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 the 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 their 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 they
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 might appear in London immediately.
Mr. Serjeant Conev observed,
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
Iprudence ; 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. Juicy 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 the real character 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 some
time after 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