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Decisions of the Superior Courts of New South Wales, 1788-1899

Lewin v. Thompson [1799] NSWKR 8; [1799] NSWSupC 8

defamation - adultery - criminal conversation - damages for defamation - married women's legal rights

Court of Civil Jurisdiction

Dore J.A., 4 and 30 November 1799, 3 February 1800

Source: Court of Civil Jurisdiction Proceedings, 1788-1814, State Records N.S.W 2/8150[1] 

[69] Witness called over and severally ordered out of court.

The Rev. Mr Johnson solicited the court to permit him to be the advocate of the plaintiff, which being complied with, Mr Johnson read a written paper stating the causes of action and the circumstances attending it.

Vide paper amend marked (no. 1A).

The original deposition of Maria otherwise Mariner Lewin read, after which the defendant called Elizabeth Grono who being duly sworn was examined by the defendant as follows.

Answer. Whilst we were off to the north island about 11 or 12 at night, [70] I saw Mrs Lewin standing at Mr Michan's cabin door whilst a strange ship was in sight supposed to be an enemy. I pushed Mrs Lewin and proceeded to the door. Mrs Lewin checked me for so doing. I observed to Mrs Lewin that we were on board a ship and did not know what people might say as it was an unreasonable hour of the night.

Question. Did not Mrs Lewin complain to you of not liking Mr Lewin as he was impotent?

Answer. Some little private conversation took place by which I understood Mr Lewin was deficient.

Question. Did you not say to Mrs Raven that you saw Mrs Lewin leaning on ... in his bed?

Answer. No.

Question by the plaintiff through the Rev. Mr Johnson. Was not Mrs Lewin very civil to you on the passage?

Answer. Mutual services were rendered.

Question. Has not Mrs Lewin accused you of raising reports injurious to her reputation?

Answer. Yes she has, and has accused me very wrongfully.

Question. Did you ever see or know anything improper in Mrs Lewin's conduct?

Answer. No.

Grono called by the defendant and duly sworn. Question by the defendant. Did you ever see any familiarity between Mrs Lewis and Mr Michan?

Answer. Nothing criminal.

Question. Do you ever recollect Mrs Lewin coming round from her own cabin and going into Mr Michan in the middle watch?

Answer. No.

Question. Do you ever recollect that the bulk head between Mrs Lewin's cabin and Captain Callinder being broke through and the locker cut.

Answer. You have told me so yourself, but I have never saw it.

Question. Do you recollect my calling you in to nail up the locker where Mr Hobby's tobacco stood?

Answer. I was not called in for that purpose.

Question by the plaintiff through the Rev. Mr Johnson. Did you ever see anything improper in Mrs Lewin's conduct?

Answer. Never.

[71] Rachel Moore, called by the defendant, and being duly sworn. Question. Have not Mr Michan and Mrs Lewin been at your house several times drinking tea?

Answer. Yes.

Question. Did you ever see any familiarity between them at your house?

Answer. Never.

Question. Did Mr Michan buy two gown pieces for Mrs Lewin?

Answer. Mr Michan paid me for two gown pieces. Mrs Lewin had them afterwards.

Question by the plaintiff (through Mr Johnson). Did you ever see anything in Mrs Lewin's conduct improper?

Answer. Never.

            Here the defendant called on the Judge Advocate to produce three affidavits left in his possession, to the reading of which the Rev. Mr Johnson objected on the ground of their being that kind of evidence not admissible in law (vide paper annexed marked no. 1 (B)).

The court cleared on the question.

Being re-opened the court signified to Mr Johnson that his objection was over-ruled whereupon the affidavits were read, vide papers annexed.

No. 2 A, no. 2 B, no. 2 C

Lieutenant Thomas Hobby of the New South Wales Corps being called by the defendant and duly sworn. Question. Do you recollect at Rio de Janeiro that Mr Michan had a quarrel with Mrs Lewin one evening about him going on shore with Captain Callinder?

Answer. Yes, I think I do.

Question. Do you recollect the words that passed between them?

Answer. No.

Question. Do you recollect Mr Michan upbraiding her with being on shore with Captain Callinder at a great many of the bawdy houses in Rio de Janeiro ?

Answer. I did not hear Mr Michan do so, but I know it was a current report about the ship.

[72] Question. Did you hear any improper conversation between Captain Callinder and Mrs Lewin?

Answer. I have heard Captain Callinder speak to her from out of his bed whilst she was in hers.

Question by the plaintiff through Mr Johnson. Did you ever see any thing improper in Mrs Lewin's conduct?

Answer. I never saw any thing criminal, but have often thought her conduct very improper as a married woman.

Question. Did you ever see her drunk or do you think she is fond of liquor?

Answer. I never saw her drunk

Question. Do you know who raised reports injurious to her reputation?

Answer. I remember Mrs Raven calling me into the cabin and saying she had seen Mrs Lewin go out of Captain Callinder's cabin in a bed gown at a very early hour, at day break in the morning.

Question. Did not the defendant express himself to this effect when called in by Mrs Raven?

Answer. Yes.

The defendant declared that he had no more witnesses to call, whereupon the Rev. Mr Johnson proceeded to call his evidence on behalf of the plaintiff and Mr Golder, being duly sworn was interrogated as follows. Question. Do you recollect passing Mr Raven's house in the month of August last in company with Mr Leith, Michan, Rhodes and Aitken?

Answer. Yes.

Question. Did not Mr Leith go up to the house and return again to you and the others?

Answer. Yes.

Question. Was the door open or shut?

Answer. Open.

Question. Do you conceive under all the circumstances that it was practicable for Mrs Lewin and Mr Michan to have had any conversation together at that time?

Answer. I think it impossible.

Question. What do you think of Archibald Jackson now on board the Reliance ?

Answer. A man of good character.

Question by the defendant. Do you recollect whether Mr Leith and Mr Michan went into Captain Raven's house together?

Answer. Yes they did.

[73] Question. Do you recollect whether Mr Michan came down the steps after Mr Leith or down the same?

Answer. Immediately behind Mr Leith at the front door.

            Mr Hugh Michan being duly sworn. Question by the plaintiff through Mr Johnson. Have you not heard the defendant say he has seen Mrs Lewin come out of Captain Callindar's cabin half naked?

Answer. Frequently.

Question. And at another time that she was sitting on Captain Callindar's bed and drawing on her stockings?

Answer. I have heard him say so frequently.

Question. When did he say so?

Answer. On board the ship first, afterwards in Captain Raven's house when he added he would prove her a whore before a dozen witnesses.

Question. What is your opinion of Captain Callindar as a gentleman and a man of honor?

Answer. I have always seen him a remarkably sober quiet man, and in appearance much of a gentleman.

Question. Pray, have you not heard that William Frazier was once threatened to be flogged if he did not say such and such things of Mrs Lewin?

Answer. He told me so himself, that he was threatened by George Thompson and Mrs Raven and was in fear of his life.

Question. What is your opinion of Dusky (a nick name) and the other?

Answer. That Dusky is a great rascal (a prisoner) and the other is so ignorant as not to understand the nature of an oath.

Question. Pray do you not think those three lads were under the influence of Mrs Raven?

Answer. They certainly were.

Question by the court. Was Frazier dependent on Captain Raven in his circumstances?

Answer. He was.

Elizabeth Bean called, but did not appear.

Archibald Jackson, duly sworn. Question by the plaintiff through Mr Johnson. Have you not heard the defendant abuse Mrs Lewin?

Answer. Yes I have.

[74] Question. Were you not once beat and threatened to be flogged for abusing Mrs Lewin?

Answer. I was.

Question. Have you not heard the defendant say Mrs Lewin was a whore to Captain Callinder?

Answer. I have.

Question. Have not some means been used to persuade you to give evidence against Mrs Lewin contrary to your knowledge and conscience?

Answer. No.

Question. What do you conceive was the reason of you being confined for some time in the gaol?

Answer. On account of my being subpoenaed for Mrs Lewin. I can give no other reason, but I could do the defendant no good.

Question. What is your opinion and what do you conceive to be the general opinion of the ship as to Mrs Lewin?

Answer. I never saw any thing improper in her conduct.

Question. What do you conceive of the reports now spread?

Answer. Matter of spite.

            Thomas Jones, duly sworn. Question by the plaintiff through Mr Johnson. What do you conceive of the defendant's behaviour to Mrs Lewin at the time she was in Captain Raven's house?

Answer. He used a great deal of gross language.

Question. Did you ever see Mr Michan take any improper liberties with her?

Answer. No.

Robert Courter, being duly sworn. Question by the plaintiff through Mr Johnson. Have you not frequently heard the defendant abuse Mrs Lewin?

Answer. I have.

Question. Do you not recollect the defendant saying he saw Mr Michan and Mrs Lewin criminally connected on the steps of Captain Raven's door?

Answer. No, I cannot say I have.

Question. Did not Mrs Lewin tell you to desire Mr Michan to refrain from coming to Captain Raven's house?

Answer. Yes.

Question. Did you acquaint Mr Michan accordingly?

Answer. Yes, I did.

Question. What followed?

Answer. I never saw him there afterwards.

Question. Did not Mr Raven seem angry with Mrs Lewin for forbidding Mr Michan?

[75] Answer. I cannot say.

Question. What is your opinion of the defendant? Did he not once break your arm?

Answer. Yes and was threatened to be flogged for it.

Question. He was saved from punishment by the intercession of Mrs Raven?

Answer. He was.

Question. What was Mrs Lewin's conduct in Captain Ravens house?

Answer. I never saw any harm of her from the beginning of the voyage to the end.

William Bennett duly sworn. Question by the plaintiff through Mr Johnson. What is your opinion of Mrs Lewin's conduct on board the Buffalo ?

Answer. I never saw anything but the strictest propriety.

Question. You never saw any thing in her conduct unbecoming a modest woman?

Answer. Never.

Question. Did you not once see Captain Raven beat the defendant and turn him out of the cabin on Mrs Lewin's account?

Answer. I heard of it.

Question. Speak of the treatment Mrs Lewin met with on board.

Answer. A good deal of neglect on the part of Captain Raven.

            Elizabeth Bean duly sworn. Question by the plaintiff through Mr Johnson. Did you not attend on Mr Lewin on board the Buffalo ?

Answer. Yes.

Question. During that time did you ever see any thing imprudent or unbecoming in her conduct?

Answer. Never.

Question. Did you ever see Mrs Lewin give, or Captain Callindar or Mr Michan take, any improper liberties?

Answer. Never.

Question. Have you ever heard the defendant threaten, or abuse Mrs Lewin?

Answer. I have heard him threaten, and speak abusive language to her.

Question. Was not Mrs Lewin always attentive to Mrs Raven?

Answer. Yes.

Question. You generally used to shut the door after you left Mrs Lewin in her cabin?

Answer. Yes.

            Francis wheeler, duly sworn. Question by the plaintiff through Mr Johnson. Relate to the court what you have heard respecting a locket of hair and of Mrs Lewin being a kitchen maid and a kept mistress.

[76] Answer. Mr Grono said he supposed she had been something of that sort.

Question. What do you think of Mrs Lewin's conduct on board the ship?

Answer. Very prudent always. She was not well treated by Mrs Raven.

The Provost Marshal reported that Mrs Rachel Moore expressed herself sorry she had forgot in her evidence to inform the court that Mr Michan had been paid for the gown pieces by Mrs Lewin.

The evidence on both sides being closed, the Rev. Mr Johnson again addressed the court from a written paper annexed and marked No 1 (C).

The court cleared to deliberate and being re-opened found a verdict for the plaintiff, ¿30 damages and costs of suit.

Note

[1] Maria Lewin was the wife of John Lewin, a prominent artist. When she sued for defamation over sexual allegations against her, she did so jointly with her husband. In his absence, Rev. Johnson ran the case for her. Even though early colonial women like Mary Reibey were often independent commercial actors, the common law's restrictions on wives required them to take a more subservient role in court.

See also Court of Civil Jurisdiction Proceedings, 1788-1814, State Records N.S.W., 2/8147, p. 257; Bruce Kercher, Debt, Seduction and Other Disasters: The Birth of Civil Law in New South Wales (1996) 74, 82, 99-100, 120.

Published by the Division of Law, Macquarie University