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

James v. Howe [1827] NSWSupC 42

libel, tobacco, damages, assessment of

Supreme Court of New South Wales

Forbes C.J., 20 June 1827

Source: Sydney Gazette, 22 June 1827

This was an action brought by the plaintiff against the defendant, Mr. Robert Howe, Editor and proprietor of the Sydney Gazette, for the publication of a libel contained in that Journal, of the 8th of February last.  The declaration contained two counts.  The damages were laid at £300, and the defendant pleaded the general issue.[1 ]

The plaintiff's Counsel stated the case, and handed in the paper containing the alleged libel, which appeared in a letter addressed to the plaintiff, and signed "L. H. Halloran," and also in a notice to Correspondents, in the same paper, and which are as follows.

February 6th, 1827.

TO T. HORTON JAMES, ESQ.

"SIR; - since I waited upon you this morning, I have been certified, "that you, Sir, are the writer of the letter, in the `Australian,' of the 3d inst. signed X. Y. Z.  Indeed, little doubt of this fact remained on my mind, after the interview in which, pressed as you were, you declined to avow, or to disavow, the offensive composition.  What I then denounced to you personally, in presence of my friend, Lieut. McIntosh, I now unhesitatingly repeat; and desire to put upon public record - "that the writer, whoever he be, is a l------ and a s-----.'

"No plea of hasty, or inconsiderate writing, can be admitted.  The proof of deliberate malignity is too glaring; of malignity unprovoked, and wanton; if to lacerate the feelings of a parent, and to tear open his cicatrized wounds can justify such epithets.

"Neither the GOVERNOR, the CHIEF JUSTICE, nor any other enlightened mind in the Colony can entertain a doubt of the inuocence [sic] of my unfortunate daughter, although a Jury of honourable men, from the hard swearing of witnesses, of at least equivocal character, had not an alternative in their verdict.  That no sentence was passed, but a tacit conditional remission allowed, sufficiently demonstrates this fact.

"How dared you then, Sir, confessedly as you are, unacquainted with the suffering object of your unmanly aspersions, - how dared you to impute to her "unblushing infamy;" and through your unfounded censures on her, to wound the feelings of a father, a husband, a brother?

The fact to which you have so invidiously alluded, is simply this.  When my daughter removed to Newcastle, in obedience to the wish of Government (for I deny any obligatory, or compulsory rustication), I wrote on her behalf, to Capt. ALLMAN, the Commandant at that settlement; a gentleman to whose public character, my humble fiat cannot add an iota of celebrity; with whose name, the virtues of humanity and benevolence, have become identified.  He, with that considerate compassion, which has marked every act of his Commandantcy, kindly allowed my daughter and her husband, to occupy apartments in a Government cottage, kept by a constable and his wife.  Had he not done so, they must have remained, from the impracticability of obtaining lodgings, "sub dio aperto."  Think you, Sir, it was in the contemplation of GENERAL DARLING, to turn "this persecuted young woman" like Nebuchadnezzar, for seven years, to eat grass as oxen, and to be wet with the dew of heaven?  Never, never!  And though X. Y. Z.'x base insinuations to Government, may deprive her of the humble shelter of this dilapidated cottage (as I find is likely to be the case), my roof, while I have one, shall shelter her, nor shall she be again torn from a father's arms but with the sacrifice of his life!

"As to you, Sir, words cannot fully express my contempt.  The epithets l---- and s----- I again repeat, and if you feel sore under such deserved reprobation, and dare demand satisfaction, "the arm, not yet unnerved, of an old man, is ready momentarily to give it."

"I am, Sir, your humble Servant,

L. H. HALLORAN.

NOTICE TO CORRESPONDENTS

----

We have to acknowledge the receipt of a letter from Mr. Francis Shortt respecting the mean, cowardly, and unkind conduct of the Tobacconist, but we wish to have nothing to do with the seller of snuff  in any shape.

Witnesses were then called in support of the case.

Henry Townsend, clerk to the plaintiff, stated that he purchased the paper shown to him, at the shop of the defendant, in George-street, on the 8th of February last; witness purchased it from a person in the shop whose name he does not know, but who has frequently before served him with papers and other articles.

Cross-examined by Mr. Norton - Witness supposes the shop to belong to the defendant; will not swear positively, but has every reason to believe it does; has seen the defendant frequently there; never saw him selling any thing, but has seen him talking to the shop-keeper as a master would to his servant; the shop is next the guard-house, and adjoining the office where the Gazette is printed.

Charles Moore, Esq. stated that he believed the letter shown to him to be in the hand-writing of the defendant.  [The letter was then read; it was addressed to the plaintiff, and contained an admission of the publication, and enclosed the manuscript of the letter charged as libellous; stated that the defendant stood indifferent between the parties; that he had made several erasures in the copy sent for publication, a[n]d that he conceived the public interests subserved by its appearance in print.]  Witness can speak positively, from circumstances within his own knowledge, that the Gazette Office belongs to the defendant.

Mr. James Robertson stated, that he read the letter signed "L. H. Halloran," in the Sydney Gazette, on the morning of publication; witness was so struck with the language it contained, that he immediately sent it over, by one of his children, to the plaintiff, for his perusal; has no doubt that the letters L. and S. mean liar and scoundrel, and that they apply to the plaintiff; has seen the notice to correspondents in another part of the paper, and has no doubt, from a variety of similar attacks in the Gazette, that it applies to the plaintiff; does not think the publication likely to do the plaintiff much injury in the Colony, but is of opinion that it is calculated to injure him in the opinion of his friends in England, and other parts of the world; several of the merchan[t]s here are in the habit of sending regular files of the Gazette to England.

Cross-examined. - The defendant has never told witness that the Tobacconist meant the plaintiff, but it is quite notorious that it means him; does not think that the publication is likely to injure the plaintiff here, because Dr. Halloran is known to write in a violent and coarse manner, and any thing from him witness does not think would affect the character of the plaintiff here, but not so in England, where the parties are not known; does not know that plaintiff is the author of the letters signed X. Y. Z.; has no doubt that he is, but will not swear positively to the fact; the letter in the Gazette contains observations on something that preceded it; it refers to X. Y. Z. thinks that Dr. Halloran be[l]ieved the plaintiff was the author of those letters, and that this was an angry reply.

A. B. Spark, Esq. stated that he read the letter signed L. H. Halloran, in the Gazette: thinks it is calculated to do the plaintiff an injury in the Colony; has no doubt L. S. mean liar and scoundrel; believes the notice to correspondents to allude to the plaintiff; witness does not send the Gazette to England, but to India; many other merchants here, send regular files of that paper to England.

Cross-examined. - Witness thinks the letter referred to X. Y. Z.; witness would certainly have felt angry had the observations in the letter signed X. Y. Z. been applied to him, but does not think the worse of the plaintiff for the letter, but thinks that in general he might be affected by it in his character as a gentleman.

Re-examined. - If witness had read the letter without having an opportunity of knowing to what it alluded, he would have thought the plaintiff a liar and a scoundrel.

W. H. Moore, Esq. Acting Attorney General, stated, that he remembered reading the letter, on the day after its publication, and considering that it tended to a breach of the peace, he recommended that the parties should be brought before the Magistrates and bound over; witness recommended that the defendant should be summoned as one of the parties, and if he refused to give up the author of the letter, that he also should be bound over.

Cross-examined. - Witness thinks he left it generally to the discretion of the Magistrates, whether they would bind over the defendant or not.

Re-examined. - Had previously seen other paragraphs in the paper calculated to create ill-blood.

The ca[s]e for the plaintiff closed here.

Mr. Norton addressed the Court on the part of the defendant.  The learned gentleman stated, that so far as any damage was proved, the plaintiff's case had been left entirely on the statement of his Counsel, for all the evidence which had been offered on that subject, fell far short of even probable damage.  It was much to be lamented that the plaintiff had not thought proper to pursue his remedy against the person who, if any, had injured him, when an opportunity would have been afforded for discussing the honest grounds of the circumstances that led to the publication.  He contended that the letter addressed by the defendant to the plaintiff, whatever might have been the object with which it was written, could not be brought forward to support the publication, and he relied on His Honor, to see the letter from Dr. Halloran which it enclosed was not allowed to form any part of the evidence, it being merely a communication from the defendant to the plaintiff, which he might have kept back, had he thought proper.

The only proof of publication that there remained was the evidence of the plaintiff's clerk, who stated that he purchased the paper in a shop adjoining the guard-house, but which he could not take upon himself to swear positively belonged to the defendant.  Of the matter said to be libellous, he contended there was no proof of its applicability to the plaintiff.  Mr. Robertson stated, that the letter might be injurious in some part of the world and Mr. Spark stated that it might be injurious here, but the latter gentleman admitted that any judgment which strangers would form of it must be in connexion with the matter that called it forth.  The party who felt himself aggrieved appeared to have waited on the plaintiff, who refused to give any satisfaction whatever; and this state of things it was, that induced him to address that letter to the plaintiff.  He did not however at once accuse the plaintiff as the writer of the remarks of which he complained, he merely said that the writer, whoever he was, was an L and an S, which, though they had been interpreted by some of the witnesses to mean a liar and a scoundrel, might for aught he (Mr. Norton) knew, mean a loyalist and a Solomon.  Had those epithets been applied in broad terms to the plaintiff, there could be little doubt about the libel, but it was impossible not to perceive that the whole was a chain of reasoning that the writer of the observations to which the letter refers was so and so.  Whilst he (Mr. Norton) agreed with the observations that had fallen from the plaintiff's Counsel, with regard to the injury which was done by the press in certain publications, it was still but right to state that all this mischief had arisen from the press in an indecent and uncalled for attack on a respectable individual, and the wanton exposure of a misfortune which had befallen a part of his family.

The CHIEF JUSTICE observed, that the line of defence which Mr. Norton was adopting, was one which could not be permitted in this case.  It was not Dr. Halloran who was before the Court.

Mr. Norton certainly regretted that the defendant was reduced to the situation in which he was placed, by what he would term the unfair mode of procedure which the plaintiff had thought fit to adopt.  With regard to the defendant, then, he would say, that it was impossible to suppose a man who had written to the plaintiff in the manner he did, could have been actuated by any improper feeling towards him in the publication.  It was in evidence that the entire of the ill-blood which seemed to exist, was created by something that appeared from the pen of the plaintiff, or of some writer, whoever he might be, and was it not natural that a father should endeavour to make as public as possible the exculpatory matter in favour of his child, as the meddling individual, the injurious matter.  How dared the writer of those letters signed X. Y. Z. whoever he might be, to charge an individual with unblushing infamy.  Was it decent, was it manly to have endeavoured to deprive the individual of the little accommodation which she possessed through the humanity of the Commandant at New-castle, and seek to turn her out to eat grass in the fields, and be wet with the dew of heaven, and to inflict an additional punishment by exciting a public opinion that justice had not been done.  Was not the writer of this alleged libellous letter right, then, in conceiving himself deeply injured, and if he had been betrayed into intemperance, should not the blame be affixed on the party who had occasioned it?  If X. Y. Z. had never been published, this injured individual would never have been drawn into the course he was obliged to adopt from the meddling which had so unwarrantably and wantonly brought his family before the public.  Was there, in fact, one man in five hundred who would not have taken what is called justice into his own hands?  What then could be the injury the plaintiff had sustained?  He was sure that if the Court should feel they ought to give him any thing, the very smallest sum would be deemed sufficient.  It was to be lamented that some expressions had been used, but who had called them forth.  What, then, had the defendant done under these circumstances?  Why, with a temperance which it was impossible to see did not prevail at the time, he felt himself bound to admit the answer to an attack, which, if false, was base in the extreme, and if true, was even more base, as wantonly opening old wounds, and proclaiming that the judgment of the Court had been too mild.  It was impossible, then, not to perceive that, if the defendant had committed himself, his only fault was in allowing Dr. Halloran to repel a most wanton and base attack which had been made on a member of his family, and he was really of opinion that it was altogether the poorest case which had ever been brought into a Court of Justice.

Mr. Norton called no evidence.

The CHIEF JUSTICE summed up.  This was an action for libel, in which the damages were laid at £300, brought by the plaintiff, Mr. Thomas Horton James, against the defendant, Mr. Robert Howe, Editor and Proprietor of the Sydney Gazette.  The declaration set forth substantially the injury sustained from the pub[l]ication, and the defendant had pleaded the general issue, or denial of the plaintiff's right of action, and casting on him the burden of proof.  There were three questions for the consideration of the Assessors - first, whether the writing laid in the declaration was a libel - secondly, whether its application to the plaintiff had been duly proved - and, thirdly, whether there was proof of publication by the defendant.  With regard to what constituted libel, it was necessary he should state, that any matter published of another tending to bring him into what the law called hatred and contempt, was a libel, and admitted of prosecution either by public prosecution, or by private action, according to the measure of injury which the plaintiff conceived he had sustained.  This was a private action.  The declaration contained two counts framed from the matter contained in the Sydney Gazette - the first count resting on the letter, and the second a notice to Correspondents, which, it was to be assumed, proceeded from the Publisher of the Paper.  With respect to the proofs before the Court, he would proceed to analyze them, and say what were proofs, and what were not.

His HONOR here minutely recapitulated the evidence, and observed that, with respect to the matter principally relied on as libellous, it was for the Assessors to say whether they believed the witnesses to have put a right construction on the words, whether they applied to the plaintiff, and whether they were libellous.  He was always cautious in offering his own opinion in such cases, but he really did think; if the publishing of words of this sort in a public newspaper, was not calculated to bring a man into scandal and contempt, he did not know what was.  He threw out of the case altogether the line of defence adopted by Mr. Norton, as it formed no part of either the legal or moral case.  The publisher of the paper should have been cautioned by the very fact of seeing the excitement that prevailed between the parties; his own letter shewed that he stood in a state of perfect indifference to either, and he therefore could not raise anything like an argument upon the injured character of the writer.  It was competent, however, for the assessors to take the whole of the publication into consideration; and he did think, looking at the whole of the circumstances of the case, that considerable excitement had been raised, on account of something which was generally believed to have previously proceeded from the plaintiff.  The Assessors, therefore, would take all the facts into consideration, and should they be of opinion that the plaintiff was entitled to their verdict, to measure the amount of damages according to what, under all the circumstances of the case, he was entitled to.

The Court found a verdict for the plaintiff, Damages £50.

Notes

[1 ] The Sydney Gazette commented on this trial on 22 June 1827, reminding its readers of James' role in the tobacco litigation in 1825.  (See R. v. James, 1825; and James v. Balcombe, 1825.)  The comment also attacked the assessors in this trial, claiming that one of them sat in every case concerning the Gazette, and was deaf.  It also attacked Dr Wardell and the Australian.

Published by the Division of Law, Macquarie University