HC Deb 10 March 1840 vol 52 cc1133-50
Mr. Lender

said, that in the present slate of the House he should make his statement as short as possible. He was induced to trespass on the House on the present occasion, riot on account of the prisoners, not; on account of any sympathy he felt for the act of which they were convicted, not from the merits of the case, or that he thought they did not deserve punishment, but because he thought the law had been; strained against the prisoners. There had been a doubt, and it was the opinion of nine-tenths of the people of this country, that wherever there was a doubt it should be interpreted in favour of the prisoner. There was a very strong feeling in the country on the subject, and he need not inform the House there had been more petitions presented on this subject than on many others. He had procured from the Journal Office the number of petitions and signatures on this subject, and he found the number of petitions up to the present time exceeded 100, and the signatures 120,000, and the House must bear in mind nearly half the petitions were signed by Chairmen on behalf of great public meetings, and there was therefore a very strong feeling throughout the country on this subject; not, he was aware, among the upper or perhaps the middle classes, but among the working classes there was as strong feeling on this subject as upon any question that had agitated them for some time. It was not that they Sympathised with Frost, or wished that he bad succeeded in his attempt, but because, as was invariably stated in he petitions, they believed the law had been strained against the prisoners, and that they had not had justice done to them. He would not argue this case as a lawyer, nor set up his opinion against that of the legal Gentlemen; but he said it was a case that might be argued by any man of common sense; and that any Member of the House was just as capable of forming an opinion on the subject, as any lawyer in the land. He did not address the House merely with reference to the prisoners concerned, but on the broad constitutional ground of having the law strictly, fairly, and equitably administered in all cases as written and laid down, not as merely stated by judges, called on to give an opinion, and not in this particular case to try the parties. In the first place, it was part of the law of treason, which had been neglected in this instance, that a list of the jurors and witnesses should be delivered at the same time, at a certain, period before the trial. This law had not been complied with, and it was asked what did it signify? They were told it was merely a frivolous objection, and ought not to be entertained for a moment; and he believed the Attorney-general had treated the subject with perfect contempt, and said that he would soon get rid of it. Now, in the case of treason, the law was made chiefly for the protection of the subject against the acts of an arbitrary or despotic Government, and the law of treason ought in all points to be literally and strictly interpreted; and if all those regulations which were enacted for their defence, were not strictly adhered to, the whole law might be frittered away, and the subjects would be at the mercy of the Government. He would ask any Member of the Government what he would say, if, in a case affecting the revenue laws, where it was often argued, a man had not complied with some very minute regulation, that such an excuse was never allowed, for if it were, the law would become useless, and it would be impossible to get any convictions; and just so in this case, unless they gave the prisoner every benefit of the law of treason—unless they obliged the law officers to comply with all its enactments, they would soon have a judge-made law, by which any man against whom the Government might have a dislike, might be found guilty by the law of treason. It was not denied that the copy of the indictment, and the list of witnesses, was not delivered simultaneously, and nine out of the fifteen judges allowed that the Objection was valid, but said that it was not taken, in time, Oh, but it was said, what did it signify? the effect would only have been to have postponed the trial for ten days, and this argument was allowed in a case where men's lives and property were at stake. Was he to be told it was no difference to a man to be tried ten days before he ought for high treason in times of excitement? The country might be under much less excitement on the 20th than on the 10th of the month. Men's minds might in that time have become calm. Many might have been frightened, and they knew nothing so cruel and revengeful as a frightened coward. Besides, a material witness for the prosecution or the prisoner might die. There were many other ways in which a prisoner might be injured, by being tried ten days before he ought to be tried; and if the law were to be strictly administered, according to the letter, then, undoubtedly, Frost and his fellow-prisoners were tried sooner than by law they ought to have been tried, and were therefore illegally convicted. Then there were only three judges before whom the case ought to have been tried; but in this case it happened that the doubtful point was referred to the fifteen judges, nine of whom were for the objection, but though nine thought it valid, six thought it not taken in time; and out of these six, were two of the three judges who tried the men at Newport. Now he had been told by good lawyers, the prisoners might have insisted upon having the objection decided at the time, and he should say, as a matter of reason and common justice, they might so have insisted, because that was the only court to try them, and the three judges were not bound to take the opinion of the other judges. There was no law to that effect, and it was a great defect that there was no court of appeal upon this subject, and in the case of high treason, it was the greatest possible grievance, for though the Crown might pardon, it was necessary to get an Act of Parliament to get rid of the attaint. Then it was positively stated—he heard that it was denied elsewhere, but he was told so by the counsel for the prisoners, that it was clearly understood by them at the trial—that the prisoners should be in no worse position on account of the objection being referred to the judges, than if it had been decided on the trial. The prisoners all set forth in their petitions that such was their understanding, and such was the opinion of many persons who were in court, and heard what passed. The House, he hoped, would bear in mind, that in order that the laws should be respected in the country, it was absolutely necessary there should be an opinion among the people that they were strictly and impartially administered. Now he must say, in this case, there was a strong feeling among hundreds and thousands of our countrymen, that the law had been strained against these men, on account of an offence of which they had been guilty, and that they were punished, more on account of the nature of the offence and the mischief that might have arisen from it, than from a strict interpretation of the law. What could be more mischievous than that such an opinion should go forth to the world? The people would no longer have confidence in the law unless it were literally and strictly administered to them; it had been said that pardoning these men would cause great mischief in the country, and add to the violence which had already been perpetrated by some misguided men. So far from that being the case, he believed in his conscience that pardoning them would have the effect of putting down all violence. He believed that so great would be its moral effect among the working-classes, that it would, more than anything else, put down all attempts at violence. It was said that many of the middle classes were so incensed at the Chartists, that Government could not prevent these men from being transported, and he had heard that the Cabinet had determined these men should be hanged even before the point of law was decided, and it was only on a re-consideration of the point of law that they consented to commute the sentence. If the argument on the point of law was good for anything, it was as good for a free pardon as commutation; and, after all, what was transportation for life? For his part, he saw little to choose between it and hanging; and having sat upon the Committee on the transportation system, he confessed that the statements he had heard of the orders inflicted on human nature by transportation made him pause, whether or not to say that transportation was not a worse punishment than death; for in case of execution, a man's life ceased at once, but in case of transportation, a man had nothing to look to but death, after years of torture—torture not so great to the physical man as that of the Spanish Inquisition, but as horrible as any that could be inflicted on human nature; and to this these men were condemned, after alloying there was a point of law in their favour so strong as to induce a commutation of the sentence, He should be told, perhaps, the House of Commons was not a fit place for discussing this question; that it had no power in this matter, and ought not to be appealed to against the decision of a judicial tribunal, but the House of Commons was the only place in which a matter of this sort could be discussed—the only place to which the people, when they considered themselves aggrieved, could come for redress, and the only place to which the prisoners could apply for justice, and it was as competent for the House to address the Queen on any subject—the House had just as good a right to address the Queen to grant a free pardon to these men as on any other subject. The Government might have taken another course, which would have satisfied all classes; why should they not have entered into an agreement with the prisoners, and waived their power of execution or transportation, on condition of their leaving the country. This would have satisfied all, because the only feeling throughout the upper and middle classes was to get rid of these people; some, indeed, there were who were more sanguinary, and were sorry the men were not executed, but he trusted they were a very small number—he would now make only one other observation respecting the lateness at which this motion was brought forward, and which it was necessary to make, in justice to himself and others. He wished much to bring' the matter before the House earlier in the Session, and before these unfortunate men had sailed for Van Diemen's Land, and he had come down to the House, night after night, prepared to do so, and he believed that, on several occasions, the House and the Government would have allowed him to have done so, for he must say the hon. Gentleman, the Under Secretary of State, had given him every facility, and that he had not to complain of him for anything that had occurred upon the subject; but upon the advice of the legal adviser of the prisoner not to bring the matter forward, as some negociation was pending between them and the Government which might be interfered with by the motion, and haying the interests of the prisoners at heart, and believing that the legal advisers of the prisoners had so, he had put it off on two or three occasions, though he told them he believed their negotiation would have no better fate than he apprehended for his motion. He believed great misrepresentation had prevailed upon this subject, and that those Gentlemen were accused of not being so urgent as they should have been; and also for not arguing the question before the House. But his answer was, that he and they had done what they believed, and had been advised, was best. He was sorry to have troubled the House so long upon the subject, and would now move that an Address be presented to her Majesty, praying that her Majesty will be graciously pleased, under the special circumstances of the case, to grant a free pardon to Frost, Williams, and Jones.

Mr. Hume

, in rising to second the motion of his hon. Friend, did so, not on the merits of the prisoners, because he could not but think that the offence of those parties had been most detrimental in every point of view. It had been detrimental to the cause of public liberty. He should say, that no occurrence in his time had given him more concern than the lamentable results of that rash and foolish undertaking. He did not rise, therefore, for the purpose of palliating the offence of the parties in question, but he believed that a very general impression existed among large masses in the country, that those parties had not been treated in the way in which other individuals, under similar circumstances might have expected. He hoped that he should hear something stated by the right hon. Member, the Under Secretary of State, which might remove that impression, because it was one of the most injurious ones he could conceive. He thought that the prisoners in this case had not had all the advantages which the Act of Parliament had provided for them, and that the lists, as had been often stated, had not been duly delivered. He had been informed that in criminal cases it was not usual to refer questions of the kind to such a tribunal as the fifteen judges, and he had been told that it was usual for judges to give their decisions, immediately. When Sir F. Pollock had asked on the trial if the parties would be in no worse condition, than if the case had been decided on at once, the answer of the judges was, that they should not. The silting of the fifteen judges was extra-judicial, and it would be hard to decide the degree of authority to which it Should be entitled. He had been told that that was the first case of high treason in which reference had been made to such a tribunal. The case appeared to him but of the ordinary forms of law, and that was the opinion of the various petitioners who had addressed the House. So far as he could judge, the public feeling was to a great extent in favour of that view; and He could not but express his regret that there should ever have been any necessity for the motion of his hon. Friend.

Mr. Fox Maule

was extremely sorry to have t6 address the House upon a motion of this nature. He had hoped that the hon. Gentleman, the Member for Westminster, would not have thought it right to make that House a court of appeal in a case of this description from the regularly established tribunals of the kingdom: but the hon. Gentleman had deemed it proper to pursue a different course, and laying aside all reference to the prerogative of mercy as exercised by the Crown, had churned it as an act of right and justice from the House, that these convicts should receive a free pardon. The hon. Gentleman had stated that these three individuals had been tried for a political Offence. In his mind the crime with which those individuals were charged deserved a somewhat stronger name. It was true that a preliminary objection was taken to the extent at the trial, that the exact from of the law of treason had not been complied with. It had been stated, that the opinion of two out of three of the judges who presided at the trial was in favour bf the prisoners, and it was then contended that the majority of the judges being of that opinion they ought to have decided the point, upon the trial, and to have given the prisoners the benefit of it. Now, it appeared to him, that the fact of the two judges having declined to decide the question upon the instant, showed that a great doubt existed in their minds, and that they were anxious to have the opinion of the rest of the judges before an ultimate decision was given upon it. It had been stated that that was not the usual practice; He should probably be followed by others who were more conversant with the law, and who would inform the House correctly upon the point; but be apprehended the usual legal forms had, in this instance, riot been departed from. The hon. Gentleman then referred to the narrative of the trial, to show the circumstances under which the point was reserved, and then proceeded to read the decision of the judges, which came to the Secretary of State in these terms;— Westminster-hall, 28th Jan. 1840. My Lord—I have the honour to inform your Lordship, that the argument upon the three cases of the Queen v. Frost, the Queen v. Williams, and the Queen v. Jones, closed this afternoon, and that the judges, after considering the subject, have come to the following determination upon the two questions which have been argued before them, viz.: First, a majority of the judges, in the proportion of nine to six, are 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 due time, the effect of it would have been a postponement of the trial, in order td give time for a proper delivery of the list. The result, therefore, of the determination of the judges is, that the conviction is right. I will have the honour of calling on your Lordship to-morrow at the rising of the court, if I should receive Any intimation to that effect. I have the honour to remain, my Lord, Your Lordship's faithful And obedient servant, N. C. TINDAL. The Lord Marquess of Normanby, &c. The hon. Gentleman then referred to the reply given by the three judges who presided at the trial to the memorial presented to them by Sir Frederick Pollock and Mr. Kelly. It was in these terms:— Westminster-hall, Jan, 31, 1840. My Lord—We have perused and considered the memorial of Sir Frederick Pollock and Mr. Kelly, counsel for the prisoner John Frost, who was tried under the late Special Commission at Monmouth, and beg to inform your Lordship, that the memorial appears to us to be founded upon an entire misconception of the law relating to the course of proceeding in criminal cases; and, so far as we the judges under the special commission are concerned, an entire misapprehension of the fact. As to the law, the uniform practice has been, so far back as we have any means of knowledge, that if the judge upon the trial of an indictment feels any serious doubt as to an objection that occurs in point of law, he decides the point against the prisoner, and al- lows the trial to proceed; reserving such point of law, in order that he may take the advice and opinion of all the other judges thereon. After consulting them, and hearing argument thereon (if thought necessary), the opinion of the judges is taken; and that of the majority binds the judge who has reserved the question. If that opinion should be against the prisoner, the law is suffered to take its course, and the sentence which has been passed remains. If the opinion of the judges is in favour of the prisoner, the constant course is, for the judge who tried the prisoner and passed the sentence to apply to the Secretary of State for a free pardon. And this course in no way depends on any consent, express or implied, on the part of the prisoner: the judge pursues it at his own discretion, and decides the point, for the present, against the prisoner, giving him the benefit of further consideration and advice with the other judges. And this course is pursued for the manifest purpose of preventing a failure of justice: inasmuch as if the judge decided under his immediate impression, supposing it to be in favour of the prisoner, and directed an acquittal, there could be no new trial, although upon reference to the other judges his own opinion was held to be wrong. On the other hand, if the opinion of the judge is at the time unfavourable to the prisoner, it can be reserved by that course, and if erroneous set right. With respect to the statement in the memorial, of what took place at the trial, so far as relates to ourselves, we cannot but remark that the learned counsel labour under a complete misapprehension, at which we are the more surprised, as we expressly stated that no distinction would be made between this and other cases tried at the assizes, but that it must follow in the Ordinary course. At the time of the discussion we all of us entertained serious doubts; more or less strong, on the objection that was raised before us. And if the law had obliged us to come to an immediate and final decision, without the power of consulting the judges, which the law does not, we were not prepared, without much further consideration, nor without hearing the argument on the part of the Crown concluded, to come to any determination on the point. We, therefore, following the ordinary course pursued on similar occasions, decided the point against the prisoner by allowing the trial to proceed, subject to the revision before referred to. We beg to inform your Lordship that we think the circumstance stated and relied on in the memorial, viz., that two of the judges under the special commission ultimately declared their opinion in favour of the objection, does in our judgment make no difference whatever; nor do we think that any inclination in their minds at the time of the trial ought to affect the question; the law is taken from the majority of the judges when consulted, It is needless to state to your Lordship; that as to any of the communications with, or understanding between, the learned counsel and the prisoner, which are stated at length in the memorial, we are entirely ignorant. Under the circumstances above mentioned, we beg leave to represent to your Lordship that in our opinion there is no ground whatever to entitle the prisoner, John Frost, to a free pardon. N. E. TINDAL, J. PARKE, J. WILLIAMS. To the Lord Marquess of Normanby, &c. Under these circumstances his, noble Friend, the Secretary of State felt, that he had but one course to pursue—namely, to consider, that the verdict passed against Frost and the two other prisoners was a right verdict in point of law, and that the sentence passed upon them was the sentence which the law awarded to the offence of which they had been found guilty. For his own part, the more he considered the circumstances under which these individuals were convicted, the more he thought that their families and friends ought to be grateful for the lenity which allowed them to go into banishment, instead of having their lives forfeited to satisfy the rigid justice of the law. He must say, that those who endeavoured to persuade the public of this country, that it was better to carry the capital punishment into effect than commute it to transportation, urged an argument that did not tend much to aid the cause advocated by the hon. Member for Wigan the other night, who pressed the substitution of transportation for the punishment of death in all cases. With these remarks he should feel it to be his duty to oppose the motion of the hon. Member for Westminster.

Mr. T. Duncombe

said, that although there was much in the argument just addressed to the House by the hon. Member, the Under Secretary for the Home Department, still he must say, that in the concluding part of the hon. Member's speech the non. Member had mixed up feelings of pity with points' of law in a manner of which he could not but disapprove. If this were a mere question of crime, and riot One of law, he should be prepared to say, that there never were criminals whose fives were more justly forfeited to the offended laws of their country than the individuals Whose case had now been brought under the consideration of the House. But he repeated, that this was not a question of crime, but of law, and he maintained, that the language of the statute of the 7th of Anne, ch. 12, with regard to the delivery of the lists, was so clear, that it only required a reference to Dr. Johnson's dictionary, and not to the fifteen judges, to understand it. It was so plain, that the feeling of the people of the country was, that if these unhappy men could not legally be executed, they could not legally be transported. He was surprised at the absence on the present occasion of the hon. and learned Gentleman who had been counsel for the prisoner Frost. He had seen a letter of one of those hon. and learned Gentlemen, requesting his hon. Friend, the Member for Westminster, to postpone his motion, when it stood for a former day, in the hopes that something would be done; but the prisoners were now on the wide seas, and those hon. and learned Gentlemen were not in their seats. As to the question, whether the objection had been taken in time, it appeared, that the hon. and learned Member for Huntingdon, on leaving the court, after arguing it before the fifteen judges, protested before God and the country, that he could not find, after full consideration, any principle, precedent, or authority, for his taking the objection at any other time than that of which he had availed himself in the case of Frost. But even supposing the objection not to have been taken in time in that case, how stood the matter in the case of Zephaniah Williams? He had that day received a letter from the learned Gentleman who had been assigned as counsel to Zephaniah Williams, and in that letter Mr. Thomas maintained, that he had taken the objection in time, and that he took it as soon as he was assigned, and before any juryman was sworn. He added, that the Attorney-general had asked him if he objected to the trial proceeding? He replied, that it was not in his power to put it off, but he repeated his objection to the service of the lists, and that it was for the Attorney-general, on the part of the Crown, to say whether or not in the face of that objection the trial should proceed. The Attorney-general had thus an opportunity of correcting the error in Williams's case; he, however, did not think the objection sufficiently significant to put off the trial, and the jury were therefore sworn. Mr. Thomas proceeded further to state, that he again repeated his objection on the first witness being called, and his objection he repeated on Mr. Baron Parke's commencing to sum up. He added, that in Williams's case two other lists had been served upon the prisoner after the first lists; but to them a second objection was raised—that they had not been served ten clear days, and that objection prevailed as each witness came to be sworn. The service of the second lists proved a knowledge on the part of the prosecutors that the service of the first had been irregular. Mr. Thomas concluded by expressing a hope that the House would deal with the matter in such a manner as would be productive of satisfaction to the country. Such was the statement of the learned counsel who had been assigned by the court to Zephaniah Williams. He was sure the object and desire of the House would be to see justice done to every one, and that no extraordinary precedent of this sort should be established, by straining the law, as he maintained it had been done, by sending out these individuals to a penal colony. He did not wish to palliate their crime, but wishing to see an impartial administration of the law, he would support the motion of his hon. Friend in favour of these individuals, who were justly entitled to their discharge.

Sir S. Lushington

said, that though this question had been raised in a House not very full of Members, still it was one of very great importance, and he trusted the result of the discussion would be to dispel the erroneous impressions which had been created in the public mind, and especially in the manufacturing districts, on the subject. He was prepared to say, that the sentence carried into effect in these three cases was consonant to law, to justice, and to every consideration of public expediency. In considering this matter it was material to keep distinct the question of guilt and the question of law, and it was a great satisfaction to his mind that the House had heard the frank and full admission of the hon. Member for Finsbury and others, that the crime of which these persons had been found guilty was one of a most atrocious nature. He rejoiced at this admission, because it was important that no misunderstanding should exist on this question, and that it should not be supposed that any party in the House regarded it as a mere political offence, but, on the contrary, that all deemed it to be that which in reality it was —namely, a desperate attempt, by bloodshed and the destruction of life and property, to overthrow all the liberties of the people, and the foundations of the government of the country. He was delighted to think that it would now go forth to the world, that this House was unanimous in its opinion as to the nature of the offence, and that thus the public mind would be disabused of the poisoned means by which the protection of political differences had been cast over that, which was a grave offence against the laws of the land. Having said thus much on the question of guilt, he now came to the question of law, and here he must object to this House being made a court of appeal on such a point. But, however, lo proceed. The guilt was admitted, and the sole question was the feeble point, whether in the course of the trial there had been an erroneous decision on a point of law, which, if otherwise decided, would have entitled the prisoners to the benefit of an entire acquittal. Now what was the point of law? The complaint was, that the statute declared that the lists should be delivered "at the same time." Did that complaint, even if well founded, prove one atom of hardship, one iota of injustice, or the least inconvenience to the prisoners in respect of their defence. On the contrary, the course pursued in the delivery of the lists afforded them a full and ample opportunity of providing themselves with the means of defence. Then came the question as to what took place at the trial of these prisoners, and as to the usage and practice with regard to such a point. On this subject the House had heard read the letter of the learned judges who sat at the special commission, utterly denying that they had departed from the accustomed rule in such cases. That being so, the law as laid down by the majority of the judges must decide the question, and bind the rest, and yet it was said these prisoners were entitled to an entire remission of their sentences, because two of the judges who sat at the trial had ruled in their favour. He must ask whether it would be either common sense or consistent with the due administration of justice if it was compulsory upon a judge to decide on the moment a point raised before him. Against such a course he had the opinions of the learned judges themselves as read by his hon. Friend below him (Mr. F. Maule), and he remembered an instance corroborative of that usage and practice laid down by them in a case which occurred to himself when practising at the Old Bailey during the Admiralty Sessions as they formerly existed. On that occasion he had upon him the burden of the lives of 35 men charged with a capital crime. Lord Stowell sat with Lord Tenterden and the late Mr. Justice Park. He took an objection, and strongly pressed for an immediate decision upon it, inasmuch as, if referred to the judges, he could not have the advantage of Lord Stowell's judgment upon it. Lord Tenterden, however, stopped him, and said the matter was one of difficulty and importance, and refused to decide it instanter and upon the spot. Of course he could not persist, but if he had, what was the rule? Why, that the point raised was always decided against the prisoner, but reserved for consideration afterwards, and thereby the prisoner had the benefit of the opinions and the decisions of all the judges of the land. It would be most absurd, in a new and complicated case in which a doubt had arisen, if the opinion of one or two judges should weigh against the opinions of the fifteen judges. Allusion had been made to the absence of the hon. and learned Gentlemen who had defended the prisoners. Those Gentlemen had conducted the case with great zeal, ability, and diligence; nor did they abandon their clients after the conviction, but used every lawful and constitutional effort to procure a remission of the sentence, and having done that, it was to be presumed that they considered they had fully performed their duty. It was said, that the punishment of these individuals was not sanctioned by law. Now, what was the fact with respect to the objection? Some of the judges held, that the objection was good, but the majority, when it came before the fifteen judges, decided that it was not valid, and under such circumstances would any one undertake to say, that the House of Commons was competent to review the decision of the judges, and capable of pronouncing a better and a safer opinion upon a mooted point of law than they? Could a more fearful or dangerous attempt be made that to call upon the House to impeach the, judgment of the superior court, and constitute itself for the first time in the history of this country a court of appeal from the decision of the judges? He would fearlessly say that according to law those persons thus convicted could have been executed. Nay, more, he would say, that hundreds of persons had been sent to the scaffold under similar circumstances, and where the like difference of opinion existed amongst the judges, without the subject hating been made the theme of discussion in that House. [Mr. T. Duncombe—It ought to have been.] He would say no; it ought not, for the House was not competent to such a discussion. The House might be competent to discuss the question as to the severity of punishment, but it was not competent to decide upon the legal question. A more unconstitutional habit could not grow upon that House than to undertake to review the determination of the judges, and pronounce them in error. If it were done in one case, no one could tell the moment when it would be attempted in another, and thus the House might go on to weaken the authority, and to diminish the opinion now entertained, of the judges, to the entire destruction of justice itself. He perfectly agreed with his hon. Friend the Undersecretary for the Home Department, that the causes why mercy was extended ought not to form a subject of discussion. For his own part, he would not attempt to discuss them, but he would say, that no person could rejoice more than he did at the extension of mercy in the present case, and he considered it the wisest and the safest course, which could, under the circumstances, be pursued. If these parties had been executed, there would have been a revision of public opinion with respect to the causes which led to their crime, and the feeling against capital punishment would be increased, not by means of reasoning, but through the operation of political feelings which were now rife throughout the country. Instead of a just punishment inflicted for a most atrocious offence, it would have been looked upon in a light in Which no thinking man now viewed it—namely, that those persons were the victims of vengeance, not the Sufferers for justice. He would insist that the sentence and the Conviction were Strictly according to law, and he would pray the House not to interfe with the law or the sentence. He did not undervalue the atrocity of the guilt committed by these individuals, but he thought the punishment commensurate to the crime, and he was glad that the last punishment which man could inflict on man had not been resorted to in this instance.

Mr. Wakley

said, his hon. Colleague had argued this matter not like a lawyer, but, on the contrary, he founded his opinions upon common sense. His hon. Friend had adverted to what had been always the practice when a doubt existed amongst the judges, and had shown, that no similar occurrence to the present was to be found in the books. But the right hon. and learned Member for the Tower Hamlets chose to pass this point over. The right hon. and learned Gentleman stated, that there were hundreds of cases of executions under similar circumstances, which had never been brought before the House, and which ought not to have been brought, because the House was not competent to comprehend them. In that case the Members of that House should not be there. Why were they there? They were there to make the laws, and yet, after making those laws, they were told that they were not competent to comprehend the laws of their own making. Did the right hon. and learned Gentleman deny, that they were competent to make the laws which he so confidently denied that they were able to comprehend? To carry out his reasoning fully, the right lion, and learned Gentleman should have come to that conclusion, and pronounced them incompetent to legislate. Now, the public took a different view of this question, for they found it difficult to comprehend how fifteen grave and learned gentlemen on the bench, who were well paid out of the taxes to comprehend the law, were so completely divided upon so simple a question as that of the exception taken on the part of Frost and his associates. There were six for, and nine against the plain, and one would think, easily answered questions, whether Monday was Saturday, whether twelve o'clock was two o'clock, or whether half-past three was a quarter to four. Yet so profound was the opinion of those gentlemen to be considered, that their decision was on no account to be approached or discussed by the House. When the decisions of the judges were characterised by clearness or common sense, he should himself be amongst the first to bow to them, but when he found them so contradictory and absurd—for no one taking a common sense view of them could pronounce them other than contradictory and absurd—he should never be deterred from calling them in question. He thought it unfair, however, in the ab- sence of the two hon. and learned Gentlemen who counselled, and were advocates for the prisoners in this case, to proceed with the discussion, and feeling that justice could not be done to the subject in their absence, he was about to ask his hon. Friend the Member for Westminster not to press his motion to a division, but to ask leave to withdraw it for the present. He was sure, that the two Gentlemen who had defended the prisoners would not discuss the question of their guilt or innocence in that House, for they knew that they would not be justified in doing so. They would look to the plain question, whether or not these parties were now rightfully suffering under a due administration of the law. He would therefore entreat his hon. Friend not to divide upon the question, for to do so would be to damage the cause, and the fate of the parties would be sealed in the colony if the question were discussed in the absence of the hon. and learned Members for Ipswich and Huntingdon, who alone could enter fully into its merits with a perfect knowledge of all its bearings. No change had taken place in the opinion which those Gentlemen had all through expressed, namely, that On the law of the case the prisoners ought to be liberated, and one of them had said in a conversation with him, that if these men had been executed, he would not have hesitated to rise in his place in that House and pronounce it a judicial murder.

Mr. Leader

said, he could not imagine why his hon. Friend should be so urgent in his attempts to induce him to postpone this motion, as he knew of no advantage that could attend his adoption of that advice, unless it were, that the House would have the benefit of the legal knowledge of those hon. and learned Gentlemen, which it could have just as well at any other time, provided they would undertake to bring the question again before the House. For his own part, he would attend at any time, and be happy to do all in his power to further any object they might have in view in favour of these Unhappy men. He could not, however, see why he should trouble the House to listen to a long debate, and then tell them that he would not divide, because two hon. Gentlemen did not happen to be present. He had never expected that there would be anything but a small minority upon this Motion, and begged of the friends of these unfortunate men, before they left the country, not to raise their hopes respecting its result. He had told many hon. Members that it was his intention to divide the House upon the motion, and he had been greatly urged out of doors to press it as quickly as possible on the notice of the House. Under these circumstances, be had no alternative but to take the sense of the House at once.

The House divided:—Ayes 5; Noes 68:—Majority 63.

List of the AYES.
D'Israeli, B. Wakley, T.
Duncorabe, T. TELLERS.
Fielden, J. Leader, J. T.
Hector, C. J. Hume, J.
List of the NOES.
Adam, Admiral Morpeth, Visc.
Aglionby, Major Nicholl, J.
Bailey, J. jun. O'Ferrall, R. M.
Baines, E. Palmer, G.
Baring, rt. hon. F. T. Perceval, Colonel
Barry, G. S. Philips, G. R.
Bentinck, Lord G. Pigot, D. R.
Bewes, T. Protheroe, E.
Blair, J. Pusey, Philip
Blake, W. J. Rickford, W.
Brodie, W. B. Rose, rt. hon. Sir G.
Busfeild, W. Rundle, J.
Campbell, Sir J. Rutherford, rt. hn. A.
Clay, W. Sheppard, T.
Cripps, J. Somerset, Lord G.
Hurry, Serjeant Stuart, Lord J
Evans, W. Stock, Dr.
Fort, J. Strutt, E.
Grimston, Lord Style, Sir C.
Harcourt, G. G. Sutton, hon. J. H. T. M.
Harland, W. C. Tufnell, H.
Hawes, B. Turner, E.
Hawkins, J. H. Turner, W.
Heathcoat, J. Verney, Sir H.
Herbert, hon. S. Vigors, N. A.
Hobhouse, T. B. Villiers, Viscount
Hodgson, R. Waddington, H. S.
Holmes, W. Ward, H. G.
Horsman, E. Wilbraham, G.
Howard, Sir R. Wilde, Serjeant
Hutchins, E. J. Williams, W. A.
Hutt, W. Wood, B.
Lushington, C.
Lushington, rt. hon. S. TELLERS.
Mackenzie, W. F. Maule, hon. F.
Maunsell, T. P. Steuart, R.