Star. — London, England, 1818-01-19 00:00:00

LAW INTELLIGENCE. SHERIFFS COURT, JANUARY 17. JAMES Gli.CMitsT n. G. H. MOTTLET, W. tiAlliiillollllo J. MILLER, AND J. C. MOTTLEY. • •••":" • This was a proceeding to assess damages between the Plaintiff and three Defendants for a Libel. 'The declaration, the substance of which was stated by Mr. PRINSRP, contained two counts, charging the Defendants in different ways with having, in their Newspaper called The Hampshire Telegraph, com posed and published, and caused and procured to be composed and published, a certain false, scandalous, malicious, and defamatory libel ; which libel was iti the following terms : " Among the convicts transported to New South Wales by the Latices, are two distinguished from the rest by the stations they once filled :—Goidtrist, formerly an Ensign in the 101st Regiment of Foot, and who was tried at Winobester Assizes, with others, about four years since, for the foul murder of Lieu tenant Blundell, in a duel, at Newport; and George Stepley, for merly an Assistant Commissary in the Storekeeper's department. They have both passed through scenes of great moral turpitude, • and are at length banished from their country for the crime of forgery. Gilchrist, It will be remembered, above alluded to, was second to M'Gutre, who committed the actual murder.— They were all convicted, but afterwards received a transmuted sentence." The defendant Miller pleaded not guilty; and the defendants G. H. Mottley, W. Harrison, and J. C. Mottley, were consequently only before the Court. The damages were laid at 30001. Mr. BROUGHAM, in stating the Plaintiff's case, observed, that he should not feel it necessary long to bccupy the attention of the Jury, because a case more char and more striking had never been pre sented to their consideration. The bare statement of .the circumstances would completely establish the claim of the plaintiff to very heavy damages against those who had not only printed and published, but, as was charged, composed, fabricated, and invented the libel of which he complained : whether they had done so from malice or through negligence was wholly indifferent ; for what excuse could careless ness afford to a man with an instrument in his hand, compared with which, a loaded blunderbuss was an innoxious weapon ? The fact was enough, that the defendants had composed, and fabricated, and circu lated one of the most atrocious libels ever published against the character of an innocent man. To read it was sufficient to entitle the unfortunate plaintiff to ample compensation ; but, that the Jury might esti mate its full malignity, and be aware of the full ex tent of the injury it had effected, it would be fit to say a few words. He said " the unfortunate plain tiff," not merely because for many months his repu tation had been suffering under this calumny, but because he had had the misfortune to belong to a regiment which he had joined only a few days, when a quarrel took place between a brother-officer and another individual : of that brother-officer he had previously known nothing, but he was prevailed upon (indeed the most prudent and conscientious man could not have avoided it) to become his second in the duel which was the consequence of the dispute. It took place in the Isle of Wight, and had a fatal issue : the surviving parties concerned, the second of the gentleman who was killed, the author, or more properly the unfortunate means, of his death, and the plaintiff, were put upon their trial, haying volun tarily surrendered themselves to the decision of the laws of their country, and by those laws, administer ,ed with the lenity necessary. for the well of society, they, though in the first instance necessarily ' convicted, received a full and an unconditional par don, and the plaintiff was now and had been for years restored to his situation in the army, and against his character as a soldier or a gentleman not I a whisper had been heard until the appearance of the libel in question. A man who had been inevita- I bly involved in a transaction so unfortunate was not merely an object of sympathy but of protection, and I the last of whom it should have been said that he I had been guilty of " a foul murder." It was hardly possible to conceive a situation demanding more the i compassion of their fellow men than of the survivor i and his friend, in an affair of a nature so melancholy. The Learned Counsel referred of course to a case where the interference by the friend was compulsory, where he had been driven by circumstances to take a share in what the world termed a fair and honour able duel, and such was the case of the plaintiff that it was so he had the testimony of the Judge who tried him, and upon Whose favourable report the free and unconditional pardon was obtained.— The feelings of ordinary men on such an occasion were not, however, those of the defendant's ; for, after a lapse of time, during which all animosity (if, in deed, it had ever existed) had subsided, when even the anger of the friends of the deceased had been soft ened into commiseration, after four long years from the date of the unhappy transaction, the rancorous malignity of the defendants had broken out, and in their paper (which no doubt they termed widely cir culating) they had stigmatized it by the appellation of a " foul murder." But this was not all. Not only was Mr. Gilchrist, after four years had passed, to be charged with having committed " a foul murder," but in the same paragraph he was accused of having been since guilty of the crime of forgery, and with having been transported in a convict ship as a com mutation of the sentence of the law : that having been second to M'Guire, in committing a foul murder, he had since passed through scenes of great moral tur pitude, and was at length on his way to New South Wales for the crime of forgery. All comment upon such a libel was superfluous, and all the Learned Counsel had now to do, was to endeavour to disco ver what answer could be given to the plaintiff's claim for exemplary damages. Great ingenuity and great eloquence would no doubt be displayed by the Learned Serjeant who appeared for the defendants, but he defied the wit of man to make out any rea sonable extenuation. No attempt would or could be made to attack the irreproachable character of the plaintiff: charged by the defendants in the libel with' having passed through scenes of great moral turpi tude, they had not ventured for a moment to main tain their calumnious assertion, or if they had done so, the plaintiff was provided with the testimony of officers of the highest rank in the army, and of the most respectable merchants in the kingdom, to give it a decided and complete refutation. The defen dants, however, had admitted the base falsehood of all they had advanced, and the question was only as to the damages. No doubt some endeavour would be made on the other aide to allay the indignant feel ings of the Jury ; and afterwards it would perhaps be urged, that there was no malice against the plain tiff; that the defendants knew nothing of him ; thai they were the Editors of a Newspaper ; that that was the craft whereby they lived, and that in the exercise 'of that craft they collected all the reports that came "within their reach, and employed them to fill their • columns for the amusement of their readers ; and that :the fabrication in question was used by them for this 'purpose, having been invented, not by their own, but by some other malignant brain. He put it to the Jury, whether this was not rather an aggravation than an excuse? Was it any extenuation to say, that beause it is his trade, a man is to be allowed with impunity to live by t he spoil of the reputations of his fellow-subjects ? Was it any answer to a claim of da mages by a person injured, for the defendants to say, g , this is the craft by which we live?" The Editor of a Newspaper filled not only a respectable but a most important and useful situation in society ; he was 'even necessary, perhaps, to its well-being. In record ing public events he had a right to spEak with the utmost freedom. He (Mr. Brougham) would even surrender to his bold animadversions not only public events, but public men ; and if in discussing the con duct of the latter, an Editor even went beyond the strict line, and deviated into private life, he should say, that the person in question would not do well to be too scrupulous or sharp-sighted in his notice of thr deviation. Surely this was admitting enough, if not too much ; at least, he could not be required to go further ; for when the conductors of public prints abandoned the line altogether, and indulged them selves in private slander and domestic calumny, then he held that the vehicles of it became a more malig nant and baneful pest to society than imagination could picture. When Editors invaded the characters of private individuals, and wantonly sowed the seeds of unhappiness in the quiet and unobtrusive circles of society, whether to gratify the rankered malignity of one class of readers, or the empty curiosity of ano ther ; when they preyed upon private reputation, and fattened upon the ruin of the happiness of thei r fel low-subjects, then they committed a crime which had made many good men doubt whether the freedom of the press were not an evil rather than a benefit. This discussion might be said to be totally beside the ques tion ; and he only digressed in order to mark to the Jury the broad distinction between the real duties *id valuable privileges of a journalist, and the aban donment of those duties acid the abuse of those pri vileges for the purpose of private slander, and the gratification of rooted malice. lie allowed that the Editor of a Newspaper was sometimes placed in a si tuation of difficulty—he could not ascertain at the in stant the truth or falsehood of every parapraph sub mitted to him for insertion, and he must take his chance; if the chance turned up against him, he must be responsible, and in this it had done so ; the die had been cast, and he was liable by the event to pay three thousand pounds in damages to the plaintiff, for the injury he had sustained. Here, however, no such case even of negligence could be made out ; the defen dants could not have been misled or mistaken, or supposing it were proved, was it not an aggravation ? Did not the defendants live and publish their news paper within five minutes' walk of the spot where the fact might have been ascertained? Were they not at Portsmouth, within view of the spot where the fatal duel had been fought, and which had been the subject of conversation for months? Was not the, convict :14 on board which the plaintiff and Stepley were stated to have been shipped riding at that in stant in the harbour, and almost within hail of the printing-press of the defendants? What excuse then could carelessness afford, when they would not use the slightest effort to take care that they did not in flict a grievous and irreparable injury? Was there nothing so improbable in the story that a British Of ficer, after having led a life of great moral turpi tude, was on board a convict ship for forgery ; that the defendants, with all the means of knowledge, should be so indifferent as to the statement? As the conductors of a newspaper, they were bound to be cognizant of the ordinary news of the day; and he (Mr. Brougham) was willing to put the plaintiff's claim upon this alone. Was it possible that the de fendants could have been ignorant of some of the cir cumstances, had they been true? The name of Gil christ must have been familiar in their ears as an in dividual tried and convicted as a second in a fatal duel ; and if by a strange coincidence he could have commit ted forgery, would not some information have rrached the defendants of his having been taken to Bow street, and subsequently tried at the Old Bailey?— Was it such an every day occurrence that it should be passed over as a matter of course, and of no im portance? Of all this the defendants had seen no thing, and yet had ventured to publish, nay to com poseand fabricate, for so they had admitted, this in famous attack attack upon the honour of a British Officer. It was needless to go further. Many other topics of course presented themselves, but they could not strengthen the plaintiff's claim, and would only de lay the impatience of the Jury, who must be anxious at the earliest moment to do ample justice to the in jured and unfortunate plaintiff. It was not uncom mon, in the conclusion of a case like the present, to say it was unexampled. He (Mr. Brougham) would not pursue this beaten track ; but he would say, that if the Jury, in the exercise of their duties, recollected an instance of more grievous, unprovoked, and un merited injury, he should be contented that th e y should exclude his client from all claim to compen sation or protection. When this case was before in troduced into the Court, it had been postponed by the defendants on account of the absence of a witness of the name of Scott. He apprehended that he would sot be called; or if he were, he (Mr. Brougham) should have an opportunity of addressing the Jury again in reply to the defendant's case. In the mean time, he should conclude with the statement of a fact he had omitted, and which of itself was rather an aggravation than a mitigation of the damages, viz. 'that five weeks after the publication of the libel, and after the defendants had learnt that steps would be taken against them, they. had thought it prudent to insert a paragraph, stating that the assertions in the libel were untrue. Mr. Serjeant COPLEY, for the defendants, admit ted the publication... Mr. Bawl:m.os vas about to call witnesses to spew that the libel had bees copied into many other 'Newspapers in tqwn and country ; but The Umnen-Sunattir refused• to receive the evi dence, unless it could* shewn that the defendant's /ere instrumental in its insertion. • Mr. BROUGHAM admitted that he could go no fur ther than *hewing, that out of the ordinary course of post they had sent their newspaper to town by the stage, that it migh t appea r in London imm e di ate ly. Mr. Serjeant Conev o b s e rve d, that such was the ordinary course. The HampsAire Telegrnp4 was pub ' fished at Portsmouth on Monday, but always-sent/to London on Sunday. This was the case with many other country newspapers. Mr. BROUOHA.NI then proposed to produce Major O'Shoughnessy and General Calender to speak to the general character of the plaintiff ; but the Counsel on the other side admitted all they could establish, as well as that no persons of the names of Gilchrist or Stepley were on board the Larkins convict-ship at the datein question. The libel was then read in the form before stated, after which Mr. Serjeant COPLEY addressed the Jury on behalf of the defendants. From the manner in which the ease had been opened, and from the nature of the publication itself, it was obvious that he had an anxi ous and painful duty to discharge. The defendants had conducted the Hampshire Telegraph for a long ' series of years with great respectability, talent, and I prudence ; and they were now, for the first time, in a Court of Justice, called upon to explain any thing that had appeared in their publication reflecting upon the character either of a public or private individual. The libel was circulated in Hampshire, and the Jury would feel that that county was the place where this action ought to have been tried. Had it been brought on at the Assizes there, every Gentleman upon the Spacia,l. Ju i cy could have borne evidence to the cha racter and conduct of the defendants. He had sod much confidence. ' however, in the impartiality and experience of those whom he now addressed, to fear that his clients would sustain any disadvantage from this circumstance. Why the damages were to be assessed in a place where the defendants were stran gers, perhaps required some explanation from the other side, The Jury would recollect also, that ose now charged on the record were not the Pro p 'etors of one of those Newspapers published in the Metropolis, and circulated-not only throughout the British Empire, but over the civilized world ; theirs was a comparatively trifling concern, and the funds from which ale damages would be drawn were pro portionably limited ; -they must be paid from the hard earnings of an aniious and laborious pursuit. He mentioned this fact to shew the importance of the case to his clients, not for the purpose of re ducing the compensation below what justice might require : how much they had at stake on the issue was evident, and beggary must await them if the Jury were disposed to give any thing like .the sum claimed in the declaration. The defence he had to offer was of the plainest and simplest description : he should.ill discharge his duty if he attempted to justify a single syllable of the offensive paragraph : and it Would appear that the defendants themselves, as soon as they found that they had been ensnared and entrapped, had been desirous to make the fullest atonement and apology for their conduct. In a case like this, ingenuity would be misapplied, and decla mation an insult upon the understandings of the Jury ; and after he had unfolded the round unvar nished sale he,should establish by evidence, it would be for them to assess the damages with a view to the clam oldie plaintiff and the extenuating circum stance' proved for the defendants,, In the month of July, 1817, the ship Larkins, with convicts, arrived at Portsmouth on her voyage to Botany-Bay. There were two persons on board convicted of forgery at Horsham, one of whom pa od by the name of .Mar tin. What motive influenced their conduct it was impossible to conjecture, but one of them represented himself to be Mr. Gilchrist, formerly of the 101st regiment, who having been second to Mr. MCnire, had been tried for murder, had since been convicted of forgery, and was then on his voyage to New South Wales. He thus identified himself with the plamtitf; and the story being circulated in Portsmouth, among persons unacquainted with th e real characte r and . conduct of the plaintiff, there seemed no reason to doubt its truth. The defendants, when it reached them, were unable further to verify it, because by' that 'time the ship bad sailed.. If, indeed, as had been said on the other side, the defendants could have actually visited the ship, the report would no doubt have been confirmed by the adherence of the convict to the relation be had so imprudently made. Mr. Hatton, mate of the Captivity convict ship, at Portsmouth, had himself gone on board the Larkins. and had had a long convertation with the man who called himself Mr. Gilchrist. He communicated it -to the defendants, and they inserted it in their Jourli nal among the ordinary intelligence of the day.--- What base purpose was to be answered by the con vict they had never been able to fathom. In calling this witness, he should of course give another oppor tunity for a display of the zeal, talents, and eloquence of his Learned Friend ; but the fact was of the ut most importance on the question of damages, and though on other occasions he might dread his powers, he was confident that he would be unable to lessen the weiht of this evidence with the Jury . For so me time af ter the publication of the libel the defendants had not the slightest suspicion that they had committed an error ; at length a friend called upon them with a copy of the Military Register, in which a paragraph was insetted, by Which it was clear that they had been imposed upon, for it contained a direct con tradiction of the statement they had unfortu , irately circulated. In considering the terms of the libel, it would be recollected that the writer was speak ing of a person who he had been led to suppose had been guilty of forgery, and was actually on his way to undergo his punishment. It was natural, there fore, that he should be less scrupulous and guarded than if he had been adverting to the conduct 'of an individual moving in the ordinary walks of society. The Learned Serjeant begged not 'to be misunderstood. In mentioning forgery and trans portation, and coupling them with the name of Gilchrist, he ,could not, for a moment;' be supposed to cast the slightest imputation upon the plaintiff..— Ile put it to the Jury, whether, if they had been Editors of, Newspapers, and hearing the story Which they had every reason to imagine inquiry would con firm, they would not have treated it much in the same way? As to the subsequent conduct of the de fendants when they discovered that they had been the involuntary means of injury, it would be found that they were deairousof making immediate aid sa tisfactory retribution. ,They.wisned to consult the 17 ARMY. Martial, held at Bella ry; in the th August, 1816, and on sub nt EDWARD JAMES MOCKLER,. Regiment, was tried upon the v : on' parade. in presence of the Adjutant on the ood, and persisting in the same. nue to a Certificate attached to the ring performed a duty which he at- 3rd of honour publicly and solemnly ding Officer, in presence of.the Offi- Sled to witness it. _ _ ;WIZ, Lieut. Col. 84th Rest, Foot. the Court were of opinion that of his Majesty's 84th Regi st, second, and third charges, fourth charge, and the Court ,ner guilty of the first, second, tenced him to be Cashiered. AL, AT Wilt TEHALL, BREVET MAJOR BAILLIE. he SrLa of Tuesday last.) nd ANDERSON detailed the facts same effect as Major PEAT. , that about the 22d of March m Major Peat, commanding on him to interfere respecting fficers, who had been acting ng other things, had changed He told Major Peat it was his id not choose to interfere. He t n the manner in which he hod milar occasion, when the Oli td had changed their hour ,of For five o'clock instead of three. controul thetas otherwise than :a em ;--He paraded his regi iclock he ordered dinner to be and the Officers who bad voted during the dinner, he kept the ed for five fully employed in s soon as his own dinner was old dismissed the troops, having men not to bring in a second ed for two or three days ; at expressed their contrition, and omary and regular hour. The lect that Major Baillie was one fined against, though his name ral orthe Officers transmitted ch they alleged that they were re supporting their own honour He communicated his disap rs, and he expressed to Major ch he was hurt at their con ordering one of the Officers cause he had accommodated from the mess. He had never ce of Major Baillie. On the ficer who had always done his lolly commenced at half-past lepended upon circumstances. g addressed himself to the re reported to him, that several ken Major Peat's horse, which ; that they had beat the ani , and led it into a pond, where wing in vain endeavoured to he rode up to the regiment, anted their conduct, and was n a set of scoundrels. He had to the conduct of the officers, e officers of the mess particu. Farquharson arrived at Barba. hat he had arrested several of nss-examination, he said Colo told him the conduct of the led from the mess was under w Commander-in-Chief. He r a late hour of mess injurious mess, or inconvenient to the it never had been so to him, regiment out as long as he along the convenience of the the hour was consequently in res only. entered upon his defence. He at a gentleman of Colonel Far m the army should have thought Officer of his rank upon his iffence of so very equivocal a ted by any evidence which had mcy to bring the charges home upon his honour as a British l himself disgraced if he thought :ing in any way calculated to ins of a superior Officer, or pre m an example of insubordina hat strict discipline so indis . He wholly disclaimed any the orders of Major Peat.-- was he of the advertisement for , adoes papers. He had no fur ir than by giving his sanction tion of the hour of mess, and ing it was, that the Parade at e of considerable extent, and dion was constantly marched, ne, and double quick time. His that of the other dismounted njurious effects of so violent an climate so soon after dinner. of witnesses, who were ready is conduct and character dur- If his military service. It was, necessary to adduce them ; he :hag the time and attention of accusations as unfounded as even by the witnesses on the T. On their evidence alone he confident that, in the wisdom t composed as the present one soldier and a Gentleman was red, and after a short interval ion of the Court cannot be pro ceedings shall have been sub- Highnesses the Prince Regent a-Chief. LEY, who was killed in the duel tried yesterday at St. Anne's, >Rowed to the grave by a great officers, many of whom were kg or au arm. The deceased c. -, , r - •! .• 1 f • * I i 1 ..' i i.. ~.: • . , 4t . 1 1 6 E 1 '' • 1 . '' ,1 ' I . . i ' 1 I i i i . ' 1 i I E 1 '• • . ! i . • 1 . I . 0 i i 1 • • . 1 I' . • i . 1 I