The Sun.
London, England, 1860-01-16 00:00:00

LAW IA7

14. .Tan.

COURT OF EXCHEQUER.

(Sittings at Nisi Prius in Term, before Mr. Baron
Bramwell and a Middlesex Special Jury.)
BEATSON V. SKENE.
Arthur Shirley, a colonel in her Majesty's army,
with the rank of major-general in Turkey, exa-
mined by Mr. Lush—Was authorised by Gen. Sir
R. Vivian to make certain inquiries into the state
_ _

of the irregular cavalry attached to the Turkish
Contingent in Feb., 1856, and then quartered at
Schumla. lie went to Schumla, and the first thing
he did was to consult the defendant, Mr. Skene, who

was the private secretary to Gen. Sir R. Vivian,
civil commissioner and consul at Aleppo, as to the
manner in which the force had been raised, in
which it had been paid, the conduct of the officers

and men generally, and, in fact, on all other mat-
ters connected with the welfare and well-being of
the corps, and its efficiency for service. Recollected
the defendant stating voluntarily that he had heard
it was generally rumoured that the plaintiff, while
he had the command of the Bashi-Bazouks, had at-
tempted to induce the corps to mutiny, and that at
a meeting of the officers in reference thereto, lan-
guage was used which compelled two of those offi-
cers to leave the room and to offer their resignation.
The defendant alsostated that heunderstood a round
robin had been prepared or sanctioned, and sent
about by the plaintiff to the officers of the corps, not
to serve under Gen. Smith. He mentioned that as
a general rumour, and in connection therewith the
names of Colonel Sankey, Mr. Calvert, and many
others who had heard of the matter. Was at
Schumla nearly three weeks, and was daily in com-
munication with the defendant, and consulted him
and several of the officers there, and from the in-
formation which he received there he wrote a con-
fidential letter to General Sir R. Vivian, informing
him of his inquiries, and the rumour prevailing in
reference to the plaintiff.
The learned counsel read the letter, which was
dated the 25th of February, 1856, and contained
the words complained of by the plaintiff, and it
stated that, as the case was to be brought before
the House of Commons by the plaintiff, evidence of
the conduct of the plaintiff might be obtained if an
inquiry took place on the spot.
Mr. Lush then proposed to ask the witness
whether the defendant had given him the informa-
tion in his capacity as secretary or civil commis-
sioner; but, after an objection by Mr. Edwin
James, and a long discussion on the point, the
question was withdrawn.
By the Judge—lt was Major Shelley who told
him that a meeting had taken place of those in
command, and that two officers left the room,
stating that they were soldiers and would not listen
to language of a mutinous character. The defen-
dant also told him that the two officers had left the
room under those circumstances, and that a round
robin had been sent or sanctioned by the plaintiff
to the Turkish officers.

Sir Robert Vivian, a major-general in her Ma- '
jesty's army, examined by Mr. Garth—Was, in
February, 1855, appointed to the command of the
Turkish Contingent, and in September of that
year the Irregular Cavalry, composed of Bashi-
Bazouks, was attached to that force. At that
time his head-quarters were near Constantinople.
Early in 1856, he instructed General Shirley to
make inquiries generally into the state, condition,
well-being, and efficiency of that force, and the au-
thority given was to obtain every information at
Schumla in his power, and report to him the state
of the corps; and he stated to Gen. Shirley that he
would find Mr. Skene, his private secretary and
civil commissioner, a most useful person in assisting
him in the undertaking.
A discussion of some length took place as to whe-
there Sir R. Vivian was to state what the duties of
defendant were, and ultimately it was allowed, and
Gen. Vivian stated. that it was part of defendant's
duties to report to Gen. Shirley, or to himself, every
matter which came within his knowledge, in refer-
ence to the state of the corps.
Cross-examined by Mr. E. James—Was the de-
fendant to act as your deputy in the command of
the Turkish Contingent ?
Witness—No; certainly not.
Mr. James—Did he hold any military position ?
Witness—No ; but he had been in the army. He
(Sir R. Vivian) inspected the force in Oct., 1855,
and of course saw the defendant at Schumla, but at
that time he heard not a word against Gen. Beatson
about mutinous conduct, and it was not in conse-
quence of anything that Gen. Shirley had stated
that he gave instructions for the inquiry to be made
into the state and discipline of the Turkish Contin-
gent. But in consequence of the letter received
from Gen. Shirley after that inquiry he ordered an-
other inquiry relative to the conduct of the plaintiff
to take place at Schumla.
Mr. Burin, who had been sent for, here entered
the court, and stated that that completed the de-
fence. Having put in the pamphlet published by
the plaintiff, consisting of 116 pages, and containing
the whole history of this remarkable case, and all
the letters which had passed between the parties
concerned, and having summed up the whole of the
evidence on the part of defendant, who had acted
fearlessly and properly in the discharge of his im-
portant duties left the case in the hands of the
jury, not doubting that they would, on carefully
sifting all the facts, find a verdict for his client.
Mr. Edwin James replied. A great many ropics
had been adverted to, which he need not trouble
the jury to consider, as they had heard all the evi-
dence. His learned friend had commented upon
the fact of the defendant's absence from England
at this time, and had endeavoured to show that the
hearing of this cause had been forced on to thopre-
judice of the defendant. The jury, however, must
know that he had had full knowledge of all the
facts, and there could be no doubt that he had not
appeared at the trial, because he felt his case was
a bad one. Where a gentleman made a statement,
or gave currency to a report, which was untrue, it
was his d sty on discovering his error to apologise
or withdraw the imputation. That ought to have
been done in this case, but the defendant preferred
to take the responsibility of defending this action,
although lie well knew that the statements which
he had uttered or circulated were without founda-
tion. On that responsibility, therefore, he must
stand, and he felt sure that the jury would decide
that the plaintiff was right in bringing this action
to clear his character from the imputation cast upon
it, and would give him such damages as would com-
pensate him for the trouble,anxiety, and expense to
which he had been pnt during the past four years.
Mr. Baron Bramwell then proceeded to sum up
the evidence. His lordship said this case had
created great excitement in certain circles, but
lie should direct the attention of the jury to the
legal question simply. In this case the plaintiff
complained that the defendant had spoken some
defamatory words of him in his character of a sol-
dier, while serving in the East, which imputed to
him conduct of an attempt to incite a mutiny among
the troops when he was ordered to transfer the com-
mand from himself to General Smith. It was said
that when General Smith arrived at the Dardanelles,
the plaintiff assembled the commanding officers,
and endeavoured to induce them to mutiny, and
that two of those very officers left the room,
and refused to listen to the language used
on that occasion ; and, further, that Gene-
ral Beatson prepared a round robin, and sent it
round for signature amongst the Turkish officers.
Those were the mutinous attempts which were
circulated, and she statements las petting which tl
plaintiff complained. The first question was,
whether the defendant spoke the words. A letter
was read at the Court of Inquiry at Schumla, and
it contained some words similar to those complained
of, and the defendant stated that they were an ex-
tract from some other authority, but lie admitted
that he had used them to General Shirley. But
even supposing the defendant did use the words
complained of, then it was said by his learned
counsel that they were a privileged communication,
and upon this point he would not trouble the jury
with a large quantity of law, but merely state that
Lord Wensleydale, when Baron Parke, said that
" Wilful and unauthorised publications were a libel
if they caused an injury to the character of another,
but where the person was writing or speaking of
se hat he considered his duty towards the person of
whom lie wrote or spoke, then it must be considered
a privileged communication." The late Mr. Jus-
tice Maule said that if the words were uttered bona
fide and without malice they must be considered to
come within the class of privileged communications.
Then consider whether the words spoken by the
defendant were within the class privileged. The
instructions given to him were generally to assist
General Shirley in every possible way in his inquiry,
and to give him every information bearing upon
the efficiency of the corps. It might have been
relevant to consider the antecedents of that corps,
but that had not on this occasion been thought
necessary. Under the circumstances, could the de-
fendant have refused to render assistance to Gene-
ral Shirley on the ground that the inquiries which
he made did not come within the scope of his
authority ? It would be a great hardship, then, if
a man were told to render assistance to another,
and then, for doing so, to have an action brought
against him. If, then, these words were bona fide
uttered by the defendant, in pursuance of the in-
structions given to him by General Sir R. Vivian,
I they would be a privileged communicatien.
But if he did not use them in the discharge of
his duty but as mere gossip, lie must be held re-
sponsible for them. It appeared in evidence that
the defendant did not mention the rumours preva-
lent for some after Gen. Shirley had been at Schumla,
and indeed, not until Col. Sankey requested the de-
fendant to seek advice as to the mode of payment of
. the Bashi Jazouks, who, it appeared, were receiving