It was the business of the Attorney and Solicitor General to establish a case of high treason against the prisoner, and of Sir Frederick Pollock and Mr Kelly to defend him à l'outrance; but God forbid that we should say per fas aut nefas. It were idle to characterise the intellectual and professional qualifications of these four combatants; the eminence of all is undisputed, though their idiosyncrasies are widely different from each other. Suffice it to say, that everything which great experience, sagacity, learning, power, and eloquence could bring to bear on that contest might have been confidently looked for. One circumstance is proper to be borne in mind – that the prisoner's counsel (of course abhorring the acts imputed to their client) were stimulated to the very uttermost exertion by the fact that their own political opinions were notoriously adverse to those entertained by the prisoner, and those – viz., Chartists – who so confidently summoned two Tories to the rescue of their imperilled brother Chartists.
All the main facts of the case were universally known before the trial took place, together, of course, with the legal category to which they must be referred, to satisfy the conditions of high treason. The nature of that offence was thus tersely and beautifully explained by the Chief Justice, —5
"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 government, 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 necessary 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."
The following were fearful words to be heard, or afterwards read, by those who were charged with the defence of Frost. They occur, like the preceding passage, in the luminous charge of the Chief Justice to the Grand Jury, on the 10th December 1839: —
"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 enlisting 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. It was quite unnecessary to constitute the guilt of treason that the tumultuous multitude should be accompanied with the pomp and pageantry of war, or with military array. Insurrection and rebellion are more humble in their first infancy; but all such external marks of pomp will not fail to be added with the first gleam of success. The treasonable 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 punishment due to him, all these are equally guilty in the eye of the law of the crime of high treason."
The head of treason applicable to the facts of the case under consideration is the third in statute 25 Edward III. c. 2, which concisely declares it to exist "if a man do levy war against our lord the King in his realm." This has been the law of the land for just five centuries, i. e. since the year 1351. But in the application of these words, of fearful significance, the object with which arms are taken up must be a GENERAL one – "the universality of the design making it a rebellion against the state, a usurpation of the power of Government, and an insolent invasion of the King's authority" – "under pretence to reform religion and the laws, or to remove evil counsellors, or other grievances, whether real or pretended."6 Or, to adopt the definition of Mr Kelly, in addressing the jury in this very case, it is necessary to prove "that the prisoner levied war against her Majesty, with intent by force to alter the law, and subvert the constitution of the realm."7 To appreciate the position of the prisoner, and the difficulties with which his counsel had to struggle, it may here be mentioned, that he admitted the prisoner to be a Chartist, as it was called – that is, a supporter of the following five points of sweeping change in the political institutions of the country, – "Universal suffrage, vote by ballot, annual parliaments, no property qualification, and payment of members of parliament." This was also, during the trial, avowed by the prisoner.8
Having thus got a clear view of the law, let us briefly indicate the facts– the palpable, notorious, leading facts, known to be such by the prisoner's counsel, as soon as they had perused their briefs.
A body of ten thousand men, principally miners from the surrounding country, headed, in three divisions, by Frost, and two other men, Jones and Williams, (Frost having five thousand under his command,) and armed indiscriminately with muskets, pikes, axes, staves, and other weapons, was to make a descent upon the peaceful town of Newport, during the night of Sunday, the 3d November 1839! Tempestuous weather prevented the preconcerted junction of these three bands; but, between eight and nine o'clock on the Monday morning, Frost's division, five thousand strong, marched into the town – and, headed after a fashion by him, commenced an attack upon a small inn, where they knew that a handful of troops was stationed, about thirty in number, under command of a lieutenant. As soon as the mob, who formed steadily, saw the soldiers drawn up in the room – the windows of which were thrown open – they cruelly fired into it, and also rushed through the doors into the passage. On this, the lieutenant gave the word of command to fire. He was obeyed – and with deadly effect, as far as regarded some thirty or forty, known to have received the fire, many of whom were shot dead on the spot. But this cool promptitude and determination of the troops put an end instanter to the insane insurrection. This vast body of supposed desperadoes fled panic-struck in every direction; and Frost himself, who was unquestionably on the very spot at the very time when and where the attack commenced, fled in ridiculous terror,9 and was arrested that evening at a friend's house adjoining his own, armed with three loaded pistols, and having on him a powder-flask and a quantity of balls. His brother heroes, Williams and Jones, were also arrested, together with many others; and there ended the formidable outbreak, which had more astounded than alarmed the public; leaving, however, the instigators and conductors to a speedy and very dismal reckoning with that same public. The active management of matters by Frost was beyond all doubt, and it seemed never to have been wished to conceal it. He was the Jack Cade of the affair.