The British Press; or, Morning Literary Advertiser.
London, England, 1826-08-07 00:00:00

11 OM R CIRCUIT.

MAIDSTONV, SATUUDAY, A 110.5.
CIVIL MOB
(Before Mr. Baron GIIADAM and a Special Jury.]
STONES V. CITENDF.N AND OTHEkti•
This 'Man action agsitist henry Childhigh Oxenden, Esq.,
George Oxenden, Esq.. Sir John Fagg, Bart. high Sher:ft' of the
County. and John Oliver, Esq., for violently assaulting the
plaintiff.
The defendants pleaded the general issue—Not Guilty.
This was a ease of great excitement and interest, front the wealth
and rank of the defendants, and the alleged circumstances of anelty
and barbarity under which the assault was committed. The plain-
tiff, a very poor man, sued in forma yauperia, the defendants sepa-
rated in their defences.
Mr. MARRYAT and Mr. MARSHA* appeared for Mr. Oliver;
Mr. GURNEY and Mr. A DOLPIIUS for the twoMessra. Oxenden;
_

ER for Sir John Fagg, Bart.

A rule for a Special Jury had been obtained at the instance of
the defendants. In the course of the last term, an application had
been made by the plaintiff to change the venue from Kent to hon.
don, on account of the supposed influence of Sir John Fagg as
High Sheriff, and of the other defendants from theit rank and for-
tune by means of which a Jury might be summoned unfavourably
to the interests of the plaintiff. The Court was disposed to change
the venue to Rome adjoining county, on the condition of paying
costs, but the plaintiff being unable to comply witb this term, the
venue remained in the county in which it was originally laid.
Eleven Special Jurors now attended, and the panel was made up

by a talesman.
Mr. linontmicit (with whom was Mr. PLATT). stated the
case. He appeared as the advocate of a poor man, in the most
humble station of life, seeking impartial justice for a grevious in-
jury inflicted by persons of rank, fortune, and influence. im-
pressed with the conviction that fair and impartial justice would
not be denied him, he dud not fear to submit his case to the
judgment of a Jury, chosen from the same sphere of life in
which the defendants moved. The plaintif, a poor labourer,
suing as a pauper, sought a reparation in damages from per-
sons having on their side all the advantages which birth and for-
tune were naturally calculated to induce. It would he demon-
strated, that per.ons of this condition had conducted themselves
towards an humble fellow creature, in a manner which the laws
of this country did not sanction, and which could only be
accounted for by an utter disregard of the lives of those who
happened to interfere either with their idle sports or selfish amuse.
meets. In truth, it would turn out that this was little more than
an inquisition of damages; for that an assault had been committed,
and that under circumstances of the moat outrageous violence, was
a fact capable of the clearest demonstat ion. So fat from regrettieg
that the defendants had chosen to try the cause by a Special Jury,
it was to him (Mr. B) • source of satisfaction, and assurance
of impartial justice to his client, for he had ever found that intel-
ligence of mind was inseperable from liberality of feeling, The
motive of the defendants, in chosing to have the cause so tried.
could not be attributable to any desire of favouring the plaintiff
Certainly no difficulty likely to arise, could render such a
step necessary, for none of the facts could be disputed, and the law
was incontrovertible. Probably they indulged the vain hope, that
by selecting a Jury from among gentlemen moving in their own
sphere of life, the wrongs and injuries of the poor man who had the
courage to cope with such adversaries, would be treated with indif-
ference, if not with utter disregard. Grievously, however, had they
miscalculated the feelings of English Gentlemen, if they supposed
that disparity of rank and fortune would sway them in administer-
ing the nacre(' offices of justice. It was the honourable maxim of
the English law—and lie hoped it was not yet absolete, that in the
hall of justice no distinction was recognised between the poor and
the rich, and that the humblest pauper might obtain redress with
equal hand against the powerful and the affluent. On the present
occasion he (Mr. B.) had arrayed against him the most experienced
and distinguished advocates on the circuit. The defendants had
spared no expence or activity in securing before hand the aid of the
first professional rank and ability to conduct their defence. They
had an undoubted right so to do : but by this course they had pre-
cluded the plaintiff from making a more judicious selection
of his own representative on this most important occasion.
Without the advantage of wealth, suing in forma pauperis,
and entering the precincts of justice in the humblests suit,
his choice was limited as to whom he should intrust the
conduct of his interests. Unfortunate, however, as had
been his selection, the facts of his cave were more eloquent—more
irresistible, than any efforts which forensic ingenuity, or oratorical
powers, could elicit. Upon these he relied with confidence, and
unless he (Mr. B.) had formed a most erroneous judgment of the
feelings and minds of the gentlemen whom he had the honour
of addressing, it was impmsible they should hear them detailed
without the strongest emations. If they could view with indif-
ference the sufferings of the plaintiff on the one hand. and the con.
duct of the defendants on the other, he confessed he should be asto-
nished and disappointed. It would appear, that on Sunday, the
19th of March last, two persons, living at Lidden, near Dover, had
gone to a very celebrated fox-earth. called Fisher's Burrow, and two
dogs, which they had with them, having taken to thegarth, could
not be got out. After waiting a considerable time, they went away
without the dogs. Next day they proceeded to the fox-earth, for
the purpose of digging the animals out; they had asked the plaintiff '
to accompany them, which he stecordinglgAid-bringing his own
dog with him—a young puppy. The other persons also had a dog
each with them. After they bad been there a short time, the
Steward of the farm, on which the fox-earth was situate, came up,
and asked them what they were about? They said they were
digging, their dogs out, and asked his permission so to do. Ile
made no objection, anil, in fact, gave his consent, provided they
filled up the holes, and left things as they had been found. Whilst
they were at their work, one of the defendants came up on horse-
back. It was now necessary to mate who the defendants were,
Mr. George and Mr. Henry Chudleigh Oxenden were the sons
of Sir Henry Oxenden' Bart., a gentleman of fortune living near
Canterbury; Sir John Fag', Bart., was the present High Sheriff
of the county of Kent, anti now sat in Court ; and the fourth de-
fendant wan Mr. John Oliver, a gentleman of propriety, but not of
this county. They were ell persons of wealth and influence, to
whom the payment of a few hundred pounds in damages wee of
little consequence. If the conduct attributed to them by this pro.
cceding was a solitary departure from the rules of property, the
verdict of the Jury might give them a more just sense of the folly
and bad taste of putting themselves even for a moment on a footing
with persons of the lowest condition of life; but if it was the re-
sult of ill habit, and a brutal disregard of the laws of humanity
then, perhaps. the opinion of the Jury expressed in a vigorous
manner, might operate as a salutary check upon such a pre-dispo-
sition. It seemed that the Messrs. Oxenden were professed fox-
hunters. The sport of fox-hunting might, for aught he knew, be
very innocent. No doubt it contributed to health and good spirits;
and looking to those objects, its pursuit was very innoxious ; but lie
believed the keenest sportsman must discommend all act of cruelty,
violence, and oppression, when inflicted under the colour of preserv-
ing the honour of the chase, or keeping up the exclusive enjoyment
of a pursuit, supposed peculiar:y and of undoubted right to belong
to the gentry of the country. It was to this sentiment, and to this
consideration of the subject, he felt he might safely appeal, when
he relied on the manly feeling and gentlemanly liberality of
a special Jury. W host the plaintiff and his companions were
digging the fox earth, as already mentioned, Mr. 11. Chudleigh
Oxenden came up. They had tied their does to a tree. On corn.
ing up lie said, " What are you all about ?" They replied, that
they were digging for their dogs, and that they had liberty so to do
from the atewatd. He said, " I don't believe you have got any
such thing." He then winded his horn, which brought the steward
to the spot. An appeal was then made to the stewnril, whether he
had not given petimeaion to dig for the dogs. The steward imme-
diately assented, but said that the men had begun first to dig with..
out permission. Upon which Mr. H. C. Oxenden said, " I know
your master well; and I am sure he will do any thing to oblige me,
and therefore I desire you to warn these men off' the land." The
steward immediately gave the men notice to leave the ground, with
which they complied on the instant. Previously to their going, Mr.
Oxenden said he had sonic dogs coming up, and that he would kill
all their dogs. The men replied that they had not brought up their
dogs to fighting, and therefore hoped he would not do any such
thing, and immediately snatched up their dogs in their arms, they
were going away, when the transaction too & place which was the
subject of the action. At this time the plaintiff and his companions
had done nothing to give offence; they had conducted thunaelves
with the greatest propriety ; they had done nothing which could
he construed into a violation even of the game lawn. Had they
done any thing of diet kind, the course would have been open,
easy, and the punishment certain ; for, without meaning any dis.
respect to the Magistracy of the country, there was certainly a
sufficient inclination on their part to enforce these laws, whenever
they were violated by unprivileged sportsmen. These persons were
going about their business upon being warned by the steward, and
were advancing with their dogs into a wood for safety, when the
other defendants, and seven or eight other gentlemen came up in
full cry to the spot, mounted on horseback, and caparisoned in the
costume of the chase. Excited by the voice of Mr. 11. C. Oxen-
den, a determination was immediately expressed of destroying
the dogs which these poor fellows were endeavouring to rescue
from destruction ; an attack was instantly commenced, and the
gallant sportsmen rushed at the dogs, and with the hammer ends of
their whips endeavoured to knock them on the head. The plaintiff's
dog received a blow, which knocked one of the wretched animal's
eyes out. Clinging to die animal with natural tenderness and com-
passion, the plaintiff was endeavouring to make the best of his way
for the preservation of its life, when Mr. H. C. Oxenden gave the
word to ride over the men ; eight or nine of the gentlemen gave
spurs to their horses, and rode in full charge upon them. Mr.
George Oxenden, who was mounted on a grey horse, knocked the
plaintiff down, and rode over him ; the hoofs of the horse came in
contact with the plaintiff's head, and one of his hips, and inflicted
two severe wounds, and so violent was the chock, as almost to dis.
mount the rider; blood immediately gushed from the wounds, and
the poor man with difficulty escaped into the wood, still clingins to
his dog. Such conduct, he (Mr. B.) could not regard without feel-
ings of horror and indignation, which he was incapable of express.
ing. That the injury was not accidental, was manifested by the
subsequent conduct of Mr. Oxenden. Instead of stopping to as.
sist the wretched man, then weltering in his blood, or making such
en apology as common humanity would dictate, he pursued his
career towards the other men, whose suffering's would be matter of
future consideration. His conduct manifested a malicious determi-
nation of destroying life; end he and his companions might thank
God that death had not ensued, for had this unfortunate man died
of his wounds, he (Mr. B.) would tell the defendants, that their
crime would have amounted to murder, and they would bare had to
answer ihr their lives at another tribunal. Most fortunately, and
through God's mercy, the plaintiffsurrived. Happily, his wounds
were nut serious, and lie sustained little personal injury. Tlie Jury,
however, in estimating their damages, were not to confine :hem.

selves to the personal suffering of the plaintiff, they were to look
to the temper and feelings of the defendants, and the obvious
motives by which they were actuated. The conduct of the de-
fendants did not stop here. After they had hunted the plaintiff
and his companions into the wood, and endeavoured to destroy their
dogs in vain, they returned to the fox earth ; and after haring,
with great labour, dug out the dogs, of which the plaintiff and his
companions were in search, the animals were immediately shot by
Mr. Oliver. This was an outline of the circumstances of the
plaintiff's case. Four of the gentlemen only were serried. There
were ton or twelve of the party, and therefore if the facts were un.
truly represented, nothing would be more easy than for the de-
fendants to call witnesses on their behalf. But he antitilpatt.d no
dispute about the facts. and, therefore, the Jury would hare only
to determine what damages they would give in a case marked so
strongly by brutal violence and unfeeling cruelty. lie had no wish
to say any thing of the defendants which the case itself dal not
warrant, sind therefore he was desirous of submitting the plaintiff's
complaint to the candid consideration of the Jury. The plaintiff
had tound some difficulty in obtaining the necessary evidence to
substantiate his case, and if it beeaute important, he was in a condi.
tion to shew that the eon of ten innkeeper, who was an eye witness

to the transaction, was kept out of the Way, from the natural in-
fluence which gentlemen of the defendants' condition were able to
exert over the father of a witness. depending so much fur his licence
on the odour in which he was held by the Magistracy. Presoming
that there would be no dispute about the farts, he would leave the
case in the hands of the Jury. and it wan fur them to determine
whether the boasted right of a poor man to have his wrongs te-
deemed in a court of justice was a mere phantom, or the solid pri-
vilege of Britons.
Luke Evans, a journeyman papitsmaker, Thomas Maytum, la-
bourer, working in the factory of Meesrs. Phipps, at River, near
Dover; Thontais Bayley, a labourer, living at Ewell. near Dover;
William Patterson, a carder at Dover; and James Martin, a la-
bourer of bidden, were then called to prove the plaintiff's case.
Front their evidence, it appeared that on Sunday, the Path of
March, Evans, Maytum, and Brockman; the son ohs publican, at
River, wentto look for a fox for sale at Fisher's Furrow fox earth ;
and in doing so two dogs which they had with them, belonging to
a man named Wltnell, who went by she name of " Billy the
Devil," got earthed, anti could not be taken out. Next day Evans
anti Maytum, in company with the plaintiff Stokes, a blacksmith,
went to the fox earth, each having a dog, with a net and a mat-
tock, and other implements. The fox-earth is situated on.a farm
called Wickham hushes, the property of Mr. Noakes, of M un-
gam. The men began to dig for their dogs. when Mr. Graves.
the steward, came up and inquired what they were about. They
told him, and asked leave to proceed. Mr. Graven gave them per-
mission, provided they tilled up the holes again. Whilst they
were digging, Mr. H. C. Oxenden cane up on horseback, and
demanded to know what they were doing there? lie was in-
formed, and that they had permisaion from the steward. This he
denied. He then went in pursuit of the steward, who came back ;
and, in the presence of Mr. Oxenden, stated diet it was true he
had given permission to the men to dig for their dogs, after they
had begun. Mr. Oxenden then said to Mr. Graves, •• I know your
master, and he will de anything to oblige me, so I charge you to warn
these men off the land." The steward accordingly did so, and they
went away immediately, taking their tools and dogs with them. A
party of gentlemen, in hunting dresses, then came ronnd the corner
of the wood. anti Mr. Oxenden gave them what is called the '• view
hotlo!" As. soon as they came up, Mr. Oxenden said, " Now,
in the first place, we will kill all their dogs." At this time,
Maytum and Stokes were going off towards a wood with their dugs
under their arms. Several gentlemen then pursued them, striking
at their dogs. Mr. 11. C. Oxenden then cried out, " ride over
them." Mr. G. Oxenden, who was riding a grey horse, rode over I
the plaintiff, and knocked him down. The plaintiff received a
wound on the left side of his head from the horse's hoof, and was
kicked in one of the hips. lie was immediately covered with blood.
The gentleman then rode after Bayley into the wood. The plain-
tiff escaped with his dog—one of the eyes of the animal being struck ,
out, and hanging on its cheek. The plaintiff had a handkerchief
tied round his head for two or three days, and did not appear to
have been materially hurt. In about an hour arid a half afterwards
the two dogs were taken out of the fox earth, and shot by Mt.
Oliver. None of the witnesses could identify any of the defend.
ants, except Messrs. ()smitten, as being present, when the plaintiff
was ridden over. The last witness said, he thought Sir John Fagg
looked like one of the gentlemen, and lie believed he was present.
Mr. MARRYATT submitted, that there was no case to go the
Jury, against Mr. Oliver.
Mr. BOLLARD also contended, that there was nothing to afreet
Sir John Fagg.
Baron GRAHAM thought the whole case ought to go to the Jury.
Mr. GURNEY then addressed the Jury for Messrs. oxentlen,
and argued, that the injury which the plaintiff had sustained was
quite accidental, and that the object of the defendants was to de-
stroy the dogs' fur which separate actions had been brought, and
now rem doted for trial. Personel injury the plaintiff had sustained
but little; end, considering that he was obviuusly one of a party of
poachers, it was not a case which called for any serious amount of
damages, notwithstanding the tirade of his Learned Friend who
had opened the plaintiff's case.
Mr. MARRYAT declined addressing the Jury for Mr. Oliver.
Mr. BOLLARD contended, on behalf of Sir John Fagg, that
there was not a tittle of evidence to show that that gentleman was
present, or knew anything of the transaction until atter it had hap-
pened. In fact, Sir John, though out with the hounds that day,
watt not near the spot when the alleged assault conk place.
Mr. Baron GRAHAM summed up the case, with that fine, gen-
tlemanly, and dignified feeling with which the mind of this ye.
nerable Judge is so much distinguished, and told them that they
must certainly find a verdict against two of the defendants at least.
With respect to the others, though the evidence was extremely
slight, and would hardly justify a verdict against them, yet there
was enough for their consideration. It was to be regretted that gen-
tlemen, in the defendants' station should be called in question fo.
such a transaction. They had been told that, if death had ensued
on the occasion in question, the defendants would have had to an-
swer for a different offence at another tribunal ; and he trusted that
this case would have the effect of a wholesome admonition to young
gentlemen of fortune, that the pursuit of manly sports could not
justify the violation of the safety of' his Majesty's subjects under
any circumstances. It was quite obvious that the injury was not
accidental, as was supposed ; or that the sole object of the de/co-
deine was to destroy the dogs. With respect to the measure of
damages, though the plaintill 's bodily sufferings were not great,
yet the Jury must take into account the terror and alarm which
such conduct, on the part of the defendants, was calculated to
excite. Their motives, and the feelings with which they had
acted, were points also for consideration. His Lordship had no
doubt that the Jury would, with that feeling which became men of
education and honour, do that justice which the plaintiff's wrongs
demanded, without regard to the rank and station of the defendants.
The Jury retired, and in about half an hour found .Mr. Oliver
and Sir John Fagg Not Guilty, but Messrs. Oxenden Guilty-
Damage, 1001.