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Colonial Cases

Hayes v. Graham [1818]

libel - ships' crews, crimping of

Supreme Court at Calcutta

1818

Source: The Morning Chronicle (London, England), 21 August 1818, issue 15384 [1]

CALCUTTA SUPREME COURT, Jan. 30.

This day Robert Spankie, Esq. appointed by the Court of Directors, Advocate General, took the oath and his seat at the Bar; and had an immediate occasion to enter into his professional labours in the case of

JOHN HAYES V. CHARLES GRAHAM.

This was a civil action brought by Commodore Hayes, for a libel published against him by Captain Graham. The case was opened by Mr. Compton, who briefly stated that the defendant, Commander of the William Pier, on account of the desertion of some of his men, wrote three several letters to the Board of Trade, to the Marine Board, and to Government, in which he charged the plaintiff with having abused his authority to entice sailors to desert, and with having made a crimp-ship of the Honourable Company's cruiser the Antelope, for the use of the 74, lately built at the Dock-yard of Messrs. Kidd. Against such libellous publication, the plaintiff had been forced to seek redress in the present action. Damages had been laid at forty thousand sicca rupees; but the Government, with whom it was the purpose of the defendant to injure the plaintiff, having been pleased to throw out the charge, and to censure the accuser, large damages were not called for now, as the object of the plaintiff was merely to clear his character by a public and full investigation.

Mr. Ferguson, following on the same side, said that, with the utmost reluctance in his high case of ?,the plaintiff had taken the only course by which he could vindicate his character foully traduced. A full and free investigation was what he sought for. He would have appeared to shrink from it, if he had recurred to the criminal side of the Court. By choosing the civil side, he challenges the accuser to meet him with plea and proof. Nothing is equal to the audacity of the libel published against him by the falsity of its contents; he has been accused of making a crimp-ship of the 74 under his command, of encouraging desertion form the service - a crime which it is part of his duty to prevent. The plaintiff has served three and twenty years, and no objection, not the smallest shade of one, was ever made to his character. Among the many high qualities by which he is distinguished, the most prominent one is, manly houser [?]. It is such a man, in his elevated situation, who has been compared to a crimp of the cellars of Wapping! If the charge could have been not proved, but only believed, it would have been his ruin. Totally groundless as it is, it had its origin in premeditated malice, which the defendant had long waited an opportunity to vent; he has been heard to say, that he would tear the plaintiff's epaulets from him. They had been both employed in the Java expedition; and the cause of Captain Graham's rancour was, that his own conduct had then been animadverted upon. He might in the present instance have some excuse, if he had acted from sudden irritation. But every circumstance shews that his attack had been long prepared, and that his sole purpose was that of blackening the plaintiff. Had he addressed Government only, or after having addressed the Board of Trade, or the Marine Board; had he, upon better information, changed his channel, his object would be less evident. But he addressed the three at the same time; he poured his libel into every office he could think of. Government took notice of the charge, and in the investigation made by them, he did not say it was true; he did not dare to maintain it. In the present action no plea of justification has been entered by him. If he had then shewn penitence, if he had offered any explanation, which the plaintiff could accept of, the action would have been set to rest. But no, he went away, leaving behind him a plea of not guilty. Can he then escape with impunity after he has slandered a man, who, not upon one, but upon several occasions, has volunteered in the cause of his country, and in cases of danger, and who has rendered services and performed actions which have deserved the thanks of this Government and of the Court of Directors? - [Here letters were read, conveying the thanks of both to Commodore Hayes.] The plaintiff has thrown himself open to every proof that can be possibly adduced. It shall be seen by the result, that he has been falsely charged with plundering the service he is bound to protect, with converting the beautiful 74, the pride of Calcutta, into a crimp-ship, a base act, which sooner than commit, was she his property and loaded with gold, he would sink her. In a case like this, damages, if called for, could not be too heavy.

Mr. Fergusson then called witnesses to prove the hand-writing of Captain Graham at the bottom of the letters containing the libel, which were produced in Court; but Mr. Advocate-General objected to the production, because there appeared no sufficient authority for it. The letters are public documents, which ought not to have been delivered to the plaintiff without the special permission of the Government. No servant, no Board, could supply that authority, without incurring the reproach of a breach of trust. He quoted several cases in support of his doctrine.

Mr. Fergusson answered, that none of the cases applied, because they all related to public matters, the propriety of disclosing which, ought, no doubt, to rest with Government, but not to matters of private interest, like the present, which could not affect the trust reposed on Government.

The Secretaries of the Marine Board and the Board of Trade, and the President of both, were examined as to the mode of the delivery of the letters, and to the principle on which it had been made; and it came out that Government had not been consulted; that the President of the two Boards had ordered the delivery on an idea that the subpoena of the Court could not be resisted; but that he would have given no such order, if he had thought himself at liberty to use his discretion.

Mr. Fergusson contended, that the delivery having been made, and having acquired publicity, the consent of the Government was to be implied from no objection being offered by them. But all arguments on that question were put an end to by the arrival, in Court, of a letter of Government, ordering the delivery of the letters, which being handed to the President of the two Boards, he declared himself bound to act upon it.

After this, Mr. Fergusson proceeded in proving the letters to have been written by Captain Graham, when a cross-examination took place, from which it appeared, that at the time complaints of desertion, amounting in all to about 16 men, were made by several Captains; and that general rumour attributed the cause to the manning of the 74, in Kidd's dock-yard.

Several witnesses proved the rank in the service, the public situation, and the official powers of the plaintiff; and the letters of the defendant, containing the alleged libellous matter, were read in Court.

Mr. Advocate General then rose, and entered into the defence of Captain Graham. He had to contend, he said, against a great Advocate in talents and experience. For himself, he was quite new in this country, and of Commodore Hayes and Captain Graham, he was acquainted only with the names. But it was not with men, it was with principles he had to do. The only legitimate object which the plaintiff could have was to set his character right; and that was not questioned at all. The truth of the allegations against him was not meant to be proved. Public rumour sufficed to shew, that the defendant had acted upon it bona fide. Under other circumstances it might not clear him; but when he had preferred his charges to Constituted Authorities, fully competent to inquire into them, he could be for it liable to no prosecution. [Here Mr. Advocate General quoted several cases.] He then maintained, that there had been no real publication, but a privileged communication. Is this, said he, the case of the libeller, who widely diffuses his slander? The means of defence were at hand. The charge only challenged investigation. Is this the mode of a malignant libeller, who stabs in the dark? No indirect way was taken; and no wanton attack was made; general complaints of desertion existed; and a cause was assigned not true in itself, but true to the extent of making the defendant believe it. Under that impression, if he used strong language, it is because such language is more familiar than another to the manly profession he belongs to. Mr. Advocate General alluded then to the official situations, attributed in evidence to the plaintiff, the length of which, he observed, reminded him of a Spaniard's name. One of them described him as a superintendant of the seventy-four-gun ship. It is, said he, quite a novelty to me. I had heard of a superintendant of the twenty-four pergunnahs, but not of a superintendant of a ship. I am informed besides he is to command her, and to take her to Great Britain, where ships of that description are very much wanted. I wish him a happy voyage. Let him load her with his laurels, but not with the money of my client. When Captain Graham preferred his complaint, she was supposed to be nearly under way. Captains lost their men, who, but a sort of electrical attraction, were always sure to get on board of her. They were not enticed; but a suspicion was afloat of their being so. In that situation the defendant followed the impulse of irritation, not of malice; he gave, in so doing, an opportunity to the plaintiff of dispersing the clouds gathered over his head. The plaintiff has not been satisfied with it. He chose to take his leave in a law suit. Exit in law. Mr. Advocate-General finally observed, that it was much better that the servants of Government should be sometimes, however blameless, put to the necessity of a defence, than that the ears of Government should be shut against complaints. There had been in this case no intention to publish a libel. No damages can be expected, since there has been no loss of character, situation, or emolument.

Mr. Hogg, on the same side, followed Mr. Advocate General and having put the question - "Is it libel or not?", observed, that all Parliamentary proceedings, all proceedings in a Court of Justice cover libels. The presumption of good intention does away all idea of a libel; and that presumption, necessarily derives from application to proper channels of complaint. The plaintiff and he defendant were both servants of the Government to whom the complaint was addressed. The quo animo fixes the sense. A charge preferredbona fide cannot be libellous. Desertions had been going on. Appeals were made to the Supreme Board and to two other Boards, I care not to how many, said Mr. Hogg, each of them was a proper medium. It was the defendant's duty to point out the rumours. What was his purpose in conveying them to the ears of power? That of calumniating? Not at all; but that of getting redress. There was no publication, since the matter was communicated only to Members of a Board. The plaintiff had suffered nothing by the communication. It has, on the contrary, finally procured him a very handsome eulogy from Mr. Fergusson. The reproach of crimp-ship lost its malignity when applied to the 74 gun ship; for the malignity exists in the active sense, and the 74 was supposed to be inhabited, not by crimpers, but by the crimpees.

Mr. Fergusson said in reply, I congratulate my new friend for the fund of humour he has displayed. I congratulate the Court for his having introduced mirth, an ingredient so much wanted to enliven the darkness of our labours. I could complain ?? slender shame? He has encroached upon my province; as the part of false. ??? much better than him. I have no doubt, however, but that he has visited this country to a good purpose; that he will soon improve his shape; and that when he currles ? Bark? his ???, they will be better ripped with gold than eventhome ? Of the Commodore. In the mean time all his humour had failed in claiming his client from the reproach of having falsely imputed a misdemeanour to that most honourable man. The cases he has quoted are foreign to the question. Applications in them had been made to the Committees appointed for the purpose, appointed to investigate charges expected to be laid before them. My Learned Friend has freely assumed a desertion of seamen. He has assumed it upon a rumour. But the rumour, as it has been stated in evidence, did not charge the Commodore with encouraging the desertion. This is the foul charge audaciously preferred against him by the defendant. It was not in his complaint founded upon a rumour. It was direct and punitive. It explicitly contained the imputation of a most aggravated crime. That his intention was not to seek redress, but to destroy the character of the plaintiff, and ultimately to deprive him of his offices and emoluments, can admit of no doubt; for, if his object had been redress, he would have done what Captains of ships constantly do in similar cases; he would have applied to the Magistrates of Calcutta, who, by the Regulations of Government, are fully empowered to take cognisance of grievances of that nature, and to afford a prompt remedy. But as his black purpose was to satisfy his malice, and to work the ruin of the plaintiff, he sent forth his slander to three Boards on the same day. There could be no more false, no more monstrous libel.

Mr. Compton said, that his eloquent Friend, who had just sat down, had left him very little to state. He would only observe, that the covering attempted in the defence to be give to the libel, by the example of applications to Parliament, could by no means extend to the present case. The applications referred to were in themselves regular. The defendant, if his intention had really been to recover seamen deserted from his ship, would have applied to the Police. He knew it was there he could get redress. The bye-law, which, for that purpose, has conferred the necessary powers to the Magistrates, has made every other channel irregular. The Boards have nothing to do with seamen. It is evident, then, that when he applied to them, and to every-one of them at the same time, he did not seek for redress, but for an opportunity to diffuse his slander, and to vent his malice. His object was not to right himself, but to wrong the plaintiff. Considering the situation, and the public and private character of the honourable man he has traduced, his libel is of the foulest nature, and being an act of deliberate malice, admits of no palliation.

The Lord Chief Justice, after conferring with the other Judges, commented at considerable length on the law and facts of the case; and, after passing a high panegyric on the character of the plaintiff, expressed the opinion of the Court, that the letters, however intemperate and unmeasured in point of language, were not the effect of a malicious motive; but were written with the intention of obtaining redress; and that they were therefore within the principle, which had been urged by the defendant's Counsel. His Lordship directed the plaintiff to be nonsuited, but without costs.

Note

[1]  This is transcribed from a faint copy of the newspaper, which is illegible in places.

The practice of luring sailors from one ship to another was known around the empire as crimping. Punitive colonial statutes against this encouragement to desertion led to resistance by the crimps (often unscrupulous innkeepers) and sailors. See Judith Fingard, Jack in Port: Sailortowns of Eastern Canada, University of Toronto Press, Toronto, 1982; GR Henning, "Fourpenny Dark and Sixpenny Red" (1984) 46 Labour History 52-71.

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