plaintiff appealed. Held by the Judicial Com- mittee allowing the appeal, — The powers in- cident to or inherent in a Colonial Legislative Assembly are “such as are necessary to the existence of such a body and the proper exercise of the functions which it is intended to execute.” They do not include the power of arrest with a view to adjudication on a contempt committed out of the House. The House of Commons possesses such power only by ancient usage and prescription, the lex et consuetudo Parliament, which does not apply to Colonial Legislatures. The Crown has the power of creating a local Legislative Assembly in a colony, with authority subordinate, indeed, to that of Parliament, but supreme within the limits of the colony, for the government of its inhabitants ; sed quaere whether in a settled colony the Crown could bestow upon such an assembly a power of committing for contempt not incident by law. Beaumont v. Barrett distinguished ; dictum of Parke, B., that “ it is inherent in every assembly that possesses a supreme legislative authority to have the power of punishing contempt,” disapproved. Burdett v. Abbott commented on. Kielly against Carson - 669 CONSPIRACY — 1. — Conspiracy — Common Object — Different Means — Competency of Par- ties indicted to give Evidence — Counts for Mis- demeanor — Venue — 7 Geo. 4. c. 64. s. 20.] In August 1842 a widespread strike took place in the Lancashire manufacturing districts. Bands of strikers went about forcing the hands to turn out, and on August 9 all the mills in Manchester were stopped. At numerous meetings held during the strike Chartist speakers urged the people to re- [1454 Index of Subjects. 1453] CONSPIRACY — continued. main out until the Charter became law', and similar advice was given by a Chartist conference which met at Manchester on August 17. Feargus O’Con- nor, the Chartist leader, and fifty-eight others w ere indicted subsequently for a seditious con- spiracy and other misdemeanors. The jury found some of the defendants, including O’Connor, guilty on the fifth count, and others on the fourth count as well. Judgment w r as afterwards arrested on the fifth count, and the defendants convicted on the fourth count were not called up for judgment. Ruled by Rolfe, B. — A com- bination of tw'o or more persons to do, or cause others to do, an illegal act, or to bring about a legal act by illegal means, is a criminal con- spiracy. To find the defendants guilty on any count, they must be found guilty of one and the same conspiracy'. It is not enough that the defendants should have done the same illegal acts ; they must have been associated in a common object. Any one of several defen- dants who have been indicted for misdemeanor and put upon their trial together, is a competent witness against the rest, provided that, at any time before verdict, a nolle prosequi in regard to him be entered, or a verdict of acquittal taken. Held by the Court of Queen’s Bench — A count for misdemeanor containing no statement of venue, either by' special reference to the mar- ginal venue or otherwise was bad at common law after verdict, although a venue was stated as usual in the margin of the indictment. Such defect could not be cured by 7 Geo. 4. c. 64. s. 20, enacting that no judgment after verdict or confession, or default should be stayed for “ want of a proper or perfect venue, provided it shall appear by the indictment that the Court had jurisdiction over the offence,” for “jurisdic- tion ” here meant local jurisdiction and not jurisdiction with reference to the nature of the charge. The venue in the margin was insuffi- cient, as it only implied that the indictment was found by a grand jury of the county named. Held also, that a count alleging without any statement of venue, that certain persons did unlawfully assemble, &c., and then charging, with a statement of venue, that the defendants did “ unlawfully aid, abet, assist, comfort, and support and encourage ” the said persons, even if bad at common law, because laid as regards a material fact without a proper assignment or venue, was cured by 7 Geo. 4. c. 64. s. 20, as an imperfect venue, because the indictment showed the Court to have jurisdiction. Reg. v. Feargus O’Connor and others - 935 2. — Combination to bring about a Cessation of Labour for aPolitical Object .] Ruled by Erskine, J. — Semble, that honestly and peace- ably to advise the working classes to agree to desist from working for the purpose of obtaining the Charter is not in itself criminal ; but if the obvious peril of such an experiment is such as to convince the jury that it is contemplated and intended through the pressure of distress from a simultaneous cessation of all work, to produce discontent, tumult, and outrage, and so press upon the Government the adoption of the Char- ter, a combination with such a purpose is an CONSPIRACY — continued. indictable conspiracy. By the Court — It is clearly illegal to compel men throughout the country to abstain from work until the Charter became the law of the land. Reg. v. Cooher AND OTHERS - 1249 combinations not to deal — dictum of Rolfe, B. - - - 1199 other trials for seditious conspiracies, see - 1341, 1345, 1347, 1366, 1386 CONSTABLE — Refusal to aid - - 1369 COPYRIGHT — None in blasphemous publications. See Murray v. Benboio 410 CORPORATION OR OTHER BODY — Liability of majority for neglect of duty. See Church of Scotland. COSTS— Liability of Crown for - 754, 737(a) recognisances for costs of appeal by Crown - - - - 755 COURT OF COMMON PLEAS. See Attorney General. COURT . OF SESSION — j urisdiction in regard to the right of civil patronage. See Church of Scotland. alleged encroachments of. See Claim, Declaration, and Pro- test of the General Assembly 1390 members of, how appointed - 830 CRIMINAL INFORMATION FOR LIBEL - - 1352, 1361 CROWN — Grant of Pension under colour of Office — Civil List Acts- Surrender of here- ditary Revenues to Parliament — Attorney General, Right of Reply — Liability of Crown for Costs — Recognisances — Appeal for Costs.'] In 1827 George 4 conferred upon Lord Dunglas for life the office of chamberlain and collector of the rents, revenues, &c. of the lands and lordship of Ettrick Forest, at a salary exceeding the annual value of such rents and revenues, and charged the deficiency on another part of the hereditary revenues of the Crown of Scot- land. In an action in the subsequent reign to reduce or rescind the grant — Held by the House of Lords on appeal from the Court of Session — That such grant, though purporting to be the grant of an office, was, in fact, the grant of a pension to endure beyond the life of the Royal granter, and was so far an illegal alienation of the Crown property. Per Lord Campbell : The surrender of the hereditary revenues to the use of the public at the beginning of a new reign does not operate beyond the life of the sovereign making the surrender. Where ihe Crown is respondent on an appeal to the House of Lords it is not the usage of the House for the Attorney General to have a general reply on the part of the Crown. The Lord Advocate, or other officer suing on behalf of the Crown, was not liable for costs even where the suit was impro- perly instituted. The Lord Advocate or other Index of Subjects. [1456 GENERAL ASSEMBLY — Act of ultra vires. See Church or Scotland. 1455] CROWN — con tinned. officer appealing to the House of Lords on behalf of the Crown, is not required to enter into recognisances to meet the costs of the appeal. An appeal will lie from a judgment awarding such costs in spite of the rule against appeals for costs. The Lord Advocate against Lord Dunglas and Lord Dunglas against The Officers of State for Scot- land - - - - * power to establish local legislature in colony - - - 686 See Costs. „ Petition of Right. CROWN CASES RESERVED- Practice before Court of, con-' stituted - 479n DORCHESTER LABOURERS - 319 DUELLING — Sir John Campbell on - 610, 667 EVIDENCE— Official privilege - 1050 of party indicted when admissible - 1030 of medical witnesses in cases of insanity. See Insanity. papers found on prisoner at time of arrest - - 1045 admissibility of, complaint to police superintendent of alarm from unlawful assembly - - ,1366 felonious demolition of houses - 1387 FOREIGNERS — Parliament — Foreigners — Lex fori.') The brig Guiana was seized and condemned in the Vice- Admiralty Court at Sierra Leone at the suit of the respondents, the officers and crew of H.M.S. Viper, for a breach of the Acts against the slave trade : and Manoel Lopez and others, the "shippers of goods on board, were found liable to the statutory penalty of double value thereof. The shippers, who were Brazilian subjects, appealed to Her Ma- jesty in Council, but did not obtain an inhibi- tion until more than twelve months from the date of the sentence. The respondents entered a protest against the reception of the appeal on the ground that section 29 of the Act 5 Geo. 4. c. 113. enacted that no appeals should be pro- secuted from any sentence of any Court of Ad- miralty or Vice- Admiralty, touching matters provided for by that Act, unless an inhibition were applied for and decreed within twelve months from the time of the decree of sentence being pronounced. Held bj^ the Judicial Committee. — The appellants, though foreign- ers, Avere bound by the limitation. Parlia- ment has no general power to legislate for foreigners outside the dominions and beyond the jurisdiction of the British Crown, but it can by statute fix the time within which application for redress must be made to the tribunals of the Empire. This is a matter of procedure and part of the lex fori, by which all mankind are bound. Lopez against Burslem - 1331 HEREDITARY REVENUES- Effect of surrender to Parlia- ment - 765 See Crown. HIGH TREASON— 1 .— Levying War-De- livery of List of Witnesses — 7 Anne, c. 21. s. 11 — Crown Challenges — Time for showing Cause — Time for Challenging — Evidence — Acts of others charged by way of Conspiracy — “ Names , Profession, and Place of Abode of Witnesses ' ’ under 7 Anne, c. 21. s. 11 .— Alphabetical Jury Panel — Selection of the Jury by Ballot per- missible — Evidence in Reply —Bight of Com- ment on — Assistant Counsel not recognised .] On the night of Sunday, November 3, 1839, some ten thousand men, armed with guns, spears, swords, scythes, &c., marched dov r n from the neighbouring hill country upon New- port in three divisions, headed by John Frost, Zephaniah Williams, and William Jones. They were to unite about five miles from Newport, and to take possession of the town by night, as a preliminary to a general rising through- out the kingdom. The night was wet and stormy ; the proposed junction did not take place ; and the first division, under Frost, did not reach Newport until nine o’clock on the following morning. The mayor Avas awaiting their arrival at the “ Westgate ” Inn with a body of special constables, and thirty soldiers, under Lieutenant Gray, were stationed in one of the rooms on the ground floor. The mob demanded the surrender of some Chartist pri- soners who had been taken during the night and were confined in the inn, and being refused, attacked the inn. The mayor was wounded whilst opening the Avindow to allow the sol- diers to fire. The soldiers fired several vol- leys, killing some twenty men and Avounding others, and the mob at once dispersed. Frost, Williams, Jones, and eleven others were in- dicted for high treason. Verdict, Guilty. To constitute the crime of high treason by levying war, there must be insurrection ; there must be force accompanying the insurrection ; and it must be for some object of a general nature. 7 Anne, c. 21. s. 11, requires that “when any person is indicted for high trea- son, a list of the Avitnesses that shall be produced on the trial for proving the said in- dictment, and of the jury, mentioning the names, profession, and place of abode of the said witnesses, and jurors be also given at the same time that the copy of the indictment is delivered to the party indicted, and that copies of all indictments for the offences afore- said, with such lists shall be. delivered to the party indicted ten days before trial.” Held, by a majority of the judges, that the lists of wit- nesses and jurors must be delivered to the prisoner at one and the same time as the copy of the indictment, and that a delivery of the list of witnesses five days after the delivery of the copy of the indictment is bad, even though made ten days before the trial. Held also, that 1457] HIGH TREASON — continued. the prisoner by pleading to the indictment, had waived this objection and that, if taken in time, it would be met by postponing the trial to allow of a proper delivery. Although the Crown has no peremptory challenge, it may order any juror to stand by and postpone, showing its ground of objection until the whole panel has been ^one through. The time for challenging a juror is before the officer of the Court gives him the book to swear him. If he takes the book of his own accord, the right of challenge is not thereby prejudiced. On an indictment for high treason there are two cases in which the acts and declarations of some of the alleged parties to the conspiracy are evidence against others : 1st, a conspiracy having been proved, to prove the overt acts stated in the indictment ; 2nd, by way of foundation, to prove the existence of the conspiracy with a view to showing after- wards that the prisoner adopted and became a party to it. One of the overt acts being that the prisoner led an armed force against the town of Newport, evidence of the presence of such a force in the neighbourhood the night before, held provisionally admissible, before showing that the prisoner was connected with it. Evidence of the orders given to the mob, and of the state- ments made to them regarding the purpose of the march, held admissible, without showing they were made in the presence of the prisoner. Reg. v. Frost - - - - 86 2. — By Shooting at the Queen — Beg. v. Ox- ford, see Defence of Insanity — Reg. v. Fran- cis — Beg. v. Bean - 1376, 1382 sentence in - 458a words when overt act of , - - 1414 HOUSE OF COMMONS — Power of arrest to answer contempt. See Trespass. HOUSE OF LORDS — Right to con- sult the judges - - - 932 See Peer. HOUSES OF PARLIAMENT - Claim arising out of burning of - - - 769 INDICTMENT — Evidence — Variance. See Trial of Peer. — — count bad for uncertainty - 1246n INSANITY — 1. — Defence of Insanity .] On June 10, 1840, the Queen, whilst driving up Constitution Hill, was twice fired at by Edward Oxford, aged eighteen. Oxford was indicted for high treason. Verdict, not guilty, he being at the time insane. Ruled by the Court per Lord Denmau, L.C.J. — To acquit the prisoner on the ground of insanity, the jury must be satisfied that he was labouring under such a disease as rendered him quite unaware of the nature, character, and consequences of the act he was committing ; or, in other words, that he was under the influence of a diseased mind, and was really unconscious at the time he com- mitted the act that it was a crime. — Reg. v. Oxford ----- 497 [1458 INSANITY — continued . 2 . — Criminal Responsibility of Persons la- bouring under partial Delusions — Direction to the Jury in such Cases — Evidence — Medical Witnesses present at the Trial — Right of the House of Lords to consult the Judges .] On January 20, 1843, Daniel M‘Naughton fired at and wounded Mr. Drummond, Sir Robert Peel’s private secretary. Mr. Drummond died. M‘Naughton was indicted for murder. At the trial medical witnesses were called to prove the prisoner’s insanity; and Tindal, C.J., finding that the Crown was not prepared with medical evidence to contradict them, stopped the case, and the jury under his direction, found the prisoner Not guilty on the ground of insanity. In consequence of this verdict the House of Lords resolved to take the opinion of the jndges on the law governing such cases. Held by eleven of the judges — A person labouring under partial delusions only, and not otherwise insane, who did the act charged with a view, under the influence of insane delusion, of re- dressing or revenging some supposed grievance or wrong, or of producing some public benefit, is punishable, if he knew at the time that he was acting contrary io the law of the land. If a party labouring under an insane delusion as to existing facts, and not otherwise insane, com - mits an offence, he must be considered in the same situation as if the facts in respect to which the delusion exists were real. To establish a defence on the ground of insanity it must be clearly proved that, at the time of committing the act, the party accused was labouring under such a defect of reason from disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know that what he was doing was wrong. If the accused was conscious that the act was one which he ought not to do, and if that act was at the same time contrary to the law of the land, he is punishable. Where the defence of insanity is set up, a medical witness who never saw the prisoner before, but was present during the whole of the trial, cannot in strictness be asked his opinion as to the state of the prisoner’s mind at the time of the commission of the alleged crime; or whether the prisoner was conscious at the time of doing the act that he was acting contrary to law ; or whether he was labouring under any and what delusion at the time. Such questions involve the determination of the truth of the facts deposed to, which it is for the jury to decide. But where the facts are admitted or not disputed, and the question be- comes one of science only, such questions may be allowed to be put in that general form, though this cannot b e insisted on as a matter of right. The judges cannot be required by the House of Lords to give their opinion upon a Bill not yet passed into law, but they may be called on to assist the House by giving their opinions on abstract questions of existing law. Reg. v. Daniel M £ Naughton - - 847 when pleaded — form of verdict - 498(a) INSANE — Treatment of the - - 877 INTRUSION — Information of. See Attorney General v. Donaldson 1376 Index of Subjects. ] 459 ] Index of Subjects. [1460 JUDGES — Acting without jurisdiction. See Trespass. liability for failure to perform ministerial acts - - 829 right of House of Lords to consult - 932 JURORS— Alphabetical panel, selection by ballot - 110 Crown challenges. Order to stand by - - time for challenging - - 122 — — juror answering to wrong name - 455 LEGAL DUTY— Liability for failure to perform. See Church op Scotland. LEVYING WAR— Treason, ruling of Tindal, C.J. - - 442 arguments of counsel as to - 131-136, 391-402 LEX ET CONSUETUDO PAR- LIAMENT!— Not applicable to Colonial assemblies - 689 LIST OF WITNESSES— In treason cases under 19 Anne, c. 12 - 86 provision as to, borrowed from Scotch Law - - - 465 LORD ADVOCATE— Liability for costs - 760, 738(a) MEDICAL WITNESSES. See Insanity. MINISTERIAL ACTS— Liability of judicial functionaries refusing to perform. See Church of Scotland. NEGLIGENCE — Accidental fires, 6 Anne, c. 31. See Petition of Right. NOLLE PROSEaUI— Time for enter- ing, &c. - - - 1029 OLD TESTAMENT — Blasphemous libels on - - - 563, 596 PARLIAMENT— Power to legislate for foreigners - 1331 PATRONAGE IN CHURCH OF SCOTLAND. See Church of Scotland. PEER — Trial of a Peer-- Indictment — Evi- dence-Variance.'] Lord Cardigan wounded Captain Tuckett in a duel on Wimbeldon Com- mon, September 14, 1840. A true bill having been found against Lord Cardigan for felony at the Central Criminal Court, he was tried before PEER — continued. the House of Peers in the following session of Parliament. The indictment was for shooting at Harvey Garnett Phipps Tuckett with intent, &c. The Crown failed to prove Captain Tuc- kett’s name in full, and Lord Cardigan was pro- nounced not guilty by an unanimous sentence. In an indictment the name of the person, against whom the offence is charged to have been com- mitted, is a material averment, and must be proved as laid. On an indictment for shooting at Harvey Garnett Phipps Tuckett with intent, &c., there was evidence that the person shot at bore the name Harvey Tuckett, but no evidence that he bore the name Harvey Garnett Phipps Tuckett. Held by the House a variance entitling the prisoner to be acquitted. Reg. v. The Earl of Cardigan - 601 no power to waive privilege - 609(a) part taken by Bishops - - 659(a) peers now punishable as other subjects - 666(a) trial of, in Parliament, and in Court of Lord High Steward - - 602ll preliminary proceedings - - 601 PEERAGE — Sitting in Parliament in pursuance of a writ of summons, constitutes dignity descendible to the heirs general - - 1367 evidence of summons and sitting - 1368 limit of time no bar to claim, but may raise adverse presumption unless accounted for - 1368 PENSION — Granted under colour of office - - - - 738 charged on English Civil List - 763(a) Scotch pensions - 747 See Crown. PETITION OF RIGHT — Negligence of Crown Servants — Demise of the Crown — 6 Anne, c. 31 . — Accidental Fires — Negligence of Owners’ Servants.] In 1834 (4 Will. 4.) the Royal Palace of Westminster, including the Houses of Parliament and the residence as- signed to the Speaker, was burnt down owing to the negligence of the servants of the Com- missioners of Woods and Forests. In 1840 (3 Viet.) the Speaker presented a Petition of Right claiming 10,000Z. damages for the loss of his plate, furniture, &c. A petition of right against will not lie for damages for injury occa- sioned by the negligence or misconduct of persons in the service of the Crown however ap- pointed. Quaere, whether, supposing such a petition to lie, a wrong committed in the reign one Sovereign could be made the subject of a petition against his successors. Quaere, whether in the case of a fire occasioned by the negli- gence of his servants, the master is within the protection extended by 6 Anne, c. 31. to per- sons in whose house a fire shall accidentally begin. Viscount Canterbury v. Reg. 767 cases as to - - - 784(a) PLUG RIOTS — See Reg. v. Feargus O’Connor and others - 935,99711 1461] POLITICAL PRISONERS — Returns of, 1839-1840 - - 1405 PRIVILEGE. See Peer. House of Commons, origin of pri- vileges - - - - 670 Colonial Legislative Asseinblv - 670, 692(a) Colonial Governor - - - 723 PRESBYTERY. See Church of Scotland. PREROGATIVE. See Crown.. PUBLICATION — Evidence of, blas- phemous libel - - 591, 563n QUEEN — Compassing death of, by shooting at, see Reg. v. Oxford, Reg. v. Francis - - 498, 1376 assault on, see Reg. v. Bean - 1382 any molestation of, a misdemeanor - 1385 5 & 6 Viet. c. 51, regarding attempts against - 521n, 556n “QUEEN MAB ” — Shelley’s poem, trial of Moxon for publishing - 694 RIBBONISM— See Reg. v. Jones - 1367 ROYAL PALACE — Occupiers of, rate- able for relief of the poor - 1367 levying distress for sewer rate. See Attorney General v. Donaldson 1376 SCOTLAND. See Church of. „ Hereditary Revenues of. See Crown. SEDITIOUS LIBEL — Criminal in- formation for - 1352 SEVER — Application of defendant to sever refused - 1341 SPEAKER — Execution of Speaker’s warrant. See Trespass. SPECIAL COMMISSIONS — Charge of Tindal, C.J., at Monmouth, 1839 - - - 87 charge of Tindal, C.J., at Stafford, 1842 - - - - 1411 charge of Lord Abinger, C.B., at Liverpool, 1842 - - 1416 STATUTES REFERRED TO 3 Edw. 1. c. 15 . — Bail - - 1388 33 Edw. 1. c. 4 . — Challenge of jurors - - - ' 111, 122 25 Edw. 3. st. 5. c. 2 . — Treason - 89, 132, 439, 500 5 Hen. 4. c. 5 . — Maiming - - 610 23 Hen. 8. c. 5. s. 11. — Drainage and improvement of land - 1376 [1462 STATUTES REFERRED TO — continued. 33 Hen. 8. c. 20. — Prisoners going mad after being attainted of Hiqh Treason to be executed 506ll 1 Jac. 6. (I5G7) c. 7. — Admission of ministers 3, 1390 Jac. 6. (1592) c. 116. — Ratification of the liberty of the true Kirk , i 89 1 - - - 3 7 Jac. 1. c. 5. — Protection of magis- trates - - 487 21 Jac. l.c. 12. s. 15.— - - 487 13 & 14 Car. 2. c. 4. — UniformUif Act - - - 819,831 16 & 17 Car. 2. c. 8. s. 1. — Arrest of judgment. Venue - - 1234 22 & 23 Car. 2. c. 1. — Coventry Act, maiming - - 610 29 Car. 2. c. 3 . — Statute of Frauds- 465 I Will. & Mar. c. 5. — {Scotch.) Settling Presbyterian Church Government - 1390 c. 18. s. 1. — Toleration Act - 1370 7 & 8 Will. 3. c. 3. s. 1. — Treason trials. Prisoners’ Counsel 97n, 459 Copy of indictment. Pri- soner’s Counsel 97, 105 Number o f Counsel to be assigned to prisoners - - 105ll c. 3. s. 2. — Oath of two wit- nesses - - 91n 9 & 10 Will. 3. c. 35. — Blasphemy Act - 1370 II & 12 Will. 3. c. 12 .— Colonial Governors Act - - - 736 4 Ann. c. 16. s. 6. — Venue in civil cases - - 1235 6 Ann. c. 31. s. 6. — Accidental fire in dwelling-house - - 774 7 Ann. c. 21. ss. 11. — Treason. Delivery of list of witnesses 153, 459 10 Ann. c. 12. — Scotch Church patronage - 4, 20, 23, 34n, 38, 65 9 Geo. 1. c. 22. — Black Act - 610 10 Geo. 1. c. 19. — Scotch Church patronage - - 830 1 Geo. 2. c. 1. — Civil List Act - 745 I Geo. 3. c. 1. — Civil List Act - 746 13 Geo. 3. c. 63. s. 24. — Protection for magistrates in India - 485 14 Geo. 3. c. 78. — Protection from fire - - - - 770 21 Geo. 3. c. 70. ss. 2, 24. — Protec- tion for Indian magistrates - 485, 486, 489 28 Geo. 3. c. 33. — Crown revenues of Scotland - 746 31 Geo. 3. c. 31. — Canada Act - 680 36 Geo. 3. c. 7. — Treason - 89, 134, 420 39 & 40 Geo. 3. c. 93.— Trials for High Treason - - 500, 521n Index of Subjects. 1463] STATUTES REFERRED TO — continued. 42 Geo. 3. c. 85. s. 6. — Public officer. Pleading general issue 487, 496 43 Geo. 3. c. 58 . — Lord Ellen- borough’s Act. Malicious shoot- ing or stabbing 50 Geo. 3. c. 111 . — Pensions fixed on Scottish Civil List - - 747 53 Geo. 3. c. 160. s. 2. — Doctrine of the Trinity - - - 1370 — — c. 155. s. 105. — Protection for Indian magistrates - - 489 54 Geo. 3. c. 146. s. 1. — Modifica- tion of death sentence for High Treason - 458 1 Geo. 4. c. 1.— Civil List Act. Scotch revenues - 747 1 & 2 Geo. 4. c. 31. — Hereditary Scottish revenues belong to the King - - - - 748 5 Geo. 4. c. 113. s. 29. — Appeal from Vice- Admiralty Court - 1334 6 Geo. 4. c. 50. s. 21. — Indictment for prisoners and prisoners' Counsel - - 460, 463 c. 50. s. 29. — Challenge to jury- men - 111/123 c. 129. s. 4. — Combinations of workmen - 1203 7 Geo. 4. c. 64. s. 20. — Criminal Law. Venue - 1232, 1233, 1241 7 & 8 Geo. 4. c. 30. s. 8. — Felonious demolition of houses - - 1387 9 Geo. 4. c. 31. ss. 11 and 12. — ( Lord Lansdown’s Act ) Of- fences against the person - 612, 620 10 Geo. 4. c. 50. — Crown lands. Commissioners of Woods and Forests - 757 2 & 3 Will. 4. c. 112. — Transference of Scotch Crown Revenues to Commissioners of Woods and Forests in England - 750,755 3 & 4 Will. 4. c. 69. — Crown lands. Scotland - - 739 5 & 6 Will. 4. c. 24. — Municipal Corporation Act - - 339 6 & 7 Will. 4. c. 114. — Prisoners' Counsel Act - - 315 1 Viet. c. 85. — Offences against the person - 612, 620 2 & 3 Viet. c. 74. — Ribbon Societies 1367 3 Yict. c. 9. — Libel. Parliamen- tary privilege - 842 4 & 5 Yict. c. 22. — Trial and punish- ment of peers - 666 5 & 6 Yict. c. 35. — Income tax - 960 c. 51. s. 1. — Mode of trial for attempts against Sovereign 551n, 556 6 & 7 Viet. c. 96. s. 7. — Lord Camp- bell’s Libel Act. Publication - 563n [1464 STATUTES REFERRED TO — continued. 7 & 8 Yict. c. 30. s. 8. — Felonious demolition - 1387 c. 45. — Nonconformist trusts - 1375 9 & 10 Yict. c. 54.— Practitioners in Common Pleas - - 557a 11 & 12 Viet. c. 12. — Treason felony - 90n 14 & 15 Yict. c. 100. s. 1. — Indict- ment.- Variance - 601 ss. 23 and 24. — Law Criminal. Venue - - 935 18 & 19 Viet. c. 55. s. 35. — Victo- ria Act. Parliamentary Privi- lege - - , - - 692 c. 90. ss. 1 and 2. — Liability of Crown fdr costs - - 737 19 & 20 Yict. c. 56. — Liability of Crown for costs - - 737 22 & 23 Yict. c. 56. s. 24. — Liability of Crown for costs - - 737 23 & 24 Yict. c. 34. — Petition of right - - - - 767 26 & 27 Viet. c. 24. ss. 23 and 24. — Vice-Admiralty appeals - 1331 28 & 29 Yict. c. 18. s. 2. — Denman’s Act. Prisoner's right to sum up the evidence - - - 905 c. 63. s. 5. — Colonial Laws Validity Act - - - 692 33 & 34 Viet. c. 23. s. 22. — Sentetice for High Treason , modification of - 458a 36 & 37 Viet. c. 88. s. 5. — Vice- Admiralty appeals - - 1331 38 & 39 Yict. c. 36. — Conspiracy and protection of property - 1203 . c. 38. s. 1 . — Canada. Parlia- mentary privilege - - 692 46 & 47 Yict. c. 38. s. 2 Trial of lunatics - - ( - 497n 50 & 51 Viet. c. 54.— rBritish Settle- ments Act - 670 51 & 52 Yict. c. 46. — Right to affirm - 595 52 & 53 Yict. c. 27. ss. 2, 6. — Vice- Admiralty appeals - - 1331 STEWARD— Lord High Steward’s commission - 605 when appointed - - 605 Cb) trial in Court of, and in Parliament distinguished - - 601(a) STRIKE — Combination to bring about universal stike, ruling of Ers- kine, J. - - 1311 TALLIES OF THE EXCHEQUER 769 TEN HOURS’ BILL - - 1098 TRADE UNIONS -See Reg. v. Feargus O’Connor and others r 935, 945, 1059 Index of Subjects. 1465] Index of Subjects. [1466 TRESPASS. — 1. — Judicial act — Protection of Magistrates in India — Exceeding Jurisdic- tion.'] — The respondent, the acting judge of a District Criminal Court in Bengal, caused the appellant a British-born subject, to be arrested and detained on a charge of riot. The appel- lant, after some days’ detention, was held to bail, and bound by recognisance to appear when called upon. The respondent had no juris- diction to deal with British-born subjects in this way. The appellant brought an action against the respondent in the Supreme Court at Fort William, and recovered damages, but the verdict was set aside by the Court. The appel- lant appealed to Her Majesty in Council. Held, affirming the judgment of the Court below. The 21 Geo. 3. c. 70. s. 24, protecting provincial magistrates in India from actions for any wrong or injury done by them in the exercise of their judicial offices did not confer unlimited protec- tion, but placed them upon the same footing as judges and magistrates of English courts of similar limited jurisdiction. Trespass will not lie against a judge of limited jurisdiction, for acting judicially but without jurisdiction unless he knew, or had the means of knowing, of the defect of jurisdiction, and it lies upon the plain- tiff in every such case to prove that fact. Cal- DER AGAINST HaLKET - - 481 2. — Execution of Warrant — Excess — Tres- pass ab initio.] Action of trespass against the messengers of the House of Commons for break- ing and entering the plaintiff’s house under a Speaker’s warrant for his arrest to answer a charge of contempt, and for remaining in the house in his absence awaiting his return. .Ruled by Lord Denman, L.C.J. — That in remaining in the house in the plaintiff’s absence, knowing of his absence and awaiting his return, the defen- dants were guilty of an excess of jurisdiction which rendered them trespassers ab initio. Howard against Gossett - - 839 TRESPASS- —continued. maintained against persons exer- cising the offices of judges under invalid commissions. See Gahan v. Lafitte - - 1380 See Glyn v. Houston - - 1368 TRIAL AT BAR — Interest of the Crown — Court of Common Pleas — Attorney-General — Right of Audience.] In an action of trespass for breaking and entering the plaintiff’s close and taking coals, the defendants pleaded a jus- tification under a demise from the Crown. The Attorney General, intervening on behalf of the Crown, applied for a trial at bar. Held by the Common Fleas — The Crown may claim as of right a trial at bar in a case in which it has an interest. The Attorney General (not being a serjeant) had a right of audience on behalf of the Crown in the Court of Common Pleas. Paddock against Forrester - 557 TRINITY — Denying doctrine of - 589, 590(a) UNITARIANS — See Shore v. Wilson 1370 UNLAWFUL ASSEMBLY- Lord Abinger, C.B., on - - 1419 evidence of - 1366 VENUE — Defective venue in count for misdemeanor - 935 VETO ACT OF 1834. See Church of Scotland. WITNESS. See Evidence. WORDS — When overt act of treason - 1414 WORKING MEN’S ASSOCIATION 349(a) London: Printed by Eyre and Spotti s w o o d e. Printers to tlie Queen's most Excellent Majesty. For Her Majesty’s Stationery Office. iiVtii iliiililiriattfiiiii ' i!