The Ayes on this occasion were—
Justices Littledale, Patteson, Williams, Coleridge, Colins, Erskine; Barons Parke, Alderson, Rolfe.
The Noes—
Lord Chief-Justice Denman, Lord Chief-Justice Tindal, Lord Chief-Baron Abinger; Justices Bosanquet and Maule, and Baron Gurney.
Those last (the Noes) decided also that the objection had not been taken in time; and three of the former class, (the Ayes,) viz. Baron Alderson, Baron Rolfe, and Justice Coleridge, concurred in that decision.[14]
Here was a question for the Executive to decide! A capital conviction for high treason, with a decision of the majority of the Judges of the land, that a statutory requisition as to the period for delivery of a list of the witnesses had not been exactly complied with, but that the prisoner did not make the objection till the time had gone by for making it; and that, had he made it in time, the utmost effect would have been to cause a postponement of the trial for a few days. The prisoner's objection was avowedly strictissimi juris; and he did not affect to show that he had suffered the slightest detriment from the over-anxious kindness of the Crown solicitor. That, under these circumstances, the lives of the three traitors were absolutely at the mercy of the Ministry, is indisputable; and no one, we conceive, could have censured them, if they had allowed the capital sentence to be carried into effect. They inclined, however, to the merciful exercise of their anxious discretion; and the capital sentence was remitted, on the condition of the three prisoners being transported for the term of their natural lives. They have now been ten years at the Antipodes; and how many times, during that lengthened period of bitter, dishonoured existence, they have cursed their own folly and crime, who can tell?
Have they ever appreciated the skill and vigilance with which they were defended? It is true that this one chance objection—which it is wonderful should have occurred to any one at all—was ultimately pronounced, but only by a majority of the Judges after lengthened debate, to have been taken too late; but if it had not occurred to the vigilant advocate when it did—if no one had taken it at any time—would not the three traitors have been executed? Unquestionably: public justice, the public safety required it. Whether Sir Frederick Pollock purposely delayed making the objection till the moment when he did, (and the Attorney-General insinuated, before the fifteen Judges, that such was the case,[15]) thinking that course more advantageous to the prisoners, or whether the objection had not, in fact, occurred to him till it was too late, we cannot at present say. This much, however, we can say in conclusion, that we are very much indebted to the late Mr Townsend for having enabled us to present this entertainment—for such we hope it has proved—to our readers; who may hereafter look with great interest on a great trial, especially if they have the opportunity of witnessing it. They may then appreciate the exquisite anxieties and responsibilities imposed on those concerned in conducting it—the difficulties with which they have to contend on the spot, without time for consideration, though life itself be the stake played for. They will also, probably, be of the opinion, that in the great game at Monmouth all the players played their parts well—may we not say admirably?—that the uttermost justice was done on both sides. Two practical deductions from the whole may yet be made: first, have a look-out, gentlemen prosecutors, in taking every single step of your course, however apparently unimportant at the time it may seem to you; bearing in mind that, in proportion to the desperate exigencies of the defence, will be the piercing scrutiny to which every formality will be subjected; so that a blot may be hit which might easily have been avoided, but, when hit, is fatal. Secondly, in your turn, gentlemen counsel, be encouraged by the result of this interesting and instructive trial, to watch every single step of your opponents—even those in which error, omission, or miscarriage is least likely—with sleepless vigilance, and be prompt in action. Thus much for the trial of John Frost.