"Give him the benefit of the circumstance that he did not use the three loaded pistols which he had about him. But I think, unfortunately, that they speak much more strongly as indicating violent intentions when those pistols were provided, than they speak peaceable intentions when he was apprehended."—(I. p. 24.)
There has been no counsel at the English bar, in modern times, whose reply was more dreaded by an opponent than Sir Thomas Wilde; and that reply, in Frost's case, abundantly shows how well founded was that apprehension.
Thus, then, the counsel on both sides having played out their parts in the case, it stood awaiting the intervention of the Lord Chief-Justice—the very model of judicial excellence. Tranquil, grave, patient; exact, ready, profound in legal knowledge, and of perfect impartiality—all these high qualities and qualifications were exhibited by him in his luminous and masterly summing-up on this occasion. In order to give all due weight to the sole substantial suggestion offered on behalf of the prisoner—i. e., that his object had been the liberation of Vincent—the Lord Chief-Justice read to the jury the following important passage from that great authority, Sir Matthew Hale—"If men levy war to break prisons, to deliver one or more particular persons out of prison, this was ruled, on advice of the judges, to be not high treason, but only a great riot; but if it was to break prisons, or deliver persons generally out of prison, this is treason."[12] Having taken at once a minute and comprehensive view of the evidence, he left the following as the exact question for their determination,—"Whether it was Frost's object, by the terror which bodies of armed men would inspire, to seize and keep possession of the town of Newport, making this a beginning of an extensive rebellion, which would be high treason; or whether he had no more in view than to effect, by the display of physical force, the amelioration of the condition of Vincent and his companions in Monmouth jail, if not their liberation, which would be a dangerous misdemeanour only; and the jury were to look at the evidence with all possible candour and fairness, and see if the Crown had conclusively disproved this limited object and design."[13] We conceive that neither Frost nor any one of his ten thousand dupes, on that "day of dupes" which led to this inquiry, could have taken objection to this mode of submitting the all-critical question to his jury—a jury of his peers, with the selection of whom he himself had had as much concern as the Crown.
That jury retired from court for half-an-hour, and then returned, amidst the solemn excited silence of the court—crowded to suffocation—with the fatal verdict, "Guilty;" adding, "My lords, we wish to recommend the prisoner to the merciful consideration of the court." Sentence was not immediately passed upon him. He was removed from court; and on its re-assembling on the ensuing morning, Zephaniah Williams was placed at the bar, tried, and in due course found guilty; on which William Jones was in like manner arraigned, tried, and found guilty; each being recommended by the jury to mercy. Scared by this result, five of the ringleaders resolved to throw themselves on the mercy of the Crown, withdrawing their pleas of not guilty, and pleading guilty—it having been intimated that the sentence of death should be commuted into transportation for life. The Attorney-General thought it expedient, in the case of the remaining four prisoners, who were less deeply implicated, to allow a verdict of not guilty to be recorded.
On the 16th January, Frost, Williams, and Jones were brought up to the bar to receive sentence of death, which the Lord Chief-Justice prefaced by a very solemn address, listened to in breathless silence. An imposing scene of judicial solemnity and terror, indeed, the court at that agitating moment exhibited. Without were strong detachments of soldiery, foot and horse, guarding the public peace: within were an anxious auditory, commanded to keep silence under pain of fine and imprisonment, while sentence of death was being passed upon the prisoners. There were, in the midst of the throng, two groups awfully contrasted in character and position—the three prisoners, standing pale and subdued; and, sitting opposite, the three judges, each wearing his black cap; while the following heart-sickening words fell from the lips of the Lord Chief-Justice:—
"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, Zephaniah Williams, and you, William Jones, be taken hence to the place whence you came, and be thence 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 quarters, shall be disposed of, as her majesty shall think fit. And may Almighty God have mercy on your souls!"
Whether the words placed in italics should ever again be pronounced on such an occasion, barbarously prescribing a revolting outrage on the dead, which it is known, at the time, cannot be perpetrated in these days of enlightened humanity, is a point which cannot admit of debate. The practice ought forthwith to be abolished, and by statute, if such be necessary.
Under the mortal pressure of this capital sentence remained these three unhappy and misguided men, from the 16th till the 28th of January. On the 25th, an elaborate argument was had at Westminster before the fifteen judges, which lasted till the 28th, on a case framed by Lord Chief-Justice Tindal for their opinion, on the point which had been raised at the trial by Sir Frederick Pollock. The Chief-Justice submitted these two questions for consideration,—"First, whether the service of the list of witnesses was a good service, under the statute 7 Anne, c. 21, § 11; secondly, whether, at all events, the objection was taken in due time." There was a great array of counsel on both sides; but the argument was conducted by the Attorney-General alone, on behalf of the Crown; and by Sir Frederick Pollock, Sir William Follett, and Mr Kelly on behalf of the prisoners. The utmost possible ingenuity was displayed on both sides; and with such effect, that at the close of the argument the Lord Chief-Justice of the Common Pleas wrote a letter to the Secretary of State for the Home Department, (the Marquis of Normanby,) announcing the following somewhat perplexing result,—that, "first, a majority of the Judges, in the proportion Of NINE to SIX, were 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.
"All the Judges agreed, that if the objection had been made in 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."