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Colonial Cases

Swetenham v. Macnaghten [1823]

criminal conversation (adultery) - assessment of damages

Supreme Court at Calcutta

Sir A. Buller, 24 July 1823

Source: The Morning Chronicle  (London, England), 21 January 1824, issue 17085 [1]

Henry Swetenham v. Robert Adair Macnaghten. Mr. Turton: This is an action brought against the defendant for criminal conversation with the plaintiff's wife. The damages were laid at 100,000 rupees.

The Advocate-General: My Lord, the defendant in this case is a Lieutenant in the Army, and Deputy Judge Advocate-General at Cawnpore. Mr. Swetenham resides at Futteghur, in charge of an extensive district. He was married in 1818 to a daughter of Mr. Donnithorne, of the Civil Service. It was a match in every way well proportioned - a match, too, of affection. She was about seventeen, beautiful and accomplished - the plaintiff was about 26. For four years they lived together with a harmony and affection seldom equalled. The father of the lady will tell you, that if his son-in-law had any fault, as a husband, it was that he was too indulgent, that he was so fond of his wife that he humoured her in every whim, in every caprice, and in every extravagance. It will be shown that they continued to live together in this affection, until this destroyer, the defendant, came to blast their honour and happiness. In this state they were living, when in Sept. Last, while Mr. Swetenham was on a visit to Cawnpore, at the house of a Capt. Blacker, the defendant, Mr. Macnaghten, presented himself. Mr. Swetenham became pleased with his manners, which are, I understand, very fascinating, and invited him to come and visit him at his house at Futteghur.   Whether from that moment he premeditated the dishonour of his friend, or whether the idea of committing this criminal act afterwards presented itself to his mind, I cannot pronounce; for the honour of human nature, however, it is to be hoped that the latter was the case; but be that as it may, he went to visit Mr. and Mrs. Swetenham, in October last, at Futteghur, expecting to find them there - but Mr. Swetenham, expecting Mr. Macnaghten, left directions with his brother-in-law to receive him. He had taken his departure before the arrival of the defendant. He had only returned to Futteghur two days, when he was obliged to go again into the district, and considering the short time his visitor had been with him, he felt it incumbent on his hospitality to invite Mr. Macnaghten to accompany him on this journey. Those who know any thing of the unbounded of the unbounded hospitality prevailing in the upper provinces, will not be surprised at this. If indeed we are to repose no confidence, to have no faith in the purity of conduct of those around us - then there is an end to all intercourse of society. But surely blame can never be imputed to my client - he can never be charged with want of caution - that he did not meanly harbour in his breast a suspicion that the defendant was the contriver of his ruin, a dark plotter against his peace and happiness. The defendant and a Mr. Mangles accompanied Mr. and Mrs. Swetenham on this journey into the district; they travelled in tents, and my client was under the necessity of going daily to his Kutcheri, at some distance from the tents in the discharge of the   multifarious and pressing duties imposed on him in the management of a large district, and of remaining until late in the afternoon. The defendant occupied a tent near that of Mr. Mangles. Early in November, a short time after Mr. Mangle's departure on his return to Futteghur, a Chooprassee of my client's, thinking he heard some one call him, went into the dining tent, and I leave him to describe the condition in which he saw the parties - suffice it to say, that the dishonour of my client was completed. The servants did not, at this time, inform their master of the affair; for so great was Mr. Swetenham's influence over her husband, owing to his excessive fondness for her, that they were actually afraid to mention it - and so it turned out that this intercourse went on, and has continued up to the present time. The party returned to Futteghur together; and it so happened that my client was again obliged to go into the district shortly after. He left Mr. Swetenham behind him on this occasion - her house, however, was in the same compound with that of her brother-in-law, Captain Smith. The defendant having learned the day settled for the departure of my client, also fixed his, for the same day, to go to Cawnpore; and it will appear that he must at that very time have planned the elopement of my client's wife, for he laid a dawk for two persons. Mr. Swetenham had, not from any suspicion of the defendant, for he had not then the most distant idea of having any cause, and his mind was too noble therefore to harbour any - but he had, for the sake of propriety, obtained from Mrs. Swetenham, before his departure, a promise, which she most readily gave, that she would live during his absence with Mrs. Smith, her sister-in-law. This, however, she did not fulfil. While Mr. Swetenham was still absent, and happy in the idea that he had left behind him a loving and faithful partner, he heard that the dishonour of his wife had been completed, and returned to Futteghur on the very night she eloped. When I ask for heavy damages for my client - and I do ask for most exemplary damages - I do not, I cannot, suppose that they will be admitted as any consolation to his mind for the deep injury he has sustained. I ask this reparation because the law has said that it shall be given - I ask it because justice demands that the crime of the defendant should be severely visited on him - and I ask it because in proportion to the amount of damages awarded will the unjury inflicted on my client be estimated in society. If, indeed, the misery entailed on him could be estimated in money, I know not the sum which could equal the measure of injury he has suffered. But money can never restore to him his peace of mind, or bring back to him, in virtue, the unfortunate lady now living - not in happiness - with her seducer; but it will mark the extent of injury, and enable him to obtain at another tribunal the dissolution of that marriage which is now only a dishonour and disgrace to him.

James Donnithorne, Esq., examined: Is father of Mr. Swetenham's wife - at present married. She was married at my house, in Futteghur, by the Rev. Mr. Evans, chaplain at Cawnpore, on the 2d of April, 1818. Mrs. S. was, I think, nearly 17 years of age, or rather less; Mr. Swetenham was about 26; Mr. Swetenham was then in the Civil Service; and I have been so also for many years; they had one child, a boy, nor four years old. As far as I have seen the conduct of Mr. Swetenham, it was most indulgent as a husband, almost to a fault; they lived most happily together.

Munnoo Khan Chooprassee examined: He is Mr. Swetenham's servant; he has been in his service a long time; has now been five years his orderly peon. Do you remember plaintiff, his wife, Mrs. Mangles, and the defendant, leaving Futteghur on a journey? Yes, I was with them; they went by land with two tents; don't remember the month; but not a year ago; it was a cold season; about the beginning of it - Do you recollect the tents being pitched at a village named Nourdowleagh? Yes; I was there. How many days had they been out then? They had left Futteghur about twenty days. Had your master any kutcheri? His kutcheri was at Berlioullah; he used to go after breakfast to it, and return at three, four, or five o'clock in the afternoon. When tents were pitched at Nourdowleah, had Mr. Mangles left? Yes; he was not there; he left at Puttealla and went to Futteghur. Do you recollect going into the dining tent any particular day? I do recollect. Why did you go there?    I thought the lady had called me, and therefore went. [The witness swore directly to having witnessed adultery.] They both got angry with me, and I went out. Where was the master? My master was at his kutcheri, about seven miles off. At what time of the day was it? After twelve; can't say exactly, having no clock or watch. Did Mr. Swetenham come back that evening? My master came back after three or four in the afternoon. Did you tell him? No; I am a black man; how could I dare to say so? If I had, he would have taken my life from me. Did your master appear attached to his lady? Yes, very much; he was very fond of her; we dared not have said a word to any body about her. Did you recollect on any other day of having seen the parties in any particular situation? Upon another occasion, two or three days after this, I saw the lady in a great chair sitting on the gentleman's knees, with her arm over his neck. - Captain Adonia Smith, examined: You are brother-in-law to Mrs. Swetenham - married to his sister? Yes. You lived near him? Yes; our doors join, and the houses are in the same compound. Did you become acquainted with Mrs. Swetenham soon after the marriage? Yes, about two or three months after. From that time to the time of the elopement were you on terms of intimacy with them? Yes, very much so. On what terms did they live? They appeared to live particularly happy; I never saw a couple more so. Did he appear fond of her? Particularly so. Did she appear attached to him? Very much. Is Mrs. Swetenham handsome? Very pretty, I think. And he treated her with affection? Yes, with very great affection indeed. Do you remember Mr. Swetenham going on a visit to Cawnpore in September last? Yes. How long were they there? I think they returned to Futteghur in about a month; it was either in September or October. Mr. Macnaghten is a British subject in the Company's service in the army. What is his rank? He is a Lieutenant. He also holds some other situation? Yes, he is Deputy-Judge Advocate General. I believe you accompanied Mr. Swetenham? Yes. When did you return? On the evening of t 23d of November. Did you find that Mrs. Swetenham had lived at Mr. Smith's? No; on the contrary, found she had only been there by invitation. Did you find the party at your house going to dine at Mr. Swetenham's? yes, and I dined there also. Did the defendant dine there also? Yes. When you first saw Mrs. Swetenham on your return that day, did you make any observation as to the conduct of Mrs. Swetenham? She appeared very much astonished at seeing me so unexpectedly. Did she make any observation? She asked if Swetenham had come with me. You observed nothing extraordinary till he left the house at ten or eleven in the evening? No, nothing. Did you go to bed? Yes. Were you called up in the night? Yes; a servant came over to request I would go to Mrs. Swetenham's, as they did not know what was the matter. This was about ten minutes after I returned (being requested to detail what passed, the witness proceeded thus:) I paid no attention to the first summons, but shortly after received another bout shortly after received another by other servants that came. When I went over, I found Mrs. Swetenham dressed and leaning over her child which was asleep in a cot. I asked her what was the matter, that she was out of bed at that time of night. Did she appear distressed in mind? She did. Did Mrs. Smith and Miss Swetenham come over after you? Yes, they did. Did you press her to go to bed? Yes, I did; I requested the ladies to get her to do so, and left the room. When you left the room, did you discover that any of Mrs. Swetenham's things had left the house? The servants informed me of it, and I afterwards discovered their information to be correct. Where did you find they had been removed? To a boat on the Ganges, hired by Mr. Macnaghten.   You then sent Mrs. Smith and Miss Swetenham home? Yes; I requested them to go to my bungalow. Did you then endeavour to persuade her to go to your bungalow till Mr. Swetenham's return? Yes, I did every thing I could to get her there. But I believe she refused to go? Yes; and I only succeeded by carrying her to my house by force. You then sent for Mr. Swetenham? He was sent for; but not by me. Did Mrs. Swetenham make any attempt to escape from your bungalow? Yes, she did, twice. Mr. Swetenham returned about seven in the morning of the 24th? Yes, about sunrise. In the mean time you had removed Mrs. Swetenham's things from Macnaghten's boat? No; Captain Parsons had.

Mr. Swetenham, on being informed of what had taken place, refused to see her again? Yes; he refused ever to see her again. Did he authorise you to propose to her an allowance, and that she should have a choice of where she would reside? Yes, he did. Did Mr. Swetenham offer to send her to England if she would reside there? Yes, or any where in India. Did he make it a condition that she should reside alone? Yes, he made it a condition that she should reside alone, and offered her, on these terms, an allowance of 300 rupees a month. She said she would consider his proposal? Yes, she did; she said if he would allow her to go on board a boat in the river she would there consider the proposal. She obtained a boat? Yes, a budgerow. She went on board? Yes. Before her going on board did you press her to consider the proposal? I went on board and gave her from Mr. Swetenham 1,000 rupees; and again urged her to reflect on his proposal; she said it was now too late.   I think you have said that the first time you ever saw Mr. Macnaghten, was the day before they went to Mofussil? No; I think I said I saw him first in the district after leaving Futteghur the second time. How long had they been in the district before you joined? Two or three days. How long did you remain? Not more than a day. Was Mr. Mangles with them when you joined? Yes. Did he continue with them when out in the district? Yes, but returned before them three or four days probably. Was any body else with them? Captain Parsons was with them at the time I was, and returned, with them. Mr. Money declined calling any evidence, but rose and addressed the Court in mitigation as follows:- My Lord, it was not my intention to have addressed your Lordship at all in this case, but for an observation of my Learned Friend, calling on your Lordship to award heavy damages against my client. I am not here, my Lord, to justify the crime committed by my client, for no man can more deeply repent it than he does. Had I been instructed to defend his conduct, it would have been my duty to have attempted it; but so far is this from being the case, that the very instructions I received with my brief were not to attempt to say one word against Mr. Swetenham; but the observation of my Learned Friend peculiarly calls for, from me, a claim for mitigation of damages. The whole case, my Lord, shows only in this affair the acts of Mrs. Swetenham - no arts of seduction - none of those arts employed to ensnare and betray, which usually form the ground of a claim for heavy damages, are here exhibited - on the contrary, a witness has been put into that box, who proves that the defendant never saw Mrs. Swetenham till he went to Futteghur. It was stated by the witness that the defendant never was at Futteghur before the time the party went out into the district. I say that Capt. Smith, who was very intimate, who is the brother-in-law, and who must have been daily at their house, has declared that he never saw the defendant before he saw him in the district with Mrs. Swetenham. I say,   therefore, that it is a fair inference that the defendant never had been at Futteghur before, or that if he had, he never had been on terms of intimacy with the plaintiff; yet it is in evidence that Mr. Mangles went with the party, that he remained with them till three or four days before their return to Futteghur, and lived with them as much as my client. Now I maintain, that if any arts of seduction had been used, he must have seen them. What was he not then put into that box and examined as to that fact? why, but because my Learned Friend knew that he would have proved that no such arts were used. But it does appear that a few days after the party went into the district, this act was committed - (objected by the plaintiff's Counsel that it was after Mr. Mangles had left the part and returned to Futteghur). I can only say Capt. Parsons has stated that Mr. Mangles had left them three or four days only, before the party returned: and the act of adultery proved, is sworn to have been committed a few days after they went into that district - (objected by the plaintiff's Counsel that Capt. Parsons was not examined to this point). Well, then, it was either he or Capt. Smith; it was Capt. Smith, and I will take his evidence in preference to that of other witnesses on this point as it stands, or I will even give a further time, and say that it was 5 or 6 days before the return of the party that Mr. Mangles left them, which circumstance, taken with the evidence of the Chooprassee, will show that the act of adultery he spoke to must have happened after Mr. Mangles left. I say, therefore, that if any of those arts or that conduct which inflame damages, had been practised, he must have known it. Does it not appear then, my Lord, form all these circumstances, that the lady was always forward? Does it not appear that a few days after they were out on that excursion she was then sitting on his knee, with her arms round his neck? Capt. Smith said that it must have been either in the beginning of November or in the latter end of October that they went away. Now it must have been before the 15th of November that they returned, because it was that day that Mr. Swetenham had fixed for his departure again after they had so returned. I will take, therefore, Captain Smith's evidence, and even say that they went away in the end of October, and returned in the middle of November. Here is one fortnight, and taking the middle of that time, they had been only one week together when the act was committed. Taking, however, the middle of the period stated, I say it was only about a week when this act of adultery was committed; and taking into consideration the great probability that the first act of adultery was not immediately discovered, and that that related in evidence, was therefore not the first act of adultery, I do think it extremely probable, that in three or four days only, after they were together, the crime was committed; and this, my Lord, is the ground on which your Lordship is called on to stamp my client by an award of heavy damages, as a cool and deliberate seducer. I say, my Lord, that from the negative evidence to which I have alluded, I have a right to say that he is not so. My client is as sorry as any man can be for the crime he has committed; there is only one excuse for him; he is a young man, and he is left in a tent alone with a young and beautiful woman. God forbid, my Lord, that I should impute any blame to the plaintiff for this confidence; it is a confidence highly honourable - and he is, as I am instructed to say, a man of the highest honour and worth - no shadow of blame can attach to him. He has, by no act of his, merited the heavy misfortune - the deep affliction which has fallen on him through the conduct of my client. I most willingly admit all this, my Lord; but I will put it in mitigation of damages, that they were thus left alone from day to day, owing to unavoidable circumstances. Were the damages to be proportioned to the measure of injury sustained - could they compensate for the sufferings of an injured husband, I should admit that heavy damages were justly claimable. But I say, that the plaintiff does not come here to fill his pockets, but to get rid of a woman who has disgraced him, and perhaps to form another connexion in which he may seek for that happiness he has lost in this. I say again, that no blame can be attached to him - that no man can be more free from the most remote suspicion of any thing like connivance or even neglect. But the injury has arisen out of accidental circumstances, which left the persons in situations in which I say a very large portion of mankind would have been unable to resist the extraordinary temptation to which my client was exposed. With respect to the evidence, so far as it goes to the claim for heavy damages, I must say I never saw a weaker case. But, even admitting it to be stronger, what is the situation of my client? He is a Lieutenant in the army, having only three hundred rupees a month, besides his pay and allowance for that rank. It is in evidence that he is a needy man, and the damages that may be awarded must fall with severity on him - some lenity, I think, should be shown in consideration of these circumstances; but, if heavy damages are awarded, he must go to gaol, for his circumstances will not enable him to pay them, nor do I believe that he has a friend who will come forward to do so.

Sir Anthony Buller: Certainly, the only question here is as to the amount of damages. As the cause went on, I made up my mind as to the damages, and nothing I have heard in the speech in mitigation or defence, has at all tended to affect the decision I had come to. I believe, indeed, that that defence is a defence of Counsel, unauthorised by instruction. I do certainly think that the plaintiff comes here in a situation the most favourable to command damages. We have the strongest evidence of the happiness in which the parties lived prior to the adultery, and the father of the unfortunate young woman gave his evidence in a way that must have appealed to every feeling heart. I cannot exactly gather from the evidence how long the defendant had been acquainted with the plaintiff: but it would appear that it was some time before they went on this excursion; because he came to Futteghur by invitation of the husband, who left instructions with his brother-in-law to receive him at his house during his (the husband's) absence. He came according to that invitation, and arrived while the plaintiff was absent; he did not, however, stop at the house of his (plaintiff's) brother-in-law, Captain Smith, but proceeded to join the party in the district. According to the evidence of Munnoo Chouprassee, the crime was committed twenty days after this. There is, indeed, no direct evidence of seduction, but can I look for this in a case like the present, where it is proved that the parties lived most happily together, in the greatest affection, until this crime was committed? The only thing like an argument in mitigation is, that the lady may have fallen too easily, that she did not make that resistance which might have been expected in her case. But when it was considered that she was only twenty-one years of age, and the defendant, according to evidence, thirty, I think that even this argument falls to the ground, and that the damages I have made up my mind to give will not be thought excessive. I should be sorry in such a case to give damages that might be thought too small, and I would, at the same time, guard against awarding such as would incarcerate the defendant in gaol for life. I scarcely know, however, that I am even at all justified, in this case, in taking this into consideration. Under all the circumstances, therefore, I pronounce a verdict for the plaintiff - damages, Twelve Thousand Rupees - (Fifteen Hundred Pounds sterling.)


[1]  See also Examiner (London, England), 25 January 1824, issue 834.

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