"The Attorney-General, in his opening, seemed to anticipate that we might deviate from the straight and honourable course before us, in defending the prisoner, into something 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 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 misdemeanours 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 pronounce him. Gentlemen, if the prisoner at the bar be at this moment in any jeopardy or danger, it is from the law not prevailing, or not being clearly and perfectly understood. It is because the facts, which are in evidence before you, undoubtedly disclose a case of guilt against him; because they do prove that he has committed a great and serious violation of the law; because he has subjected himself to indictment and to punishment, that the danger exists—a danger from which it is for me, by all the humble efforts I can command, to protect him—that you, finding that he has offended against the justice of the country, should condemn him, not for the misdemeanour which he has really committed, but for the great and deadly crime with which he is charged by this indictment. I therefore, Gentlemen, beseech your calm and patient attention, while I endeavour as shortly, as concisely, and, I will venture to add, as fairly and candidly as I can, to lay before you, subject to the correction of their Lordships, the law, as it affects this high and serious charge. And if I should be fortunate enough to do so, I undertake then to satisfy you—to convince the most doubting among you, if there be any more doubting than the rest, when I shall refer you to the testimony of the witnesses,—that this charge is not only not proved, but that it is absolutely and totally disproved, even by the evidence for the prosecution. The question here 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 reasonable doubt in the mind of any one of you, to have levied war against Her Majesty, with the treasonable intent which is stated in this indictment? The Crown must satisfy you that the prisoner at the bar has levied war; that he has levied war against Her Majesty—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, to 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."—(I. p. 52, 53.)
Mr Kelly's speech was long, elaborate, eloquent, and most ingenious—adhering closely to the line of defence taken by Sir Frederick Pollock—pressing on the jury in every possible way, with many varied illustrations, the improbability of Frost having contemplated the rebellious objects imputed to him, and the alleged certainty that his only view had been—the rescue of Vincent. He vehemently assailed the credibility of those witnesses who had given the strongest evidence against Frost; and concluded with a most impassioned appeal to the feelings of the jury. When he had concluded, the Lord Chief-Justice accorded still another privilege to Frost—viz., that of himself then addressing the jury, after both his counsel had done so; to which Frost prudently replied—"My Lord, I am so well satisfied with what my counsel have said, that I decline saying anything upon this occasion."[11]
The Solicitor-General then rose to reply on the part of the Crown; and if any one inexperienced in forensic contests were incredulous as to the potency of the last word (from competent lips) in any case, civil or criminal, let him read the outline of this reply, with the copious specimens of it, given with much judgment by Mr Townsend. It is true that Sir Thomas Wilde's case was in itself crushing, but his dealing with it made that crushing character fearfully clear to the plainest capacity. Its opening passages seem tinctured by some sternness of allusion to the concluding topics of Mr Kelly's address; but the remainder of the reply is characterised by mingled moderation and power; by irresistible closeness and cogency of argument, and by extraordinary skill in dealing with facts, in combining and contrasting them, and pointing out a significancy lurking in them, which the prisoner's counsel had possibly not chosen to see, or skilfully striven to conceal. Our limits restrict us to one or two samples of the present Lord Chancellor's mode of advocacy when at the bar. After explaining that it was the real object contemplated by the prisoner—viz., to raise, rebellion—with which the jury had to deal, the Solicitor-General thus pithily disposed of all arguments which had been drawn from the prisoner's want of power to do all that he intended:—
"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 unsuccessful rebellion that comes under the cognisance 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 accomplished his purpose, 'Do not believe the witnesses.' 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 other places'—he 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 regards what was prevented, I ask you to see what was done; and as regards what was done, I ask you to disbelieve the witnesses, and there is an end of the charge.'"—(I. p. 75.)
This single paragraph annihilated a third of the case set up on behalf of Frost; as did the following a second third:—
"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 attempt to induce the Monmouthshire magistrates 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 resorting to that mode of inducing the magistrates to relax in favour of a prisoner? 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 conduct, as that they would march at that hour of the night into a town, alarming and frightening every body?"—(I. p. 79.)
Again:—
"Gentlemen, will you judge of the criminal 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 correct 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 surprise 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 themselves in a condition to defend themselves?
"Are their sayings inconsistent? What conspiracy ever was consistent? You would indeed give the most perfect freedom to conspiracy, rebellion, and treason, 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 conspirators and traitors by saying, that if witnesses prove inconsistent declarations, they are not to be believed? It is not, gentlemen, the inconsistency of the witnesses, but of those engaged in transactions, 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."—(I. p. 89.)
The circumstance of Frost's having been found with the loaded pistols, and not having attempted to use them, is thus significantly disposed of:—