Embarrassment Crown having the record. be, in any shape, before you; and that upon the trial of this indictment, supported only by the evidence you have heard, the words must be judged of as if spoken by any man or woman in the kingdom, at any time from the Norman Conquest to the moment I am addressing you. the crime, they been included ment. to the utmost indulgence of the court. I came down this morning with no other notice of the duty cast upon me in this cause, nor any other direction for the premeditation necessary to its performance, than that which I have ever considered to be the safest and the best-namely, the records of the court, as they are entered here I admit, indeed, that the particular time in for trial, where, for the ends of justice, the charge which words are spoken, or acts com- If these were must always appear with the most accurate pre-mitted, may most essentially alter connected with cision, that the accused may know what crime their quality and construction, and should have he is called upon to answer, and his counsel how give to expressions or conduct, which in the indicthe may defend him. Finding, there- in another season might have been arising from the fore, upon the record which arraigns innocent, or at least indifferent, the highest and traveled out of the defendant, a simple, unqualified most enormous guilt. But, for that very reason, charge of seditious words, unconnect- the supposed particularity of the present times, ed, and uncomplicated with any extrinsic events, as applicable to the matter before you, is absoI little imagined that the conduct of my client lutely shut out from your consideration-shut was to receive its color and construction from out upon the plainest and most obvious principle the present state of France, or rather of all Eu- of justice and law; because, wherever time or rope, as affecting the condition of England. I occasion mix with an act, affect its quality, and little dreamed that the 6th of November (which, constitute or enhance its criminality, they then reading the indictment, I had a right to consider become an essential part of the misdemeanor itlike any other day in the calendar) was to turn self, and must consequently be charged as such out an epoch in this country (for so it is styled in upon the record. I plainly discover I have his the argument); and that, instead of having to Lordship's assent to this proposition. If, theredeal with idle, thoughtless words, uttered over fore, the Crown had considered this cause originwine, through the passage of a coffee-house, with ally in the serious light in which it considers it whatever at any time might belong to them, I to-day, it has wholly mistaken its course. If it was to meet a charge of which I had no notice had considered the government of France as actor conception, and to find the loose dialogue, ively engaged in the encouragement of disaffecwhich, even upon the face of the record itself, tion to the monarchy of England, and that her exhibits nothing more than a casual sudden con- newly-erected republic was set up by her as the versation, exalted to an accusation of the most great type for imitation and example here; if it premeditated, serious, and alarming nature- had considered that numbers, and even classes verging upon high treason itself, by its connec- of our countrymen, were ripe for disaffection, if tion with the most hostile purposes to the state, not for rebellion; and that the defendant, as an and assuming a shape still more interesting from emissary of France, had spoken the words with its dangerous connection with certain mysterious the premeditated design of undermining our govconspiracies, which, in confederacy with French ernment—this situation of things might and ought republicans, threaten, it seems, the Constitution of to have been put as facts upon the record, and as our once happy country. facts established by evidence, instead of resting, as they do to-day, upon assertion. By such a course the crime, indeed, would have become of the magnitude represented; but, on the other hand, as the conviction could only have followed from the proof, the defendant, upon the evidence of to-day, must have an hour ago been acquitted. Not a syllable has been proved of any emissaries from France to debauch our monarchical principles; not even an insinuation in evidence that, if there were any such, the defendant was one of them; not a syllable of proof, either directly or indirectly, that the condition of the country, when the words were uttered, differed from its ordinary condition in times of prosperity and peace. It is, therefore, a new and most compendious mode of justice, that the facts which wholly constitute, or, at all events, lift up the dignity and danger of the offense, should not be charged upon record, because they could not be proved, but are to be taken for granted in the argument, so as to produce the same effect upon the trial and in the punishment, as if they had been actually charged and completely established. If the affairs of France, as they are supposed to affect this country, had been introduced without a warrant from the the case of the defendant with Gentlemen, I confess myself much unprepared Unjust to involve for a discussion of this nature, and a little disconcerted at being so. French politics. For although, as I have said, I had no notice from the record that the politics of Europe were to be the subject of discourse, yet experience ought to have taught me to expect it; for what act of government has, for a long time past, been carried on by any other means? When or where has been the debate, or what has been the object of authority, in which the affairs of France have not taken the lead? The affairs of France have, indeed, become the common stalking-horse for all state purposes. I know the honor of my learned friend,' too well to impute to him the introduction of them for any improper or dishonorable purpose. I am sure he connects them in his own mind with the subject, and thinks them legally before you: I am bound to think so, because the general tenor of his address to you has been manly and candid. But I assert that neither the actual condition of France, nor the supposed condition of this country, are, or can The Attorney General, Sir A. Macdonald. charge or the evidence, I should have been whol- | country, were, for no other crime than their per ly silent concerning them; but as they have been already mixed with the subject, in a manner so eloquent and affecting as, too probably, to have made a strong impression, it becomes my duty to endeavor at least to remove it. Views expressed by the counsel for the Crown. severance in those sentiments which certain persons had originated and abandoned,3 to be given up to the licentious pens and tongues of hired defamation; to be stabbed in the dark by anonymous accusations; and to be held out to England and to the whole world, as conspiring, under the auspices of cut-throats, to overturn every thing sacred in religion, and venerable in the ancient government of our country. Certain it is, that the whole system of government, of which the business we are now engaged in is no mean specimen, came upon the public with the suddenness of a clap of thunder, without one act to give it foundation, from the very moment that notice was given of a motion in Parliament to reform the representation of the people.* Long, long, before that time the " Rights of Man," and other books, though not complained of, had been written; equally long before it, the addresses to the French government, which have created such a panic, had existed; but as there is a "give and take" in this world, they passed unregarded. Leave but the practical corruptions, and they are contented to wink at the speculations of theorists, and the compliments of public-spirited civility. But the moment the national attention was awak The late revolutions in France have been represented to you as not only ruinous to their authors, and to the inhabitants of that country, but as likely to shake and disturb the principles of this and all other governments. You have been told, that though the English people are generally well affected to their government-ninety-nine out of one hundred, upon Mr. Attorney General's own statement-yet that wicked and designing men have long been laboring to overturn it; that nothing short of the wise and spirited exertions of the present government (of which this prosecution is, it seems, one of the instances) have hitherto averted, or can continue to avert, the dangerous contagion which misrule and anarchy are spreading over the world; that bodies of Englishmen, forgetting their duty to their own country and its Constitution, have congratulated the Convention of France upon the formation of their monstrous government; and that the conduct of the defendant must be considered as a part of aened to look at things in practice, and to seek to deep-laid system of disaffection, which threatens the establishments of this kingdom. Gentlemen, this state of things having no supThese things not port whatever from any evidence bebefore the jury fore you, and resting only upon opinin evidence. ion, I have an equal right to mine; having the same means of observation with other people of what passes in the world; and as I have a very clear one upon this subject, I will give it you in a few words. Mr. Erskine's reform corruptions at home, from that moment, as at the ringing of a bell, the whole hive began to swarm, and every man in his turn has been stung. formerly ass13ciated with Mr. Pitt as a fread ary reform. of parlament This, gentlemen, is the real state of the case; and I am so far from pushing the ob- The defendant servation beyond its bearing for the defense of a client, that I am ready to admit Mr. Frost, in his conduct, has not been wholly invulnerable, and that, in some measure, he has brought this prosecution upon himself. Gentlemen, Mr. Frost must forgive me, if I take the liberty to say that, with the best intentions in the world, he formerly pushed his observations and conduct respecting government further than many would be disposed to follow him. I can not disguise or conceal from you, that I find his name in this green-book, as associated with Mr. Pitt and the Duke of Richmond, at the Thatched House Tavern, in St. James's Street. I find him, also, the correspondent of the former; and that I discover in their publications on the structure and conduct of the House of Commons, expressions which, however merited, and in my In allusion to Mr. Pitt's altered opinions as to parliamentary reform. I am of opinion, then, that there is not the smallest foundation for the alarm which views direct has been so industriously propagated; ly the reverse. in this I am so far from being singular, that I verily believe the authors of it are themselves privately of the same way of thinking. But it was convenient for certain persons,2 who had changed their principles, to find some plausible pretext for changing them. It was convenient for those who, when out of power, had endeavored to lead the public mind to the necessity of reforming the corruptions of our own government, to find any reasons for their continuance and confirmation, when they operate as engines to support themselves in the exercise of powers which were only odious when in other hands. For this honorable purpose, the sober, re- Mr. Charles Grey, at the request of the Society flecting, and temperate character of the English of "The Friends of the People," on the 30th April, nation was to be represented as fermenting into 1792, gave notice of his intention to bring forward, sedition, and into an insane contempt for the re-in the ensuing session, a motion to this effect. vered institutions of their ancestors. For this honorable purpose, the wisest men-the most eminent for virtue-the most splendid in talents the most independent for rank and property in the * Among the principal were Mr. Burke, the Prince of Wales, the Duke of Portland, and Lords Spencer, Mansfield, Fitzwilliam, and Loughborough. 5 Mr. Erskine read the minute (in Mr. Pitt's own handwriting) of a meeting of members of Parliament, and of members of several committees of counties and cities, held at the Thatched House Tavern, at which Mr. Frost was present, on the 18th of May, 1782, and at which resolutions were passed in approbation of Mr. Pitt's motion, on the 7th of May previous, on the subject of the representation of the people in Parliament. opinion commendable, would now be considered, | ject of prosecution-not the prosecution of my not merely as intemperate and unguarded, but as highly criminal.6 Reasons for his ecuted. Gentlemen, the fashion of this world speedily passeth away. We find these glorinow being pros ous restorers of equal representation determined, as ministers, that, so far from every man being an elector, the metropolis of the kingdom should have no election at all; but should submit to the power, or to the softer allurements, of the Crown. Certain it is, that, for a short season, Mr. Frost being engaged professionally as agent for the government candidate, did not (indeed, he could not) oppose this inconsistency between the doctrine and practice of his friends; and in this interregnum of public spirit, he was, in the opinion of government, a perfect patriot, a faithful friend to the British Constitution. As a member of the law, he was, therefore, trusted with government business in matters of revenue, and was, in short, what all the friends of government, of course, are, the best and most approved-to save words, he was like the rest of them, just what he should be. But the election being over, and, with it, professional agency, and Mr. Frost, as he lawfully might, continuing to hold his former opinions (which were still avowed and gloried in, though not acted on, by his ancient friends), he, unfortunately, did not change them the other day, when they were thrown off by others. On the contrary, he rather seems to have taken fire with the prospect of reducing them to practice; and being, as I have shown you, bred in a school which took the lead in boldness of remonstrance of all other reformers before or since, he fell, in the heat and levity of wine, into expressions which have no correspondence with his sober judgment; which would have been passed over or laughed at in you or me, but which, coming from him, were never to be forgiven by government. This is the genuine history of his offense. For this he is to be the sub The following are copies of Mr. Pitt's letters: "Lincoln's Inn, Friday, May 10th. “DEAR SIR,—I am extremely sorry that I was not at home when you and the other gentlemen from the Westminster Committee did me the honor to call. learned friend-not the prosecution of the Attorney General-not the prosecution of his Majesty; but the prosecution of Mr. Yatman, who wishes to show you his great loyalty to the state and Constitution, which were in danger of falling, had it not been for the drugs of this worthy apothecary. tion, With regard to the new government of France, since the subject has been introduced, Remarks on the all I can say of it is this, that the good French Revolu or evil of it belongs to themselves. They had a right, like every other people upon earth, to change their government; the system destroyed was a system disgraceful to free and rational beings; and if they have neither substituted, nor shall hereafter substitute, a better in its stead, they must eat the bitter fruits of their own errors and crimes. As to the horrors which now disfigure and desolate that fine country, all good men must undoubtedly agree in condemning and deploring them, but they may differ, nevertheless, in deciphering their causes. Men to the full as wise as those who pretend to be wiser than Providence, and stronger than the order of things, may, perhaps, reflect that a great fabric of unwarrantable power and corruption could not fall to the ground without a mighty convulsion— that the agitation must ever be in proportion to the surface agitated that the passions and errors inseparable from humanity must heighten and swell the confusion; and that, perhaps, the crimes and ambition of other nations, under the mask of self-defense and humanity, may have contributed not a little to aggravate them-may have tended to imbitter the spirits and to multiply the evils which they condemn-to increase the misrule and anarchy which they seek to disembroil, and in the end to endanger their own governments, which by carnage and bloodshed, instead of by peace, improvement, and wise administration, they profess to protect from the contagion of revolution. and the feelings ed in England. As to the part which bodies of men in England have taken, though it might, in some instances, be imprudent and irregular, it had awakenyet I see nothing to condemn, or to support, the declamation which we daily hear upon the subject. The congratulations of Englishmen were directed to the fall of corrupt and despotic power in France, and were animated by a wish of a milder and freer government-happier for that country, and safer for this. They were, besides, addressed to France when she was at peace with England, and when no law was, therefore, broken by the expression of opinion or satisfaction. They were not congratulations on the murders which have since been committed, nor on the desolations which have since overspread so large a portion of the earth, neither were they traitorous to the government of this 7 Mr. Erskine alluded to the addresses sent from several political societies in England to the French National Assembly. which, in the expressions of their warm approbation of the new government established in France, bordered closely on sedition against the English government. the government; he the said defendant, his afore- the crime. country. This we may safely take in trust, since not one of them, even in the rage of prosecution, has been brought before a criminal court. For myself, I never joined in any of these addresses, but what I have delivered concerning them is all I have been able to discover; and government itself, as far as evidence extends, has not been more successful. I would, therefore, recommend it to his Majesty's servants, to attend to the reflections of an eloquent writer [Mr. Burke] at present high in their confidence and esteem, who has admirably exposed the danger and injustice of general accusations. "This way of proscribing the citizens by denominations and general descriptions, dignified by the name of reason of state, and security for Constitutions and commonwealths, is nothing better at bottom than the miserable invention of an ungenerous ambition, which would fain hold the sacred trust of power, without any of the virtues or energies that give a title to it; a receipt of policy, made up of a detestable compound of malice, cowardice, and sloth. They would govern men against their will; but in that government would be discharged from the exercise of vigilance, providence, and fortitude; and, therefore, that they may sleep on their watch, consent to take some one division of the society into partnership of the tyranny over the rest. But let government, in whatever form it may be, comprehend the whole of its justice, and restrain the suspicious by its vigilance; let it keep watch and ward; let it discover by its sagacity, and punish by its firmness, all delinquency against its power, whenever it exists in the overt acts, and then it will be as safe as God and nature intended it should be. Crimes are the acts of individuals, and not of denominations; and, therefore, arbitrarily to class men under general descriptions, in order to proscribe and punish them in the lump for a presumed delinquency, of which, perhaps, but a part-perhaps none at all-are guilty, is, indeed, a compendious method, and saves a world of trouble about proof; but such a method, instead of being law, is an act of unnat-acting upon moral and candid feelings, ought to ural rebellion against the legal dominion of reason and justice; and a vice, in any Constitution that entertains it, which at one time or other will certainly bring on its ruin."8 Gentlemen, let us now address ourselves to the cause, disembarrassed by foreign considerations; let us examine what the charge upon the record is, and see how it is supported by the proofs. For, unless the whole indictment, or some one count of it, be in form and substance supported by the evidence, the defendant must be acquitted, however in other respects you may be dissatisfied with his imprudence and indiscretion. The indictment charges, "That the defendant being a person of an impious, depraved, seditious disposition, and maliciously intending to disturb the peace of the kingdom; to bring our most serene Sovereign into hatred and contempt with all the subjects of the realm, and to excite them to discontent against Crime charged upon the defendant. Mr. Burke's speech at Bristol. See page 308. the Crown. Gentlemen, my learned friend the Attorney General, in the conclusion of his ad- Concessions of dress to you, did more than ratify the counsel for these propositions. With a liberality and candor very honorable to himself, and highly advantageous to the public which he represents, he said to you, that if the expressions charged upon the defendant should turn out, in your opinion, to be unadvised and unguarded, arising on the sudden, and unconnected with previous bad intention, he should not even insist upon the strictness of the law, whatever it might be, nor ask a verdict, but such as between man and man, be asked and expected. These were the suggestions of his own just and manly disposition, and he confirmed them by the authority of Mr. Justice Foster, whose works are so deservedly celebrated. But judging of my unfortunate client, not from his own charity, but from the false information of others, he puts a construction upon an expression of this great author which destroys much of the intended effect of his doctrine ―3 doctrine which I will myself read again to you, and by the right interpretation of which I desire the defendant may stand or fall. In the passage read to you, Foster says, "As to mere words, they differ widely from writings in point of real malignity and proper evidence; they are often the effect of mere heat of blood, which in some natures, otherwise well disposed, carrieth the man beyond the bounds of prudence; they are always liable to great misconstruction, from the This act does not make a man guilty without the intention. ing the consequences of this concession. Having disposed of this stumbling-block in the way of sound and indulgent judgment, we may now venture to examine this mighty offense as it is proved by the witnesses for the Crown, supposing the facts neither to have been misstated from misapprehension, nor willfully exaggerated. defendant Mr. Frost, the defendant, a gentleman who, upon the evidence, stands wholly unimpeached of any design against the public peace, Evidence or any indisposition to the Constitution against the of the kingdom, appears to have dined examined. at the tavern over the Percy coffee-house. This he did not with a company met upon any political occasion, good or evil, but, as has been admitted in the opening, with a society for the encouragement of agriculture, consisting of most reputable and inoffensive persons, neither talking nor thinking about government, or its concerns: so much for the preface to this dangerous conspiracy. The company did not retire till the ignorance or inattention of the hearers, and too | conviction upon any other footing. Surely, then, often from a motive truly criminal." Foster it was open to the Crown, upon every principle afterward goes on to contrast such loose words, of common sense, to have proved the previous not relative to any act or design," for so he ex- malice by all previous discourses and previous presses himself, with “words of advice and per- conduct connected with the accusation. And yet, suasion in contemplation of some traitorous pur- after having wholly and absolutely failed in this pose actually on foot or intended, and in prosecu- most important part of the proof, we are gravely tion of it." Comparing this rule of judgment told that the Crown having failed in the affirmawith the evidence given, one would have expect- tive, we must set about establishing the negative! ed a consent to the most favorable judgment for that otherwise we are not within the pale or one would have almost considered the quotation protection of the very first and paramount prinas a tacit consent to an acquittal. But Mr. At-ciples of the law and government of the country! torney General, still looking through the false medium of other men's prejudices, lays hold of the words "otherwise well disposed," and ingrafts upon them this most extraordinary requiMode of evad sition. Show me, he says, that Mr. Frost is otherwise well disposed. Let him bring himself within the meaning of Foster, and then I consent that he shall have the fullest benefit of his indulgent principle of judgment. Good God, gentlemen, are we in an English court of justice? Are we sitting in judgment before the Chief Justice of England, with the assistance of a jury of Englishmen ? And am I in such a presence to be called upon to prove the good disposition of my client, before I can be entitled to the protection of those rules of evidence which apply equally to the just and to the unjust, and by which an `evil disposition must be proved before it shall even be suspected? I came here to resist and to deny the existence of legitimate and credible proof of disloy-bottle had made many merry circles; and it apalty and disaffection; and am I to be called upon to prove that my client has not been, nor is, disloyal or disaffected? Are we to be deafened with panegyrics upon the English Constitution, and yet to be deprived of its first and distinguishing feat-culate his opinions, and to give effect to designs ure, that innocence is to be presumed until guilt be established? Of what avail is that sacred maxim, if, upon the bare assertion and imputation of guilt, a man may be deprived of a rule of evidence, the suggestion of wisdom and humanity, as if the rule applied only to those who need no protection, and who were never accused? If Mr. Frost, by any previous overt acts, by which alone any disposition, good or evil, can be proved, had shown a disposition leading to the offense in question, it was evidence for the Crown. Mr. Wood, whose learning is unquestionable, undoubtedly thought so, when, with the view of crimination, he asked where Mr. Frost had been before the time in question, for he is much too correct to have put an irregular and illegal question in a criminal case: I must, therefore, suppose his right to ask it appeared to him quite clear and established, and I have no doubt that it was so. Why, then, did he not go on and follow it up, by asking what he had done in Francewhat declarations he had made there-or what part he proposed to act here, upon his return? The charge upon the record is, that the words were uttered with malice and premeditation; and Mr. Attorney General properly disclaims a 10 10 One of the counsel for the prosecution. pears, upon the evidence for the Crown, that Mr. Frost, to say the least, had drunk very freely. But was it with the evil intention imputed to him that he went into this coffee-house to cir he had premeditated? He could not possibly go home without passing through it; for it is proved that there was no other passage into the street from the room where he had dined. But having got there by accident, did he even then stop by design, and collect an audience to scatter sedition? So far from it, that Mr. Yatman, the very witness against him, admits that he interrupted him as he passed in silence toward the street, and fastened the subject of France upon him. Every word which passed (for the whole is charged upon the very record as a dialogue with this witness) was in answer to his entrapping questions, introduced with the familiarity of a very old acquaintance, and in a sort of banter, too, which gave a turn to the conversation that renders it ridiculous, as well as wicked, to convert it into a serious plan of mischief: "Well," says Mr. Yatman, “well, Mr. Equality, so you have been in France-when The defendant's did you arrive? I suppose you are red to France, for equality, and no Kings?" "not to England. yes," says Mr. Frost, “certainly I am for equality; I am for no Kings." Now, beyond all question, when this answer was made, whether in jest or in earnest, whether when drunk or sober, it neither had, nor could have, the remotest relation to England or its government. France language refer |