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Colonial Cases

Jeddrell v. Editors of the Asiatic Mirror [1790]

libel

Supreme Court at Calcutta

2 March 1790

Source: India Gazette  (Calcutta, India), 8 March 1790, issue 486

SUPREME COURT

On Tuesday last came on to be tried, before the Honourable the Judges of the Supreme Court, an Action brought by Sir Paul Jeddrell against the editors of the Asiatic Mirror, for a libel and defamation.   The Advocate General, Counsel on the part of the Plaintiff, stated, that the Nabob of Arcot, there being attacked with various complaints which he is Physicians were incompetent to remove, applied to the King of Great Britain to supply him with an English Gentleman of eminent medical abilities.   That in pursuance of this request, His Majesty appointed Sir Paul Jeddrell, who accordingly took is passage, and arrived at Madras in the month of May, 1780.   He was accompanied by Lady Jeddrell, (the daughter of Sir John Bruin) their child Paulina Jeddrell, and infant of three or four years old, and a Miss Cummings, a Protegee,of Lady Jeddrell's.   That Sir Paul continued uninterruptedly to enjoy the good opinion of the Society he lived in, until the month of Oct.   last, when upon perusing the Madras Courier, he first perceived, to his utter astonishment, the purport of the scandal conveyed to the Public through that medium.   Such scandal however, as could only be controverted by a flat denial - for as the Editor of that Paper had not thought proper to adduce any proof in support of such black, scandalous, and monstrous imputations, the only method of refuting the calumny, was by a downright contradiction of the aspersions.   But whilst Sir Paul Joddrell was employed in consulting his Lawyers at Madras, upon the steps necessary to be taken upon so distressing an emergency, he was struck mute with surprise at the perusing the contents of that infamous Paper, called the Asiatic Mirror; for there he found charges of so atrocious a nature, is to feel himself compelled to turn from the dagger which stabbed him in the dark at Madras, to resist the blow aimed at him in the broad of Day at Calcutta.   The English Papers, accustomed to deal in every strain of ribaldry and abuse, and represent every fact in the most scandalous point of view never exhibited so horrid, so monstrous, a libel.   Their licentiousness, upon some occasions however overlooked and despised, never went so boldly into flagrant and attrocious calumny; for whilst the Madras Courier dealt in General Charges, only, the Asiatic Mirror was hardly enough to particularize, off and of all the Prints here, it stood single in its folly and perversness of attempting to go into Facts. - But the blackest part of the libel alluded to MissCummings's palming a child upon the public for the purpose of defrauding another family out of the reversion of an estate.   This, if it were true, might well stagger the Love and the Belief of an Admirer; but the Editors were right to add that such a story was incredible, as surely no man in his sober senses would believe such vague assertions unsubstantiated by any kind of proof.   But what was the chief aggravation of offence on the part of the Defendants, was the distinguished birth, the high rank, and professional respectability of the Plaintiff.   What offence could it be supposed was ever given to them?   surely it might have been supposed that the length of distance would alone have protected an unoffending person from the poisoned shafts of such bitter calumny.   But the mischief did not stop there - the last ships of the season would convey home these printed aspersions, which would not only tend to injure him in the minds of his family and friends, but, what was still more wounding and to the feelings of a man of honor, to lessen his estimation in the opinion of his Sovereign. - These papers would get home, these calumnies would be copied, this is aspersions would be paid diffused, the public Prints would grasp at any new theme of slander, and all the evils which accompany a loss of character, might be incurred before the devoted victim of such aggregate malice could exercise the privilege or opportunity of reputation.

The Learned Advocate then descanted upon the liberty of the Press - he felt it was unpopular to attack what was commonly deemed the palladium of our liberties - he reverenced by virtuous liberty of the Press, but would always protest against it's liberty of Libelling.   As far as certain points went, it was glorious to assert it's rights; but he would never relinquish the propriety of reprobating it's abuse or licentiousness. - It might be urged that they were proofs at Madras - if there were such they were either written or oral: If the former, they might surely have been procured by the defendants; if the latter, he begged leave to ask, was there no such thing as a Bill in Equity? He then concluded with a strong appeal to the feelings of the Bench, who, sitting in a double capacity of Judges and Jurors, were doubly bound to remove from their minds every prejudice which they might have imbibed from an industrious circulation of reports injurious to the hitherto unimpeached   character of his Client.

To prove the printing and publishing, James White, the Printer of the Asiatic Mirror, was examined, as also the Sirkar who purchased the Paper.   To prove the general estimation Sir Paul was held in, Mr. Burke, Paymaster-General of His Majesty's Forces, and the Reverend Mr. Clarke, gave their evidence.

Mr. Burroughs, Counsel for the Defendant, then rose, and expressed his surprise at the learned Advocates professing that he only fought for equal justice, and after making a serious and solemn exhortation to their Lordships, to resist every prejudice to attempt in the same breath to warp their opinions by the mention of an Affidavit, which, however, he relied was too ridiculous, two preposterous to have the least weight in their Lordships' minds, especially when they beheld Sir Paul Joddrell hardy enough to swear to a matter which no man living had ever before presumed to be certain of.   As to the Publication he contended that in the first paragraph, no libellous matter was contained, nor was Sir Paul affected by the second, wherein his family was mentioned; for as   the action was only brought in the name of Sir Paul himself, he could not have damages for the slander of his wife, or of Miss Cummings, or Paulina Jodrell, who each had a right to bring actions, and to whom a recovery by Sir Paul in this Court would not be a Bar.   As to the report which the Printers stated to be in circulation by the two first paragraphs, as no Averment or Innuendo was given what those reports were, whether good or bad.   In the third paragraph, where it is asserted that the Plaintiff admitted the child to be the young Lady's, and owned that he was the father of it, this amounted to a charge of having a busted, but not of Adultery, because it is neither asserted in the publication, nor laid by Averment or Innuendo that it was begotten before sir Paul's marriage.   In the fourth paragraph, likewise, no charge is contained but that of Sir Paul's having a bastard, unless it will be said that there is a charge of his having passed this bastard for his legitimate child, and for one who would be entitled as his first-born to an Estate under the will of a relation.   But it happened that there was no Innuendo to explain this part of it, as it was not averred who the relation was, who the person to be defrauded was, nor any other corresponding circumstances of such a transaction.   As to the 5th paragraph, it contained nothing more than the first; but in the sixth paragraph, where it stated that the managers of the rooms had communicated their sentiments to the Plaintiff, to this effect, "that reports were prevalent injurious to his character, and that until he cleared up some certain points they begged he would absent himself from the public rooms." This was only stated to be the opinion of the managers, and recited as having been delivered by them - No mention whatever is made of those reports being true, nor does the plaint aver that they were not - nor is it avered in the seventh paragraph, where reports are alluded to, what those reports were; but where it is said that charges, well authenticated, should receive the permanency of publication, and the benefit of circulation; and that case is particularized in the instances of a father, a pretended mother, and a younger lady of the family, with Innuendos that Sir Paul, his Wife, and Catharine, are the persons meant: this can be said only to allude to a former story, and must be construed accordingly; for the calling the improper conduct of the parties by names are not authorized will not change the nature of that conduct, nor make the statement of that conduct libellous, if not so before - Thus it was in the case of a man, who told another "you have been guilty of Murder, for you hung of a man when you was Sheriff, who was unjustly condemned to be hanged:" this was not slander of the Sheriff, though it was slander of those who condemned him - nor to say, "you are a Robber, for you stole Apples," is no charge of being a robber which will maintain an Action; and therefore these general charges in the seventh paragraph, are not more libellous than the facts alluded to are, but must be understood and explained by them.

The learned Gentleman then proceeded to argue, that it was not libellous to publish, that Lady Joddrell had been desired to retire from her situation of Directress of the Asylum.   Perhaps Lady Joddrell might have intimated a wish to retire - perhaps she had too many other avocations - perhaps she was busied in performing acts of charity and benevolence, and in the exercise of all her private virtues and amiable qualifications - and as to Sir Paul's being directed to withdraw himself from the rooms, perhaps they were found too warm, or too crouded - or perhaps he never danced or never played Cards, and if he never danced or never played Cards, it was a disagreeable to see a virtuous and amiable person unamused or unemployed.   He then begged the Court to advert to the language made use of by the Printer - was it harsh, rancorous or severe? - No - they tell you, that there are reports in circulation against Sir Paul, which they are sorry are too well founded, &c.   This is a term of concern, are of compassion, of condolence; and when they had, that no situation on earth can be so debasing and miserable as that of a man expelled and degraded from the society he lived in, it was surely a just observation, and warrantable, from the conduct of the Settlement of Madras, who if they conceived, that any member of their small community, had polluted or contaminated that Society, were entitled to desire he should withdraw himself, until he cleared up his character, and proved that the report against him were groundless - such suspension, he said, I was only similar to a temporary arrest by a Civil or Military Court.   After going, with a great strength of argument, into a demonstration, that the action ought to have been brought in the name of Sir Paul and his family, he inferred, that as the most libellous matter of the publication went against Lady Jodrell and Miss Cummings, who had nothing to do with the present cause, he would only advert to the defamation used against Sir P. Jodrell, and here the only criminal facts he is charged with, are, his having a bastard, his committing adultery, and his intent of defrauding - as to his having a bastard, that is not punishable at common Law, though it is in the Spiritual Court, unless it be proved that the child was likely to become a burthen to the Parish; and in regard of his committing adultery, the plaint does not say with whom or where; and it is equally deficient in point of precision with respect to the will, as there is no mention what the estate was, or who the devisor, &c. To show the certainty and precision requisite in all plaints, the learned Gentleman adduced to remarkable cases: one, where an action was brought against a man for libellous words, by telling another, "that he had cleft his cook's head in such a manner as to make an half hang upon each shoulder," and the defendant was acquitted on account of its not being expressly avered in the plaint, that he had murdered him.   The other, when a person said, "you are as arrant a thief as any in England" and the plaint did not aver that there was a thief in England.   However had the necessary precision existed, the two first charges are punishable in the Spiritual Courts, and the third is not punishable any where, though ever so true, namely a bare intent to defraud.   After discussing these points with infinite ingenuity, and no small display of sound judgement and ability, as well as learning, Mr. Burroughs contended that the charges in the libel were not actionable in a Court of Law, unless special damages be laid; and therefore prayed that the Plaintiff might be non-suited.

He then proceeded to answer the challenge held forth by the Advocate General, concerning the proofs which might have been procured from Madras.   As to the viva voce   testimony, the learned gentleman knew, as well as he did, that Madras was out of the Jurisdiction of this Court.   As to written evidence, he was, however, happy to have it in his power to gratify him.   He had within a very few hours received from Madras, a Notarial copy of a Paper, which he was aware he could not by the strict rules of Law adduced in evidence, but would read to the Court, if they desired it. ( Here, to the utter astonishment of a very crowded Court, Mr. Burroughs took a Paper out of his pocket, with a large seal to it, and paused for some moments, as if unwilling to interrupt the general surprise. ) He then lamented the hardship of his Client's case, who was precluded from adducing any kind of proof of the truth of the fact stated in the alledged libel; he wondered why Sir P. Jodrell should travel so far to prosecute a poor Printer, who, without malice or design, either express or implied (as appeared by the evidence of the Reverend   Mr. Clarke), had copied these articles, merely as pieces of intelligence; one of attack the broachers of this scandal, who were, strictly speaking, his neighbours : but it seems defiance was loudly held forth there, and no certain information had arrived of any intention to prosecute on the part of the Plaintiff; and, if he recovered damages, the learned gentleman cautioned all Editors how they inserted articles of intelligence, as he should not be surprized to hear of a gentleman, convict at Port Jackson in New Holland, writing to an Attorney of this Court to prosecute a libel, in case of the insertion of an article copied from some London Paper or Magazine, purporting that he had been whipt or pilloried,   - and he therefore contended that no action could lie in the present case, unless special damages were laid, because Sir Paul was not an Inhabitant or native of Bengal, never resident, and without connexions or property in it.

He then concluded with asserting that Sir Paul Jodrell, by bringing an Action for a Libel before this Court, was himself the grossest of libellers - he libelled the Government of Madras - he libelled the Courts - he libelled the whole community there, by resorting to this Judicature, and thereby implying that they were either not competent or too corrupt to administer Impartial Justice.

The Trial lasted five days, and after a display of unusual ability on both sides, the Court determined, "That the Publication appeared to be a false, scandalous, and malicious libel, and that after considering the Defendant's circumstances, and all that had been urged, both in mitigation and aggravation, they were unanimously of opinion, that judgement should be for the Plaintiff, and damages to the amount of Sicca Rupees Two thousand.

Counsel for the Plaintiff, the Advocate General, Mr. Ledlie and Mr. Shaw, Attorney Mr. Peat, - for the Defendants, Mr. Burroughs and Mr. Strettel, Attorney Mr. Hickey.

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After a Trial which continued five days, by the Supreme Court of Judicature, of the cause between Sir Paul Jodrell and the Editors of the Asiatic Mirror, for Printing and Publishing a defamatory Libel, we think it a duty incumbent on us to express our concern for having, even in a slight manner, introduced in one of our Papers, some paragraphs which might lead our Readers to believe, that the late reports injurious to Sir Paul Jodrell were founded in truth: and we trust this apology will be accepted, when we inform our Readers, that from the proceedings in the late Trial, it is clear, if facts alluded to by such reports ever existed, they might have been justified and might have been proved, notwithstanding the distance of place where it was said proofs were to be had. These and other circumstances which have transpired during the investigation, and the solemn determination of the highest tribunal in India, will we doubt not be deemed sufficient to induce us to apologize for having intimated our belief of reports which that Court hath expressly adjudged to be "False, Scandalous, and Malicious."

Source: India Gazette (Calcutta, India), 15 March 1790, issue 487

It being our wish, at all times, to avert prejudice as much as to avoid partiality, we think it incumbent on us, after mentioning our surprise at the production of a paper under a notarial seal, at the late trial for defamation, to inform our readers, that a copy of a paper, of a contrary import, signed by the same parties, with the addition of two other names, was in the hands of several gentlemen in Court, ready to have been offered to the Court, if the first had been received.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School