HULL DAILY PACKET
Fri 7 May 1880
PROCEEDINGS AT WESTMINSTER
THE RULE MADE ABSOLUTE
HIGH COURT OF JUSTICE,
QUEEN's BENCH DIVISION
SANER V. FINDLAY & THREE DIRECTORS
OF THE HULL PACKET NEWSPAPER
Mr Dodd: I move to make absolute the rule nisi for a criminal information obtained by my friend, Mr Webster, against the editor of the Hull Packet newspaper, and also against three of the Directors.
Mr Waddy: I appear on behalf of Mr Findlay, whose name appears first, and also as the editor of the newspaper in which the paragraph appeared of which the complaint is made. Affidavits have been filed both by Mr Findlay and by the other gentlemen for whom Mr Poland appears.
I can hardly help thinking that one fact should have been stated to your lordships, which may not have any bearing whatever on the attack itself, but which would probably have considerable influence on your lordships' mind when you have to decide whether this is a case that should be dealt with as a matter of criminal information, or left to the ordinary civil law, to be dealt with in the ordinary way – and that is this, the leading article was written by the editor of this newspaper with regard to a difficulty which has arisen in the volunteer force. He has himself been an energetic volunteer, and felt a considerable interest in it. The matter had been brought before the War Office, and there had been a decision of the War Office, and then this article was written. The language of this article is strong and florid. It is quite true, and it is quite possible, that your lordships may be of opinion that there are expressions in it which were perhaps stronger than necessary, even assuming the facts to be true on which it was founded, and we say that they were true. But your lordships may be of opinion that perhaps Mr Saner may have some cause to complain that the matter was brought before the notice of the other defendants, and of Mr [interruption]
Mr Justice Field: What is the complaint? What does the article say of the applicant?
Mr Waddy: It complains of this. There had been a quarrel in a volunteer company [Interruption]
Mr Justice Field: But what does the article say?
Mr Waddy then read the following article, which was originally published in the Hull Packet of [Mon] April 12th:–
"The quality of mercy is not strained," according to those youthful indoctrinations which we used to receive at second-hands [sic] from one Mr. William Shakespeare, who, if not exactly a fine old English gentleman, in the society sense was at least one of the olden time. Mr. Shakespeare, although cynically alleged to have been a unit of the common people, did pursue, even in his quest of poaching, some uniform principles of freebooting. We are afraid that in Hull there has just descended such a trespassing upon public opinion, by our own Tory Government, as must make every man who has a head to call his own hang it down and blush. An expiring Ministry – which mean the pliant Stanley, worked by the persuasive Dr. Rollit – has just granted Mr. (Lieutenant-Colonel) Saner the retention of his Volunteer rank. Remembering the sneaking insubordination, the gross unsoldierly conduct, the behind-the-back wheedling of which this precious thing in volunteers was guilty, one might well stand back on this occasion and raise one's hands to the tune of "God a' Mercy!" If duplicity, if double under-handed dealing, if bearing false witness against one's neighbour is to succeed, then certainly let Mr. Lieut.-Col. Saner retain his rank. Make him a Peer for the matter of that; and he might as well be a Duke as a Baron. That he is barren of that old-world genuine honour which constitutes a true soldier and a gentleman may possibly be an open question – among his own personal friends. There are others, however, who will possess no doubt [about] the matter. A pretty farce this is indeed – if an ambitious thing dressed up in artillery clothes is to charge his Colonel Commandant with all sorts of despicable delinquencies which are, upon investigation, proved to be utterly fictitious. And if, after all this loose-witnessing, which draws a lot of foolish flies into the parlour of disgrace and of dishonour, the old spider is to turn round and whistle triumphantly that they are enmeshed, but that still he is Lieutenant-Colonel Saner – pray what further can be said? The whole thing is a farce, and to discuss it is a farce. Speaking for ourselves, we used to believe – a very ancient belief, no doubt – that in order to retain his rank an officer required to have the recommendation of his Colonel-Commandant. We may be mistaken; but we have not yet heard that Mr. Lieutenant-Colonel Saner has received the necessary recommendation in question from his superior officer. When he has done so, and when he has risen – which we believe, in his case, to be impossible – to a true perception of what a soldier's first duty is, then shall we believe he is entitled to this retention of his rank. At present, one cannot help reflecting what a fine example he is to his corps. The whole principle of volunteering is based upon the idea of military discipline – of order and of sub-order. Yet here we have a contumaciously contemptible endeavour to have the authority of an entire brigade over-turned, the result of which is a mandate from the War Office, that all these disloyal and unworthy officers shall at once resign. It was indeed a matter of cashier. Those who accepted the dismissal, with what good grace they could, no doubt now feel ashamed of themselves now that they should have been, mayhap unwittingly, drawn into so disgraceful a cabal. Not so the ring-leader. With that unblushing effrontery which so well becomes him, he has brazened it out to the last. And what a last it is! If honour and equity and bravery are to come to this, that you can go and stab your commanding officer in the back, be ordered to resign, yet retain your honorary rank, and describe yourself on your calling cards as a Lieutenant-Colonel of Her Majesty's Service, then all we have got to say is this, that glory is easily, cheaply, and sometimes not very worthily won. There are a few things also, that we should like to know. We should like to know if this scandal is to go unchallenged by Mr. Norwood or Mr. Wilson in the House of Commons? We should like to know if all those other officers who were cashiered are to be reinstated with an equal honour to that vouchsafed to Mr. Saner? And we should like, above all, to know, what volunteering or soldiering – or (for the matter of that) discipline in every matter of each day's business is coming to – if we are to be granted the privilege of coining falsehood against this one and the other without being able to substantiate the case – smirking the while, and retaining what we are pleased to think our honour, perhaps even deigning to sit on the Bench as a J.P., and writing ourselves as a Lieutenant-Colonel on our calling cards? Beside all this, Chairman of the Dock Board is a small consideration; and a single transaction in timber must be accounted a mere bagatelle – Lieutenant-Colonel Saner retains his rank; and Mr Horsley resides at Cottingham."
Mr Waddy added: Now my lord, that that is a strong attack on Mr Saner is undoubted, but it contains no charge of any criminal character.
The Lord Chief Justice: "Highly dishonourable conduct."
Mr Waddy: The dishonourable conduct being that he had brought against the commanding officer charges which had been dismissed, and for which he was called upon to resign.
Mr Justice Field: Are you contending that this is not a libel?
Mr Waddy: No, my lord.
Mr Justice Field: And in itself a serious one?
Mr Waddy: And in itself unproved a serious one; but what I say is this, not that Mr Saner should not be entitled to bring an action against my client, but that he should not have a criminal information, and I apprehend that there is a very broad distinction. I may state that there had been a difficulty – I don't want to use any strong word – between the Colonel-Commandant of this artillery corps, Colonel Humphrey, and his officers, including Mr Saner, and the result of it was that they endeavoured to get him to resign. The part which Mr Saner took in that matter is a matter of doubt. But it is not doubtful that when terms were at last agreed upon between Colonel Humphrey and the other officers there was in the opinion of Colonel Humphrey a breach of those terms which called him not to be bound by the arrangement made, and the result of it was that an application was made to the War Office to investigate the complaint between those officers.
The upshot of that inquiry was that Colonel Humphrey was continued in the command, and these other officers were called upon to resign, Col Saner included. That that Court of Inquiry was held, and that that was the report, is a fact that will not be denied. It is also a fact that Mr Saner and his solicitor Dr Rollit, did come up to town, and as the result, Mr Saner was, by the late War Minister, permitted to retain nominally his volunteer rank, and the matter did create some feeling. He had to resign his commission, but he was permitted to retain nominally his rank.
The Lord Chief Justice: The decision was adverse to him. He and the other officers had made a charge against their commanding officer, and it turned out that they were unable to substantiate the charge. It was thought impossible, I presume, by the authorities of the War Office, that they could have reconciled themselves with their commanding officer, and he with them, that the exigencies of the service could be carried out.
The decision being in favour of the commanding officer, the subordinate officer was desired to resign, but in order to show that there is nothing which has tarnished his honour in the inquiry he is allowed to retain nominally his rank. That shows that in the opinion of the War Office his honour had not been in any way tarnished.
Mr Waddy: By the Court of Inquiry the same measure of justice is meted out to Mr Saner as to the other officers, and I observe that on the last occasion your lordship asked "What is the meaning of all this? Is it a political difference?" Mr Webster was instructed to say that it was not; but I think my learned friend would find it difficult to maintain that. I have no doubt you will find that it was; but that will arise more from the case of the gentlemen for whom Mr Poland appears than from mine.
But undoubtedly all these officers, Mr Saner as well as the others who are now making affidavits in favour of Mr Saner, had the same justice meted out to them. Yet, although the report is the same in all the cases, there was from Colonel Stanley this permission granted to Mr Saner.
I do not say that this article, as it stands – and unless justified, and where it can be justified I am not now here to say – contains no strong expressions, but under any circumstances the question would be as to whether this was a case in which a criminal information should be issued, as apart from leaving the parties to the ordinary civil remedy.
The Lord Chief Justice: On Criminal Law.
Mr Waddy: Yes, but I cannot help thinking that is a fact which might have been mentioned to your lordship when this rule was issued, and it is part of my friend's case that the rule was issued to a gentleman who was one of the directors.
Mr Justice Field: Who do you say was the gentleman?
Mr Waddy: Mr Hearfield, a solicitor in Hull, one of the present defendants, and one of the directors of the Newspaper Company. Now, on the article appearing, Mr Hearfield immediately called the attention of my client to it, and the result was that the apologies, unasked for, as I understand, on the other side, were published twice over, or some time before this rule was applied for – apologies which I will read to your lordship, and of which no mention was made at the time.
Mr Justice Field: What was the date of the libel?
Mr Waddy: The 12th of April
Mr Justice Field: When was the apology inserted?
Mr Waddy: On the very next day, the 13th, and, with the consent of my client, the issue of the paper on the day when the libel was in it, was stopped.
Mr Webster: The sale was stopped, not the issue.
Mr Waddy: I am instructed that both the issue and the sale were stopped, and then this apology was inserted:-
"It has come to our knowledge that our leader of yesterday concerning Lieutenant-Colonel Saner was presumed to have passed the bounds of fair criticism. Since an explanation seems to be required, we have only to say that the writer of the article has no personal knowledge whatever of Lieutenant-Colonel Saner, and was simply guided in his observations by circumstances described in the public press, and by what he conceived to be a journalist's duty in commenting on a matter of public importance – to wit, the volunteer service of the country. Unwittingly and unintentionally he appears to have exceeded what in Hull are considered the limits of fair comment, and we therefore feel bound to express our regret at these extreme utterances, and to tender our unconditional apologies to Lieutenant-Colonel Saner for the wrong he is alleged to have sustained."
On the following day the apology was still stronger, and was headed "A Proper Apology". It was as follows:-
"It has been pointed out to us that our leaderette of Monday concerning Lieutenant-Colonel Saner passed the bounds of fair criticism. The writer of the article has no personal knowledge whatever of Lieutenant-Colonel Saner, and was simply guided in his observations by circumstances described in the public Press, and by what he conceived to be a journalist's duty in commenting on a matter of public importance – to wit, the volunteer service of this country. Unwittingly and unintentionally he exceeded the limits of fair comment; and we, therefore, feel bound to express our regrets at these extreme utterances, and to tender to Lieutenant-Colonel Saner our unconditional apology for the injury which he has sustained."
Mr Justice Field: What is a "leaderette"?
Mr Waddy: A small leader, my lord.
The Lord Chief Justice: It would puzzle Dr Johnson (laughter).
Mr Waddy: A good many words now used would. It might not be found even in Webster (a laugh).
The Lord Chief Justice: I do not find any retraction of the charge of dishonourable conduct. It as if you were to say, "I do not say that you have not done that which I allege you have done; but, lest I should be found to have gone too far, I apologise". Is that enough?
Mr Waddy: I think it is enough for this purpose.
Mr Justice Field (reading from the article): "Remembering the sneaking insubordination, the gross unsoldierly conduct, the behind-the-back wheedling of which this precious thing in volunteer officers was guilty". How much of that is apologised for? How much withdrawn?
Mr Waddy: I think the whole form of the language and the extreme utterances are withdrawn, but the question still remains open as to whether the conduct of Mr Saner which had been investigated by the Court of Inquiry, was conduct which ought to be passed over.
The Lord Chief Justice: No, no, that is not it. The charge is "sneaking, dishonourable conduct". A man may make a charge in the best possible faith believing in its substance of reality, but may fail to make it out. But he has had recourse to the constitutional method. He had brought a charge against a brother officer and had submitted it to a Court of Inquiry. The Court of Inquiry found that charge unfounded, but there was nothing affecting the honour of the man who made the charge. But the article imputes the grossest and dirtiest conduct, and I do not find there is any [retraction]. It is all very well to say "Oh, I apologise for it", but the charge stands and subsists.
Mr Waddy: The only way in which I venture to put it is this, with regard to the fact that there was insubordination on Mr Saner's part and with regard to the fact that he, with others, made unfounded charges against their Colonel-Commandant and were insubordinate.
Mr Webster: Mr Saner has sworn in his affidavit that he never preferred any charge against Colonel Humphrey. He was called as a witness, but he never preferred any charge.
Mr Waddy: I am dealing with what is stated, and my friend need not interrupt me. With regard to the alleged fact that Mr Saner had been guilty of insubordination, that is not withdrawn. Assuming that Mr Saner was guilty of insubordination, assuming that the Court of Inquiry came to that conclusion – then the whole of his conduct was in direct opposition to his colonel, and, of course, Mr Findlay could not withdraw that. But with regard to the extreme language used – the extreme utterances – all those, I understand, are apologised for, and being apologised for are withdrawn. I do not believe that anybody reading these words would interpret them otherwise. I observed Mr Justice Field underscoring some of the passages and repeating them, and it would be idle to disguise that these are extreme utterances.
Mr Justice Field: These are very serious charges to bring in writing and publish in Hull, and I do not find that you have apologised for them. All you say is that there has been some excess.
Mr Waddy: I think it goes further than that. We do not, indeed, set out particular expressions. We take the whole thing. We do not pick out a part we say exceeded the limits of fair comment, and that having been done, we are bound to express our regret at these extreme utterances.
Mr Justice Field: But that leaves the substance of the charge untouched.
Mr Waddy: It leaves the substance of the charge, that you have been reported against, and you have had to resign your commission.
The Lord Chief Justice: No, no. It means that you have been reported against, that you had to resign your commission for dishonourable conduct unworthy of an officer and a gentleman. That is what it really comes to. "If honour and equity and bravery are to come to this, that you can go and stab your commanding officer in the back, be ordered to resign, yet retain your honorary rank and describe yourself on your calling cards as a Lieutenant-Colonel of Her Majesty's service, then all we have got to say is that glory is easily, cheaply, and sometimes not very worthily won". How much of that do you retract?
Mr Waddy: I say that with regard to all this that the allegation is one on which an action for libel could be grounded.
The Lord Chief Justice: Not only that, but it affects a man's honour and character in the position in which this gentleman stood. It is either true or false. If false it is a matter of scandalous aspersion.
Mr Justice Field: All your apology comes to this. We have only gone too far in terms, and been too strong in our language.
Mr Waddy: Mr Findlay does not withdraw the substantial allegation.
Mr Justice Field: And the substantial allegation is libellous.
Mr Waddy: Libellous until we have a justification.
The Lord Chief Justice: And the apology is all a sham; it will avail you nothing.
Mr Waddy: It makes a difference no doubt with regard to the questions whereby the civil or criminal law this gentleman should take his remedy.
The Lord Chief Justice: To my mind it aggravates the offence.
Mr Justice Field: Tendering a flimsy apology like this is a mockery, and nothing else. Supposing your apology specified the expression, "dressed up thing in artillery clothes," and you were to say, "Oh, yes, I made a mistake; it was not artillery regimentals; it was something else!"
The Lord Chief Justice: It only professes to be an apology on the part of the proprietors, who find their editor has got them into a scrape.
Mr Justice Field: Mr Hearfield, the director, is an intelligent solicitor in Hull, and you may imagine his feelings when he read this, and what he said to the editor.
Mr Waddy: No doubt he would scold the editor.
The Lord Chief Justice: Anticipating very likely that this gentleman would bring his action, and that would result in very large substantial damages, which would go to the pockets of this gentleman.
Mr Waddy: If this were so we would complain.
The Lord Chief Justice: But this gentleman says – I do not want your money. I will have recourse to a different mode of dealing with a man who thus deals with my character.
Mr Waddy: Then why not end it?
The Lord Chief Justice: Because the proper course is to come to this Court.
Mr Waddy: The last time, I think, I had the honour of appearing in this Court in a similar case a different view was taken.
The Lord Chief Justice: But this is taking a man in his public character as an officer, a man who holds a public position, and asserting that he is unworthy to retain even a nominal rank in Her Majesty's service.
Mr Waddy: Assuming that, the mere fact of a man holding a public position does not affect the question. I had the honour of appearing here against the late lamented Mr Serjeant Parry in a case in which violent language had been used against a member of Parliament, Mr Lewis, but the rule was refused although the language used was abusive in the last degree, and all kinds of dishonourable things were suggested.
Mr Justice Field: My memory of the case does not concur with yours. The most serious charge was, I think, that he wore a white waistcoat (laughter).
Mr Waddy: No, no, my lord. I think he could have borne that. It was a very small matter. But the mere fact that the man was a public man was not considered.
Mr Justice Field: You cannot compare one case with the other. Every case must rest on its own circumstances. Here the man is told by the proper authorities in the country that he is entitled to hold the rank of Lieutenant Colonel, and you write of the man what you have written here.
Mr Waddy: The question is whether it is a matter for investigation. We know that the Court of Inquiry goes into the whole matter.
The Lord Chief Justice: We do not indeed know anything of what the Court of Inquiry does.
Mr Waddy then read the following passages from the affidavit of Mr Charles Farquharson Findlay, the defendant:-
"I am the sole editor and manager of the said Hull Daily Packet and also of the Hull and Lincolnshire Times, both of which said newspapers are published by the Hull Packet Newspaper Company.
"I admit that I wrote the article set forth in the fifth paragraph of the affadavit of the said John Saner, the younger, filed in support of the said rule, and that I caused the same article to be printed and published in the first edition of the Hull Daily Packet of the 12th day of April 1880, and I say that no other person was, either directly or indirectly, concerned in the writing, printing or publishing of such article in any way whatever.
"The said article has reference to disputes which arose in the years 1878 and 1879, between certain late officers of the Fourth East York Artillery Volunteers and Lieutenant Colonel Humphrey the Colonel Commandant of the said corps, and to that part which the said John Saner, the younger, took therein, and also to the result of a Court of Inquiry which was held with reference to the said disputes; all which said matters have been the subject of considerable interest and comment in the said Borough of Kingston-upon-Thames.
"The said Court of Inquiry condemned the conduct of the said John Saner, the younger, and he was consequently thereupon ordered to resign his commission immediately. I am informed and believe that upon the receipt of such order strong pressure was brought to bear upon the War Department at the investigation and in the interest of the said John Saner, the younger."
The Lord Chief Justice: What have we to do with this?
Mr Waddy: These are the facts on which the statements were made.
The Lord Chief Justice: That is no proof of the facts. What does he know?
Mr Waddy: But practically this information is given by Mr Saner himself in the affidavit which he filed in support of the rule in the first instance.
Mr Justice Field: Does he say he was condemned by the War Office? No, of course he does not.
Mr Waddy: I had better read his own words.
Mr Waddy then read Mr Saner's affidavit, in which he stated that on the 6th of August  he was requested to resign his commission on the grounds that it had been reported that he did not support his commanding officer while in temporary command of the regiment; that he incurred the censure of the Major General for the tone of his reply to a reprimand; that his whole conduct was in direct opposition to the commanding officer; that the relations between Colonel Humphrey and himself were such that they could not serve together; and that the officer commanding the auxiliary artillery at York would never recommend him for command.
The Lord Chief Justice: That does not affect his honour [REW: Words fail me].
Mr Justice Field: Assuming there was ground for taking the step they did we must assume there was good ground for allowing the applicant to retain his rank. [REW: Really?]
Mr Waddy: But they did not. What took place was that the same measure was meted out to all of them, but by some means [REW: Rollit] a subsequent application was made specially in Mr Saner's favour.
The Lord Chief Justice: Does that appear?
Mr Waddy read further from Mr Saner's affidavit, that on the 9th of April last  the order of the War Department permitting him to hold the honorary rank of Lieut Colonel was published in the London Gazette [REW: I can find no record of this]. In consequence of this (Mr Waddy continued) the statements in Mr Findlay's affidavit became relevant. Mr Findlay stated that the resignation was withheld for several months, but as soon as the result of the recent Parliamentary election became known the order appeared.
Mr Webster: He had resigned several months before. It is perfectly untrue.
Mr Waddy: Well, I am reading what I believe to be perfectly accurate. I am reading a sworn affidavit.
The Lord Chief Justice: Is it suggested that the order was in consequence of a change in Government? (laughter). The Conservative head of the War Office was so alarmed by the recent elections that he allowed this gentleman to retain his rank (laughter).
Mr Waddy: I cannot help thinking that the Conservative head of the War Office, like others, had a good many other things to do just then.
The Lord Chief Justice: Then why any reference to the result of the recent elections? Are politics to be carried into everything?
Mr Waddy: When you have heard everything, you will find, I believe, that politics were carried into this. When you see the way in which the defendants have been picked out of the various directors, I think that you will come to the conviction very strongly that you would never have heard of this case if it had not been for politics.
Mr Waddy then read the following further extract from Mr Findlay's affidavit:-
"I am informed and believe that such permission was given without the recommendation of the superior officer of the said John Saner, the younger, as required by one of the volunteer regulations. The said order permitting John Saner, the younger, to retain his rank, and the circumstances under which such permission was obtained, have been the subject of much adverse criticism, and have caused considerable dissatisfaction throughout the said borough.
"I have no personal knowledge whatever of the said John Saner, the younger, and in writing the said article I was not actuated by any personal feeling or animus against him. I was formerly for some years a subaltern officer in the Volunteer Artillery Corps, and I wrote the said article as a bona fide comment and a fair expression of public opinion upon a matter of general public interest, and I believe that the statements contained in the said article are true.
"I am informed, and believe, that the said John Campbell Thompson, William Lambert, and Charles Hargitt Johnson, who have respectively made affidavits in support of the said rule, were formerly officers in the said Fourth East York Artillery Volunteer Corps, and that the said John Campbell Thompson and Charles Hargitt Johnson were ordered by the said Court of Inquiry to resign the commissions for the part they had taken in such disputes, and they resigned their commissions accordingly."
Mr Waddy continued: Surely those three affidavits from persons who were members of the corps to the effect that the facts which underlie the statements in the article are accurate must be material.
Mr Justice Field: That is not the charge of this libel. "An expiring Ministry, which means the pliant Stanley, worked by the persuasive Dr Rollit, has just granted Mr (Lieut Col) Saner, the retention of his volunteer rank. Remembering the sneaking insubordination, the gross unsoldierly conduct, the behind-the-back wheedling of which this precious thing in volunteers was guilty."
The Lord Chief Justice: And then the passage I read just now is stronger still – "Stabbing your commanding officer in the back," is going a great deal further than to say that you brought a charge against him. "If honour, and equity, and bravery are to come to this." That is a good deal more than exaggerated language. That is an attack upon him, not in a matter of military consequence, but an attack upon the personal honour and character of the man.
Mr Waddy: I am not entitled to ask you to define the limits between what should be dealt with by civil remedy and what should be dealt with criminally.
The Lord Chief Justice: There is no distinction in a matter of libel that I am aware of. Both remedies are open to the person who suffers.
Mr Waddy: It seemed to me that it was a matter of discretion where one course should be adopted rather than the other, and I submit that this is a case in which, admitting that there is language of which this gentleman must answer or justify it, the civil remedy ought with greater propriety to be adopted, inasmuch as no criminal charges were made against the man, who was, after all, only a private gentleman.
Mr Webster: He was a Justice of the Peace for the Borough of Hull.
Mr Waddy: There is no attack on him as a Justice of the Peace.
Mr Webster: I beg your pardon (reading) "If we are to be granted the privilege of coining falsehood against this one and the other without being able to substantiate the case, smirking the while and retaining what we are pleased to think our honour, perhaps even deigning to sit upon the bench as a Justice of the Peace."
Mr Waddy: I read all that.
Mr Webster: But you said there was no attack on him as a Justice of the Peace.
The Lord Chief Justice: And surely this would affect the position of a Justice of the Peace – "duplicity, double underhanded dealing, bearing false witness against one's neighbour." These are matters essentially affecting a man in judicial office.
Mr Waddy: No doubt at all about that, unless it is confined by this article to the particular transaction to which reference is made. The only other affidavits go to the extent of maintaining that the facts on which the article is founded are substantially accurate. With regard to the extravagance of the language, there was an intention to atone and apologise for it; but the statements on which the article is founded are maintained to be accurate, and so far as that is concerned an action for libel is the proper remedy.
Mr Poland: I am instructed in this case to show cause on behalf of three gentlemen, Mr Charles Wells, Mr Francis Reckitt, and Mr John Hearfield, who are three out of the seven directors of the company who own this newspaper, and I am happy to say that I am not here in any way to justify the language of this article. There is no question whatever that that language exceeds all fair comment.
The Lord Chief Justice: Are you prepared on the part of your clients to withdraw the charges made against this gentleman as affecting his honour as a gentleman? I do not say but that there is undoubtedly matter here which the writer of a public journal was entitled to comment on, if he commented in a fair spirit of moderation, and within reasonable bounds. Your clients are no parties to the writing of the article or immediately to its publication, and they afterwards did make an apology, though I cannot help thinking it a very shabby one.
Mr Poland: There is an additional one to which I will call your attention.
The Lord Chief Justice: I am far from saying that it might not be said that this gentleman was guilty of insubordination, or of conduct which made it expedient that he and the other officers should leave the corps, without going the length of using these expressions, and representing him as a man of base and dishonourable conduct. Without swallowing and eating up the facts, if you are prepared to apologise for this outrageous language, we shall be satisfied with your clients.
Mr Poland: Perhaps your lordship will allow me to tell you what was done. The company was the owner of the paper, and the gentleman who wrote this article was the manager and editor, and he was employed by the company to conduct the paper according to law and only fairly and properly to comment on matters of public interest.
On the morning on which this article was published my client, Mr Hearfield, as he says in his affidavit, first had his attention called to it at 9:30 in the morning, when he was in a railway carriage. He at once put himself in communication with another of the directors, who is also made a party to this rule; went to the office of the newspaper, but did not find the editor and manager of the paper. They found the secretary and expressed their disapproval of the article, and at once gave directions that the second edition should be stopped, and the second edition came out without the article.
Mr Justice Field: Were the copies of the first recalled?
Mr Webster: No.
Mr Poland: There was this difficulty –
Mr Justice Field: Was it done?
Mr Poland: I am told that it was done. The prosecutor says he bought a copy in Doncaster in the evening. But it was stopped in Hull. Moreover, on the very day my clients wrote to the prosecutor, expressing their very great regret. Mr Justice Field: Read that letter.
Mr Poland read the letter as follows:-
"Hull, 12th April 1880, 1 pm
"Our attention has been drawn to an article in the Hull Packet of this morning, making some severe comments on yourself. The article in question was shown to Mr Hearfield this morning in the railway train, and caused him the greatest possible surprise and pain; and we are now instructed on the part of all the directors of the Packet Company, to disclaim any knowledge of the contents of their paper. Our Mr Hearfield at once gave notice to the officials that the sale of the paper should cease, and the directors intend to exact the fullest information as to the writer of the article, and his reasons. Therefore, they meanwhile tender to you their apology that any official in their Company should have written an article of so unfair a character, and they will certainly at the earliest opportunity insert a public apology for the wrong to which you have been subjected.
Your obedient servants,
J & T W Hearfield"
The Lord Chief Justice: I think that is quite enough. They were no parties to the writing or publication, and they tendered a proper and handsome apology in the letter. I do not think the apology in the paper was as ample and unconditional as it should have been, but the letter shows that the directors did not enter into the matter with the spirit which manifestly animated the gentleman who wrote the article. With regard to Mr Findlay, all I can say is that this is a case in which this court would not be exercising its functions, or acting consistently with public justice, or to the individual who has been attacked, if we did not make the rule absolute. Having said that the less that is said about the merits of the matter the better.
Mr Webster said that he was satisfied with what had been said on behalf of the directors, and would leave the matter where it was.
Mr Poland thought the apology he had read should have been put on his friend's affidavit.
The Lord Chief Justice: A company who employed an editor and manager should take care who they employ, and should exercise sufficient supervision over him. Far be it from me to say that the action of Mr Saner in the unhappy differences that arose in the corps was not a matter which journalists might not very fairly comment in the public interest, but the modus in [rebus] was certainly lost sight of.
The rule for a criminal information was made absolute accordingly.