On the next morning, just as the Attorney-General was rising to state the case of the Crown, he was interrupted by Sir Frederick Pollock, and doubtless sufficiently astonished by what fell from him: "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 the first witness is put into the box, – namely, that the prisoner has never had a list of the witnesses, pursuant to the statute, and that therefore no witness can be called!" What could be the meaning of this? inquired the Attorney-General's companions among themselves, with no little anxiety; but he himself somewhat sternly censured the interruption, as premature, (as it certainly was,) and proceeded with his address to the jury. He made a lucid and very temperate statement of the case – drawing attention prominently to the necessity imposed on him of proving that what had been done by Frost and his companions was with a general, and not a particular object, – a public, and not a private purpose. His proposed proof was crushing: but immediately on the Solicitor-General's calling the name of the first witness, Sir Frederick Pollock rose, and required him to prove the delivery of a list of the witnesses, containing the particular one in question, pursuant to the statute. The Attorney-General then called Mr Maule, who proved having done what has already been explained: whereupon Sir Frederick Pollock disclosed the exact objection, which he himself had been the first to detect – that whereas the statute required all these documents, —i. e., the indictment, the jury list, and witness list – to be delivered "at the same time," in the present instance that had not been done, the first two having been delivered on the 12th, and the list of witnesses on the 17th December! This was a very formidable move on the part of the prisoner: who stood at the bar on his deliverance – the jury being bound to convict or acquit according to evidence, and none could be offered them! If that were so, he must of necessity be pronounced not guilty, and be for ever safe. The objection was urged with extreme tenacity and ingenuity by both the prisoner's counsel, who insisted on the statute of Anne receiving a strict literal construction of the words "at the same time," – admitting the benevolent intentions by which Mr Maule had been actuated. The Attorney-General argued very earnestly against this startling objection, denying that it had any validity – asserting that the statute had been substantially complied with; and that the objection, if valid, had been waived; and that it was made too late – viz., not till after the prisoner had pleaded to the indictment, and the jury been charged with the prisoner. The Attorney-General's astute argument, however, was interrupted by the Lord Chief-Justice, stating that the court had a sufficient degree of doubt on the point to reserve it for further consideration by the judges at Westminster, should it become necessary: for, if their objection were valid, it affected every one of the fourteen prisoners awaiting their trial! Then came another desperate attempt of Sir Frederick Pollock, to secure his client the benefit of an acquittal, in the event of the judges ultimately deciding that the objection ought to have been decided in the prisoner's favour at the trial. This, however, the Attorney-General again strongly opposed; and the court cautiously ruled, that, in the event contemplated, the prisoner would be entitled then to the same benefit to which he would have been entitled at the trial – without saying what that would have been. The witness thus provisionally objected to was then admitted; but only to be, at first, sworn on the voir dire, on which a lengthened examination and some argument ensued – each of the judges delivering judgment on the excessively refined and astute objection to the manner in which the witness's place of abode had been described in the list – which was such as that it was just imaginable, and nothing more, that an inquirer might have been misled! The objection was overruled in the case of the first witness; but on the ensuing two witnesses – and most important witnesses – being called, a similar objection was taken, but too successfully, and their evidence, consequently, altogether excluded! – excluded solely on account of the anxious "over-particularity" of the Crown! Nor were these the only witnesses whose testimony was, on such grounds, rendered unavailable to the Crown.
Then came the usual contests, from time to time, as to acts and declarations of third parties, which were offered as evidence against the prisoner, though done and said in his absence, and before and after the actual outbreak – viz., to what extent he had rendered himself liable for the consequences of such acts and declarations, by embarking in a common enterprise, having a common intent with these third parties. The result of such contests was practically this, – The court acted on the rule of law, as rule established, that, in treason and conspiracy, the Crown may prove either the conspiracy, which renders admissible as evidence the acts and declarations of the co-conspirators; or the acts and declarations of the different persons, and so prove the conspiracy. A witness, for instance, said that he was at a party at a Chartists' lodge on the 2d November, when a man named Reed gave them directions to go to Newport on the following night, and explained for what purpose they were to go: but the witness did not see Frost till two days afterwards, when on his march to Newport. The Lord Chief-Justice overruled the objections of Sir F. Pollock and Mr Kelly, and received the evidence which they had attempted to exclude.
A great mass of proof was given during the trial, establishing most satisfactorily the acts and doings of Frost, throughout the progress of the conspiracy, and down to the very moment of the actual attack on the inn, and the Queen's troops stationed in it – a mass of proof on which the attempt to make an impression seemed absurd. There was only one faint ray of hope for the prisoner's counsel, throughout the palpable obscure – that they might be able to escape from the generality and publicity of object attributed to the prisoner, by persuading the jury that the object was a private, temporary, and specific one – viz., to effect the release of one Vincent, a Chartist, then in confinement at Monmouth! To pave the way for this hopeful line of defence, first, an artful turn was sought, in cross-examination, to be given to one of the early witnesses. He swore that he had heard one of those who attacked the inn, exclaim at the time, presenting his gun at one of the special constables at the door, "Surrender yourselves our prisoners;" to which the gallant answer was, "No, never!" On this Mr Kelly very warily cross-examined the witness, with a view of showing that, in the confusion, he could not hear very distinctly, so as to report distinctly, as to precise expressions; that the mob intended merely to rescue Vincent; and that the expressions used must have been, not "Surrender yourselves our prisoners," but "Surrender up our prisoners!" or simply, "Surrender our prisoners," – thus rejecting, from the witness's answer, the single significant word "yourselves." The attempt, however, was wholly ineffectual; but out of two other witnesses were extorted on cross-examination, the following (so to speak) crumbs of comfort: from one – "I have heard Vincent's name mentioned many times; I have heard Williams (one of the leaders of the three bands forming the ten thousand) say that Vincent was a prisoner at Monmouth: the people there liked him very much; the people knew he was in jail. I have heard them speak about him." Another witness said, – "I knew of Vincent's being sent to prison: I believe the Chartists took a great interest in his fate: I do recollect something of dissatisfaction about Vincent's treatment, and about a petition to be drawn up: I recollect people's minds being dissatisfied about it." Another witness, however, said "that at midnight on the Sunday, (the 3d November,) Williams came to his house with a number of armed men: " the witness inquired, "Where are you going?" – "Why do you ask?" said Williams. "Because," answered the witness, "some of the men who were with me have told me, this morning, that they were going to Monmouth, to draw Vincent out of prison." – "No," replied Williams, "we do not attempt