Part 05: A letter on an article in the "Times" of the 13th March, 1886 : the law of libel / by G.W. Rusden [printed, 1890?]

Mrs Macarthur Onslow

A LETTER

ON AN ARTICLE IN THE "TIMES" OF 13TH MARCH, 1886

Not sent for insertion in the "Times," but printed as a pamphlet.

THE LAW OF LIBEL.

By G. W. RUSDEN. Author of History of New Zealand ; History of Australia ; Aureretanga ; Moyarra, Etc.

LONDON : WILLIAM RIDGWAY, 169 PICCADILLY

Price Sixpence.

{1890}

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Mrs Macarthur Onslow from the author

THE EDITOR OF THE "TIMES."

Sir,

Some time ago it pleased you to launch through a leading article, some thunders at my head.

As I presume that the maxim nullum tempus occurrit regi applies also tonanti you would not deny me the right of appeal— perhaps—if I were inclined to ask for space in your own columns to reply to your remarks. But when your article appeared I had placed my case implicitly in the hands of others and could not use my own hand ; and the time that has since elapsed has probably driven the matter out of all recollection in days when nine minutes cannot be spared for small occurrences.

For my own part I do not deem the subject worth notice as a personal one ; and my main object is the general consideration of the law of libel.

Against the spirit of your article, indeed, I should be ungrateful if I were to protest, for you were good enough to say that "Inspired by the best intentions Mr. Rusden has been unfortunate," and that I had written "a clever book in three volumes," &c. You added that "some living English statesmen must be very familiar with epithets such as Mr. — resents," but that it was "improbable that any court will carry the doctrine of privilege to the length of protecting any charge made in good faith against a public man."

The word any is so elastic that if it be taken in the widest sense of eccentricity, your doctrine of probabilities would be accepted by all. But if the word be construed reasonably, I contend that the principle of protection to which you refer is reasonable and just, and that, in practice, it has frequently been recognized.

On the matter personal to myself, as touched upon by you, I shall only remind you that the peccant paragraphs were founded on information furnished by a Bishop of scholarly Oxford reputation, and that, unwilling to rely upon a single statement, I sought further particulars ; and obtained them, in writing, under the hand of the same apparently high authority.

I do not desire to contend, now, that it was sufficiently high authority, or that I construed it correctly ; but putting my own case on one side, I would point out that there has been (since the date

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of your article) an instance in which an eminent Judge, Sir Henry HAWKINS, instructed a jury that the reputable character of an informant may, and ought to, excuse a public writer, who, misled himself, writes something which may mislead others.

An action for libel was heard at Manchester in 1886 before Mr. Justice GRANTHAM. A verdict having been given for the defendant, a new trial was moved for in a Divisional Court, before Baron HUDDLESTON and Mr. Justice MANISTY, on the ground of misdirection, &c. They directed that there should be a new trial.

The new trial was held before Mr. Justice HAWKINS at Manchester in January 1887.

In his summing-up Sir Henry HAWKINS said (Manchester Courier, 26 January 1887)—

"What was the position of the defendant in this matter? (The defendant, an editor, had printed a speech made in public.) Nobody questioned at all that Mr. Thompson who made the speech was a gentleman of position and standing, and a gentleman whose word was entitled to be treated with respect. It was not as though a mere unknown adventurer had come forward and made a statement derogatory to the character of any one. In that case one might very well have looked with suspicion upon his statement.

"But in this case a reporter heard an influential gentleman make this statement in terms which certainly indicated that there was no hesitation and no doubt at all about the matter . . . He could see no reason why he should not implicitly rely upon the statement; not that that would justify his putting it in the paper, unless they also came to the conclusion that it was for the public good that it should be published . . . He did not think they ought to go into the question of whether or not the story was true or false. If it was believed by Mr Sowler, the editor of the paper, to be true, the mere fact of its being true or untrue did not, in his mind, affect the question whether it was for the public good that it should be published . . If they believed that it was for the public good that the matter should be inserted, then their verdict would be for the defendant; but if they came to the conclusion that there was malice, or a sinister motive, or that it was not for the public good that the publication should be made, they would find for the plaintiff . . . It was a grave misfortune that Mr.— should have made the statement, untrue as it was. But still though an untrue statement Mr. Sowler was in no respect responsible. He knew nothing at all about it. He had before him a gentleman of position, of intelligence, and of supposed integrity, and a gentleman who occupied a position in the corporation which certainly would have disarmed him of even suspecting that he would have been guilty of inaccuracy.¹ He thought they must all regret that this imputation should have been made against Dr. Pankhurst; and at the same time one could not help sympathizing with Mr. Sowler for that he should have been induced to insert a statement which turned out to have been so utterly unfounded."

I submit to you, with confidence, that these deliverances greatly enlarge the scope of probabilities which—before Sir H. HAWKINS thus spoke—you seemed to apply to the claims and risks of a public writer.

Desiring to discuss the subject in its public relations, and, as much as may be, to avoid personal allusions, I say no more on

¹ It is hardly necessary to remind you that the position of a Bishop, an Oxford scholar, is not inferior to that described by Mr. Justice HAWKINS. My object in citing the case, however, is not to draw a comparison between my case and that of Mr. Sowler, but to invite your attention to an apparent discrepancy between some of your remarks and the dicta of Mr. Justice HAWKINS.

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this topic than that the position of a public writer would be intolerable, and the performance of his duty would be rendered impossible, if no such distinctions as those laid down by Mr. Justice HAWKINS were sanctioned.

In your own article, indeed, I trace some sympathy with that learned Judge's utterances, for you wrote:—

"Mr Rusden may think, and his counsel gave expression to the thought, that it is very hard that he, a painstaking historian, should be made answerable for his statements. He may with some reason, say "How few chroniclers would prove unimpeachably accurate if their statements were sifted carefully in a court of law!" Such, however, is the penalty attached to writing contemporary history, though rarely has it been so heavily paid as yesterday."

Sir Walter Raleigh's reflections upon the contradictory statements of eye-witnesses -- fresh from seeing -- would have amply sufficed to warn me of the difficulty of insuring accuracy in any narrative.

Moreover in addition to the fallibility of all men -- whether historians or others—there would always confront an author the hard fact that, even if his narrative were really accurate, and no informant had misled him, it might be difficult or impossible to establish his accuracy to the satisfaction of a court of law.

This hard fact it is that makes me hail with gratitude, and press upon your attention, the utterances of Mr. Justice HAWKINS which I have quoted.

You will not fail to remember that the taint of fallibility is not absent even from the courts of law themselves. No ordinary person would presume to make such an assertion on his own authority: but when three Judges are found overruling the dicta of one or two other Judges, it is impossible to deny that somebody is wrong, without at all subscribing to the saying which Shakspeare [Shakespeare] puts into the mouth of distraction, that a pigmy's straw may prevail in one case, though the strong lance of justice may fail in another.

It is the sum of many cases, and not any individual one, to which I desire to call your attention.

Nevertheless, in passing, I wish to thank you for one conclusion contained in your article, which was the more gratifying to me because a few persons, who had not watched the case so closely as you had, failed to discern the fact that the jury in my case gave no opinion, and were not asked to express any opinion, as to the conduct of the New Zealand Government, or of their officers, at Parihaka or elsewhere.

To emphasize your accuracy on this point, I will cite a few brief sentences from the published short-hand report of Baron HUDDLESTON'S summing-up in my case, in 1886, merely premising that I had nothing to do with the publication.

"Something occurs" (the learned Judge said) "which ends, not in fighting, but ends in what I should say would be a massacre at Handley's Woolshed. . . . You

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