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6 corrections, most recently by doug.butler - Show corrections

King William-street. December 20th. 1847.

Dear Sir— I return you the writ herein, with undertaking endorsed. Since the offers made by me, on the part of Mr Stephens, have pro duced no result, he must defend himself in the best manner he can, and from what I have beard of the case, I see no cause to fear the

result. But if Mr Stephens should be compelled to plead and to prove the truth of the statements complained of, you will bear in mind that he will have been driven to this course in spite of his sincere   endeavour to do aoything that the plaintiff might suggest by way of atonement. I am, dear sir, Truly yours, R. Davies Hanson. E. C. Gwynne, Esq.   Looking at that correspondence, he would ask if the de- fendant had not offered everything that any fair and candid man could do ? For, viewing the matter in its worst aspect, he had offered either or both the reparations in his power, and it would be difficult for his learned friend to show that the charge of vindictivess did not rest wlth the plaintiff. In the first   letter, they wonld perceive that his learned friend, anticipating legal proceedings, had been practising for a speech (laughter). But viewing that correspondence, and looking at the fact that not only did Mr Stephens consent to give up the name of the writer of the letter   upon the usual terms, but also that he sought to make any reasonable apology, consistent with truth, how could they for a moment say that   the defendant was actuated by vindictive motives ? Would they not rather say that there was a fixed and unwavering determination on the part of the plaintiff and his attorney to prevent a compromise,   and to precipitate these extreme proceedings? The plaintiff asked for the name, we offered to give it; when that was declined, we say, if you tell us what you want, we will see what can be done. What was the answer to such fair and reasonable terms ? A writ. Upon what ground, then, can counsel have the effrontery to talk of ma- liciousness, of premeditated slander, of bad feeling, and ill will ? He asked, then, in the language of truth, upon whom the charge of ma- lignity devolved, upon the plaintiff or upon the defendant ? Was it not the plaintiff who hail dragged the defendant into Court, who now was obliged to prove the most ample justification ever offered in a court of law? The subject of damages he would now put out of the question until be had glanced at the real question of the defendant's justification, the point most material to be considered in the inves- aigation, but which dared not bt- attempted to be touched upon by the plaintiff's counsel. But, first, he would draw their minds to the first point ; was this a fair comment upon the proccedings before tho Police Magistrate ? and upon that he relied for a verdict for the de- fendant. They had heard, from the evidence of Mr Beddome, that the report of the police proceedings was a fair report, and en passant, did the publication of a fair report argue vindictive motives in the   defendant. The comment said that the proceedings on the part of Captain Ellis were a gross invasion upon the liberty of the subject. He would prove the facts stated to be true, and then ask whether the comments were too strong ? The comment charged it a flagrant act of petty tyrrany. Was it not so ? Was it not flagrant, gross, cruel, and tyrannical, for a man like Captain Ellis to have his own servant,   to whom he had entrusted his property, dragged as a felon before a felon's court, at the time he (Captain Ellis) knew he had been guilty of no felony ? What man having the common feelings of humanity but must say it was so? And was it, then, not competent for a person, feeling the monstrosity of such harsh, cruel, and vindictive   proceedings to pen the strictures complained of in the spirit of an up right, manly, and honest indignation ? Yes, Capt. Ellis had perverted the laws of this free colony for the sordid purpose of depriving this poor fellow of his hire, and then came before a jury of his country as a tyrant of the most odious description, to seek damages. Yes, the real person complained against was himself, it was Captain Ellis who stood before the public as the guilty party, and upon his head the   odium of these proceedings would rest (sensation). Granting he did * It is necessary here to explain that we never divulge the name of any correspondent unless we have his express authority ; and in   this case, when first applied to by the plaintiff in person, we declined to do so, intimating that he was at perfrct liberty to take any pro- ceedings he thought proper against ourselves. Subsequently, however, when the demand was repeated through the plaintiff's solictor, we communicated with ' Humanitas,' who, not only consented to bear the brunt, but even expressed a desire to appear in the character of defendant in such an action.— Eds. S. A . R.

mistake his position at first with respect to Macguillan, did he not afterwards prosecute as a felon him whom he knew to be an innocent man ? There was a man to come before a jury to claim damages! He (Mr Hanson) hoped a jury of his country(men) would teach him and all such like him that they spurned the subter- fuge of attempting to clothe his act with the garment of the law, and shield him from the consequences of his tyranny by its undeserved protection. He anticipated a different result. The defendant was compelled to come into Court and prove his justification, although in reality he did not want or wish for a further exposure of the plaintiffs proceedings - In the correspondence which he had read he would direct their attention to one fact, that if Mr. Stephens should be compelled to plead and to prove the truth of the statements complained of, he would be driven to this course in spite of his sincere endeavour to do anything that the plaintiff might suggest by way of atonement.' Did that not show that the defendant had no desire to drag the whole case again before the public? He was, however, compelled to come before them and plead his justi- fication, and prove the correctness of the statements he had made. It was absolutely necessary for the defendant to put upon   the record ihe plea of justification he had done, or submit to a verdict. [Counsel here read the plea as published, and recited the circumstances of the arrest as given in evidence] Admitting for a moment (although such an admission was so wide of the fact, as to appear ridiculous) that Captain Ellis at first considered he had   a ground for charging Macguillan with felony. was the defendant not afterwards bound upon knowing the real circumstances to set the prisoner free? But instead of this he insisted upon Macguillan's being taken to the station-house, and locked up as a felon. Varene told Captain Ellis he would have to come to town and make a charge-, otherwise the prisoner would be free, aud he came deliberately and made the charge, in order to detain him in custody as a common felon. A nice point, which they would have to consider would be the conduct of Captain Ellis when he came to make the charge. He does not charge Macguillan with felony, but with having unlawful possession of his horse. That was the way which he took to make himself safe. But the next morning he deliberately preferred a   chargr of felony. What were they to infer from such facts ? That Captain Ellis knew at the time that the charge was false, and he endeavoured to take this means to shelter himself from the conse- quences of his act. Who could say that such conduct was not the most cruel and malicious, and who, under the circumstances, would dare to assertt that Captain Ellis did not well know that he was   acting wrong, and that his charge was unfounded ? Yes, in order that the prisoner might be detained in the cells all nighht as a felon, that charge was made. Next morning, before the case was half gone through with before the Police Magistrate, the prisoner was dis- charged. And was it such. a person who would come to them (the jury) and ask for damages for any strictures that might be made upon such cruel conduct ? And what were those strictures— nothing but a fair and impartial comment, no now allegations being intro- duced. It would not be possible in the vocabulary of the Kngiish language to find words strong enough to characterize proceedings so wanton, cruel, harsh, and tyrannical. Captain Ellis heard from the woman in the house the nature of the errand upon which the prisoner had gone. Yet he proceeded to charge and brand Macguillan as a felon. What excuse was there for such conduct, especially as he himself was a magistrate, and ought to have known the law ? The circumstance in itself was so monstrous, that in the mind of every impartial man such strictures were not only war- ranted, but called for. But when they reflected that when Captain Ellis must have known the prisoner to be innocent, and find him, after having slept upon it, persisting in his charge, at a time when he could have had no means of judging of Macguillan's guilt but from the communication made to him by himself and his wife ; and when the probable consequences of his act were pointed out to him, he (Mr. H.) only wondered he had the effrontery to come into that Court and ask for damages. Supposing these facts proved, he would ask was it not a gross invasion of the liberty of the subject ; were not the proceedings wanton, harsh, and most cruel; and whether it would not be suggested to their minds that Captain Ellis was unfit for his magisterial functions, and whether he did not betray an inaptitude for their discharge? Had not the writer properly characterized him in that respect ? Mr. Gwynne knew that the conduct of the plaintiff was harsh, cruel, and unjust as well as he (Mr. H.) did; but he relied for a verdict upon one point, and certainly about which be (Mr. H.) experienced some difficulty. That point was the one relating to " the crude laws, &c." Upon that point they had the evidence of Mr. Smith, who wished to make them believe that it was the intention of the writer to insinuate that Captain Ellis had been a slave driver: but he would remind them that it bad not been

so inuendoed in the declaration. They (the jury) were the judges of what it meant. But admitting that all the other parts of the jus- tification were proved, then it would be for them to say what the intention of Captain El is really was, and whether the prosecution was not instituted for the purpose of depriving Macguillan of his wages. Supposing that he could have persuaded the Police Com- missioner to commit the prisoner, and afterwards persuaded a jury to   convict him, would not his wages have been forfeited ? And did not such a consideration flow as the natural coasequences of the act? It was the only reasonable conclusion which they could draw, and it was impossible they could arrive at any other. What else could have been his intention? The only question upon this point was, did Captain Ellis resort to those means for putting Macguillan in a posi-   tion that he could not claim his wages, or did he not? If Captain Ellis had succeeded in transporting him, as the facts prove he in- tended to do, who, he would ask, would have profiled by the forfeiture of his wages ? They were to judge whether the liberal minded plaintiff, he who paid the labourers to the utmost farthing, and gloried in his uprightness would have handed them over to our Lady the Queen, or kept them in his own pocket (a laugh). No doubt he would, as a Justice of the Peace, have paid them over to the Royal Exchequer (more laughter). He felt be had detained them longer than he intended, but be could not close his remarks without   adverting to the law ot libel as against the editor of a newspaper. It had been held that they had no more legal right to criticize or animadvert upon proceedings than any other private individual. Such doubtless, was the law, but he would remind them that, re- cently, the law of libel was so far altered, that they (the jury) were the judges of whether a writing was a libel or not, and it was their peculiar province to judge of that fact. It was not so formerly, and now a judge might express his opinion or not as he liked, about whether a matter was a libel or not, but still it was the province of a jury to determine. Thus the law had varied in respect to libels in an   extraordinary degree, and particularly as respected newspapers, which had not been inaptly termed the fourth estate. He called upon them to reflect that, were it not for this power there would be no se- curity ngainst the corrupt administration of the laws. He was not speaking of the higher branches, where the laws were administered by persons above suspicion, but the numerous petty officers from   the justice to the constable. How many cases of suffering and dis- tress, which otherwise would bave slept in the womb of time, had had the eye of truth directed towards them through the medium of the press. Let them refer to the highest periodical publications of the day, from the Quarterly Reviews to the Spectator and the Times, and say if one of those journals would have existed an hour if the law of libel, as it formerly existed, had not been relaxed ? And who would not say, even supposing the editor of a newspaper had, in a degree, overstepped his real duties, that from a jury he was not en- titled to great sympathy ? If they found that the circumstances

here were such as called forth strong and indignant language, then   they would feel that the defendant was strictly entitled not to have   that language viewed too harshly. It might be said that the defend-   ant should have tendered amends, but they should reflect that the   letter was proved to be published without any actual malice ; and further that the plaintiff was entitled to no amends after the apology   which had been tendered. Counsel here recapitulated and said he demanded from them, if not a verdict for the defendant, at least, such   damages as were expressed by the smallest coin in the realm ; and that they would testify to the public their contempt of conduct so wantonly harsh, cruel, tyrannical, and unjust, and by that means prevent a repetition of it in others. Counsel then called Patrick Macguillan was ia Mr Ellis's service on the day he was taken into custody. Would have been eleven weeks in his employ on the Monday following. His wages at first was £1 per week, house, wood, and water. He asked £1, and Capt Ellis replied, 'the Go-ernment men ate only getting 12s,' offered him 18s Ultimately agreed for £1. and told him to work well. Went the Saturday after and got 12s, and after that 12s more. When he again asked him for money, Capt. Ellis asked witness how much was at the pound. Mr Hanson — Does Capt. Ellis keep a pound ? Macguillan — No, but he authorised me to pound all the cattle about the place, and he would give me an order on the poundkeeper. (Great laughter). Had received £7 14s or £8 14s up to the time he was taken. Mr Ellis had a mare at Nailsworth. On the Saturday week before Capt.   Ellis sent witness to Mr Levi's for a saddle and a tether to keep the mare close by him when he (witness) wanted to ride. Told Capt. Ellis it was very hard to ride the mare about pounding cattle without a saddle. Asked Capt. Ellis for money on the Saturday. He said he had none, but would be up in the morning. On the Sunday morning, having no money, his wife said to him, ' we have no meat for dinner.' ' No,' said he. " Well,' said she. '. we will go without.' ' No,' said he, ' we won't, I'll put my leg across the mare and go to the German butcher for some meat.' On bis way called in at Hunter's, the policeman's house, and dined with him. Then went and got the meat. Whilst riding home met his woman and a policeman coming   to meet him. They said he was going to be taken. The policeman asked to whom the mare belonged, and witness   said to Capt. Ellis. The policeman took witness down to   Capt. Ellis' s house. He came out, and looked at the mare,   and said. ' What made you take this mare ?' Witness answered, ' Did you not allow me a saddle and tether to   throw my legs across the mare when I wanted ? He then   ordered the policeman to take him to the station-house.   Passed the night in a back kitchen near the cells Begged   the policeman, for God's sake, not to leave him there. Was   in the cells for a few hours. Was taken before the Police   Commissioner the next day and discharged.   By Mr Gwynne —Agreed for £1 per week. Counted the   weeks. Entered into his service on a Monday, but could   not tell the day of the month. Upon the seventh week wanted some money from Capt. Ellis, and got £5 14s from him, and an order on the pound for 50s. The wages which witness was to have was £1; afterwards 18s; afterwards 16s. The last week was at 16s. Got nothing but a single leg of mutton as rations Capt. Ellis made the agreement   with notice. Told him on the Saturday that he would   leave on the Monday. Told no one else that he was to leave on the Sunday. Took some clothes on the ruare, that his wife had been washing. He authorised witness to keep the mare in the home paddock, and any place he was going to throw his legs on her. Mr Ellis never complained   of his riding the mare, and had he done so without his au-  

thority, there were plenty of ill-natured neighbours who would have told him. Knew Mr Stephens. Had some conversation with him on two occasions. Had taken pro- ceedings against Capt. Ellis for false imprisonment. Mr Stephens said that if witness could make up £10 he could bring an action against Capt. Ellis. Nothing particular took place upon the second time about the matter. Mr Stephens had sent for witness the first time he went there. Did not go to Mr Hanson by Mr Stephens's orders. By Mr Hanson — Did not remember exactly the time he was at Mr Stephens's. It was some time before Christmas.   Mary Mcguillan (wife of the last witmsa), remembeted her husband being taken into custody. Mr Eills upon that day came in and asked where her husband was. She re- plied he had gone for some rations for dinner. By Mr Gwynne — He asked where the horses were, and witness said that her husband had watered them and left them down at the paddock. Told Capt. Ellis that her hus- band had taken the black mate to the German butcher's   to get some rations. He used to ride the black mare con- tinually, she being more about the house than the other horses. John Varcoe, Police-constable, saw Capt. Ellis at the house ot Poiice- constable Stewart, at North Adelaide. He said a person had taken one of his horses out of his paddock and was galloping it over the hills, and wished for witness to take him in custody. He said the man had previously been his servant, and that his time had expired on the Sa turday. When asked if he intended to charge him with stealing the horse be hesitated a little at first, and then said, 'I suppose I must.' Witness then accompanied Capt. Ellis to Nailsworth, and went into Mcguillan's bouse. Capt. Ellis asked Mrs. Mcguillan where her husband was. First   she said she did not know, and she then said he had gone to North Adelaide for a piece of meat. Left with Capt. Ellis and rode with him in a gig. Witness then got out and Capt. Ellis said he would go down and see whether Mcguill- an would endeavour to put the horse in the paddock the   back way. Witness was then on foot. Five or six minutes   after Capt. Ellis left Mrs Mcguillan came up crying, and said   he would be sure to meet her husband thereabouts. Walked with her until he met Mcguillan and then took him to Mr Ellis's. Saw Mr Ellis. who desired witness to take him to the Police-station or the watch house. He had some meat with him when taken. Made him a prisoner and left him in the station house. Saw Capt. Ellis coming home and told him to go and sign the charge, otherwise Mcguillan would not be detained. Appeared next morning as evidence against Mcguillan. George Frederick Dashwood produced the charge sheet. By Mr Gwynne — The charge was altered in the presence of witness. It was originally written, 'with unlawful pos- session of a horse the property of John Ellis.' Capt. Ellis   came up for the purpose of prosecuting the man, when   witness said he must either discharge the prisoner, or prefer a distinct charge of felony against him. He said he would prefer that charge, and the alteration in question was made. Sergeant Ladyman was at the station-house on Sunday, the 31st of October, when Mcguillan was brought there. Varcoe told witness that Captain Ellis had charged him with felony. Capt. Ellis afterwards cane to the station   house and he signed the charge. Capt. Ellis then charged the defendant as in the charge sheet produced, which he signed. That was the defendant's case. Mr Gwynne said that the defendant had signally failed in his justification. It had been pleaded as a mitigating cir- cumstance that the letter was unaccompanied by any edi- torial remarks. But for aught they knew, ' Humanitas' was no other person than Mr John Stephens himself. In- deed they were bound to infer that fact ; and if the plaintiff had accepted of the terms offered by the defendant, the pro- bability was one of his penniless scribblers would have been

put up for the real defendant. There was no authentic name to the letter, it being published under a feigned sig- nature, and he had no doubt but that it was the production of the defendant himself. But the defendant stood, not only   legally, but morally liable for the consequences of his pub- lishing the communication. Then what did Mr Ellis require? Could it be said that the defendant did not understand that the plaintiff wanted an apology ? But notwithstanding all the time he had had, he had not made it ; the defendant only said he had done nothing in the matter, notwithstanding a month was allowed him to do it in. But the fair inference was that the defendant himself was the writer of the letter, and if the plaintiff had agreed to acquit Mr John Stephens, Mr John Stephens himself might have put forward some man of straw as the author, and thus the plaintiff would have been the dupe of a shallow artifice. Mr Hanson con- tended that the libel was a fair comment upon the proceed- ings. He denied it. It was a most false and malicious comment. Let them compare it with the published report themselves, and see whether those remarks were not alto- gether unfounded. One point of justification that was proved by the report was that the horse was at least wrong- fully in the custody of Macguillan. Then they would find, by the evidence of Macguillan, than Mr Stephens had been   actively employed in the prosecution ot the plaintiff, in con- sequence of advising him that £10 would be required to bring the action. His learned friend was exceedingly weak,   upon the principal part of the libel. He charged Captain Ellis with attempting to deprive the labourer of his hire. It was absurd upon the face of it to suppose that Captain Ellis had any intention of depriving Macguillan of his wages. Was the plaintiff to stand in the position in which the writer of that letter had placed him ? They had a right to consi- der that Mr Ellis had made a mistake, and must suffer for it, as he no doubt would to the extent of the damages a jury might award. He hoped, therefore, they would put out of their consideration all feelings of sympathy for Macguillan, and, as between Captain Ellis and Mr Stephens, give his client reparation to the fullest extent that money could afford. Instead of apologising, he came there fortified with the skill and learning of his learned friend to support his charge. He hoped the jury would give such damages as would prevent a repetition of such libels. His Honor charged the jury. The libel imputed cruel and sordid motives in a publication of the 6th of November, in reference to some police proceedings. There was first a

plea of not guilty, and they had to consider whether the inuendoes in the declaration were in accordance with the motives of the writer or not. If they thought it was a libel, then they must say how far it had been justified. Without any justification, his opinion was that it was a libel. But ultimately it was a question for their consideration. The justification was that the plaintiff had acted cruelly, and for the purpose of depriving the labourer of his hire. No part of the libel charged the plaintiff with incapacity as a Justice of the Peace. That part they had therefore to overlook. The pith of the justification was that plaintiff had acted cruelly and tyrannically towards Macguillan. It was for them to say whether this plea was sufficiently made out or not. He considered it unnecessary to read the evidence over. It un- doubtedly appeared that the man was taken and discharged. He would hardly do his duty if he did not state his opinion as to how far the justification was proved. He wished he could say there was no justification. But he could not help saying that this was a most cruel proceeding on the part of Captain Ellis. When the man came back bringing the meat, he (his Honor) could not see how Captain Ellis could rea- sonably suppose the man had been guilty of a felony. Per- haps he might have imagined so at first, but that was no excuse for him afterwards. Next morning, however, it was in evidence, and it appeared the plaintiff charged Macguillan with the same felony for which he had been arrested, and whe- ther Capt. Ellis intended felony or not, felony was the charge ultimately made. It was a most harsh proceeding, even viewing it in the light that Capt. Ellis had personally mistaken his posi- tion. They knew nothing of Macguillan, but it appeared cruel to take him to the police-office upon a charge which was not true. He would take that opportunity to state that a master should exercise some feelings of leniency towards his servant. How could he expect to have a faith- ful and attached servant if he did not treat him leniently. The relation between master and servant could not exist   advuntageously if some just and kind feelings were not shown on the part of the master. If a man only suspected his servant of dishonesty, that was no reason why he should prosecute him. It always left a stigma upon the character of a servant being so charged, even if he were not guilty. But he found he might go beyond his duty if he thus continued. The plaintiff was aIso charged with sordid motives in de- frauding tne labourer of his hire. If he were to express an opinion, he knew no reason why that feeling could have en- tered into the plaintiff''s mind at all. And besides, it was not proved. He would also observe that Macguillan gave his evidence with some degree of confusion. If they looked at the account of Macguillan himself, they would find that there was no such sum left unpaid him as would make it a   matter of consideration for Capt. Ellis to charge him with   felony in order to get his wages. If they thought the justi- fication not made out, they would take the whole circum- stances into account, and give their damages accordingly. The extent to which the justification was proved was a just measure for the degree of excuse the defendant was entitled to. It was alleged by Mr Gwynne that the defendant was actuated by malice. He could not say that the conversation with Macguillan did not justify the supposition that Mr Ste- phens had at least assisted Macguillan in bringing his action; but they could not judge of particular motives, and he must   leave the case in their hands. The Jury retired for a few moments and returned a verdict for the plaintiff, damages— ONE FARTHING ! ! ! * This was ungenerous, as well as uncalled for, as the offer to name the author was made in such a form as must bave precluded the sup position that we were acting with duplicity. The letter was the ge« nuine and unasked-for production of a correspondent.-— Eds- $.A.R.