1837, Thomas Whitfield v. William Caswell

Thomas Whitfield v. William Caswell, 1837¹

Justice J Dowling's Notebook ²

Thomas Whitfield
v.
William Caswell
Slander

About 12 months back a man in the presence of Mr Oliver of Raymond Terrace used language reflecting in the grossest manner on the conduct of Mr Whitfield. ³ In explanation the man in question stated that the terms he applied to Mr Whitfield were suggested by circumstance of his having made proposals to him of a disgusting nature when at Sawyer’s point (meaning ?).

That (Larkin ?), (Foreman ?) Butcher at Stroud had stated that similar proposals were made to him by Mr Whitfield. That William Constable made a similar charge & stated further that several other

men had had proposals of a like nature made to them by Mr Whitfield, (meaning ?) that plaintiff had made several attempts to commit sodomy with several other men.

That William Baker had made a complaint of a like nature against Mr Whitfield (meaning ?) that plaintiff had attempted to commit sodomy with said William Baker.

That Nathaniel Burrowes had made a similar charge against Mr Whitfield (meaning ?) that plaintiff had attempted to commit sodomy with the said Nathaniel Burrowes.

That a man named Billy Duke stated that he had seen gross improprieties practised by Mr Whitfield & a man named Dodd. That the above matters are stated to be generally believed & of public notoriety. 2 (Court ? Counts ?) – 3 (Court ? Counts ?)

Special Damage in loss of Superintendent of Agricultural Stud cattle, to the (Australia ?) Company at Port Stephens.

Not Guilty

Attorney General & Foster for plaintiff: Colonel Henry Dumaresq I am (commander ?) of the Australian Agricultural Co – I have been so (since ?) February. I know plaintiff – He was in charge in the Agricultural Department of the Co – This is a letter of my writing – I had no intimacy with Mr W. – (?) – I have invited him to my house – – This letter – In consequence of this letter I engaged him. – (?) – (?) (Hale ?) – offer of (attending ?) to

stud & agricultural – see about for your acceptance.

30th December 1834

In beginning of February last he was in the Co’s service – I know defendant. The defendant had no employment in the Co. On 2nd February about 10 in the morning. He lives on the opposite side of harbour at Port Stephens 5 or 6 miles. The plaintiff resided at Stroud 24 miles from Carrington at Port Stephens – He called upon me about 10 in the morning. I (took ?) the substance & read it to him after he had stated – He (remarked ?) that although I had not used the exact words, yet I had the substance of his statement made at the time. This is the (original ?).

I had sent it to the Police JP & he returned it to me. The defendant was desirous of reading that statement to me (as ?) JP. I am a JP. He knew that. I objected because I stated, it was merely rumour – (& ?) my impression was that he (stept ?) from his boat & came to my (house ?) – within a few yards of the (beach ?), & the greater part of his statement was what he had just heard in his passage from his house to mine. That was only (impression ?) & (I ?) did not (say ?) so, & upon that

impression I told him he was in a situation to file an (information ?) – He could not state the facts. I told him there was a police (magistrate ?). (He ?) might to make the charge & on the other ground I mentioned – It was never (known ?). He expressed his readiness & I declined swearing & I explained my motives in doing so – He was satisfied & left the case in my hands. I took the statement in (writing ?) as a matter of prudence – & I read it over to him, when he said it was correct in substance. I refused as matter of (?). I did not swear him, not in words. The defendant also said his first intention was to go to the PM [Police Magistrate?] but afterwards

considering as I was plaintiff’s employer that it would be more courteous to wait upon me first. – when I made that (?) (?) (?) I (thought ?) they were earnest. I have no doubt of that the imputation, meant of acts of (beastiality ?) – I remarked to (C ?) at the time that they amounted merely to misdemeanours – that they were (contra bonos vires ?) – but not (criminal ?) – I did not understanding them as imputing a charge of sodomy.

Coupled with other circumstances which came to my (knowledge ?) (?) the thing – that an (implication ?) that sodomy had committed. I know the situation of the (?).

If I had not known other latent (circumstances ?) I should have understood the charge to amounting to sodomitical practices. Setting aside the peculiar, because I had certainly understood the imputation to apply to unnatural offences – merely a disposition to commit – never conveyed to my mind that the act was committed. I (communicated ?) this to the plaintiff himself, having first consulted with Mr Cook & Mr Ebsworth my brother JPs. It was not necessary to investigate it as a magistrate. The reason was there was no specific charge.The plaintiff wished the matter to be investigated on oath by the PM. This was by letter –

This is (Whitfield’s ?) (?) letter & my answer (?)

8 February 1837

Whitfield 8 February 1837

Col Dumaresq to plaintiff –
At present the matter is not in (?) (?) (?) (?) which (after ?) (?) – (It remains ?) for you to risk such legal process as you shall be advised.

The defendant expressed a disposition to follow it up, but I did not see him after. He expressed himself to do so. – He said (he ?) that this was a courteous (?) of applying to me first. The defendant made over the case to me – he would not (have ?) taken a step in deference to my opinion. I discussed the plaintiff from his situation, but not in consequence of this. He was under notice to quit for many weeks before this.

I suspended him – upon subsequent inquiry – Whitfield on 5 (January ?) received notice from me to quit. – Caswell matter 2nd February – No circumstances would have induced me to retain him, not with this imputation – It was a matter of business – I did not approve of his services as a competent person.

The inquiries I (instituted ?) myself persuaded me it was indecent, & improper to keep such a man on the establishment. He was in fact present when I made these inquiries. One man denied it in an equivocal manner. The (impression ?) of my mind, those (men ?) were in Mr Whitfield’s interest. The investigation

was not on oath, nor in presence of Caswell. I put it to Mr Whitfield – I suggested to him that the (parties ?) (who ?) were his accusers should be examined by Whitfield himself in (presence ?) of Ebsworth JP & myself. He assented & attended accordingly. The witness(es ?) denied equivocally. I (?) in my (mind ?), manner & substance.

There was no (equivocation ?). He coupled his denial with an (observation ?) which induced me to believe he was not telling the whole truth. This was Baker, & (Larkin ?) Foreman – after these proceedings

he wished them to be examined on oath before the JP.

The statements were not on oath. I (consulted ?) with Whitfield to put the (questions ?) himself. I did not interrogate them myself the least in the world – Mr (White ?) was appointed in plaintiff’s place. He was connected with him by (marriage ?) recently & always on friendly terms. (Mr ?) White had been in the Co’s services before. Not dismissed, but left with the highest eulogium within my dispatches. I was not induced to appoint him, upon any (application ?) or (?). It was supposed without foundation. I had hostile feelings towards White. He left in angry terms. A sourness apparently – & such as would prevent any (expectation ?) of being reappointed. I had offered the

situation to another person got no answer for 3 months. I did not know White was there – I did not see him till the 5 or 6 February – (Foreman ?) ticket of leave constable – was not in Co’s service but had been – & driven by improper overtures. Billy Duke was not then in Co’s services – occasional (?).

Nathaniel Burrowes had a ticket of leave & had been assigned – Dodd was also a ticket of leave within Co’s service.

Cross-examined Therry.⁴ The plaintiff had no medical employment. I always understood he had practised as a surgeon. I did not believe he was in the charge of the agricultural & Stud. I should have (expected ?) assistance as a veterinary Surgeon. The

(?) from (?) was I understood to be put in the way of judicial inquiry – & also in a (chivalrousness ?) to caution me against (allowing ?) my (allowing ?) my [sic] family to (associate ?) with him. I was going on a visit to him (?) for 2 or 3 days. Mr C[aswell] stated at the same time, had I met Whitfield first I should have apprized him of the rumours which had reached (me ? him ?). He stated it was monstrous he (thought ?) to (become ?) the (recipient ?) of (information ?). That as that which he had received against a gent (?) (?) (?), & not afford him an opportunity of rebutting it, (blamed ?)

(certainly ?) those parties to whom these rumours had become known, for still leaving Mr W in the dark with respect to the nature of such accusations. One of his objects was to (prevent ?) the visit, & to bring accuser named Howarth under investigation upon Whitfield’s evidence, who (thought ?) innocent – should (?) (?) – & (he ?) never should forgive himself, unless (?). Mr C’s motives could not be questioned – they were (honestly?), & emphatically chivalrously so – as he went out of his way to do what he considered an act

of justice. The charge against (?).

Howarth accused Whitfield with having invited him to commit an immoral offence, & detailed a (bank ?) of disgusting circumstances. He stated, he first was going to the (PM ?). – He was (cognizant ?) of the whole case. Howarth was punished for making false charge[s] as was alleged – He is now suffering (regrets ?) in an iron gang. It was about that defendant said he would (?) that (?).

The defendant at (time ?), gave me the names of all the persons from whom he heard the rumours – He also added in (justification ?) (as ?) (supplied ?) to me, of

the course he had adopted that these rumours were so notorious, he (could ? would ?) (wager ?) (any ?) (?) (?). I went out of doors & (?) the first male person(s) I met, that I should find were acquainted with (them ?). He wished to remove from my mind any idea that he was a busy body – or (meddler ?), & his motives – He said Don’t conceal (me ?) – – – (my ?) name – He had no wish to make clandestine statements. – I saw Ebsworth JP & many others & I (calculated ?) that the rumours were notorious – I inquired from every body, & from anybody –

The rumours extended beyond the limits of the Colony – at the (Peele ?) & elsewhere – from the (Peele ?) to the Hunter – throughout every part of those districts – universal – It happened to me I was the last man in district who heard it – I expressed my astonishment – they appeared (firm ?).

Whitfield suggested I should (examine ?) a man an overseer in his department in Co[mpany] with him at Briggs public House. I did so. This was after he requested (evidence ?) upon oath before JP – He said this man would tell me the truth. He might have been present then absented himself – He said is it (necessary ?) (when?) (?) is (?). I said you had better

see him & he came in the following morning.

Foster & AG objects –
Therry & Windeyer The (?) was so (unfamiliar ?) (?) (?) (?) that I felt it my duty (?) to remove Whitfield from the exercise of all control – It was (outcry ?) & (?) that I thought it would be indecent to let him remain –– – Every (one ?) I (referred ?) to can (confirm ?) me – from (?) (?) to the remote part of the Colony – we have stations 200 (+ ?) miles off – & had done for 2 years previously – reports had prevailed. I took many pains to satisfy myself I was not doing injustice –

It was Caswell wanted to proceed in a more formal manner – I (started ? stated ?) such a discussion – for sake of good (?) & (?) better not to make this public – (?) (?) was (?) – to conduct it formally – bring it in (?) of (rumours ?) – (?) that (?) (?) (?) (?) – He stated his duty was to afford W[hitfield] every opportunity of justifying himself – & if they were guilty – – death would be too lenient. Caswell’s purposes were none but those of justice (and ?) honour. The (communications ?) were made to (me ?) (solely ?). He is a (Lieutenant ?) in the navy. He is a settler & cultivates (his estate ?) & obtains his goods from

Sydney by the Co’s (?). There is no company there. Society is very limited.

I offered him to remain in the House (?) (?) (?) I did not suspend him – I did not accept his services. I removed him from active service – but not on this ground. I gave notice on 5th January to quit on 5th June. I (offered ?) a house to reside till 6 months expired. I have not personally communicated with him since.

It was early in the morning & the state of excitement and anxiety he manifested that I supposed he had just come from the boat. He said these are my (informants ?) & (?) (?). Wished

to impress the purity of motives – an amicable man & a credit to the profession he belonged. He said if – met W a few days before I should have offered him my hand & house in the usual manner. Had a friendly feeling towards him – Had letters of introduction, & a (claim ?) (upon ?) (?). He stated the rumours in case of Howarth so remote – if I (came ?) 2 days before I should (offered ?) my hand & house. I (thought ?) that he therefore came directly from the boat. He told me in going over, after Howarth’s business, that his men had been so free in (commenting ?) on Whitfield’s conduct, that he threatened if they

indulged in such comments, he would take them before the PM – I (thought ?) that he was desirous of repressing them – He always laid stress on justice towards Howarth. He was exceedingly anxious – took a long view – I took a (feeling ?) for me, that I was going to visit with wife & family. His principle motive was justice to Howard [sic–Howarth].

Re-examined. He seemed sincere & bona fide. I heard of no rumour before except the case of the man Howarth. He was a servant of the Company – I [thought ? said ?] that should be proceeded in the most delicate manner – as to Howarth I told him I [thought ?] that those JP would be as anxious to do the man

justice as himself.

He [said ?] that I could – expecting I would enter upon as much zeal as he did. I never heard these rumours except from Howarth. I can’t say whether those rumours originated until after the (communications ? complaints ?) had been made by Caswell. There is a small society at Port Stephens. It was impossible it could reach where my inquiries were made in a short time from Port Stephens. I did not hear it till March. I satisfied myself they existed.

There was time to have circulated a verbal or written (communication ?) – It may be the latter end of April. Howarth was a prisoner – The men in the boat, he said were his own servants – He said he could not [get ?] back on account of the wind – could not get back on that occasion. Howarth

wore a placard “Infamous Traducer”. The rumours had persisted 2 years – “It was on a (?) (afterwards ?) & Whitfield’s testimony the man was sentenced.”

Myles Shehy Attorney for (plaintiff ?) I served notice on defendant’s attorneys to produce letters 27 February 1837 & 8th May 1837

(reads ?)

I got an answer –
I addressed a letter to Carr & Rogers after action but I waited – & (?) out the (?) latter end of March. My object was to give the defendant an opportunity to make good his charge.

Service is 29th April 1837. I gave directions not to serve it till then – to give defendant an opportunity of (coming ?) before

a JP with these charges. If that had been done this action not (brought ?). I was prepared by counsel to attend. I saw Mr (Cook ?) this morning & he was unable to attend. I have a Dr’s Certificate. He seemed to me to havefever.

Cross-examined. Caswell’s answer put in –
8th May – in answer to C & Rogers letter.

I took no steps after letter (of ?) Caswell but bring this action. I don’t know Mr C personally. I never told C I was waiting 3 months. I never had any (communication ?) with a friend of plaintiff. I had no (communication?) with Mr Stubbs. W called (?) – Stubbs called since in town – I spent the (evening ? morning ?) yesterday. I know Stubbs rode. We had to send to (?) River for him. He

was in town shortly before I wrote the letter – Before the letter & 26th – Is Caswell worth powder & shot? – I don’t (recollect ?) may be I forgot it. I won’t swear I did not.

After W called I saw Stubbs. He said he considered it a vile conspiracy. He told me he was on friendly terms – very intimate with Dr W. He never told he had a (?) on Mr Caswell’s property – I never – I only asked what Stubbs had to say in the case. He was the friend of Whitfield. – I never said he (should ?) (?) him. – I asked who he was – or what he was – I (entered ?) fully into the affair with Stubbs. We talked – Before I brought the action I got a (check ? chit ?) for (50£ ?) – before I commenced.

Re-examined. He only wanted to relieve his character. He could not remain

in the County. My object in waiting was to see if he would prefer his charges.

Case closed.

Minute taken by Col Dumaresq of what defendant said – secret & confidential.

[Mr] Therry The plaintiff must be (?)
1st Innuendoes not proved
2nd This is a privileged communication – & not (subject ?) of such an action
3rd No proof of malice
1st Party must prove his innuendoes. The offence is sodomy – no evidence to sustain this innuendo.
id est.
Can’t (extend ?) or enlarge
No precedent matter.
2nd ground privileged – They copy strictly all the words of the (written ? witness ?).

The foregoing statement – –
Wright v. Cartwright (&) Wright – 5 B & A 615.
Upon privileged communication
Macdougall v. Claridge 1 Camb. 67.
(Confidently ? Confidentiality ?) & under impression well founded.
(?)
Fairman v. Ives
Here a communication made by Lt (Caswell ?) – made to the employer to a JP – to be put in a judicial inquiry, with the names of the persons.
Dunn remonstrated with him. His desire was to prefer the charges – bona fide spirit.
Bona fide determination.
Here is a communication – application done bona fide.
Probable cause
Bona fide
1 B & A 246 –
(Moody ?) & Robinson

Bate v. (Pilford ?) occasion rebuts the influence of nature. prima facie & (excusable ?) if not idle or groundless no evidence of malice.
Windeyer (said ?)
2nd point of privilege – (question ?) supposing we have exceeded the bounds of privileged communication.
This is not the form of (action ?).
Under mere pretence of doing a lawful act – acted upon reasonable & probable cause.
1 B & AW 245 (?) is privileged prima facie.
Should have been (found ?) – charged (without ?) reasonable or probable

cause.

5 B & A 645 –
Fairman v. Ives. (?) made maliciously without probable cause.
4 B & C – 481 –
Case as for defamation will not lie, as it is uttered of the administration of justice. The party amply bound to allege made without reasonable or probable cause.
upon that point alone
– other point –
If they had proved malice they could not maintain the action
If he does go before a justice with ground.
Malice is nothing without probable cause.
(?) v. Young 2 B (?)
Moral duty

⁵

He is not a person aggrieved – It is an unauthorized communication.
Howson v. Stephens The latter in defending the (?) libelled the plaintiff.
Prima facie excusable – on any duty or moral – towards – legal or moral (towards ?) the person – to protect theinterest – unless (?) actuated by malice
Putting in a course of justice is (?)
I save (these) points
4. 1st as to innuendoes
2nd as to privilege. 4 want of proof of malice

& 4th misconceived in point of form for they should have (brought ?) case and (alleged ?) (?) & want of probable cause.

Therry for Defence. ⁶ No priority between Col D & the defendant. If (Dumaresq ?) had asked him about Whitfield & he knew anything of his own knowledge, then prima facie it would be privileged – to tell him.

It is a voluntary statement & unauthorized & if he means to justify he must (proof ?). No duty cast upon him to make the (communication ?) of a mere rumour.

Mr James King A settler on Hunter’s River near Raymond Terrace. I know plaintiff & defendant. Before February last I had heard rumours –
AG I (object ?) & a note – that it may be brought before the court. It has been received.
The reason (of ?) open (for ?) (?) no malice general rumours – (could ?) throw the plaintiff upon all his life.

I never heard of any.

I heard 18 months ago that Dr Whitfield had made (?) proposals to a party. (I would not allow the name)
AG (?) (?) – (Spencer ?) – can’t (communicated ?) (to him ?) (when ?) (?) I (communicated ?) to defendant 12 months afterwards that I heard (such ?) (?). That is 6 months ago. Immoral proposals.

I understood the rumours respected a proposal for an unnatural crime.

Cross-examined. (I ?) speaking of this part case (hearing ?) it from (persons ?) at that time. I heard afterwards 6 months ago – similar things (+ ?) in other quarters – prior to February last. I think it was before but I could not swear positively. I believe it to be so.

Solomon Young A labouring man (living ?) at Cook’s River. I know plaintiff at Sawyer’s point. I have since that happened about 12 months ago.

I have heard reports I can’t say before February. I heard them up the river – I don’t recollect how long. I believe I heard them before 6 months ago. They were about getting

along with the men – in the same way as if they were women.

Cross-examined. I am a labourer, ticket of leave. About 9 months ago – till that time I was in service of Mr Oliver. I did not know Howarth. I was working by myself no other man. I used to go backwards & forwards from Sawyer’s point to Raymond Terrace. I won’t swear as to times. I’ll swear to more than 6 months – I never heard of Howarth. I heard of a man from the Company. It was before that I heard of the rumours. Before I left Oliver’s I heard it. I was employed (with ? within ?) public (?) at Oliver’s – I (stopt ? slept ?) there at that time.

Edward (Gostwyck ?) Cory I live at Patterson’s River a settler & farmer. I know plaintiff & defendant. Before February

I heard rumours about Whitfield. I have heard it spoken of in several different company. 8 or 9 months since – It was prior to November when I first heard of it. They were rumours of improper conduct. I heard it at the (Peel ?) (astride ?) the boundaries – I have heard of them in 4 or 5 different places. I was at the (Peel ?) in November & I heard prior.

Cross-examined. The Company have a station at (Peel ?). I heard at other places – & (?) men. I suppose it was (general ?) report – (brought ?) up in conversation. That was in November – If it was true it was a very disgusting thing. I know

reports some not always true – I recollect the action against the (Colonist ?) – The (Colonist ?) stated from (report ?) (as to ?) charges – & it was prior I got 75£ not damages because – –

Re-examined. I heard these rumours at several places where I went.

James Charles White Superintendent of Agriculture & cattle with Co. I know plaintiff & defendant.

I joined the Co first in 1830 – I left in december 1835 – In 1836 I have been (?) the Co’s establishment at Peel’s River, & at Port Stephens (?) the estates. In various quarters & times I heard reports about plaintiff taking indecent liberty with different men. I heard it at Peel’s River & Port Stephens about 200 miles. I heard it from 3 or 4 different persons

disconnected – I told them to Mr Caswell – It was on Thursday the 2nd February – I came from Peel’s 31 January – I slept at (Caswell’s ?) on (1st ?) & going across the water, Mr W’s name was mentioned & then I mentioned the reports. Defendant said as a friend of (?) I ought to tell. I saw him go – I authorized him to mention my name as one of the persons – as his authority. He appeared to be (cognisant ?) of the rumours I heard before. He mentioned I heard of Howarth[’s] case. He said he considered it a duty in justice to the man it [was] right to be (best ? first ?) forward, & then he went to (?) & the names of the other persons – 4 or 5.

Cross-examined. I had heard what had occurred to one (party ?). I heard rumours from 3 or 4 persons. They were actual occurrences. There were 3 or 4. I have Whitfield’s berth. I never asked for it – It was offered to me. I am married to a niece of the defendant. I know a clergyman named Price – I made an (apology ?) & propagated. I did not admit it was untrue. I made an apology (to ?) (Sir ? Mr ?) (E ? Parry ?) for (being ? having ?) (?) (?). I say it is true this moment. P was a clergyman on the estate, & I (thought ?) better not to inquire. No investigation. I never wrote to (Sir E.P. ?) I was the author. I expressed sorrow for being 1st (forward ?) I say it true. I was in Co’s service prior & subsequent to it.

Re-examined. Nothing of this kind – it was about a glass of grog –

nothing of this kind. Not like chalk from cheese.

Thomas Layman I am in the service of AA Co [Australian Agricultural Company] overseer of mechanics. I know plaintiff & defendant – Before February last I heard rumours & reports about Whitfield – of indecent conduct with men – I heard them about 15 months previous to February – I heard them from several quarters. I believe they were generally known. I heard them from persons in (communication ?) with Mr Whitfield. In absence of clergyman I read prayers at Stroud. I have been as far as Gloucester. Did not hear them there, as my stay is short – I generally stay at Stroud.

Cross-examined. The reports were amongst the free & indented (servants ?) – & among the (prisoners ?) I never heard it from (prisoners ?) – If I had I should have reported it formally to Col Dumaresq.

The men are situated in the place a short distance most (together ?). The free people are mostly (together ?). The place is ½ a mile long. (Of ?) one person. People with families would have more sense than to circulate the (rumour ?). I did not spread it.

Re-examined. Howarth (freely ? fully ?) reported to me. The (servants ?) knew how he had been treated. I heard the rumours were current among the free (servants ?) of the Co – I believe so.

(Wharton ?) When Howarth made a complaint I went to Ebsworth (immediately ?) – & he sent Howarth

with a letter to Carrington – & afterwards Whitfield came to me & I told him what Howarth said & Whitfield went to Carrington I believe – He went with a letter. I believe the Constable was sent after him.

Mr James Corlett I am store keeper to the AA Co – 10 years. I know plaintiff & defendant. Before the last 6 months I heard rumours that he took improper liberties with men, about 3 months after Whitfield joined the establishment. This is about 2 years. At first not notorious. At first (?) not inclined to believe them – but I was told at (last ?) that they (used ?) to have something to say about. I heard the rumours about 3 months after he joined. I told Caswell. He came to my (house ?) in (1st ?) 2nd February in Co with White.

We had breakfast & he told me he was going to Col Dumaresq about the reports (concerning ?) Mr Whitfield. I told him a (gent ?) & (another ?) had some consultation about making a (formal ?) (communication ?) – & that this (gentleman ?) told me of a complaint. I told him there were (subsequent ? such ?) rumours – Till then Caswell never (hinted ?) (?). The rumours were notorious beyond anything for months previous – up to this time. Howarth made the complaint in October. (They ?) were in (circulation ?) before Howarth’s affair. Mr C when he came after the breakfast – asked for names of (?). It is (?) was to give up his name that (he ?) made the accusations, & the

names of the persons who accused Mr W of taking the liberties. You may say I have been told – & gave the names of the parties. (Caswell ?) went from me to Col Dumaresq.

Cross-examined. He (communicated ?) the subject with me & then I told him a good deal about Howarth’s business. People would talk about it. I abstained from all (intercommunion ?) except business. Mr W kept a house of (accommodation ?). No alternative at Stroud – He kept a public house. I abstained (?). I dined [sic] with him in January. I had to (consult ?) about business. I went after (hours ?) to get the (information ?). I dined with him. I did not tell him about the reports. I should have to have placed myself in the same situation

as Mr Caswell. I would have placed (another ?) person. I gave up the names of the men. He took down the names. It was a serious thing to speak to a man about. I did not (like ?). I had no direct information to myself. I had it at 2nd hand. I said if a direct person told me in a direct manner that I should have gone to the JP.

I was obliged to have his attention in the business – If I refused meals – it might be & should come to an understanding – I would I defy him to say that for 12 months I ever (dined ?) except this particular night with him. I had no alternative (on ?) this particular occasion.

Re-examined. I was aware Whitfield was allowed to keep a table for Co’s servants. I did not go in a social dinner. (At ?) Stroud I stopped with Mr Ebsworth.

My (commission ? communication ?) was limited to the papers. Mr W spoke to me about the dismissal. I listened to what he had to say. I went on business – & not as a visit on a friend. On this occasion I did not sleep there. Defendant told me he meant to make a (communication ?) – I told I guessed what the (communication ?) was. He spoke of the (?) & his feelings – & the (propriety ?) of a man (?) (?). He said he had (?) (?) – & he spoke of his feelings – He had held his hand. Common sense – Probably those in making reports would fall back. I told him to take a bold course – He was (?) not with malice – (nothing ?) to him – to gain or to lose – He was (?) & (?) to

Howarth’s case. I cautioned him against propagating false reports.

James Charles Russell. MCS. Surgeon. York St Sydney. I know plaintiff – In 1826 I lived with him as an (assistant ?) in Smith (?) (?) (?) a chemist & Druggist. Whilst in his service I heard rumours of his indecent conduct with respect to men. I heard it more than once. Mr Whitfield was not a surgeon, a chemist & Druggist – I have not (mentioned ?) (?) on being his (?) (?). I said reports had been spoken of at home. This was in 1826. Shortly after I left him he sold his business – & (componded ?) with (?) & he went home to Sierra Leone – I have not seen him since.

Cross-examined. I was with [him] 5-6 or 7 months as an assistant. I was not disqualified. I was not (turned?) off. Did not charge me with (stealing ?) (?) or (?). I have (heard ?) Lord William (Tredennick ?).

I never saw his Lordship, never (charged ?) for that. It was my own perquisite. I have been here about 12 months. At VD Land [Van Diemen’s Land] I wrote to Mr Whitfield in (?) (?) – I wish to ask if he (?) letters – I received no answer. I had no notion of coming up. I was promised a govt. appointment at VDL as district (assistant ?) surgeon. I have a diploma in London College. I had (?) resigned – no (complaint ?) (against ?) me. I resigned and came down here.

I came not quite 13 months ago – I did not see him since 1827. Last time I mentioned this to Dr Smith when I heard of the action. I did not know defendant. I have no wish to appear here. Dr (Smith ?) was in (attendance?) upon a (?) of the family – I was (?) to Dr Smith it (was ?) where I met Mr Caswell within the last 3 months. I did not know that Smith knew defendant. (?), was (?) the case – “that’s the man I lived with.” – Smith is a prudent man. (?) that I did know defendant.

George Gordon I am employed by the Co – for 11 years as a free man. Always free. I know plaintiff. Was my superintendent. I have heard rumours spread

about the county – most disgraceful – (mainly ? wanting ?) to have connexions with men – that is the general rumour. I have heard free & bond speak of them. I remember Howarth’s case. They were as frequent before as well as since. I have travelled the (country ?) a good deal & heard it from (persons ?) and (different ?) parts – Stroud, Carrington, at Gloster [sic–Gloucester] & generally throughout the estates (within ?) (country ? colony?) – from 12 to 15 months – Whitfield (mentioned ?) (?) to me – Before I had (communication ?) with (?). Mr W saw me, & he told me what was going on, & to speak the truth about it, & I did – (concerning ?) a man belonging to the Co.

That was the earliest of his (communications ?) – I told (?) the truth. He asked me about the case, referred to be Whitfield.

Cross-examined. They rumoured about my taking people’s horses – not true.

Michael Ryan I am a ticket of leave at Campbell Town – formerly I was Chief Constable at Carrington for a time. (Left ?) on 18 July 1836 – Before I left I heard frequent rumours respecting his conduct – very much that he (wanted ?) to be playing tricks with the boys & people (?) indecent tricks – with men – I frequently heard them before I left. I remember when Whitfield came. It was 4 or 5 months after he came I heard them.

Cross-examined. I am a ticket as overseer of

a street gang in Sydney. I made an (escape ?). I was not dismissed. I heard I could not hold situation of Chief Constable as being only a ticket of leave. I gave it up of my own good will. I was not charged with taking money. I have not heard no rumour about it – that (another ?) constable (?) (?) to my charge. I heard (allegations ?) against another constable. It was well cleared up. I came with a clear conscience & I go out.

John Smith I am a gardener holding a ticket of leave. I remember Howarth’s case. I was at Carrington at the time. I was with Mr Caswell a few days after. Howarth was

not in the (stocks ?) then. He had received sentence of 2 years to an iron gang. When in the boat, a conversation took place, (?) about what took place. (Between ?) Caswell took great part with Dr W – He threatened to take the men back to JP for what they had been speaking. (Caswell ?) was on the point of (putting ?) back to bring a complaint against the men for what they said. I have often heard rumours about the defendant taking (?) liberties with an assigned (servant ?) on Mr Caswell’s farm. Defendant’s farm is on opposite side of river. I heard of these rumours frequently. In fact on (Mr Caswell’s ?) farm it was common discussion about 2 years ago – In fact

it was as to what occurred about Caswell’s farm & other places.

Cross-examined. I have had my ticket since last March. I heard speak of this before Howarth’s trial. The plaintiff (attended ?) men on Caswell’s farm – not me … never. He had examined men as a doctor. I was in the boat. I did not feel angry with Whitfield. The men were not angry – They made these remarks in Dr [sic] Caswell’s presence. I was assigned then.

Re-examined. My ticket was applied for last August.

William Smith (Assistant ?) (?) to Lt Caswell. I know plaintiff by eyesight – I have heard different reports about 2 years ago. They were

about very improper conduct with men & boys – communicating with men & boys – at different times first 2 years ago – & different times since.

Cross-examined. I am assigned to the defendant. I heard the reports 2 years ago & different times. (General ?) on the farm. I know (?) (truth ? Smith ?). I can only say for myself. The plaintiff never attended me. I have heard he attended the men at Caswell’s. I did not know Howarth. Heard of him as being punished. I did not tell my master of the reports.

Re-examined. I heard my master threatened men for talking of these (expressions ?) & speaking of this matter of Whitfield. This was 5 or 6 months past. It was soon after Howarth was punished.

Case
Letters considered as read.
Attorney General in reply.

Dowling J.
1st Do the words impart that the plaintiff had attempted to commit sodomy. ⁷
Then if they have been, what is the defence.
1st Privileged
2nd No malice – malice express(ed ?) & implied – rashness
This prima facie not privileged – & therefore no evidence of express malice required.
The circumstances may be taken into consideration in mitigation – of damages

(so ?)

may previous character – rumours &c. show that a man has lost no character –
Made (on ?) hearing – If true the defendant might have justified –

The Jury retire & find a verdict for the plaintiff one Farthing.
Certify that the verdict is (understood ?)

~ ~ ~ ~ ~

The Colonist, Thu 29 Jun 1837 ⁸

SUPREME COURT.—On Monday, an action for defamation, of no ordinary character, came on for trial in the Supreme Court, brought by Mr Whitfield against Lieutenant Caswell, RN; damages were laid at 1000l. The plaintiff obtained a verdict of One Farthing, each party having to pay their own costs. This case fully exemplified the “glorious uncertainty of the law,” for, had the defendant pleaded justification, instead of a general issue—but little doubt exists in our mind, that he would have been entitled to a verdict, inasmuch as his witnesses would have been allowed to prove facts instead of rumours. We consider the case one of considerable hardship as regards the defendant, and one which requires immediate investigation in a different form. We further call the attention to the authorities to the sentence of a prisoner named Howarth, who was convicted on the affidavit of the plaintiff solely, and sentenced to two years in an iron-gang; the case irreported in The Monitor, but we have not space—we may, perhaps, give an outline next week, and, in the mean time, we trust our contemporaries will do their duty.

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The Sydney Herald, Thu 29 Jun 1837 ⁹ & ¹⁰

LAW INTELLIGENCE
SUPREME COURT – Civil Side

Monday 26 June [1837] – Before the Acting Chief Justice [Dowling] and a common Jury.
…
Whitfield v. Caswell.– This was an action brought to recover compensation for defamation of character; damages laid at £1,000.

The plaintiff [Dr Thomas Whitfield] in this case is a medical man, lately employed by the Australian Agricultural Company ¹⁰ as superintendent of agriculture, and the defendant is a settler residing at Tanilba, on the southern shore of Port Stephens. The declaration set forth, that on the 2nd of February [1837], the defendant in a conversation which he had with Colonel [Henry] Dumaresq, the Commissioner for the Australian Agricultural Company, made use of certain expressions intending to insinuate that the plaintiff had been guilty of attempting to commit unnatural offences. There was also a count setting forth that, in consequence of these rumours, the plaintiff to his great damage had been dismissed from the service of the Company.

The only witness called by the plaintiff in support of the declaration was Colonel [Henry] Dumaresq, who stated that a few months since, a man named Howarth accused the plaintiff of certain offences, which Mr Whitfield denied, and Howarth was sent two years to an ironed-gang for making a false charge. On the 2nd February last, the defendant came to him, and made the statement set forth in the declaration; Mr Caswell said at the time he was actuated by a desire to do justice to the unfortunate man Howarth, and had intended to go to the Police Magistrate, but thought that it would be more courteous first to call on him, (Colonel Dumaresq) as he was the employer of Whitfield, and was the Magistrate before whom Howarth made his statement. In consequence of not approving of Mr Whitfield’s manner of doing business he had, in accordance with the terms of his agreement, given the plaintiff six months notice to quit the service, on the 5th of January; but in consequence of the rumours that he heard on making enquiries, respecting Mr Caswell’s communication, he was convinced that it would be indecent and improper to allow Mr Whitfield to remain on the Company’s establishment. The motives of Mr Caswell he considered were honorable [sic], chivalrously honorable.

Mr Therry, followed by Mr Windeyer, contended that a non-suit must be entered, on four grounds;– that the inuendoes [sic] set forth in the declaration were not proved; that there was no proof of malice; that there was no count in he declaration stating that the statement was made without reasonable or probable cause; and that it was a privileged communication. His Honor said that the points were very important, and he would reserve them for the opinion of the full Court.

Mr Therry, in a very able speech, the nature of which forbids our giving a report of it, contended that the conduct of Mr Caswell had been strictly honorable and instead of deserving a verdict against him, he was entitled to the thanks of the community for the manner in which he had acted.

Mr [Charles James] White, superintendent of Agriculture, Mr [Thomas] Laman [aka Layman], overseer of mechanics, Mr [James] Corlette [aka Corlett], storekeeper, all in the service of the Australian Agricultural Company, Mr James King and Mr EG Cory, of Hunter’s River, Michael Ryan, late Chief Constable at Port Stephens, Solomon Young, assigned to Mr Oliver of Raymond Terrace, and two men named Smith, in the employ of Mr Caswell, swore to the prevalence and their belief of rumours of the kind, and several of the witnesses would have spoken to facts which they said came within their own knowledge, but were prevented by the Judge, who ruled that under the plea of the general issue, the defendant was prevented from going into anything more than general rumours.

A surgeon named [James Charles] Russell, residing in York-street, deposed that in 1826 he knew the plaintiff, who at that time kept a druggist’s shop in South Audley-street, London, and that there were rumours of disgraceful conduct prevalent then.

His Honor, in putting the case to the Jury, said that he was bound to tell them that in point of law as the defendant had no lawful occasion and was not called on to make the statement, but made it voluntarily and of his own accord, that the communication was not a privileged one, and they were bound to give the plaintiff a verdict if they believed that the statement was such as to bear the meaning that had been put on it in the declaration. If they believed that the defendant had acted bona fide and without malice, they were to take all the circumstances into their consideration in mitigation of damages, but the Jury were bound to take the law from him that this was not a privileged communication, and the plaintiff was entitled to their verdict.

Mr Therry asked his Honor if he would not put it to the Jury to find for the defendant if they believed there was reasonable and probable cause for making the statement, and that the evidence negatived malice.

His Honor said that he could only leave the leading points as circumstances of mitigation; as then advised he could not consider that this was a privileged communication.

The Jury retired about a quarter of an hour, and returned a verdict for the plaintiff, damages one farthing, each party to pay his own costs.

His Honor said he could not receive the latter part of the verdict, upon which Mr Therry asked His Honor if he would certify that the verdict was under forty shillings; His Honor said he would; which will have the same effect.

Counsel for the plaintiff, the Attorney-General [John H Plunkett] and Mr Foster; for the defendant, Messrs Therry and Windeyer.

The case occupied the Court until eleven o’clock at night.

~ ~ ~ ~ ~

The Australian, Fri 30 Jun 1837 ¹¹

LAW
SUPREME COURT.– (Civil Side)

MONDAY.– Before Acting Chief Justice Dowling, and a common Jury.

Whitfield v. Caswell.– This was an action brought by the Plaintiff, to recover compensation in damages for malicious defamation of his character. The damages were laid at £1000. The defendant pleaded the general issue. The plaintiff is of the medical profession, and for some two or three years had charge of the stud of the Australian Agricultural Company’s establishment at Port Stephens. During the time that he was employed in that capacity, one of the Company’s assigned Servants named Howarth preferred charges against the plaintiff for having made unnatural proposals to him; and those charges resting alone on the evidence of the accuser, he was sent before Messrs Cook ¹² and Myles, two of the magistrates in that vicinity, who sentenced him, on the oath of Dr Whitfield, denying the truth of the accusation, to two years imprisonment with hard labour in an ironed-gang, and to be exposed in the stocks at Carrington, Stroud, Gloucester, and other places on the Company’s estate, wearing a badge with the words “Infamous Traducer”. The defendant is a Lieutenant in the Royal Navy, on half-pay, and having heard of the many rumours afloat, which reach from the Hunter to the Peel, a distance of 200 miles, affecting the plaintiff’s character for propensities similar to those with which he was charged by Howarth, communicated what he had heard upon the subject to Colonel Dumaresq the Chief Commissioner for managing the Company’s affairs; and it was upon this repetition of the slander, that the present action was brought. The defence relied upon was not only that such rumours existed against the plaintiff’s reputation, both in this Colony and in England; but that they were well founded. The learned Judge however would not allow evidence as to particular facts, under the plea of the general issue only – to admit this a plea of pistification [sic–justification] should have been entered on the record.

After a most eloquent address from Mr Therry on behalf of the defendant, the Jury under His Honor’s direction, found a verdict for the plaintiff, damages one farthing, and each party to pay their own costs. The latter portion of the finding, the Court would not allow to stand as part of the verdict; but on a suggestion from Mr Windeyer, the learned Judge said he would certify that the damages were under 40s., which would meet the intention of the Jury. Counsel for the plaintiff, the Attorney General, and Mr Foster. For the defendant, Mr Therry, and Mr Windeyer.

~ ~ ~ ~ ~

The Sydney Gazette and New South Wales Advertiser, Sat 1 Jul 1837 ¹³

SUPREME COURT.
MONDAY JUNE 26.

Before the Acting Chief Justice Dowling, and a common Jury.

Whitfield v. Caswell.— This was an action brought by the Plaintiff, to recover compensation in damages for malicious defamation of his character. The dames were laid at £1000. The plaintiff is of the medical profession, and for some two or three years had charge of the stud of the Australian Agricultural Company’s establishment at Port Stephens. During the time that he was employed in that capacity, one of the Company’s assigned Servants named Howarth preferred charges against the plaintiff for having made unnatural proposals to him; and those charges resting alone on the evidence of the accuser, he was sent before Messrs Cook and Myles, two of the magistrates in that vicinity who sentenced him, on the oath of Dr Whitfield, denying the truth of the accusation, to two years imprisonment with hard labour in an iron gang, and to be exposed in the stocks at Carrington, Stroud, Gloucester, and other places on the Company’s estate, wearing a badge with the words “Infamous Traducer.” The defendant is a Lieutenant in the Royal Navy, on half-pay, and having heard of the many rumours afloat, which reach from the Hunter to the Peel, a distance of 200 miles, affecting the plaintiff’s character for propensities similar to those with which he was charged by Howarth, communicated what he had heard upon the subject to Colonel Dumaresq the Chief Commissioner for managing the Company’s affairs; and it was upon this repetition of the slander, that the present action was brought. The defence relied upon was not only that such rumours existed against the plaintiff’s reputation, both in this Colony and in England; but that they were well founded. The learned Judge however would not allow evidence as to particular fact, under the plea of the general issue only—to admit this a plea of justification should have been entered on the record.

After a most eloquent address from Mr Therry on behalf of the defendant, the Jury under His Honor’s direction, found a verdict for the plaintiff, damages one farthing, and each party to pay their own costs. The latter portion of the finding, the Court would not allow to stand as part of the verdict, but on a suggestion from Mr Windeyer, the learned Judge said he would certify that the damages were under 40s., which would meet the intention of the Jury. Counsel for the plaintiff, the Attorney General, and Mr Foster. For the defendant, Mr Therry, and Mr Windeyer.

~ ~ ~ ~ ~

The Sydney Herald, Mon 3 Jul 1837 ¹⁴

UNCERTAINTY OF THE LAW

In an action for defamation of character, tried on Thursday last, Chief Justice Dowling ruled that the defendant, under the plea of the general issue, might give evidence of general rumour. From the subjoined case, it will be seen that His Honor’s decision is in direct opposition to a very recent decision by Lord Abinger, on the same subject. Now, how is it possible that plain persons can comprehend much of English law, when they thus find Judges ruling in opposition to each other? If our Chief Justice is right, then Lord Abinger did injustice to the defendant before him, by rejecting part of the evidence tendered to the Court on his behalf. If, on the contrary, Lord Abinger was right, the same observation is good with respect to the plaintiff in the case lately tried here; inasmuch as improper evidence was let in against them! “Who shall decide when Doctors disagree?” The following is a brief notice of that part of the case tried in England, which bears upon our subject, and which we extract from the Morning Chronicle of February 20th:–

COURT OF EXCHEQUER
Woolmer v. Latimer

This was an action for libel. Mr Crowder opened the proceedings. The declaration stated that the plaintiff was an Alderman of the city of Exeter, and a married man, and that the defendant, in the months of November and December in the last year, published two libels upon the plaintiff, charging him with committing adultery. The defendant had pleaded the general issue.

In the course of the trial, Mr Thesiger was about to examine the witness as to certain reports said to have existed before the publication of the libel, when

Mr Kelly objected, as they could not be given in evidence under the general issue.

Mr Thesiger, in answer, cited a passage from “Starkie upon Evidence” and said Lord Tenterden had been in the habit of ruling so down to the last moment of his life. The evidence was merely offered in mitigation of damages, and was clearly admissible with that view.

Lord Abinger was of opinion that the evidence could not be received under the plea of the general issue. There were a great many vague decisions on the subject, but it was better to adhere to principle.

¹ Examined register of civil causes (SRNSW: 5/4532 & 5/4533) and located No. 54 of 1837. SRNSW process papers 9/2302 & 9/2299 and judgment rolls 9/5350 were then also examined without locating papers.

² SRNSW: NRS5869, [2/3323], Judiciary, J Dowling, CJ. Notebooks Proceedings of the Supreme Court of NSW, 1828-44, pp. 12-70. Emphasis added.

³ Mn: Innuendoes meaning to attribute that plaintiff had attempted to commit sodomy

⁴ Details for Sir Roger Therry (1800-74). Born Cork, Ireland came to NSW during Nov 1829 and was barrister and later a NSW Supreme Court judge.

⁵ This is not prima facie excusable – Therefore no malice need be proved – not like cases where it is prima facie excusable as character of a servant

⁶ I know of no case, on the authority of which I can consider this as a privileged communication. It is made on hearsay evidence – not like (other ?) character of (?) or any of that class of cases where a duty is cast upon a man to give information

⁷ Mn: no special damage. Not guilty only. Rumours – spread – more especially of this kind. Difficult to meet rumours. 11 witnesses

⁸ The Colonist, Thu 29 Jun 1837, p. 210.

⁹ The Sydney Herald, Thu 29 Jun 1837, p. 2. Emphasis added.

¹⁰ The Australian Agricultural Company’s enterprises in the Hunter district included an underground coal mine. The convicts who worked there were no better represented than in a poem by one of them, Frank MacNamara, called A Convict’s Tour to Hell.

¹¹ The Australian, Fri 30 Jun 1837, p. 2.

¹² Thomas Cook, Police Magistrate at Port Stephens appointed 27 Nov 1834 according to 1836 Blue Book.

¹³ The Sydney Gazette and New South Wales Advertiser, Sat 1 Jul 1837, p. 2.

¹⁴ The Sydney Herald, Mon 3 Jul 1837, p. 2.

Sodomy