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CAPTAIN MITCHELL v. HOWE.
This was an action at the suit of Captain Mitchell, of His Majesty's Sloop of War, The Slaney, against Robert Howe for a libel contained in the Sydney Gazette of the third of March last. 
Dr. Wardell addressed the Court and the assessors for the plaintiff. Mr. Wentworth called witnesses to prove the publication, &c.
These witnesses were cross-examined by the Attorney General, who appeared for the defendant. A great deal of extraneous evidence was gone into in the course of the cross examination, but it was not objected to by Counsel for Captain Mitchell, as they were anxious for all possible elucidation.
The Attorney General addressed the Court for the defendant.
Chief Justice. This is an action for a libel against the plaintiff, stated and proved to have been published by the defendant. The plaintiff's damages are laid at £1000. The declaration opens with the usual allegation of the plaintiff's good name, fame, and reputation. This averment was not necessary to be proved, because the law would intend purity of character until the contrary were shewn; and the person who ventured thus to assail the character of another, the law would hold responsible. The declaration contained five counts. The first set out the whole libel, with a great many prefatory averments to explain its meaning, and suitable inuendoes connecting the various offensive parts of the libel with those averments. The second contained three of the most material passages of the libel, omitting the rest. The third recited those passages of the libel which charged the plaintiff with a want of common justice and humanity. The fourth referred to the office of the plaintiff, and then went on to shew how the libel affected him in this particular; and the fifth count was to the same effect, only that it set forth a different portion of the libel. The declaration then ended with an averment of damage sustained by the plaintiff, both in his office and as an individual, by reason of this publication. The plea put in was not guilty; and, during the trial there had been much discussion, and some difficulty as to the evidence which was properly received under this plea. The law, on this point, appeared to be, that any rumours which might have been in circulation short of the facts charged, were admissible; and to this extent he had allowed the evidence to go. But the truth of the charges in the libel was clearly not allowable, unless under a plea of justification. Such a plea might have been put upon the record; and, if sustained by the evidence adduced, would have been a complete bar to this action. Without such a plea, however, he repeated that no specific acts either justificatory, or tending to justification, could be admitted. And the reason, as it appeared to him, of this distinction, was that rumours from the vagueness of their nature could not be pleaded, and facts might. Such rumours, when proved, went to shew that the party was not damnified to the extent of which he complained. His Honor made these observations to enable the assessors to understand and weigh the evidence which had been offered. The libel complained of was found in the Sydney Gazette of the third of March, of which it appeared that the defendant was editor and proprietor. The only proof which was absolutely required on the part of the plaintiff, was proof of the publication. It would then rest with the assessors to say whether it bore the meaning put upon it. The part which is charged as most libellous, begins thus "The Almorah is off! the executive authority has been set at defiance, and his Majesty's officers have been daringly and wantonly fired on! For the sake of Captain Mitchell and his first Lieutenant, Matthews, we had almost expressed a hope that the Almorah might turn out to be a lawful prize; for, if such should not be the case, there can be but one opinion as to the painful but necessary result, originating in conduct so glaringly repugnant to every principle of justice or humanity." Was this passage calculated to cause a diminution of character to the plaintiff, and to prejudice him in the opinion of his friends and the public? The Attorney General had contended that this passage involved a contingency and that the meaning of the publisher was that if the seizure of the Almorah had been illegal, then the charge of felony attached, but not otherwise. He could not, he confessed, concur in this interpretation, looking at the whole libel for, in another part of the same paragraph, there were these words, which were fully explanatory of the intention of the writer. "In the afternoon the Attorney General and Mr. Clements made another attempt to board, and were welcomed by a similar warm reception. This they might have expected, as Capt. Mitchell was met on his return from the Almorah and he very considerately advised them not to think of going on board; so he was well aware of the instructions he had given to his Lieutenant to shoot the Attorney General or any other Officer, even in the execution of their duty." These words, it struck His Honor, were exempt from all ambiguity. Here it was roundly asserted that Captain Mitchell had given these instructions. But the Attorney General had further contended, that a mere direction to commit felony was no felony granted. But here the direction, if any were given, had been acted upon; and if the act itself amounted to felony, the commandment to commit it would fall under the same designation. It was not necessary, however, that felony should have been imputed to sustain this action. The difference between verbal and written slander was too well established in law to be now shaken; and the single point for inquiry was, whether the tendency of this publication was to bring the plaintiff into disesteem, and to vilify him in his character and profession. If the assessors should decide this question in the affirmative, then this action would be sustained, whether the publication contained an imputation of felony or not. But, that felony was imputed to the plaintiff, and meant to be so was obvious, from another part of the article, which stated that an information had been filed under Lord Ellenborough's act. His Honor did not mean to say that the mere statement of this fact amounted to any thing; but taken in connection with the rest of the article, it made the meaning of the defendant extremely clear. The last part of the libel too was equally explicit on this point, "with reference to firing at a defenceless boat and King's Officer, some of the laws of New Zealand and China might justify the step, but the mere presenting of a loaded piece, by our law, is death. How far the discharge of the piece may lessen the offence, we are not prepared to say. After all, it is an ugly affair, and we should not like to be so racked with anxiety as some are, for all the tea, rice, and dollars, in the universe, and even with the Almorah into the bargain." His Honor continued that these passages taken altogether, certainly, in his opinion, contained a charge of felony. At all events they charged Captain Mitchell with a very serious offence, even though it should be short of felony; and he held them to be libellous in the last degree on the character of the plaintiff, and fully to entitle him to a verdict. The only remaining consideration then was as to the quantum of damages. It had been stated in evidence by Mr. Wentworth, that previously to the Almorah being ordered to sea a general rumour was current of an intention to take that vessel from Captain Mitchell by force, and that Capt. Mitchell believed that rumour. Mr. Wentworth had also stated that Captain Mitchell had refused to pledge himself that no resistance would be offered, and further that resistance had actually been made to an attempt of certain persons to go on board that vessel. Mr. Wentworth too had stated his belief, founded on the circumscribed state of society here that after this transaction a variety of rumours would probably be afloat, though he does not recollect that any of them reached him. The evidence of John Thompson, Mr. Allen, and Mr. Berry, were fully corroborative of the latter part of Mr. Wentworth's testimony, and both Mr. Allen and Mr. Berry spoke pretty confidently as to certain flying reports, which had reached them previously to the publication of the libel in question. It would be for the assessors to consider how far the publisher had gone beyond these rumours, and also what damage Captain Mitchell might have sustained. His Honor said that he regretted most sincerely that the state of our judicature prevented this consideration from being left to a Jury: for what now were they called upon to do? to consider the value of Captain Mitchell's reputation, and how far it had been damnified by this publication. A Jury, selected from the community itself, were the most competent to decide such a question --- and he repeated his regret that such a body was not an indispensable adjunct to this Court. With regard to the fourth and fifth counts, which stated the capacity of the plaintiff, and the injury he would publicly sustain in that respect, he would only observe, that the plaintiff might certainly be damnified in this particular by such a publication, though no such damnification was or could indeed be expected to have been given in evidence. He would say nothing to the assessors as to the quantum of damages he left that matter wholly to them; for as he had before stated, it was a point upon which he himself felt an extreme delicacy in hazarding an opinion. The Chief Justice and assessors then retired, and after a few minutes absence, they returned, and brought in a verdict for the plaintiff, damages £50, and all costs.
The Chief Justice in delivering the verdict of the Court stated, that the assessors had given such moderate damages from the conviction which they felt, that Captain Mitchell's character had not sustained, and could not possibly sustain any injury from such a publication.
Dr. Wardell wished to know whether he was correct in his interpretation of the assessors' reason for giving low damages. Was it from an impression that the character of Captain Mitchell stood too high in the estimation of society to be injured by that publication. The Chief Justice observed that was the precise meaning.