Memoirs of Henry Hunt, Esq. — Volume 2

by Henry Hunt

This verdict I considered as another victory over the leader of the stock purse subscription. A motion was, however, made in the Court of King's Bench, for a rule to shew cause why this verdict should not be set aside, and a new writ of inquiry held to assess the damages. This rule was instantly granted by Lord Ellenborough. Upon my receiving notice to shew cause, as it was a mere point of law to be argued, I gave instructions to my attorney to employ my friend Henry Clifford, to oppose the rule. The motion came on in the Court, and Mr. Clifford argued that unless they had violated their oath, the jurors could not possibly come to any other conclusion. As they were sworn to assess the damages agreeable to the evidence, and as the only witness called had sworn that there was not the thousandth part of a farthing damage done, how could a conscientious jury give any damage? It was merely contended, on the other side, that I had admitted the trespass, by suffering judgment to go by default; and therefore the jury were bound to give some damage. In this wise and just doctrine Lord Ellenborough, and his brethren upon the bench, fully and unequivocally concurred; and his lordship was quite severe upon Mr. Clifford, and wondered how, as a lawyer, he could have the face to argue to the contrary. The Court consequently ruled, that a new writ of inquiry should be issued to assess the damages; the plaintiff first paying the costs of the former writ of inquiry, and this application to the Court.

I was now served with a notice, that the writ would be executed at Devizes, at seven o'clock in the evening, on the third day of the sessions, and that counsel would attend. I merely said to the attorney, who served me with the notice, "well! if the Court of King's Bench has so ruled it, so it must be." The sessions arrived; the third day came; and, as I did not appear in the town, it was generally understood, amongst the barristers and attorneys, that there would be no sport, as I should make no attempt to obtain another verdict, in opposition to the opinion of the Court of King's Bench.

The magistrates, counsel, and attornies had all taken their dinner and were sitting very snugly enjoying their wine, when the Under-Sheriff, with an attorney of the name of Tinney, of Salisbury, whom he had employed to preside for him, retired to the Court, to hold the inquiry, intimating at the same time to their guzzling companions, whom they left enjoying their good cheer, that they should very soon rejoin them, as they should dispatch the affair in about half an hour. They sent word to Mr. Casberd, their counsel, that they would send for him as soon as their jury were sworn; Mr. Tinney informing him that his attendance would be required only for a few minutes, as it would be a matter of form, merely to prove the fact, and direct the jury to give a shilling nominal damages.

This was the Michaelmas sessions, 1807. I was residing at Bath at that period, and having taken an early dinner I got into my carriage, at half past four o'clock, with my son, then about seven years of age, and desired the post boy to drive to Devizes. When he came to the turnpike, at the entrance of the town, he inquired if he should drive to the Bear? I told him to drive me to the Town Hall. When I reached that building, I stepped out of the carriage, and, with my son in my hand, I walked into the Court, to the great astonishment of as snug a little band as ever assembled to perform such a little job, to assess damages upon a writ of inquiry. The Sheriffs deputy's deputy, Mr. Tinney, had taken his seat upon the bench; the jury were in the box, and the last man of the jury was just about to kiss the book, when I begged the officer to repeat the oath once more, deliberately, before the juryman was sworn. He did so, as follows—"You shall well and truly try, &c. &c. and a true verdict give according to the evidence." Mr. Casberd, the counsel, had arrived in the interim, and was adjusting his wig. These, together with the plaintiff's attorney, and about a score of the inhabitants who lived in the immediate vicinity of the Hall, formed as pretty a select party for such a job, as ever was assembled upon any occasion.

The execution of this new writ of inquiry had created a considerable sensation in the town, and the rehearing of the famous cause, which had produced a discussion in the Court above, had excited a considerable interest amongst the gentry of the profession; but as it was understood that I should not attend, and that it would go off, as a matter of course, undefended, or at least unresisted by me, the interest that it had at first excited had completely subsided, and if I had not come it would have been, as Mr. Tinney had anticipated, over in ten minutes. But the news of my arrival spread like wildfire, and the bench was instantly crowded with magistrates, the green table with counsel and attorneys, and the whole Court was crammed as full as it could hold.

Instead of the usual course being followed, by the counsel for the plaintiff opening his case, the Jury and the Court were favoured with an address from the chair, by Mr. Tinney, who acted as sheriff. In the most unfair and unjustifiable manner he informed them, that the same writ of inquiry had been executed once before, and that the defendant had prevailed upon the jury to give a verdict which was not warranted by law; that the Court of King's Bench had set that verdict aside, and Lord Ellenborough had ruled, that, as the defendant had suffered judgment to go by default, he had admitted the trespass, and therefore the jury were bound to give some damage; and he cautioned them not to listen to any thing I might say to the contrary, and told them that when they had heard Mr. Casberd, they would give nominal damages.

I listened to this pretty prelude with great unconcern, and without offering the least interruption to the speaker. Mr. Casberd now began to address them, and very properly said, that the sheriff had left him but little to do, as he had explained to them the nature of the duty they had to perform. He, however, went over the same ground, and strongly urged them not to be warped from their duty, by any thing I might say. At this period I strongly suspected I should have no defence to make, that they had been advised not to call any witnesses, that they meant to rely upon my having suffered judgment to pass by default, and, on that ground, to call on the jury to give merely nominal damages. But my suspicions were soon removed by the learned counsel saying, that he should call one witness, merely to prove the fact of the trespass, and that he should then claim a verdict of some damages from their hands, as it had been ruled by the Court above, that the jury must give some damages, the defendant having suffered judgment to go by default, and by so doing admitted the trespass.

My old friend, the shepherd, was now called, and sworn; and having deposed to the fact, that on such a day of the month, he saw me six yards upon the down of his master, Mr. Simpkins, he was told that he might withdraw. This he was hastily doing, when I hailed him, and desired him to honour us with his company a few minutes longer, as I wished just to ask him a question or two. The impartial judge, Mr. Tinney, said he should protect the witness from answering any improper questions. In reply to this very acute remark, I observed, that it would be quite in good time to do that when any improper question was put. After a great deal of squabbling with the worthy judge upon this occasion, I got the worthy witness, although he had been well drilled, to admit that he had sworn at Warminster, that there was not the thousandth part of a farthing damage done by me in walking six yards over his master's down. This, he at length admitted to be the fact, and that no damage whatever was done.

In a speech, which took up about an hour, I now addressed the jury, all the individuals of which were perfect strangers to me; and I strongly urged them to give a conscientious verdict, agreeable to the oath they had taken, and to assess the damages according to the evidence which they had heard. During this address, I was repeatedly interrupted by Mr. Tinney, who presided; but when I concluded, after having made a forcible appeal to their honour as men and as Englishmen, there was, on my sitting down, an universal burst of applause, upon which, Mr. Deputy's deputy ordered the officers to take all the offenders into custody. This impotent threat caused an universal laugh, and the enraged and mortified judge proceeded to sum up, as he called it, in a fruitless and weak, though laboured attempt, to refute what I had said in my address In fact, he acted as a zealous advocate for the plaintiff, or rather as a stickler for the absurd rule of court, to make the jury give a verdict of damages, notwithstanding the only witness produced, swore, that there was not the thousandth part of a farthing damage done.

The jury turned round, and were about to consider their verdict, but Mr. Deputy's deputy peremptorily ordered them to withdraw, to consider their verdict. I expostulated against this; and while the discussion was going on, the foreman of the jury said, they were unanimous in their verdict, which was that of "NO DAMAGES." This enraged Mr. Deputy to such a degree, that he exposed himself to the ridicule of the whole Court; he insisted upon their withdrawing to reconsider their verdict, said that he would not accept any such verdict, neither would he record it, and he peremptorily ordered the officer to take them out, that they might reconsider it. Several of the jury had got out of the door, and all of them were removing but one old gentleman, who sat very firmly upon the front seat, and never offered to rise. The officer with his white wand tapped him several times upon the shoulder, and desired him to withdraw. The old man, whose name was DAVID WADWORTH, a baker of the town of Devizes, answered each tap with "I sha'nt." Mr. Deputy's deputy now rose, and with an affected solemnity, ordered the old man to withdraw, and reconsider his verdict. He replied, "I sha'nt reconsider my verdict! I have given one verdict, and I sha'nt give any other!" Deputy.—"You have given a verdict of NO DAMAGES, which is contrary to law, and which I will not receive; therefore go and reconsider your verdict, for I insist upon your giving some damage." The reader will easily conceive that I did not hear this in silence; I exclaimed, "For shame! what a mockery of justice!" Mr. Deputy threatened; I smiled a look of contempt and defiance. Mr. Deputy turned round to the officer, and peremptorily ordered him to turn the old man out; and he began to follow his instructions, by taking him by the collar. The old gentleman, however, was not to be trifled with, for he sent the officer with his elbow to the other end of the jury-box, and exclaimed, "I won't go out; I won't reconsider my verdict." Deputy.—"I will have some damage, if it be ever so small." Old man.—"I won't give any damage. Why, did not the shepherd swear there wa'n't a mite of grass for a sheep to gnaw? Then how could there be any damage? T'other'em may do what they like, but I won't stir a peg, nor alter my verdict. I won't break my oath for you, nor Squire Astley; nor all the Squires in the kingdom."