The National Register. — London, England, 1809-11-26 00:00:00

et; tc: • ki• • THE NATIONAL REGISTER, those witnesses, whose affidavits are the ground of the present application. What then becomes of this snivelling excuse, that* he had not an opportunity of communicating with his Counsel ? that he was taken by surprise? Ile does not tell the people of the United Kingdom this: he tells them he expected that would be proved which was proved, and had therefore subpoenaed these witnesses, whom his Counsel refused to call. But his three Learned Counsel told him that Mrs. Clarke and Daniel Wright, not being contradicted at the trial, snot having their characters impeached there, would not be believed upon their oaths, and that there was no necessity to call any or either of the Defen dants' witnesses! I must do justice to my, learned friends : while Mr. Serjeant nest was addressing the Jnry at the trial, Mr. Park, whispered to me that he had been placed in a very awk ward situation, having received a note from Colonel Wardle leav ing it to his Counsel's direction to call his witnesses or not, which note it was now too late to communicate to the Learned Serjeant ; and yet. now it it said that the Defendant gave his Counsel an abso lute direction to call his witnesses ! When these facts, known as they wete to Colonel Wardle when he made his application to the Court, are mentioned to your Lordships, will you grant the new trial which is now sought for? I am confident in my own mind, that your Lordships will not. " And now my Lord, 1 will make a kir comparisons between what Colonel 'Wardle says when he Is not on oath, and what he says *hen he is ; between his letter to the people of the United Kingdom, and his affidavit. His letter says, that his Counsel did not comply with his earnest request to call his witnesses ; and the present application is made upon the ground the Plaintiff's case taking him by surprise. When Tread his letter to the peo ple of the United Kingdom, I expected to find his affidavit copies of all the notes he sent into his Counsel ; hut there is not a single intimation in the whole affidavit that he sent them in ; certainly not :any writing, nor I think any direction. And if we confine ourselves to his affidavit, it runs, that he was not in Court '(hut his Attorney was), an 1 had not therefore the opportunity of consulting his Counsel personally. No, but he kept up a con stant correspondence with then!, and says in his letter to the reptile of the United Kingdom, that he .knew what was going forward in Court. Ile industriously states in his affidavit, that the witnesses who were examined were subpooned by the Plaintiff; and it is only by the accident of his having let the fact slip into this letter of his to the people of the United Kingdom, that the fact of Colonel Wardle himself having subpcened these very witnesses at the trial, came out; and this shows that the Colonel knew that the transactions with Illing worth and Glen nie were to be brought forward ; and therefore he had sub prened both these persons, besides Mrs. Clark and Major Dodd, to give their account of these transactions. I appeal to your Lordship's recollection. to the recollection of the Counsel, and to the recollection of every one of those people of the United Kingdom who were in Court at the trial, arid of whom there are so many in Court to-day, whether 1 did not—not once, not twice, but over and over again, till I told my Learned Friend near me (Mr. narrow) I felt I should fatigue your Lordship with the repetition—state that my facts were to be proved by three witnesses; but that I should not myself call the third of them, Major Dodd, because he was the intimate friend of the Thsfendant ; but if Dodd was called by the Defendant, I. pledged myself to extract a corroboration of my witnesses' testimony from him ; and if he were not, I said that that very circum stance would be that corroborative testimony. At all events, therefore, 1 had a .third witness to support my case; and I courted the other side to call Major Dodd, and stated that no incident in the cause could gratify me more than such a mea sure. A 100117,11 Colonel Witrdle ha; reFerved to himself the pri vilege of ssre:Lriug that since the trial he has changed his At torney, substituting 1.4 r. Ellis for Mr. Curfield, yet he does not pretend that that was it?-consequence of any negligence of Mr. Cortield ; neither does he may that Mr. •Cortield was guilty of any infidelity in his representation; of C. :Anne' Wardle 's wishes to his Counsel. There is, therefore, only the dry fact of his having changed his Attorney, which, by the bye, is , very venient shifting of the scenes, since it would have pressed too hard upon Mr. Corfield to have heard me say, sitting under me where Mr. Ellis does now, that if what Colooel Wrsdle. sa)s is true, he has heat -guilty of gross neglect. But lam consuming Lordship's time in saying that Colonel Wardle knew every. thing that was intended to be proved against him at the trial, and that no suspVize"— • Lord Er,t.Exuouutium—" What fact of gurprize is reed upon to-day i". IST 'The ATTORNrY-GENPRAL.—I will tell your Lordship. The Defendant's affidavit states, that " never havingcontracted sof debt with the Plaintiff, the evidence adduced upon the trial a this cause took the deponent completely by surprise." He swears this. My Lord, I heg to suppose your Lordship was trying flee Defendant for wilful and Corrupt perjury, and that this was Abe perjury, that the evidence in this come had taken the Defeadant completely by surprise. Consider this, my 'Lord, and then figure to yourself that in order to prove that assertion false, I had read nothing more than this letter to the pelple of the Uniteil Kingdom,.sitibir that the Defendant had subpoenaed all these witnesses tis-Itteet.-a ease which took him ky surprise. Cuultl your Lordship:hare-any doubt that he had sworn fid,ely ? " The Defendant was'not in Court ! No; he vt-as in the Holl. walking ui• and down with his witnesses. He had not ars oppor tunity of consulting personally his Counsel! Should not one have expected that his affidavit would have gone on to state, that he had no communication with thern•too ? Rut no such thing." Lord El. LE NBORO Gll.-4 6 Does be state where he was at the time ? The ATTORNEY GENtRAT..--' 44 Nn, my Lord; but his two witnet.ses, Dodd and Glennie, swear that be sent them into Court." Lord E t.LENTIO notrc IT.—" lied an opportunity of per oinally consulting with his Counsel, if he had chosen to retuove his absence into Court." The ATTOR NE v-(;ENrit A And if he had chosen not to 'exhibit himself in Court, one or other of my Learned Friends would, - no doubt, under the particular circumstances, however irregular it is for Counsel to leave the Court to consult Trial their clients, have, on the present occasion, done so.'' Lord EL T.EI BORO UGH.—" 1 have been pressing these ei, cumstances, from a desire of not unnecessarily coropetling you, Mr. A ttorney, to bring forward your affidavits ; for it is a griev4 nits hardship; that the defence Of persons criminally indicted. Should he wormed out, by a sort of ",/thing-bill," as you call it ; and, therefore, finless the reasons to the contrary he strong and urgent, would not compel von to produce yonr affidavits.. Brother Best, what circumstance of surprise it there, upon which you rely Mr. Se: jeans REST—" My Lord, I stated at the time, that the ground upun which I moved fur this new trial, was the evi.• donee I had fince discovered. The reason why J would not call Major Dodd at the trial was, because I thought 1 owed it to him to protect him from any imputation, which might he cast upon him from the want of corroboration, under which his evidence would labour. The new evidence which I now possess, my Lord, could not have been brought forward at the trial; for it came out in consequence of evidence which was given then. As to the indictment for a conspiracy, I. can only say hat neither I nor either of my learned•friends who are With rne; had any hand in advising such a measure. I was cerairtly aware of it when t made this application, because I knew it had heeu moved hither by certiorari; but I should he content to postpone this application till the indictment were tried." Mr. ,Justice Cirtosn.—" But then the Plaintiff would be out of his debt all the time." Mr. Serfrlitit BEST.—" But my case, my Lard, is that there is no debt due to him." Lord ELLEN 0 ItO U G n.- 44 The Court will not unnecessarily strip him of protection. We now call upon you to spew the fact of surprize and disability before the trial, with' ordinary diligence to get at the necessary evidence, which you have since procurq. Mr. Serjeant 13EsT.—" We owemuch to our client , ; that duty paid, we owe something to ourselves. No such pcivinp_ tory instructihns were given to me as Colonel . Wardle',, letter stated; Flat that. was explained by his affidavit. H c wos mit in Court, and whether he gave such instructions, I know not. If they had reached me, I should io all events, let the eir:•Avienee; have been what. tbey might, have called Major Dodd ; but cod- ceiving it vras entirely left to my discretion, I certainly would . not place Major Dodd---" Lord ELLEN BOR 0 UG27.—" That may be a very good FeaStlll of prudence ; but it is no ground for a new trial." Mr. Serjeant BEIT.—" I submit to your LOrdship, that cm the trial the Court and Jury were not put in complete posses sion of thc case, and that it was impossible that we could.hive rot • at the facts, of which we nre now in possession, earlier than we did. It will be a very awkwar4 circumstance, If the parties who are at present indicted fir the conspiracy, should come to stiffer judgment with the fruits uf that conspiracy in their pockets. It will be taliett iuto coloider.'" ration too tie o' J• NOV. Q 6.