The Sun.
London, England, 1809-11-24 00:00:00

THE KING V. HARPER AND' OTHERS.

These were persons tried and convided before
Mr.•3ustice GROSE, at the last Assites for Hu,nting-
don, for assaulting and scratchiii&with pins the arms
and parts of the body of Ann,- the wife Of Wright
Izard, under a charge that she was a witch, under
the sorcery and incantation of, whom two girls had
been subjected to fits. There were four women,
and as many men `concerned in this stupid wicked-
ness.

After hearing Mr. Serjeant SELLON and Mr: BEST
for the proseCution, and Mr. HALT 0-N for Harper,
one of the defendants, the sentence of the Court
was, that the nefencants should, each of them, be
imprisoned one month in the common jail of Hunt-
ingdon, and give Security for their good behaviour
for two years, each 401. him and'hersell, and two
sureties in 201. each; except a person of the •name
Of Stburt, who was ordered to be imprisoned two
Months, having been convicted on two indiCtments
for being concerned in both the assaults, tor this
mischief had been perpetrated twice by two sets of
defendants. • •

WRIGHT R. WARDLE.

This mo►ion fora new trial being called on—
Lord ELLENIiO4OUGH read'the report of the evi-
dence at the trial.

The ATTORNEY-GENERAL said he waS 'to she*
cause against this rule, -and- unless Colonel Wardle
could prevail'on the Court to administer justice to
him by a rule differeut from that which prevailed
ordinary' cases, it was impossible for him -to entei'-
tain any hope of success in this application. He
.was quite sure that from the fads krrown to 'his
Learned Counsel, they had given him no hopes of
success, and he was quite sure also, 'that if-the fads
Which have 'since transpired, and which he should
lay` before the Court, had been laid before 'it, the .
Court would never, have granted this' rule to sheW
cause, because On these fads hiS clients, the plain-
• tiffand his witnesses,- stood in a very extraordinary
situation, and different from that in which they
stood when this trial took place ; not that they
had any Apprehension of the consequences of stand-
ing forward on this occasion, but their situation was
new and most extraordinary. Colonel Wardle, be-
fore this motion was made, had preferred a bid of
• indi&went at Hicks's Hall, against not only, the
plaintiff in this action, but also against those who
gave evidence at the trial of this cause: He was cor-
rect in saying this, for it was matter of record in
the Court wherein he was now speaking, the-itdict-
-Ment having been removed into' it by Certiorari.—
It an indictment for a conspiracy of the plain-
tiff and -his witnesses to' get a• verdict for him by
-means of perjury, which verdict *as now under
the consideration of the Court. The removal of
that indictment enabled. the Attorney-General,
he said, to see on whose testimony it was found,.
-and he found the -same persons on• the back of 'the
indictment as those who are now brought forward
to state filets in support of this application, and
on whose testimony Colonel Wardle hoped to in-
duce the COurt to grant him a .new trial. Now,.
with great deference 'to the - Court, he would. take
leave to ask them whether they would entertain
-this fishing bill of Colonel' Wardle to extra& out
of Mr. Wright and his witnesses all the fads'
which they will state ip answer to his application,
-in order that Colonel • Wardle may know how far
he may safely go in swearing, When -he 'shall be
examined as a -witness upon the indictment- for a
conspiracy. He asked the Court whether, if they
kneel that Colonel Wardle had indicted these
very persons forfora conSpiracy, and then came for-
:warki with a motion, calling upon them to state all
they ..knoW of thetransattion on which they are to
- be tried, to aid him in his attack against thein in a
criminal proceedings the Court would have granted
-a rule to shew cause. " hope," said the At-
torney-General, " thar 'colonel Wardle is now
out of .Court, as he states himself to have been at
the trial. I hope he will not always have that ex-
case to offer; or that he was betrayed by those who
had the care of his case, for which reason he came
for the extraordinary interposition of the Court in
hiS favour." .-

Lord ELLSNBOROUGIi'--" I hope no idea is any
where entertained that the Court granted this rule
to spew cause, on an idea that Colonel Wardle
was betrayed by any body who had any share in
the conduct of his defence at 'the trial no such
idea suggested itself to us whFri the rule fcet M
trial wits graiiWd." .

. :‘• '
Mr. ATTOTINtY-GEI4ErtAL..r" NO; MS' Lord, tteae
could not be imputed to illy Learned Vsieeds.
conduCted the ddfauce of Colonel 'Wardle, 'tor mote,
honourable Men never practised in the pKte'essieile—
Indeed, Colonel Wardle himself did not, say in di
rect terms that he was betrayed by theo'7, bet iheres
was a kind of insinuation in his edidavit.eae. ifze
thought . that .ItiS Attorney, did not do
and this he seemed to countenen.ceby changing .!its.
Attorney. " I hold that," said. the Attornev-Ge;
neral, "to Be a trick—to be part of the contrivance of
Colonel Wardle in' this Case; with a view of it.decieg.
the Court to believe what'Colonel Wardle -dares not.
swear ; that he thought his case was not properly
conducted on the. for Mer occasion by that Atterney.
But I am drawn for a momcnt.from the ohservatien
-Imes making to your Lordships. Colonel Wardle
complains that the witnesses wbe proved the case
- before your Lordship, epZI Jury, did',nor state truth;
plainlyesaying„in other words, that they were,guilty
of perjury, on- that oceasiop—thati he says ineinet,
but hehes not dared. to indict them ler perjury; met.
,ltehaa- the folly .to suppose, that if- he can indticee
on: witnesses, to state all they know upoo the veholt
of this case, he may make us.e.,of it efterwards against:
their,,
by .knoWing I,vhaz beeand his witnesi,es
_may,
afterwards-with,safety, swear upon the (rid) for cope.;
spiracy,,he will be ,able to coevici them to a cerfe
taints. • Was such a contri.vauce ever heard of ?,
Was such an :impudent proceeding ever eefore heelji•
of in a Court of Justice. ? To indict the plaiteti. and.
witnesses for a conspiracy, to erre:ere ,a yet-
dx—imputing to them, that they had prot:ttre,.l
ver4ict_by.perjury of the witnesses examinee{ !Or th e.
plaintiff; that they- might be prevented -fiont
evidence of the transaction here, lest they -;,l);-,L11( •
disclose the, whole of their defence to
,him when
they cometo be tried neon the criminal charge trido;
againSt them, that he may know-how. to attack short
, afterwards with something. for which th catinpt
be prepared; there is in this if.species of coutrive
ance, which your Lordship
,would hardly euspea of
any man, without evidence to induce such a suph-
cion. By .which Colonel Wardle thinks, that he;
shall either prevent these persons, from being w.it!-
nesses against him on the discussion, of this Role, or
if there are such 'witnesses,. that he shall be able tot
take advantage of them afterwards on the trial fPrea
conspiracy. •He could prevent' the w lie of the
plaintiff from being a witness. I really know not
how to describe such a transaction, or in what terms
to express the sense that I have of the folly and the'
wickedness of it. .Your Lordships tv iil consider,
that this indidtnent. is hereafter to be tried, and
believe that Colonel Wardle had 'some aßerehen-,
sion of his own fate, on his being a u ittress in the
criminal prosecution which he has instituted uposi
this subje&, and therefore he wished to know, whe,
ther there was something behind all this; and
therefore he moves for a new trial, for which there
is not the least colour, to draw from the detendent
whatever strength there is in. his. case;
,to enable
him to arrange hereafter the criminal case.which he
wishes• to make. out against the plaintiff. I hope
Colonel Wardle is within hearing., It he be in the
Hall, I will take care that.he shall hear what-I sayei
and I would not say this if it were not for the ex-
cuse which-Colonel Wardle made on account• of his
not being present in Court at the.time of the trial
and therefore I beg your Lordship to cousider Colt
Wardle as now being in Court, giving hi> own ip-
strudtions to the LearnedGentleinen. who Are to
discuss this subieet in his behalf; he,sayingehat hie
own instructions were-not given to them at the trial,
This rule is moved for against 'Mr. Wright, the
plaintiff In this cause, and I say it is brought fore
ward against him and against his witnesses; for the
purpose of enabling COlonel- Wardletto.seebovir far
he slay with safety go in the evidence Which _they
shall 'give on. the trial of the indiCtneent which he
has preferred against them ; but, my- LorN, my
Learned-Friends and I feel the situation and the pe-
ril of our client from the course which Col. Wardle
has taken in this blisiness. , We- told. him that he
Was called on to answer a criminal charge, and that
his witnesses were included in the peril ; that perm
sons so situated in a civil case,
.were never.put into
such a situation as they stand in now in a criminal
one, and that your Lordships, when you cone to be
informed of-these particulars, would see that theSe •
civil proceedings were instituted forthe purPose of
facilitating' proceedings of a-criminal nature, or that
the proceedings' which were of a criminal nature
were instituted to influence, the case of Colonel •
Wardle in the -civil part of it ; your Lordships
would discharge this rule on this statement of the
leas, and we added, that if these fads had .been
communicated to your Lordships at the time of
moving for- a new trial, you -would not Uve
granted the rule to shew cause., But the At-
torney-General said, that. the answer of 'Mr:
Wright was that for which he shodld always think
well Of him, the substance of which was, .that he
knew the peril to which be must heexposed,.ine
di6ted as he and his witnesses were for a conspiracy,
by coming forward to. state, in this civil cause; all
-.they knew of the transaction ; but such was his .
consciousness that his cause was founded upon truth,
that he would run ail hazards, and.state the whole •
of his case in shewing..cause against this rule. Had
all these fasts but been known to the Court when
the motion-,was made for the new trial, the Conti
.would never have granted the new trial. .
The ATTORNni•CIENERAL then referred to the
letter of Colonel \Vardlee addressed to the People Of
the United Kingdom, which: he said was p'entied oti.
the day of the trial, and published the day follow-
ing. He ridiculed the idea Of this Address to that
People of thetTnited Kittgddln, upon the subject of
an Upholsterer's bill, 'Who had brought an a6tiou
against a' Gentletnan, who after proinising to pay
'him, had refusedeo do-So, and which a Jury had,
by eheir verdict, said he ought to do. Tice Lkteite
w a s.-=

4, TO 'I'HE PEO.I3LE.O.F'THE UNITED KING.

DOM.

Ilonoured'as my P:!rliarrientary'Condud has been by ihd
approbation of so many -of my countrymen,. I feel myself
called upon inconsequence of an event that yesterday
place, immediately xi) address you, and. that in tindiearion or
inY charader, reoder‘d open to attack from the verdicr Of
the Jury upon the evidence of Mes. Clarke, and Mr. Wright,
the brother of her upholsterer, in a cause in which I was.
defendant, in the CoUrt of King's Bench. The detail of the
evidence the public. prints affind. It is With me to statei
that My Counsel,' satisfied in their mind, that the Tut?' ouLt
hut, upon such testimony as had been given by the piaitlittas
brother and Mrs. Clarke alone, find a Veldid againSt the; did
not &triply with my entreaties (repeated to them in \clang
during the trial, in the strongest terms), that Major Dodni
Wennie, and other respectable witnesses subpdsnaed bit
plithlltit4ta myatllstuiVit lag exaluinCd I.lsuov thy..

testimony would be founded in truth. and be in direct con-
tradidion to what had been sworn against me. Under such •
circumstances the verdid was obtained. 'There only remains
for me now. before my God and my country, to declare, that
it wag obtained by pe,ivry atv:e ; and I do pledge myself to
ikrove the lad the earliest opportunity the law will allow me
to do to. Anxiously, therefore, do I look forward to that
period; and I,trust that till then the' public will suspend
their judgment upon the case."
Now, the Attorney-General said, that this letter
was not true, for that Colonel Wardle did not ear-
nestly intreat his Counsel in writing to call these
witnesses, for that he left his Counsel to their own
discretion, whether they would call Major Dodd and
the other witnesses or not, of which there was the
best prcof that could be given, from an incident
which happened w hile Mr. Serjeant Best was ad-
dressing the Jot vin behalf of Wardle. He,
the Attorney-General, leaned towards Mr. Park to
learn whether any.. witnesses were to be called for
the Defendant or not ; when Mr. Park said he knew
not what to do—lie had no opportunity ot• con-
suiting with Mr. Serjeant Best, while he was-ad-
dressing the Jury ; and he Mr. Park, had been
lett to his own discretion, as well as Mr. Serjeant
Best, whether they should call witnesses or not.
But now Colonel Wardle would have it be be-
lieved, that he did give these positive directions
to his Counsel which be did not, and he affected
to have been surprised by the verdid•and by the
evidence, when there was no foundation for any
such surprise ; and it the Court were now sitting
in judgment upon Colonel Wardle upon a charge
of perjury, upon the affidavit which he had
made in the support of the application for a new
rial, such was the state of the fads, that the
Court would find it difficult to declare that Colonel
Wardle ought to' be acquitted of that ,offence.--..
The Attorney-General then took a view of the
whole of the evidence in this cage, and declared,
that such was the state of the case, that notwiths
standing the boasting of Colonel Wardle of what he
would do, Mr. Wright and his witness looked for-
ward with eagerness to the trial for a conspiracy, and
were confident of an acquittal ;-- so confident, that
they desired him, notwithstanding the advantage it
might give to Colonel Wardle to state the whole of
their affidavits made in opposition to this rule.
The Court held, that the stating of the affidavits
made in a civil cause, by those who were Delend-
• ants in criminal suite arising out of one and the
same set of transitions, would be bringing the par-
ties improeerly into jeopardy, and creating a clanger-,
us precedent; and there held that these affidavits
should not be read.
Mr. Serjeant BEST then entered upon the case in
support of the rule, and made a long and very able
speech to sheer the necessity of a new trial being
granted in this cause. He said that the ground on
which he had put this case was, that the verdict: had
been obtained by evidence of which the Defendant
could not be aware, and therefore it was a star-
prise upon him ; and that in consequence of
what was sworn at the trial, and upon which
the verdid was founded, the Defendant was
led to seek, and had the good fortune to
find, much new matter in evidence, such as if
h had been offered at the trial, the verdict would
have been for the Defendant. He thanked the
Attorney General, .for the handsome manner in
which he had spoken of the Counsel for Colono
Wardle, the condua of whose case had been en-
trusted to him ; and, as to the idea of positive
instruttions to call witnesses on behalf of Colonel
Wardle, he had to declare, for hinter:lf, that he had
received no such instructions, nor did he believe
that either of the Learned Counsel who were
with him in the cansee had received any such in-
struCtions. Had he teceived any such instructions,
be should hate followed them at all hazards; but
be had been left by Colonel Wardle to his own dis-
cretion, and although he knew that Major. Dodd
could have contradided Mrs. Clarke and Mr. Da-
niel Wfight, vet it appeared to hint to be rashness to
call Major Dodd to be confronted with two wit-
nesses, and two such witnesses as Mrs. Clarke,
without being aware that there was any other wit-
ness to support Major Dodd's testimony. But now
there was an abundance of evidence to support it. He
then referred to the affidavits of Major Dodd, Mr.
Glennie, Mr. Kirk, and Sir Richard Phillips. He
then proceeded to maintain that there would be a
failure of justice, if there, should not be a new trial
granted in this cause ; for that Mrs. Clarke and
Daniel Wright had been materially contradicted
by the affidavits to which he had referred, and
on which this rule for a new trial had been ob-
tained. it would be a singular thing if it
should turn out eventually that these parties
should be convicted of the conspiracy with which
they stood charged, and at the same time, this
new trial should be refused, for, in that caseee Mr.
Wright would be- convicted of having obtained a
verdict by conspiracy, and been allowed, to keep
, in his pocket the money, althatgli convicted in a
crime by his endeavour to obtain it. He main-
tained that upon the whole of the affidavits, it
was manifest that credit was given, in the first
instance, by Wright to Mrs. Clarke, and that
charging Colonel Wardle with the debt, was an
after-thought ; and if credit had been given to
Mrs. Clarke at first, it was impossible to charge
.Colonel Wardle in the second instance, because
it he had undertaken, as clearly as he had not,
that undertaking would have been
.void by the
6:acute of Frauds. The pressure of this point was
.felt at the trial, and therefore they hit upon the
expedient of saying, that the first goods which,
had been sent in by Wright to furnish the house
of Mts. Clarke, before it was pretended that Colonel
Wardle ever saw Mrs. Clarke, were not sold, but
sent in upon hire; and upon this Mrs. Clarke and
Daniel Wright were at variance in their evi-
dence—tile one saying that they were never sold,
but remained upon hire ; the other saying that
they were upon hire at first, but that they were
afterwards included in the goods for sale.—
The Learned Serjeant then reminded the Court
of the manner in which Mrs. Clarke had at
first sworn at the trial, that she became acquaint-
ed with Colonel Wardle in the autumn, which
autumn she defined to be the months of Septem-
b,:r and Odober ; but being reminded of the letter
of a person of the name of Mac Allatu to tier, as the
means by which she became acquainted With Coi.
Wardle, and which letter was not written nntil the
:tti 01 Noveniber, she corrected herself; and so it

stood as a thing im?ossible that Wright should have
trusted Col. Wardle in the first instance, for many of
the goods bad been sent in before that time. If
the rules of the Court were such, that a new trial
could not be granted in this case, because Colonel
Wardle should have made his defence before the
Jury, upon all-the grounds on. Which he moved for
the new trial, Colonel Wardle must submit to pay
the 10501.. for which the verdict had been obtained;
but so far was the case from being clear to the
Jury who tried it, even although no evidence Was
offered on behalf of the defendant that they took
up, some hours- .to deliberate, plainly indicating
much doubt. in the case upon the plaintiff's, own
shewing ; what might have been „expeaed it there
had been laid before them the evidence now laid
before the Court upon the affidavits ? As to the
confidence which the Attorney General ex-
pressed his clients to feel at the approaching trial for
conspiracy, he had to say, with a firmness equal to
that of the Attorney-General, that Colonel Wardle
had as eager a desire for the arrival of the hour of
that trial as the clients of Mr. Wright and his
Witnesses ; and that whatever might be the event of
this motion, the teas of this case would remain as
they now stood. And he declared, on behalf of Col.
Wardle, that this case was supported by the same
conspiracy founded on the same perjury for
which Colonel Wardle meant to bring the parties to

justice.
Mr. PARK and Mr. MARRYAT spoke ably on the
same side ; after which,

Lord ELLENBOROUGH said-7" I think that the
Court would- establish a most danerous precedent,
much to the disadvantage of the administration of
justice, if this attempt to obtain a new trial were
successful ; for then it would only remain for de-
fendants to lie by, to hear the case of the plain-
tiff, and; without bringing any evidence at tho
trial, to make an application to the Court, on
the ground of present capacity, to contradict the.
faets sworn to at the trial, and require that the
case might be heard a second time upon a motion for.
a new trial, on the ground of 'he present capacity of
the defendant, who had neglected to use ordimiry
diligence in his defence at the trial. Whereas the
Court, in granting a new trial, experts that tue party
moving for it, should have used his opportunity of
bringing forward his defence at the trial ; for the
Court expeels that the party shall not be deficient in
the ordinary 'and customary- attention to the sub-
ject of his defence at the trial. But where that
attention is bestowt, and the party is afitually
surprised, the Court, his Lordship, said, in case the
party was actually surprised by the course which
things had taken, was in the habit of granting a
new tcial." But his Lordship asked what pretence
of surprise existed in this case, in which a party, de-
termined to use ordinary diligence, might not have
been prepared to meet the proof. Here his Lordship
went ever all the heads of evidence which had been

stated in the affidavits to be new in point of matter
since the trial. That of Mr. Kirk, who stated fadts
concerning the Plaintiff's having taken a house of
bins for Mrs. Clarke. Colonel Wardle knew
Kirk to be the landlord, and therefore there was
no pretence for saying, that it was owing to sur-
prise at the trial that his evidence became necessary ;
he was most naturally pointed out as a witness
for the Defendant at the trial, if he wanted to
prove the fats stated in bit affidavit; and as to
what Mrs. Clarke swore at the trial, Colonel War-
(Re must be supposed to have contemplated his re-
lative situation with Mrs. Clarke, and therefore
ought to be prepared to refute her testimony if she
swore any thing that was false, relative to what
passed between him and the Plaintiff, in the pre-
sence of Major Dodd ; and as to the house which
Mrs. Clarke occupied while Colonel Wardle
was acquainted with her, nothing could be more
natural than for him to look at the lease
of
the house, and then to have suptenaed the land-
lord, who would have related on the trial every
thing which appeared in the affidavit on that subject.
This was no ground of new trial on account of sur-
ptise, it was the effea of the defendant's negli-
gence, and this motion was in that respect
ara
application to the Court, not to administer re-
lief to diligence, or to vigilance, but to, negligence
and supineness. As to the subject of the assu-
_ranee on the house being charged to the de-
fendant, he was apprised of that by the bill of
particulars of the plaintiff's demand which had
been delivered to him, and he might have been
prepared to meet it at the trial ; and if the bill of par-
ticulars was defeaive, it must have been amended
upon summons taken out before a Judge for that
purpose, but that article was disallowed by the Jury.
As to the discovery which had been made by
Wright's answer to a bill which had been filed against
him in Chancery, by which it had been said head-
mitted that Colonel. Wardle was -not charged in his
books ; notice might have been given to -Wright
to produce his books at the trial; or the bill in
Chancery might have been filed sooner, injunc-
tion might have been obtained against Wright's
proceeding at law, until the coming in of the
answer to that bill, and, therefore, that could be no
inducement to the Court to grant a new trial. For
all these reasons; the ground did not appear to his
Lordship to be made out; that the case at the trial
came by way of surprise on the defendant, for there
was nothing at the trial, to meet which the defend-
ant might not be reasonably expetted to be pre-
pared. As .to his not having actual communi-
cation. with his Counsel, he might most potenti-
ally have done so, by taking about twenty steps to
come into Court ; for it was not doubted that he
was walking in the Hall, and it appeared by the
affidavits of his own witnesses, that they 'were di-
reeled, by him, to appear in Court.; and this further
appeared by Colonel Wardle's own letter. In short,
the defendant knew the whole of the plaintiff's case,
and might have been prepared to. meet it, so that
there was no real ground for a new trial, and .if the
Court should grant one, there would be infinite dan-
ger in the precedent, for which reasons his Lord-
ship was clearly of opinion that this rule ought to be
' discharged.
Mr. Justice Gaosn was of the same opinion
There was sufficient evidence given at the trial to
sustain a verdict, and there was no pretence for,say-
ing that the Defendant had been by surprise, coose-
quently he ought to have been prepared to meet it;
and if be had not, but took his chance by resting