[libel - civil procedure]

Friend v. Goodwin

Supreme Court of Van Diemen's Land

5 October 1838

Source: Launceston Advertiser, 11 October 1838[1]

This was an action for libel, brought by Lieutenant Friend, R. N. Port Officer at Launceston, against Mr. Goodwin, the proprietor of the Cornwall Chronicle newspaper. The Attorney-General for plaintiff; Mr. Stephen for defendant.

Immediately upon the case being called, Mr. Stephen applied to the Court on behalf of the defendant, praying the postponement of the trial until the next Sessions. In support of his application the learned gentleman read the following affidavits of the defendant and of Mr. Horne, his solicitor.

“William Lushington Goodwin the above-named defendant, maketh oath and saith, that since the setting down of the above-named cause for trial at the present assizes (to wit) on Thursday last, the twenty-seventh ultimo, an unfortunate and painful circumstance has taken place, (that is to say) the sudden death of the wife of the plaintiff, which has been used by the friends of the said plaintiff for the purpose of causing much excitement (as it has in fact caused) in the town of Launceston and its vicinity, against this Deponent: And this deponent further saith that since the said melancholy event, and since the commencement of the sitting of this Honourable Court, persons have been (and as this deponent believes purposely and maliciously) exciting the public feeling against deponent; and in reference chiefly to the said event, much to his injury and to the prejudice of a fair and impartial trial of the above cause, by reports and insinuations that the said event was occasioned by the publications complained of in this cause as libels against the said plaintiff. And this deponent has been denounced (as he is informed and believes) from the pulpit of the Episcopalian Church of Launceston, by the Clergyman thereof, in a violent and exciting manner, before a large congregation on Sunday last, the thirtieth day of the said month of September, as the immediate cause of the said unfortunate death, as the supposed author or publisher of the said matters; and this deponent was then held up to public reproach and hatred. And this deponent saith so grave a charge (coming as it did from a clergyman of the Church of England, and at such a time, and on so solemn an occasion, and in the presence and hearing (as this deponent believes) of several of the persons who will probably be jurors on the trial) has caused this deponent to be looked upon and reproached by many of the public as the immediate occasion of the said death. And this deponent did on Monday morning the first instant through his solicitor, apply to the solicitor of the above-named plaintiff, requesting to know whether in consequence of the death of plaintiff’s wife, the above trial would be put off. And this deponent further saith, that from the circumstances aforesaid, and from the charge made against him, this deponent, as aforesaid, to the public, which was at such a period so well calculated to prejudice him in the minds of the jurors who may be chosen to try this cause (with most of whom the plaintiff and his wife were on terms of acquaintance), he this deponent does in his conscience believe that he will not in this case have a fair impartial and unprejudiced trial.”

“George Samuel Wegg Horne of George-street Launceston, in the Island of Van Diemen’s Land, Solicitor, maketh oath and saith, that on account of the strong feeling so naturally excited in the public mind by the late sudden and unexpected death of the wife of the plaintiff on the eve of the above trial, and on account of the report (which the deponent believes to have been industriously propagated by the friends of the plaintiff) that that event was caused by the publications complained of against the defendant in this action, and on account of also the public notice which was taken from the pulpit of the Episcopalian Church of this town, on Sunday last, of that supposed circumstance, directly and in plain terms pointing out the defendant’s newspaper as the cause of the unfortunate event; this deponent doth in his conscience believe that a fair and impartial trial in this matter cannot be had at the present Sessions.”

The affidavits having been handed in, Mr. Stephen said, that upon those affidavits he rested his application to the Court. It would be almost too trite an observation for him to observe to His Honor, that the great and inestimable privilege of trial by jury should on no account have any reflection cast upon it; but certainly, in this particular case especially, no plausible ground should be given to the after reflection, that the trial had been otherwise than a fair, unbiassed and impartial trial. He begged to remind His Honor that no injury could accrue to the plaintiff by the postponement of the trial; already a considerable period had elapsed since the date of the alleged libels; the first two had been published in February last; and the most recent so far back as March last; so that every one of the charges might have been tried at the July Sessions of the Court. But the plaintiff had voluntarily allowed one Sessions to pass by; and since then the melancholy event referred to in the affidavits had transpired. An event of this painful nature having occurred; advantage having been taken thereof to excite the public mind; and a strong feeling of prejudice and excitement having been actually caused in the community, -- and, necessarily, upon the minds of the men who would be called upon as jurors, -- he put it to His Honor if it would not be better -- more delicate -- certainly more just -- to postpone the hearing of the case until a lapse of time had soothed the public feeling, -- at present so strongly, he might under the circumstances add, so naturally excited. His Honor would at once see that no result which at the present time should be arrived at by a jury; would be likely to be free from the suspicion that such result was the consequence of the excitement complained of by the defendant. And he begged again to appeal to His Honor if the cause were so pressing as to demand immediate adjudication? The plaintiff could sustain to injury, he again begged to repeat, by such postponement; whilst at the next Sessions, a trial could be obtained free from present excitement -- and consequently free from suspicion, hereafter, that advantage had been taken of the existence of such excitement by the plaintiff.

The Attorney-General said, that he begged to oppose the extraordinary application of the defendant. First, begging to remind His Honor, in reference to the assertion of his friend, Mr. Stephen, that the plaintiff had allowed a Session to pass, at which the cause might have been heard, that the plaintiff could not know that the Sittings of the Court in July last, would have taken place. He believed it was the first time that their Honors the Judges had deemed it necessary to have Sessions in Launceston in the month of July. It was left to their Honors to name a Sittings in July, or not, in their discretion; and this he considered a sufficient reply to that part of the question. His learned friend had complained of a prejudice being existent in the public mind, against the defendant. A prejudice excited by the plaintiff? Oh no; nor by his connivance. Why then should there be any delay in yielding justice to the plaintiff? Why, forsooth, because a very painful domestic bereavement had been experienced by the plaintiff; and the clergyman of the Episcopalian Church had deemed last Sunday to be a proper period to refer, in his sermon, to the abuses of the Press. With this clergymen, it was not attempted to be shewn, that any connivance on the part of the plaintiff in the present action had existed. Certainly not; in fact, for aught he (the Attorney General) knew, it might be that the defendant was the prompter of it himself. Again he must say the application of the defendant was most extraordinary. He begged His Honor’s attention to the fact, that the defendant, in his newspaper, purporting to be published on Saturday last, circulated however, as he would prove by affidavit, in the town of Launceston, on Sunday morning last, had printed a letter, in the first column of the paper, addressed to Lieutenant Friend, the plaintiff in this action, which letter contained the following:--

“SIR. -- Had providence endued you with power, in the same manner as adventitious circumstances have gifted you with wealth, it is difficult to say what would be the fate of those who might subject themselves to your undying hatred and revenge. It happens, however, fortunately that, by some kind dispensation of providence, you are not gifted with that superhuman power requisite to carry out the designs suggested by your heart. I envy you not the feelings of your mind. A person, who has implanted in his bosom an unsubdued desire of revenge against a fellow creature, without the power of enforcing its execution, must be as miserable within himself, as he is despicable in the eyes of those around him.”

Again --

“I claim this right of addressing you, having been privately informed that the substance of a former letter of mine forms one of the six counts of the action which you have instituted against the proprietor of the CHRONICLE. I can fully appreciate all those lofty ideas of the “HONOUR” due to the body to which you belong, which, no doubt, have partly prompted you to this proceeding; I have, however, a very strong impression upon my own mind that even now you are pursuing a course diametrically opposed to your own wishes, and I cannot help lamenting for your own sake, that you possess not the nerve to resist the stimulus afforded by the (of course) DISINTERESTED advice of your religious lawyer.”

And again --

“Persons puffed up by pride and selfishness -- exalted (in their own opinion) by the favor and patronage of great men -- possessed of titles, place and fortune -- accustomed to be bowed to with servility by a train of surrounding sycophants, and mercenary dependants -- persons who are used only to the sweet and inoffensive voice of flattery -- and to be addressed in strains of adulation, -- naturally enough direct the concentration of their petty revenge against the heads of those who dare to address them in the harsher voice of truth, when it speaks of their own delinquency. They appeal to the Law, to oppress and destroy the propagator of truth, under the miserable pretence of obtaining justice, trusting, that by so doing, they will cover their real motives, with a cloak of plausibility, and shield themselves from public indignation under the appearance of seeking REDRESS. In such cases, an appeal to the Law, acts only as a transparent veil to cover the writhings of a tortured mind -- an awkward mask to cover the ugly features of impotent revenge, struggling through pride to conceal the painful emotions of rage. ”

And so proceeding, for about a column of the paper. Though His Honor would doubtless perceive that there was much of the sublime in this composition, -- so much so, perhaps, as to involve in a little mystification any reference to this action, throughout the article generally, still he believed that it must be seen that at least in the paragraphs last read, reference was clearly and distinctly made to the present action. Now was all this printed and circulated by the defendant, on the very eve of the trial, with the high and honourable motive of procuring a fair trial? Was the intention of the defendant, in the publication of this letter to preserve the minds of the jurors who should try the case as pure as sheets of blank-paper, and to send them into the jury-box impartial and unbiassed judges? There could be but one opinion upon the subject. And here we have this pattern of every thing impartial -- this solicitor for strict impartiality -- who felt no hesitation in publishing the letter in question last Saturday, coming into court to complain of a clergyman’s sermon on the Sunday; and making the excitement supposed to result from it, in connexion with the lamentable event which had been referred to, the ground of the present application. His Honor would, he felt confident reject the application. The Attorney-General then put in the affidavits of Mr. Priauix and Mr. Green, to the following effect:--

“That deponent attended Divine Service at St. John’s Church in Launceston on Sunday morning last, and heard the Sermon delivered by the Reverend William Henry Browne, LL. D., but heard nothing said, and does not believe that any thing was said, by the said William Henry Browne, on that occasion, that would prejudice or have an improper influence on the mind of any person who may have to act on the jury at the trial of the above cause.”

The Chief Justice complained that the affidavits on both sides were not such as he would desire in such cases. Neither the defendant’s, nor Mr. Horne’s affidavits, alleged that either had heard the sermon complaint of; and the affidavits put in by the plaintiff’s counsel, expressed mere opinions; the inferences of the gentleman making them. In reference to the grounds of the application for postponement, he had no desire to make it appear that the plaintiff was at all responsible for the effect said to have been produced by the reference made to the painful bereavement named in the affidavits, put in by defendant; but he certainly considered that if such excitement did exist, it would be desirable to postpone the trial. The affidavits read on the part of the defendant distinctly alleged that such excitement existed and he was therefore bound to listen to the application. There was nothing before him to induce a supposition that any intentional advantage had been taken, by any party, of the painful event referred to, for the purpose of producing the excitement complained of. As to the Rev. Dr. Browne, he (the Chief Justice) had no doubt that in referring to the state of the press on the occasion spoken of, he did so most conscientiously; actuated by most excellent motives; and in pursuance of what he deemed to be his duty; without the slightest intention to prejudice the present trial; but excitement it was alleged, had nevertheless been the result; and the question for his consideration was, not how the excitement had been produced, but simply was the excitement such as was likely to prejudice a jury? He thought that, if the defendant would pledge himself, not in any way to refer to Capt. Friend, or to this case, in his newspaper, or otherwise, during the term of the postponement of the case, then he thought no harm could result from the trial being put off to the next Sessions.

Mr. Stephen said that this pledge had been already given in a letter from defendant’s attorney, addressed to the plaintiff’s solicitors; which he would read:--

“I take this opportunity of renewing the defendant’s proposition made yesterday to you, (and made in perfect good faith and with good feeling), -- That whatever statements he, W. L. Goodwin has made have been the statements of other people made to him, who now refuse or neglect to come forward and justify them.”

The Chief Justice made some observations, here, which led to the passing over of a portion of the letter; Mr. Stephen concluding with the latter clause.

“Mr. Goodwin will pledge himself that Mr. Friend’s name shall not appear again in the paper disrespectfully, with the understanding that Mr. Friend will drop on his part, all matter from this date, October 5, 1838.”

It was objected, that the pledge contained in this letter was conditional, upon proceedings being stayed altogether.

In reply to a question by the Judge, the defendant personally pledged himself not to refer to Lieutenant Friend in any way disparagingly, nor to this action in any way, during the term to elapse previously to the next Sessions of the Supreme Court, at Launceston; and upon the assurance of the defendant in this effect, His Honor said he thought he could not do very wrong in postponing the trial, which he would do, upon the payment of the costs of the day by defendant.