OrnaVerum
v 5.10.00
6 Oct 2018
updated 17 Jul 2019

Hull Packet & East Riding Times
Fri 19 Nov 1880

THE
LIBEL ON COLONEL SANER

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HIGH COURT OF JUSTICE,
QUEEN's BENCH DIVISION

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MONDAY: Before Mr Justice FIELD and Mr Justice MANISTY

THE QUEEN ON THE PROSECUTION OF SANER V. FINDLAY

[Prosecuting counsel – Messrs Waddy, Dodd & Webster;
Defence counsel – Mr Bennet, instructed by Mr Kirby]

The defendant in this case, Charles Farquharson Findlay, who pleaded guilty on a criminal information for libel, was called upon to surrender himself and come up for judgement.

Mr Waddy QC, Mr Webster QC, and Mr Dodd (instructed by Messrs Rollit and Sons, of Hull) appeared for the prosecution, and Mr S Bennett (instructed by Mr H E Kirby) for the defendant.

Mr Waddy explained to the Court that Mr Findlay was the Editor of the Hull Packet newspaper, in which a libel appeared in the form of a leading article on Colonel Saner, who had been connected with the East York Artillery Volunteer Corps. His friend Mr Webster moved for the criminal information, and the matter went down to York for trial. There were two counts in the information, the first being withdrawn, and a nolle prosequi entered, and on the second count the prisoner pleaded guilty. In the first instance there did not appear to be perfect readiness on the part of the defendant with regard to his pleadings, and the result was that he was behind time, but subsequently he obtained permission to file a plea of justification. That plea was filed and withdrawn at the last moment.

The defendant was called, and after some little delay presented himself and surrendered.

Master Cockburn read the following Affadavit, which had been filed by the defendant:-

In December last [1879] I accepted the managership and editorship of the Hull Packet and the Hull and Lincolnshire Times. I was shortly afterwards made acquainted with the fact that there had been a prolonged series of disputes between Lieutenant Colonel Commandant Humphrey, [together] with certain minor officers, and Lieutenant Colonel Saner, [together] with certain minor officers, all of the 4th East York Artillery Volunteer Corps, and throughout these disputes the Hull Packet and the Hull and Lincolnshire Times had warmly espoused the side of Lieutenant Colonel Humphrey and those who acted with him, to the great disparagement of Lieutenant Colonel Saner, whose name was associated in the papers with those of three captains who had preferred grave charges against Lieutenant Colonel Commandant Humphrey.

It appeared to me, from what I saw in the paper, and heard in the company of the directors of the newspaper of which I was then editor, and elsewhere, that Colonel Humphrey was a much ill-used man. The public feeling in Hull was very strong on the subject, and from the imperfect knowledge of the facts which I then had, I considered I was discharging my duty to my employers, and also to the public, in espousing the cause of Colonel Humphrey.

I humbly admit and freely acknowledge that the information I obtained at that time was inaccurate, and that the judgment I formed was wrong. I have reason, however to believe that the directors of the paper agreed in my opinion at the time. It was this fact, indeed, which led me to take up so strong an opinion, and I humbly express my regret that, in putting my views in writing, I should have allowed my feelings to carry me away to such an extent as to make me write what I now feel to be a most unwarrantable libel on Lieutenant Colonel Saner. In consequence of the libel I have been unable to obtain any other regular employment since leaving Hull. I have also been put to a great deal of expense through the prosecution, and have suffered greatly in mind and body. I humbly pray that this honourable court will take the foregoing facts into consideration, and will deal with me as leniently as possible.

Mr Waddy then read the affidavit (25th June) of the defendant and his then solicitor, Mr Laverack, stating that he had a good defence but wanted time to prepare his defence.

Mr Webster added that the trial was on the 23rd July, and on the 20th of that month the defendant obtained an order from Mr Justice Hawkins giving leave to strike out of the plea all parts relating to justification.

Mr Bennett then addressed the Court on behalf of the defendant. He said that it was part of the defendant's case, if he had a case at all, that Mr Findlay was a young and impulsive man, and had allowed himself to be too readily carried away by the local feeling in Hull, and had allowed himself after the libel to perpetrate a fresh offence by the plea of justification. The defendant was only 26 years of age and was new to Hull. He only went there in December last, and he soon afterwards found that there was a great deal of excitement in connection with the quarrel amongst the volunteer officers. He did not intend to go into the merits of the quarrel, but it was sufficiently complicated to give rise to a great deal of feeling, and even to difference of opinion between the Commander-in-Chief and the War Office.

Mr Justice Field, interrupting, said that they could not go into that. They must take it that the libel was utterly unfounded.

Mr Bennett, continuing, said he only mentioned these facts as showing the state of excitement in which the libel was written – not as an excuse, but in extenuation, particularly when coupled with the fact that he was a young man of inexperience. He was only 26, though he looked considerably more (laughter). He acknowledged in the fullest and frankest way that he had done Colonel Saner a great injustice. The defendant had suffered very severely already for his grave indiscretion. Since the case was first instituted on the 12th of April last he had not been out of the hands of the lawyers (laughter). He had had to travel backwards and forwards to London several times and it had been utterly impossible to get regular employment. But to add to his suffering, all that he had endured had been shared by a young wife, to whom he had been recently married.

Mr Justice Field: What do you mean by "recently"?

Mr Bennett: Two years, my lord; and Mrs Findlay is at the present time suffering severely from excitement induced by the position of her husband, and aggravated by the fact that she is about to become a mother. I hope I will not be misunderstood in mentioning this fact, but I thought it right that your lordship should know it. It is not generally known how serious a thing it is to be bound over to come up for judgment. My client for six months has been practically suffering moral imprisonment – restraint which prevented him from the free exercise of his profession; and I hope that if your lordships do not consider that he has already paid a sufficient penalty, that you will take a lenient view of the case and impose a purely nominal punishment. So far as Mr Saner is concerned, Mr Findlay desires to tender his most abject apologies. He feels keenly that he has done Colonel Saner an injury, and it is to be hoped that this will be a warning against writing in such a reckless manner in the future.

Mr Waddy, in reference to the observations of his learned friend, said that the excitement was the consequence rather than the cause of the libel. He must also call the attention of the Court to the fact that in the Hull Packet of April 20th there was an advertisement headed "The Findlay Defence Fund", in which it was stated that a number of gentlemen desired to contribute towards the expenses to defend Mr Findlay, and thus to assist in vindicating the freedom and independence of the press, and to protest against the attempt to blast the career of a talented young journalist. He mentioned this in reference to the trouble the defendant was said to have had. He left the paper on the 15th of September.

In reply to the Bench, Mr Webster said that in the first instance the rule was applied for against Mr Hearfield (solicitor and a director of the Hull Packet Newspaper Company) and two co-directors, as well as the defendant, but they filed an affidavit setting out an apology, stating that it had been done without their knowledge, and that they had withdrawn the article from circulation. They also apologised in writing to Colonel Saner, and verified their apology. This apology, which was dated the 12th of April – the date of the libel – said that the article which Mr Hearfield had read in the railway train had caused him the greatest possible surprise, and that Messrs Hearfield were instructed on behalf of all the directors to disclaim any knowledge of the article. The letter further said that Mr Hearfield had instructed all the officials of the company that the sale of the paper should cease, and that the directors intended to exact from the writer the fullest information as to his reasons. In the meantime they tendered their apology, and regretted that an article of so unfair a character should have appeared, and promised that an apology should be inserted on the first opportunity. On the same day a qualified apology was inserted, and on the next day another apology was inserted. It was upon the reading of that letter that Mr Justice Manisty said that the rule should only go against Mr Findlay, and at that time Mr Findlay himself said that nobody was responsible for the libel, directly or indirectly, but himself.

Mr Justice Field, in delivering judgement, said:- In this case the court is called upon to perform a very painful and very important duty. The defendant is in this position: he says that he was appointed as editor of this paper in the month of December; that when he came to undertake his duties, or sometime afterwards, he found a certain state of feeling existing, and he found, as he says, that the directors of the paper in conversation with him approved of his "advocating", if I may use the word, a particular course. Now, of course, if there was a public question, a matter of public interest at that time existing in Hull, it would have been a very right and proper thing for any person, either the proprietor or the editor of a newspaper, or anybody else, to make fair comments in a public sense upon a matter of public interest. That is the right and duty in this country of everybody; and giving full credit to the affidavits of Mr Hearfield and the other directors, we may probably to the extent reconcile their statements upon the affidavit to the statement made today by the defendant in his affidavit, that although there was a feeling amongst the directors as a matter of public interest that a particular course should be pursued, yet the directors in their affidavits, and by their written apology published twice over, most distinctly at that time adopted the only course which was a right and proper thing for the proprietors of a newspaper to take.

Nothing can be clearer, and nothing ought to be better understood than that no editor, no publisher, no private individual is in any way sacrificing the independence of the Press; they were doing that which a gentleman should always do, which a man of sense and honour should always do – when the moment they found they had been the means of inserting libellous paragraphs injuring the honour, respectability and character of others, at once to say as Mr Hearfield said on this occasion, "I regret to say that in the papers, of which I am a Director, such an article has appeared, so offensive and injurious to Col Saner, that I express my unqualified regret, and I intend to take every care that no further circulation shall take place, and take care that every apology is offered to Col. Saner." That is the right and proper course to adopt. But now we have unfortunately to consider the course which the writer (the defendant) thought right to adopt. Taking his own account and giving, as the Court is desirous of doing in favour of liberty, every fair allowance and consideration for the defendant, what is the course that he admits he adopted, and which is proved to have been adopted. He says he understood that the directors approved of the course he was taking, but on the morning of the 12th April at least he knew that his directors did not approve, but on the contrary, he knew that they disapproved and were expressing regret for the article.

You (addressing defendant) also knew that Col Saner had adopted the only course open to him of placing his character right before his fellow-citizens in Hull, and that was by coming or being about to come to this Court, for the purpose of denying on affidavit the truth of the charges made against him, and for the purpose of obtaining that redress which the law gives him by filing, with the permission of this Court, a criminal information. What course do you adopt then? You have written this article, you have made in it charges which I will advert to presently, you have not taken the smallest trouble to ascertain whether one of those charges is true or not, but you charge this gentleman – a man, so far as we know, of unimpeachable honour and perfect respectability – you charge him in violent language with "sneaking insubordination, gross unsoldierlike conduct, behind the back wheedling, of which this precious thing in volunteers is guilty" – "Duplicity, double-under-handed dealing, bearing false witness against one's neighbour," and so throughout the article. From beginning to end, there is an accumulation of epithets and attacks upon Col Saner, for which there never was the smallest possible foundation, and all that the learned counsel for the defendant has to say is that it was a "grave indiscretion." He does not know the meaning of language, or if he does, he is obliged for the purpose of advocating your case to ignore it. Grave indiscretion indeed! It is nothing of the kind. It is a grave crime, and one that calls for grave and severe punishment.

But is your crime aggravated or diminished by your subsequent conduct? Let us see how that is. Knowing that your directors had withdrawn this article, with an ample apology; knowing that they said they had enquired of you what your grounds were for writing it, you insert on the 20th April, the very day when this Court granted the rule, an announcement in which you say that people had come forward to assist you for the freedom and independence of the Press, and to prevent the character of a young journalist being blasted.

The defendant: My lord, allow me to say that that was independent of me altogether.

Mr Justice Field: It appears in the paper, and were are told that circulars of that kind were freely circulated; but if you say that you had nothing to do with it I put it aside. I take your word for it. But let us come to acts which unquestionably are yours. Those acts are these: The information having been granted on the 6th May, and having been filed on the 16th May, you take no notice whatever of it until the 15th June, nearly a month afterwards, when judgement is necessarily signed against you for want of a plea. What is your course then?

You proceed to make an affidavit, having known through April, May, and June all the persons round about you in Hull whom you might have asked for information. Then you make an affidavit in which you reiterate the charges, and swear they are true, and you ask for time, which you get, in order to make further enquiry. Then in three days you plead a plea of justification, in which you reiterate the charges and say there are all true, and then you say it was for the public interest that this was done. A more wicked aggravation of the original libel I can hardly possibly imagine. How does it go on?

From the 28th June to the 20th July, having put Col Saner to all the anxiety of having to meet this charge at York, then on the 20th July, three days only before the day when you would have been called upon to support or withdraw your plea, you apply to a learned Judge at Chambers, and get leave to withdraw it. Then, having pleaded guilty, the first count, which charges you with publishing the libel knowing the same to be false, for which the punishment would have been very serious, was withdrawn.

Defendant, you are standing before me on the second count, which omits that very important allegation. It still contains the serious charge of having published this utterly unjustifiable libel on the prosecutor [sic]. Now what is the course which the Court ought to adopt under these circumstances. The law permits two – either a separate, alternative, or an accumulative punishment. It is competent to the Court either to sentence you to imprisonment, or fine, or both, and it always becomes a very anxious matter indeed for the consideration of the Court what form it is necessary for them to adopt in their sentence. In this case you appear to be a man without any very large means. You appear, also, not to be in the position of a proprietor, or one who would make a profit by the sale of papers from this style of writing. That has sometimes formed a reason why we should not be content with a fine. That, perhaps, does not arise here, but we cannot help seeing that there are other persons in the background who appear to have been supporting you in this matter. A fine in this particular case would not answer the purpose nor fulfil the duty which the Court is called upon to discharge.

No Court and no body of men can possibly be more sincere guardians of the independence and freedom of the press than the courts of justice in this country. But it must not be confounded with personal libel or slander. It is no portion of the duty of the press to indulge in anything of that kind. In this particular case the libel is of the grossest vituperative description, and it cannot be allowed to be said that is competent for any man because he is connected with the press, without the smallest information as to the truth or falsehood of a particular thing, and without caring to inquire whether the thing is true or false, to write such an article as this, imputing every kind of dishonourable conduct to a man holding Her Majesty's Commission,

This is the offence of which you are guilty, and that offence is seriously aggravated by your repetition of it on solemn oath, and by your continuing to insist upon it till the last possible moment. The Court have no wish to press upon a young man, but have the greatest desire to give effect to the observations of the learned counsel, and we feel that we are not passing too severe a sentence. If it errs at all it is on the other side. The sentence is that you pay £50 to Her Majesty the Queen, and that you be imprisoned for the space of three calendar months.

The prisoner was then removed in the custody of the tipstaff of the Court.

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The High Court of Justice, The Strand, London

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