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

Spencer v Jeffery [1826] NSWSupC 28

slander, reputation of woman - passenger on ship

Supreme Court of New South Wales

 

Stephen A.C.J.,[1 ] 3 May 1826

Source: Australian, 6 May 1826

 

ACTION FOR DEFAMATION.

Spencer v. Jeffery.[2 ]

 

The acting Chief Justice took his seat on the bench this morning at about half past ten.  Gregory Blaxland and Alexander Berry, Esqs. were appointed to assess the cause; the damages of which were laid at £1000.

Mr. Wentworth opened the case.  The present was an action for words spoken by defendant, who was master of the ship Toward Castle,[3 ] with intent to injure the reputation of plaintiff, a lady who had come passenger from England in the above ship, and in the capacity of governess to the children of a Mrs. Campbell, in whose presence, as well as that of a Mr. Simmons, the third officer of defendant's ship, the alleged slanderous words were spoken.  the general issue had been pleaded, and two questions now remained for consideration; first, if the words had been in reality uttered by defendant; and secondly, if so, were they uttered with intent to injure.

Dr. Wardell followed at considerable length.  He took a review of different circumstances connected with the pending action; from plaintiffs' leaving England, during her passage to this country, and concluded by a recital of defendant's slanderous expressions, which were comprised in seven counts.

Here the clerk of the court moved that the depositions might be taken down in writing, as the damages were laid at £1,000.  This ceremony was dispensed with.

Mrs. Campbell examined - Plaintiff is employed by Mrs. C. as governess. - Mrs. C. was in London in April 1825; was anxious to engage a governess for her children.  Miss Spencer was in the latter capacity, at that time, residing with Mrs. Powell, the lady of the bishop of Bath and Wells.  Mrs. Campbell visited the latter lady, who spoke in the highest terms of plaintiff's character and acquirements.  Miss Spencer had been but a short time with Mrs. Powell, and was in very bad health.  The Bishop's residence was situated in a bleak part of the country, and did not at all agree with plaintiff.  Her ill health was the only cause of wishing to leave Mrs. Powell. Plaintiff had lived with Mrs. Colonel Macgregor for 5 years, who requested her sister, Mrs. Elliard, upon Colonel Macgregor and herself embarking for India, to patronise Miss Spencer as she deserved.  Mrs. Campbell wrote to Mrs. Elliard, who was then at Newark, on the subject of plaintiff, received an answer by return of post highly recommendatory of Miss S.  [Here the letter alluded to was handed to the clerk of the court for the purpose of being read; but was opposed by the defendant's solicitor (Mr Norton), who urged that it was possible plaintiff herself may have indited and forwarded it through the post.  Counsel for the plaintiff denied the credibility of such a trick, as the latter could scarcely have been acquainted with the circumstance of witness writing to Mrs. E.  Objection was overruled.]  Mrs. Campbell was anxious to engage plaintiff from the flattering terms in first which Mrs. Elliard had spoken of her.  The years' salary was fixed at £50, and paid in advance; £60 plaintiff was to receive the second year, if she preferred continuing with witness.  Miss S. received a higher salary from Mrs. Powell; but thought, with witness, that a change of climate would prove favorable to her health.  Witness embarked with Miss S. in the ship Toward Castle; cannot tell the precise day.  Remembers arriving at Madeira.  Captain Jeffery invited Mrs. C. on shore to the house of a Mr. Page, where others of the passengers were, Mrs. C. hesitated for some time; told the Captain she would consider on it; looked upon Miss S. as her second self, and wished her to be treated with equal respect.  Defendant objected to Miss S. going ashore, and implied that such respect was not usually shewn towards a governess in England.  Mrs. Campbell remonstrated, and added that Miss S. was of a very respectable family; her father having been a medical man in England, and that she (Mrs. C.) would not feel pleasant in going on shore herself, and leaving her domestics behind; Captain Jeffery replied, the latter were quite safe on board.  A few days after this conversation, defendant asked to speak with Mrs. Campbell, it was on board ship - he said "Mrs. Campbell, I suppose you are not aware that Miss Spenser and your maid, are in the habit of going on deck by night, and remaining there to one or two o'clock in the morning,"  witness expressed here unconsciousness of this and added her opinion of its untruth.  Mrs. C. had been unwell the previous night, and retired to rest before nine o'clock, to which hour nearly, plaintiff and the maid sat up in her (Mrs. C's) cabin; plaintiff complained of not been able to sleep, and was recommended by Mrs. C. to take a turn on the deck, but the latter was not aware of Miss S. having sat up so late, and would enquire the reason of it from her.  Captain J. said "people, females more especially, should be particularly cautious in their conduct on board of a ship," and cited an instance of his having more than once reproved a young lady then on board[,] a Miss Worsley for distorting her features into a laugh, - (laughing.)  Mrs. Campbell mentioned the conversation to Miss Spenser, the latter acknowledged having been on deck rather late, could not sleep below, the Doctor advised sitting up - Mrs. Campbell at first opposed the idea of plaintiff writing an explanatory letter to defendant; said she thought Mr. Jeffrey was not a man of over-refined feelings; however, Miss S did write a note of the foregoing nature, and it was delivered next morning to Captain J. Miss S. and another passenger, Mr. Henderson, went on shore of a Sunday to church, were met in the town by Captain and Mrs. Jeffery, who shook hands cordially with Miss S.  The cabins of Mrs. C. and her governess had an intercommunication - the plan shewn to witness is a tolerably correct one - could see distinctly into plaintiff's cabin, the inner door was invariably kept open.  After leaving Madeira Miss S. became much debilitated, and nervous from the heat - witness gave up her own which was an after cabin, for the better accommodation of plaintiff.  Mrs. C. was startled one night at the entrance of Hague, a female servant who said that Miss Spenser was then in a fainting fit.  Mr. Simmons assisted in placing her on a couch, and almost immediately after retired.  Mrs. C. thought this took place about the 13th September.  The Doctor attended next morning, and said the subject of Miss S. fainting, and Simmons flying so promptly to her succour, had been very indelicately discussed at breakfast that morning.  Shortly after this Mrs. C. received the nauseous cup of oil, at the hands of Captain J.  Miss S. continued unwell during the passage to the Cape, where they arrived in the early part of November, the latter was in the habit of going on deck occasionally, but invariably accompanied by a female servant.  About a week or so previous to arriving at Cape of Good Hope, Miss S. mentioned to Mrs. C. the circumstance of Simmons having received a reprimand from the Captain.  Witness from ill-health had no opportunity of coming to an explanation with defendant.  [Solicitor for the latter thought witness was refreshing her memory from notes; denied.]  Defendant came in to Mrs. C's. cabin after arrival at the Cape, expressed his regret that some of that lady's baggage had been wet, and damaged in the hold; Mrs. C said she wished to speak with defendant, but as his mind might be occupied with other matters, would defer it to another opportunity; Captain Jeffery said he would be happy to hear any thing the lady had to say; Mrs. C. replied, I understand, a short time ago, that you said to Mr. Simmons, "so sir, notwithstanding my prohibition to the contrary, you still persist in going to Miss Spenser's cabin, and Mrs. Jefferey knows it;" did Mrs. J. see him then?

Captain - Mrs. Campbell I did say so, but it's a mistake, about Mrs. J. "knowing" it to be true, she only heard of it.  Mrs. C. implied for her part she would ever be very delicate in impeaching the female character, without incontrovertible proofs, and asked defendant to give up his authority; defendant said it was a very delicate subject, and he did not know well how to give it up.  Mrs. C. urged the necessity of sifting defendant's allegations to the bottom; she had once before given up her authority on a more trifling matter, and it was but just, and witness felt bound to insist upon getting his (defendant's) now.  Captain J. at length consented verbally, but left the cabin bodily.  Some days elapsed, but no authorities were forth-coming.  Another conversation was however brought about, when defendant came to Mrs. C's cabin.

The lady - "Well Captain Jeffery, are you prepared to give up an authority for your reports?

The Captain - Why Mrs. Campbell, my steward has told me repeatedly about your governess. -  (Enter steward with a countenance black and shining as the lacquered part of a tea tray.)

The Captain - Steward, you have seen Mr. Simmons go into Miss Spencer's cabin repeatedly at night.

Sambo (or steward rather) e---e--- (hesitatingly.)

Captain - Why, Sir, have you not told me so twenty times (more or less.)

Sambo - Iss, Sir.

The lady - Recollect steward what you say; it's impossible such a circumstance could take place with-out my knowledge.

Sambo - Me hail Massa Simmons bery [sic] often when he passee me cot."  Mrs. C. still assured the Captain that no intercourse of an improper nature could have taken place without her knowledge.  Mr. Simmons had not been in the cabin but twice.  The first time he appeared was during a terrific thunder storm, and then he did not appear solus (like Jupiter descending to his Alemena, as sombre Sambo would seem to insinuate) but accompanied by the chief officer, Mr. James, to see that all below was secure: wind tight, and water tight.  The second time was when Miss S. was in a fainting fit, and Hague had escorted him down.  It was mentioned to the Captain that his meddling steward had been heard talking of this specimen of gallantry on the part of Mr. Simmons in a very irreverent manner.  Steward did not deny that he had.  Mrs. C. thought that if any blame was attachable, it was to herself, and should, had such an unforeseen circumstance occurred again, have called in the assistance of any officer who might be on deck.  She also expressed her conviction to defendant that Miss S. had not at any time acted contrary to propriety.  [Here occurred another conversation.]

Captain J. - "Propriety! Mrs. Campbell? Oh then I suppose you are not aware she is in the habit of going into the mate's cabin, and also your servant.

Mrs. C. - sir, I am not aware of it, nor do I believe it now.  I can safely take upon me to affirm that Miss S. has not been there, nor do I suppose the servant has.

Captain --- As for the servant, I have seen her myself."  Mrs. C. recollected that the servant had been once sent there for a nautical book.  Defendant said he had most undoubted authority for his allegation, and made an exit from the cabin.  Mrs. C. got on deck, insisting upon defendant bringing his authority.  The latter recommended patience for a day or two, until all parties concerned might be brought face to face.  No other passengers were on shore but Captains Smith, and Mills, and Mr. Henderson.  The day following defendant entered witness's cabin again and said, Mrs. Campbell, I am now ready to give up my authorities.  I give you up Mr. Scrivener, a passenger, and Mr. James, (who had been chief officer until the ship's arrival at the Cape, subsequently to which he was obliged to give up through ill health, but was still treated kindly by the Captain.)  Mrs. C. asked if Mr. Scrivener was not then Mrs. Jeffery's authority.  Defendant replied, not exactly, but through that channel steward said, in the presence of Mrs. C. that Simmons had not been seen going after prohibition, into plaintiff's cabin.  Mr. Scrivener, a day or two after, had an interview with Mrs. C. He denied being the propagator of scandal against Miss S.; that the steward must have been the prolific source of all.

Captain --- "What Mrs. Campbell did, I tell you that Mr. Scrivener was my authority?

The lady --- Did you not, Sir?

Captain --- I did not.  [A fresh dispute about the witness reading from her notes; --- no notes to be found.  Litigants overruled.]

The lady --- Did you not say in my cabin I give you up my authorities, Messrs. Scrivener and James?

Captain --- Not exactly, but through that channel.  [Something about putting words in his mouth.]

The lady --- Will you dare Sir to tell me an untruth to my face?

Captain --- Madam, why did you send for me?

Mr. Scrivener - I am the person who sent for you, and I wish to assure Mrs. C. that I am not the channel of reports against her governess.

Captain --- I never said you were.  Witness had no further conversation with the defendant, except at the Cape, through the medium of Colonel Blake, to whom defendant had agreed to apologise but afterwards, on mature deliberation, retracted.  Mrs. C. does not think defendant's expressions, with regard to Miss S. admitted of ambiguity; they plainly implied that a not only imprudent, but an improper intercourse had passed between Mr. Simmons and Miss Spencer.

His Honor enquired---Would Mrs. C. have been induced to think, from defendant's expressions, that the alleged intimacy was a criminal or imprudent one.  Witness could not but suppose the former.  She would have left Miss S. at the Cape had she thought her in any degree capable of such a breach of female delicacy.  Captain Wilson spoke of the rumors against Miss Spencer's reputation at Hobart Town.  The topic was discussed in a very indelicate manner.

Cross-examined - When witness called on Mrs. Powell, in England, Miss Spencer was spoken of in the highest terms of praise, and was further referred to Mrs. Elliard.  Witness never gave credit to the slander.  Simmons could never have gone into plaintiff's cabin, without being seen.  About the time of passing the equinoctial the third mate did come down to assist in constructing a netting to contain some birds.  He was in the habit of enquiring, frequently, about the ladies health.  Miss S. continued unwell at the Cape.  She went to church one day at Cape Town, accompanied by Mr. Henderson, and returned on board after church.  Mrs. C. was unable, in consequence of a severe fall, to accompany plaintiff on shore.  The latter lady went on shore again, that day, with Mrs. C's. servant, and probably with Mr. Simmons.  They did not remain from the ship so late as nine o'clock, that night; they returned between 7 and 8 o'clock.  Plaintiff went to a garden and procured fruit.  Witness did advise plaintiff not to address Mr. Jeffery in writing; but plaintiff did write---the latter produced is the one so written.  [Here an objection was made to reading the letter and carried].  Miss Spencer remained in Mrs. C's cabin the night she was said to have stopped up so late.  Mrs. C. was unwell; and plaintiff, after putting her hair in papers, "with curls on curls, she builds her head before, and mounts it with a formidable tower, &c." - went on deck to enjoy the invigorating sea breeze.  A gentleman, who was a passenger on board the ship, paid some respectful attention to Miss Spencer.  Witness believes it was a moon-light night when the latter lady went on deck.  [Mr. Norton quoting from Byron - "The devil's in the moon for mischief."]  After Captain Jeffrey received the note, he seemed quite cordial with Miss S.  It was during a thunder storm that the first and third mates came down into plaintiff's and witness's cabins.  Mr. James was the first to make his entre - Simmons followed soon after---should suppose it was by the Captain's desire, that both officers quitted the deck together.  Captain J. was always on the alert when it blew hard.  Witness very seldom went on deck from Madeira.  After crossing the line Miss S. went occasionally.  Mrs. C. was of opinion the maid invariably accompanied and remained with her ; if she did not remain close to her, they could have a fair peep at each other on the poop---the poop is small.  Mrs. C. never saw any correspondence between Mr. Simmons and plaintiff.  The ladies had more than once sent a portion of their dinners to the mates, who had only salt provisions to eat.  Witness does not know that defendant disseminated the calumny regarding Miss S. to more than herself.

Re-examined---When it was sultry weather Mrs. C. gave up her after cabin to Miss S.; the latter had an affection of the lungs.  Her salary of £50, commenced in June 1825, and was paid in advance.   An increase to £60 to be made the following year.  Here the examination of this lady closed - it occupied between two and three hours.

Mr. William Simmons was next examined----He admitted that a part of the proceedings had been overhead by him, from the adjoining room; and that upon his asking how far they had got, the first reply was, as far as Madeira; and next, they had doubled the Cape---the examination then continued.  Witness is third officer of the vessel commanded by defendant.  On the morning following the oft repeated fainting scene in Miss Spencer's cabin, a dialogue took place between witness and the Captain, nearly (according to witness) in the following words.

Captain - "I understand, Sir, you were last night in Miss Spencer's cabin.

Mr. Simmons - I was.  I was called by the female servant to assist in lifting Miss S. who lay on the floor in a fainting fit, upon a couch; with the assistance of Mrs. Campbell we placed her on a sofa, and I immediately after went on deck.

Captain - if I know, Sir, that you leave the deck again, when on your watch, I will send you before the mast.

Simmons - It was by permission of the chief officer I went below."

Here the dialogue dropped until a short time before arriving at the Cape, when it was again resumed.

Captain - "So, Sir, I understand you have been in the constant habit of going into Miss Spencer's cabin at night, though I have so frequently forbid you.

Simmons---It is false.

Captain---False.  I have it from undoubted authority, and Mrs. Jeffery knows it.

Simmons---I repeat it is false."---(Exeunt severally).

The next colloquy occurs a few days after.  Scene - A ship lying in Table Bay.

The third officer lustily denying a charge of having supplied a seaman with rum.

Captain (hastily) - "And, Sir, I also understand Miss Spenser is in the habit of going into your cabin frequently.

Mr. Simmons - It is false.  I understand your black steward has been propagating malicious reports respecting Miss Spenser, and I must insist upon putting him to his oath.

Captain---Are you aware that I can administer an oath on board?

Simmons (much agitated)  I would prefer having it done on shore, as the idea of having to swear before a magistrate might make a deeper impression than doing so before you."

Here the defendant, observing his agitation, said he could not believe a syllable of the scandal.[4 ]  Defendant said, at the first conversation, that if Mr. S. possessed any delicacy, he would not have gone down as alleged.  Witness considered that Mrs. C.'s presence was a sufficient safeguard to his chastity - (a laugh).

Cross-examined. - Does think, from his own conduct, Captain J. had reason to suspect him (a laugh).  Defendant believed that rum had been given to a seaman.  Witness clearly proved the contrary.  Visited the ladies frequently before prohibition; but never remained in their cabin after 8 o'clock.  An enquiry was made by an officer and doctor of the ship Owen Glendower, at Cape Town, into the scandal.  Mr. Scrivener and Mr. James denied any participation in spreading the calumnies.  Witness did not at any time call Miss Spenser "an immaculate virgin."

Elizabeth Hague, the fille de chambre, was next called; she appeared in a very sickly state, and proved plaintiff's illness for four or five weeks after leaving Madeira.  Thought the steward a universal backbiter; never heard defendant prejudice the plaintiff.

Mr. Mills had once heard Simmons's assertions to plaintiff spoken of by defendant; is furnished with a pretty good memory, was requested to attend the Cape investigation.

Mr. Thomas Raine did understand from defendant, who spoke in general terms, that disagreements had taken place during the passage; thought if the sixtieth part of plaintiff's levities were true, she had better kept out of Court; did not hear of the letter from Captain J. in particular; from the reports which he had heard, would not wish his wife to know plaintiff.  Defendant did not know of witness conferring with Mr. Spenser.  Mr. David Ramsay's evidence elicited nothing further.

Here the case for the plaintiff closed.  A world of disputation followed amongst the advocates.[5 ]  Comins' digest, and other Law authorities were appealed to, and in the end a striking anomaly was produced; it was that words may be actionable at one time, and not at another, tho' applied to the same individual - for instance, where a person holding a place of profit becomes deteriorated in reputation or otherwise, such scandal becomes actionable, though it might not have been had the same individual not held such place or calling.  Mr. Norton spoke for the defendant, and before His Honor could commence his charge to the assessors, the sun had taken a parting peep through the windows of the Court-room.

The learned Judge commented on the various bearings of the case.  It comprised several counts.  In the first, plaintiff is spoken of in her capacity of governess, when defendant acquaints Mrs. Campbell that Miss Spencer, her governess, received visits from his third mate, which, if true, could not fail to prejudice her very materially in Mrs. Campbell's estimation.  The young lady had left England under Mrs. Campbell's protection, with an unsullied reputation - in a capacity, the just discharge of which must require the nicest feelings of honor and morality.  Her's would be the task of imparting improving and moral instruction - of moulding and directing the youthful mind in the paths of strict propriety.  She undertakes the voyage then with a constitution impaired by sickness, and entitled to more than ordinary care - to the care of Mrs. Campbell, who considered, and wished her to be considered, as forming a part of her own family.  Holding so important a situation then as governess to the children of Mrs. Campbell, it would have been a praiseworthy action to have acquainted the latter lady with any levity observable in the conduct of her governess immediately upon its occurring, but what does the defendant? - He does not adopt this latter course - but he keeps Mrs. Campbell in total ignorance of what it was affirmed he had heard from two of the passengers, until the ship's arrival at Madeira.  Those gentlemen subsequently deny having taken part in the propagation of reports prejudicial to Miss Spencer, and then defendant denies his having ever thrown the charge on them, notwithstanding the affirmation of Mrs. Campbell to the contrary.  The black steward is brought forward - he hesitates on being questioned, and at length coincides and affirms that an intercourse had taken place between plaintiff and Mr. Simmons, but his testimony is not supported.  It even goes to prove, that with the captain's prohibition, the third officer's visits to Miss Spencer ceased.  On the defendant then the whole authorship of the scandal is thrown, as Mr. Scrivener and Mr. James denied their participation in its origin.  It is not denied that the lady was ill during a principal part of the passage.  Was it right then that defendant should tell Mrs. Campbell, his reports rested on undoubted authority, when his attempts to prove them were fruiless?  [sic]  With regard to the conduct of Mr. Simmons at the Cape, when defendant charged him with improper visiting, the former became indignant and agitated; and what does defendant say?  that he never believed it.  Why then, if so, did he not go directly to Mrs. Campbell and express his conviction, that what the black steward had said was, according to his belief, totally untrue - that the man was not to be believed?

A woman's feelings, the feelings of a tender female, are in general of too sensitive a nature to be lightly sported wi[t]h.  In this country more particularly, the calumnies circulated against plaintiff, could admit of but one construction, and that construction could not fail to sink her in the estimation of the world. - to a civilized female, in any part of the globe, a fair reputation is an inestimable possession.  It is a jewel, whose lustre should not be sullied by the blighting breath of calumny, nor parted with on trifling terms.  His Honor would recommend the assessors to be guided by the evidence which they had heard that day, and if they were of his opinion that defendant's charges were without foundation, they would find a verdict for the plaintiff; if on the contrary, for the defendant - proportioning the amount of damages to the injury, which plaintiff's reputation must have incurred from them.  After consulting for about a quarter of an hour, the assessors returned a verdict for the plaintiff, damages Fifty Pounds.

Plaintiff's Counsel moved that the verdict be upon the fourth count.  Granted.[6 ]

 

Notes

[1 ] Forbes C.J. was on sick leave from 23 February 1826 until 29 May 1826; John Stephen was Acting Chief Justice in this period: see Australian, 23 February and 3 June 1826.

[2 ] For a similar case a generation earlier, see Lewin v. Thompson, 1799-1800; discussed in B. Kercher, Debt, Seduction and Other Disasters: the Birth of Civil Law in Convict New South Wales, Federation Press, Sydney, 1996, 99-100.

[3 ] For another case arising out of this voyage, see Campbell v. Jeffery, May 1826.

[4 ] According to the Sydney Gazette, 6 May 1826, the witness said he was being accused of going to the plaintiff's bed.  The Gazette report went on, in reporting the witness's evidence: "the defendant spoke to me the day before yesterday, in allusion to this action; he said the steward was as much to be believed as I was, and yesterday he told me if I left the ship on any pretence but to attend here, he would lodge me in gaol, I was also told by others that I had better not have any thing to do with the business, and to decline answering certain questions if put...".  Simmons was the Third Officer of the Toward Castle.

[5 ] W.H. Moore also appeared for the defendant: Sydney Gazette, 6 May 1826.  He "contended that the plaintiff should be non-suited, on the grounds of a defect in the pleadings, no special damage having been set forth, and that the words as proved, were not actionable.

"Counsel for the plaintiff replied, and contended that, granting the words were not of themselves actionable, they became so when spoken of a person in the occupation of an office of profit[.]

"Mr. Norton, for the defendant, contended that he was entitled to a non-suit merely on the defect in the pleadings, they not setting forth any special damage.  The only way the Court could try an issue of special damage, must be from something before the Court.

"His Honor overruled the second objection on the principle, that the words, as applied to the plaintiff, if true, would disqualify her from holding her situation, and with that impression he was of opinion that the words were actionable.  With regard to the objection to the want of special damage being set forth, he would allow the case to the go to the Jury, reserving that point for future argument, in the event of the verdict being had for the plaintiff."

[6 ] On 10 July 1826, Mr Norton moved for an arrest of judgment on the ground that the words were not actionable, an error in the judge's summing up, and that a general verdict on all counts had been returned when the plaintiff's counsel had admitted that one was bad: rule nisi granted.  Monitor, 28 July 1826; Sydney Gazette, 12 July 1826.  A rule nisi for a new trial was granted on 21November 1826: Monitor, 24 November 1826; Sydney Gazette, 25 November 1826.

Published by the Division of Law, Macquarie University