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tilence has subsided, but, according to report, has been suc- thing beyond even equity as understood at Westminster and ceeded by famine. Akbar Khan is said to be repairing the Lincoln's Inn—it leaves all rights and claims affected by fortifications of Jellalabad, and to keep the Sikhs in a con- the clauses in question altogether at sea. stant state of alarm for the safety of Peshawar.
Before the departure from Calcutta of Sir Robert SALE Calcutta, according to a local statement—we should not and his gallant lady (she well deserves the epithet which have ventured an assertion so uncomplimentary on any less
established courtesy prefixes to the soldier's name) it was trustworthy authority—is “humdrum enough.” The Go- resolved to invite them to an entertainment; a dinner to vernor-General, who seems in no way ambitious of notoriety, Sir Robert was to have been followed by a ball to Lady discharges his duties regularly, but most unostentatiously; SALE; but it seems that from some cause, though cerbidding nothing for popular applause, but occasionally ap- tainly not from any deficiency of admiration, the business pearing in aid of beneficent objects of public interest, giving
was delayed till the opportunity was lost of carrying out them the weight of his presence and encouragement, saying
the whole of the proposed plan. One evening only was exactly what becomes his station, and the occasion of his open, and that Saturday. This, of course, put the ball on appearance, and no more. Native education appears to oc
one side, and the enthusiasın of Calcutta was forced cupy a very large share of his attention; he lately presided to expend itself in eating, drinking, and speechat the annual meeting of the Hindoo College for the distri
making, the ladies being thus despoiled of their bution of prizes, and delivered an address which afforded share of the grateful task of rendering honour to heroism, high gratification.
and enjoying an agreeable amusement at the same time. The reformation of the law is among the objects which
The matter, however, was balanced by a ball at Barrackthe Government are most assiduously pursuing, and the
pore, where there was no dinner,--so that between the two draft of an Act has been prepared for simplifying it in
places, soup and saltation, both rendered homage to the regard to property held by aliens. The practice, it seems,
hero of Jelalabad and his lady. has hitherto been to apply to them the law of the coun.
From Madras the mail brings no information whatever. try to which they belonged; the Portuguese law to a
We cannot understand indeed what the people of that presiPortuguese, the Spanish to a Spaniard, and that of Tim
dency are about; have they yet to learn the advantages of frebuctoo, we suppose, to a native of Central Africa, if it quent and rapid communication with Great Britain ? Do they could be ascertained either from hooks or credible oral testi
despise these advantages, or are they ignorant of the recent mony. This diversity is now to be done away; it being con
establishment of a regular monthly steam communication sidered, we apprehend, that what with Mahomedan, Hin
to Europe from the eastern as well as the western side doo, and English law, there are quite diversities enough to
of India. They should be aware that these are not times in render it unnecessary to grasp at those which alien settlers
which men can safely go to sleep in the conviction that they may be able to furnish from the laws of their respective
will not be forgotten. Communication is quickening and countries. From the passing of the proposed Act, the law
extending all over the world, and those who neglect to take of England, as far as it is applicable to India, and is not
their part in it will soon experience the evil effects of their inconsistent with the regulations passed at various times by
error to an extent which will render remonstrance unneces. the local governments, is to be the lex loci, with the one
sary. We are sorry to observe such apathy at a place once important exception, that the law of real property is to be
the most important of the possessions of the East-India assimilated to that which regulates the succession to per
Company. There is just one chance that the Madras comsonal property. For the purposes of the Act, the Compa
munications are gone by Southampton. We hope Madras ny's courts are to be courts of equity as well as law; and
may be entitled to the benefit of it. to ensure a due administration of both, an appeal is to lie
We do not look to the mail arriving at the middle of the
month for much information as to the western side of India; to the Supreme Courts of Calcutta, Madras, and Bombay. This last provision is only temporary, as it is intimated
but if the following extract in a Calcutta paper have any that it is probable a High Court of Appeal will be esta
foundation, we in England have the start of our fellowblished at each of the presidencies, which will supersede subjects in India in regard to intelligence from Scinde, all the corrective and controlling functions now exercised
whatever may be its value. Thus writes the Friend of by the Supreme and Sudder Courts, but it is discreetly
India : added, that it is uncertain how much time may elapse before
“Of the actual state of Scinde since it became British, of its re
sources and revenue, of the condition of the people, and of the pros. such High Courts of Appeal can be established. Towards pects of improvement which our advent has created, we know abso. the end of the draft are some important clauses, protecting
lutely nothing. While the Government of Bengal gives the widest
publicity to every statistical detail which can exemplify the condition Hindoos and Mahomedans forsaking their creed, or being of the people, all information is hermetically sealed up by the Go. excluded from the community to wbich they belong, from
vernment of Scinde, which seems, indeed, to exhibit quite as much suffering loss of right or property thereby. This pro
jealousy lest the public should become acquainted with the province,
as the Empero of China manifests to keep barbarian eyes from tection, however, is clogged with a condition which will
peering into his empire. It is occasionally reported that the present
revenues of Scinde exceed by one-fourth the sum which the Ameers render its operation altogether uncertain. Where, in the were able to obtain from it, and that the country is no burden on the opinion of the Court below, the application of the law will
resources of India. For these flattering representations, however,
we are indebted to newspapers published in England, to which it is outrage religious feeling, the case is to be remitted to the
supposed the friends of Sir Charles Napier are in the habit of conCourt of Appeal, which Court is to decide whether tributing them. But the studied secrecy which is maintained reor not the law is to be applied to the particular case-if to
garding Scinde, and the certainty that any disclosure of information
would lead to the dismissal of the officer through whom it might be je applied, whether with any, and if any, with what modi- made public, throws an air of suspicion over all the “ far-fetched' ingtions; and if not to be applied, whether any compen
intelligence which we derive from the London journals. All that we
know for certain is, that the country has been the scene of mutiny, 1 is to be made to the party who will sustain loss by disease, and death, ever since it came into our possession, and that decision. This seems something beyond law-some
no province has ever proved so fatal to the discipline, comfort, or health of our army."
(Before the Chief Justice.)
THE LIBEL Case. Henry Lushington was charged for that he, at Simla, on the 30th Oct. 1813, unlawfully, wickedly, and maliciously, did com. pose, write, and publish, in the form of a letter, directed to Charles William Duffin, a false and scandalous libel concerning the said Charles William Duffin, which was set out in the in. dictment, and which, in substance, accused Mr. Duffin, the prosecutor, of incest, official peculation, and other serious offences.
Mr. Morton, with whom was Mr. Ritchie, appeared for the prosecution; and Mr. Leith and Mr. Sandes for the defence.
Mr. Morton opened the case for the prosecution and addressed the jury. The learned counsel commenced by informing them that the charge against the defendant was a libel of a serious and aggravated character. That the prosecutor was an officer in the East-India Company's military service and a lieutenant in the 26th regiment of Native Infantry; and the defendant, Mr. Henry Lushington, a member of the civil service, and Civil and Sessions Judge of Futtehpore, and was, at the time of publication of the libel, the officiating and Sessions Judge of Shaharunpore. The learned counsel here explained that, although the offence was not committed within the local jurisdiction of this Court, yet, the defendant being a British subject and in the service of the East-India Company, he was amenable to its jurisdiction. But he had understood that the jurisdiction was not contested, and would not, therefore, take up the time of the jury by calling evidence on that point. learned counsel then proceeded to remark that the prosecutor and the defendant had been on terms of acquaintance, if not of intimacy, for some years, since the year 1836.
It was not necessary, however, to detail to the jury the circumstances preceding the publication; for no quarrel or enmity between the parties could justify the libe). The jury, indeed, would have nothing to do with the motives which had led the defendant to publish the libel. In some cases, it might be necessary to inquire into motives, as bearing upon the question of justification; but in the present case, this was not necessary, though, were the motives in this instance sifted and inquired into, the result would, perhaps, only prove an aggravation of the offence. The nature of the case, however, was such as to exclude any such inquiry. The learned counsel went on to observe, that the libel was contained in a letter to the address of the prosecutor, dated the 30th October, 1813. It was, in the first instance, sent to Capt. Plowden, and seen and read by him ere the prosecutor became acquainted with its defamatory contents. This circumstance would, the learned counsel remarked, preclude any objection being taken as to the publication of the libel, as might have been made, had the knowledge of the contents of the letter been confined to the prosecutor, to whom alone it purported to be addressed. At this time, both Lieut. Duffin and Mr. Lushington were at Simla. On the morning of the 30th of October, the former was proceeding from that station to Loodiana, when he received a communication from Mr. Lushington, requiring bim to grant the latter an interview. This the prosecutor declined to do. It was in consequence of that refusal, apparently, that the letter was sent to Captain Plowden, accompanied by another letter, which the learned counsel read to the jury, and remarked, in reference to it, that it contained a threat to circulate the libel farther. The learned counsel said, he would call Captain Plowden as a witness to prove these parti. culars, and that the letters were in the handwriting and bearing the signature of the defendant. But there was farther proof of the publication of the libel, and, if necessary, he would produce it, though he thought, that what evidence he intended to call would be enough to satisfy the jury on that head. As to the nature of the libel itself, the learned counsel observed to the jury that it was malicious on the face of it. The meaning was plain and intelligible, without any obscurity or inuendo requiring explanation, beyond the indentification of the parties intended. In respect to its language, tone, and spirit, the letter was so objectionable, that he (the learned counsel) hoped the defendant, in his calmer moments, had felt ashamed that he ever wrote it. The learned counsel here read aloud the libellous matter as set out in the indictment. Such, the learned counsel resumed, was the libel which the defendant was charged withi. He (Mr. M.) would not comment upon its grossness. Such a charge as that of peculation was, of itself, a sufficiently grave one to be brou against any person, much more against an officer and a gentleman.
Yet, that was the lightest of all the charges which the defendant had brought against the prosecutor. He bad accused him of incest with his own sister, a girl of ten or twelve years of age, and had hinted that some excuse had been offered more dreadful than the deed. The learned counsel put it to the jury, whether, under such grave aspersions, the prosecutor could remain passive without seeking to remove the shocking imputations made upon his character; and, surely, he could not be charged with vindictiveness, if he put in force all the rigour of the law against his defamer. He was accused of violating at once the laws of God and man, and it was nothing but right, that he should avail himself of every remedy which the law gave him, for the sake of his own character, and the ends of public justice. The learned counsel concluded by telling the jury, that he would not object to any questions which his learned friends on the other side might put to the prosecutor and witnesses. For his part, the evidence he would produce would be simple and short, and if what he expected to prove remained uncontradicted, he would, he thought, be justly entitled to receive a verdict of guilty at the hands of the jury.
The Chief Justice here remarked, in reference to an observation of Mr. Morton, that he would not allow evidence being called in justification, as he did not see how the truth or the falsehood of the statement could, in this trial, affect the libel with which the defendant was charged.
The following evidence was then called in support of the charge :
Charles William Duffin, examined by Mr. Ritchie, — I am an officer in the military service of the Company, and Lieutenant in the 26th regiment of Light Infantry. I am acquainted with defendant, who is a member of the civil service. In the month of October, 1813, both the defendant and myself were at Simla. I handwriting. On the 30th of October I received a note from him. I did not see him, but went to Dr. Carter, and requested him to see him. This is the letter I received. It is in the defendant's handwriting. [The letter was put in, and read.] I was on my way to Loodiana. I went there. I refused to see the defendant in answer to his note. When there, I received another letter, which was also in the defendant's handwriting. It was forwarded to me by Captain Plowden, of the 17th regiment N.I. With that letter there were several others enclosed, one of which was from Captain Plowden, and another from the defendant to the address of Captain Plowden, accompanying the letter containing the libel. Another letter was given to me by Colonel Wallace, to the address of Captain Hill, from the defendant. All the letters are in the handwriting of the defendant, and with his signature. The lady alluded to in the libellous communication, as your wife,” is my wife, Mrs. Duffin. The lady mentioned as “ Mrs. Lushington
» is the defendant's wife, and “Lieutenant Duffin” is myself. (The letter to Captain Hill was here read.)
Cross-examined by Mr. Leith. With reference to the words contained in the letter to my address, of the 30th October, “ Can you expect any human being tamely to submit to the calumnies you have propagated ? &c.," I can only say, that I have propagated calumny about Mr. Lushington, if truth be calumny. I went to the house of Mrs. Lushington in the morning, and told her that I had discovered Mr. Lushington at an unseasonable hour with Mrs. Duffin. I had discovered this, and did say so. I was aware that she was not living with him, and went there and said so; but not before I had spoken to a friend on the subject to seek an explanation from Mr. Lushington. But I believe no communication had been made to Mr. Lushington before I made the statement to Mrs. Lushington, as he was not at home when called upon by my friend.
Mr. Leith then asked the prosecutor, if he had stated to Mrs. Lushington, that Mr. Lushington had gone in the middle of the night to see Mrs. Duffin.
The Chief Justice thought the question objectionable, as any personal altercation or variance that may have existed between the parties was irrelevant to the present question.
The prosecutor's cross-examination continued. --The letter of the 2nd April, referred to in the libel, is with my attorney, Mr. Judge. Captain Plowden is a friend of mine. He lived with me, and knew all about this matter. I requested him to look after the statement I had left in charge of my servant at Simla. Captain Plowden is in Court. Mr. Plowden, of the civil service, acted in the affair in my behalf. I never gave my consent for the matter to be referred to arbitration; nor did Mr. Plowden consent to this. I refused to refer my conduct to Mr. Lushington's friends. I'did sign an agreement to settle the matter, Mr. Lushington agreeing to abide by the decision of those I would name.
If Mr. The settlement was not broken off for want of papers. Plowden said so, it was not to my knowledge. He told me differently. I have it in his handwriting. I have a true copy of the agreement, which was dated July, 1814. The libel is dated October, 1813. Mr. Lushington took no steps, and, after wait. ing a month or more, I broke off the negotiation.
The Chief Justice considered the cross-examination quite irrelevant to the question under trial.
Re-examined. - I left no authority with Mr. Plowden to communicate with Mr. Lushington.
James Chichley Plowden, examined by Mr. Morlon.—1 am a captain in the 17th regiment N. I., and know both the prosecutor Lieut. Duffin, and the defendant Mr. Lushington. I was at Simla in October, 1843. I received these two letters from the defendant, one of them being to my address enclosing a letter directed to Lieut. Duffin. After having read them, I forwarded them to the prosecutor, who is the person spoken of therein. [The letters were then handed in and read.]
Here ended the case for the prosecution.
Mr. Leith applied that as the letter of the 2nd April, spoken of by the prosecutor, was in Court, and was referred to in the libel, and formed a part of it, it should be produced.
Mr. Morton offered to do so, if the Court required it.
The Chief Justice ruled that the learned counsel was not entitled to see the letter, as it formed no part of the libel, and had nothing to do with the matter.
Mr. Leith said he would not take up the time of the Court and jury with any observations, as the Court's ruling had so narrowed the questions at issue.
The Chief Justice then charged the jury. His lordship, first of all, explained the nature of the offence with which the defendant was charged, and then remarked that the only questions which they had to try were, first, whether there was a libel, and, next, whether that libel was published by the defendant. They had nothing to do whether the allegations embodied in the libel were true or false. As to the malicious intention, that the law infers, unless there are circumstances shewing to the contrary, that there was no malice. There was no question, the learned judge went on to remark, that the letter contained defamatory matter highly defamatory. It charged the prosecutor witli incest-an offence which, while punishable by this Court in its Ecclesiastical jurisdiction, would tend, at the same time, if believed in against the prosecutor, to his exclusion from society, and bring on him the depreciation of mankind. Another part of the libel con. sisted in an accusation of peculation against the prosecutor. A military man was, and his lordship hoped would always be, exceedingly purctilious on the point of honour. This charge against the prosecutor was, therefore, a grave one. The judge was at a loss to suggest any justification to the jury for the libel
. It certainly did not appear to have been originally intended for the public eye, but for Lieutenant Duffin alone, although it was seen by Captain Plowden, and then by some others, though under what circumstances was not explained. It was not, also, a privileged communication, since the defendant was not in a situation to authorize him to make the demand which he did. It appears from the libel that it was, in some way, to benefit Mrs. Duffin, that this “ horrible secret" (as it was termed in the libel itself) was to be used. But the relative position of the defen. dant and Mrs. Duffin did not authorize such interference on his part. If he thought that the secret should be promulgated for the interest of society, and, with that view, had taken steps to bring it before a Court of law, no one could have found fault with him, even though he might have been suspected of being over. zealous. The use, however, which the defendant made of this alleged secret was an improper use-indefensible on both moral and social grounds, while the malice of the act presumed by law, was merged in the malice in fact, by the intimidation made use of by the defendant in regard to the secret. His lordship, there. fore, felt it his duty to tell the jury that, on the evidence produced in the case, he saw no excuse or justification for the publication of the libel.
The jury immediately gave in a verdict of Guilty.
Mr. Leith then moved for the Court to postpone passing judgment, to give his client an opportunity to put in affidavits in mitigation ; and that he should, in the meantime, be allowed to enter into his own recognizances merely to appear and receive sentence.
Mr. Morton said he must see the affidavits.
The Chief Justice.--I shall give the time, and allow the de. fendant to enter into his own recognizances, if not objected to; but I may as well say now that affidavits will not much influence my judgment against the libeller. I do not refuse, but I will not invite, affidavits. If the defendant puts in affidavits in miti. gation, the prosecutor may contradict them, and put in affidavits in aggravation. The only question before me, in passing sentence, will be as to the tendency of the libel to lead to a breach of the peace. That is the gist of the offence.
Mr. Leith said, he was quite satisfied with the view which his lordship had taken of the case, and the course he meant to adopt. His client would not, therefore, offer any affidavits, but appear and receive sentence at once.
The Chief Justice intimated he would not pass judgment immediately, but the following morning. He supposed there was no objection, on the part of the prosecution, to the defendant being at large on his own recognizances ?
Mr. Morton said there was none.
Recognizances were then entered into, pro formâ, in one thou. sand rupees.
WEDNESDAY, JANUARY 15, 1845. Mr. Henry Lushington appeared this morning to receive 'sentence,
The Chief Justice then said to the defendant that it was now his duty to pass sentence on him. He had been found guilty by the jury of maliciously publishing a highly defamatory libel. In the form of trial to which the prosecutor had had recourse, the truth or otherwise of the libel was not the question at issue. In passing sentence, therefore, the Court had nothing to do with that, nor could it act upon the assumption of the falsehood of the libel; but it would assume that he (the defendant) had made the accusations against the prosecutor under a belief of what he had stated was true, and had good grounds for that belief; but even in proceeding upon this asssumption, le (the learned judge) was bound to say that the offence of which the defendant had been convicted was a very serious one. The libel charged the crime of incest, which, although not indictable in this Court, was punishable in the Ecclesiastical side of it; and which, from the accusation it involved against the prosecutor, would tend to his being proscribed from the society of his equals. The libel contained another charge against the prosecutor; namely, that of embezzlement, or peculation of public money. In regard to a military gentleman, this was an accusation of the most aggravated nature. The publication of such libels was, naturally, calculated to lead to breaches of the peace. In this light, the Court would regard it as an offence against the public peace, and award punishment accordingly. The learned judge had perused the let. ter which contains the libel, and it appears from that letter, that it was published by the defendant in order to gain a certain objectwhich was, that he stood forward as the champion of a lady who was no relation of his, but was the prosecutor's wife. He (the defendant) had no right to interfere in the matter, under these circumstances-in a matter of such delicacy, as an existing variance between husband wife. He was not warranted in such gratuitous interference, to which he had no legal or moral right, even if the publication, or the threat of publication, of the libel was calculated to lead to the attaininent of the proposed object, and even if that object being gained was likely to benefit the party whose champion he had constituted himself. The course pursued by the defendant was, under any circumstances, unjustifiable. The threat that he would pub. lish what, in the language of the libel, was a “horrible secret," was, in the first instance, made to the prosecutor, and that itself was improper; and then, the carrying out of that threat, because the prosecutor had not complied with what the defendant had no right to demand, was more improper still. It was true that the publication was not made to the world, but limited, at first, to a single friend of the prosecutor; and so far, the malice of the act was mitigated. Yet notwithstanding, the defendant had made an improper use of the secret-if any existed. If he really believed the truth of what he alleged, his duty would have been, for the interests of society and the government as well as of public morals, to communicate with government on the subject, or place the matter in train for a judicial in. quiry. Had he acted in either of these ways, his conduct would have been irreprehensible ; but the course he had taken was altogether improper. The sentence which he (the learned judge) was about to pass on him, was a great deal lighter than he would have pronounced had he seen reason to believe that tie defendant, in publishing the libel, was influenced by wilful malice.
His Lordship then told the defendant that the sentence of the Court was, that he should pay a fine of Rs. 2,500, and be in confinement until that amount was paid.
The fine was paid immediately, and the defendant left the court.
The following correspondence subsequently appeared in the Bengal Hurkaru:
TO THE EDITOR OF THE BENGAL HURKARU.
Sir,- In your account of the libel case, published in your paper of the 16th instant, part of the evidence of Lieut. Duffin is object, you will see how much more completely you will succeed by convincing me, than by the result of a prosecution for libel; but being an interested party, I am not a competent judge; I therefore propose that we should name one or more arbitrators, and that we should both unite in an honest attempt to establish the truth. No trial in the Supreme Court, no inquiry set on foot by the Government, could attain this end so rapidly and so certainly as we could attain it by these means. If, in the opinion of such arbitrators, it shall appear that I had not sufficient grounds for what I wrote, or even that, having sufficient grounds, I was nevertheless deceived, I will adhere to the letter of the extract quoted.
It may be difficult, but I trust not impossible, to find some persons who will undertake this duty.
My objects in addressing you are, to avoid expense and exposure, to do you justice if you have been wronged, and to prove to society that I am no idle calumniator.
If, on the other hand, your object be revenge, not justice, you are welcome to whatever the law will give you.
thus given :-“Mr. Plowden, of the civil service, acted in the affair in my behalf. I never gave my consent for the matter to be referred to arbitration ; nor did Mr. Plowden consent to this ; I refused to refer my conduct to Mr. Lushington's friends. I did sign an agreement to settle the matter, Mr. Lushington agreeing to abide by the decision of those I would name. The settlement was not broken off for want of papers. If Mr. Plowden said so, it was not to my knowledge. He told me differently. I have it in his hand-writing. I have a true copy of the agreement, which was dated July 1844. The libel is dated October 1843. Mr. Lushington took no steps, and after waiting a month or more, I broke off the negotiation."
The facts of the case in regard to the proposed arbitration, are these. In the middle of July last, Mr. Lushington and Mr. Plowden met at Mozuffernuggur for the purpose of discussing the practicability of terminating the existing differences becween Lieut. Duffin and Mr. Lushington without an appeal to the law. In the course of the discussion it was resolved to summon Lieut. Duffin from Meerut, and Mr. Plowden summoned him accordingly. Lieut. Duffin came out part of the way to Mozuffernuggur, but was driven back by stress of weather. Mr. Plowden then returned to Meerut, taking with him, for the purpose of submitting it to Lieut. Duffin, à proposal drawn out by Mr. Lushington that the matter be decided by arbitration. Two or three days afterwards, Lieut. Duffin's acquiescence in this arrangement was signified to Mr. Lushington through Mr. Plowden, who was constituted one of the arbitrators on the part of Lieut. Duffin, Captain Blois being the other. It had been previously intimated to Mr. Plowden by Mr. Lushington, that, if arbitration were agreed to, I had consented to act as one of the arbitrators on the part of Mr. Lushington. Immediately on his receiving intimation that his proposal to decide by arbitration was entertained by Lieut. Duffin, Mr. Lushington forwarded to me the whole of the papers in the case, which were in his possession. I had no small difficulty in finding a person with the requisite qualifications of competency and willingness to fill the office of fourth arbitrator, which now remained to be provided for, and Mr. Lushington was equally at a loss with myself. I applied to a friend at Meerut, of whose fitness for the undertaking there could be no question, but who, unfortunately, was not equally willing. The gentleman to whom I allude was acquainted with Lieut. Duffin, and wholly unknown to Mr. Lushington. While I was endeavouring to find some one else, I received, either on the 28th or 29th July (certainly within a fortnight, instead of being “a month or more," after Lieut. Duffin had given his consent to arbitration), a letter from Mr. Plowden, informing me that Lieut. Duffin's papers had all been sent towards Calcutta by mistake, and that the arbitration was, consequently, at an end. This letter I immediately forwarded to Mr. Lushington, and it is, doubtless, in his possession at this moment. I am, Sir, your obedient servant,
H. W. DEANE. Mozuffernuggur, Jan. 25, 1845.
FRIDAY, JANUARY 31, 1845.
(Before a full Bench.)
DUFFIN v. HERRIES. Owing to Captain Thomas's approaching departure for England, an application was made for his examination to be taken this
From Mr. Lushington to Lieut. Duffin.
Dated 3rd July, 1844, Saharampore. Sir, I hear from Capt. Johnson, 46th N.I., that you are on your way to Calcutta, with the intention of prosecuting me in the Supreme Court for a libel.
2. As this is likely to involve us both in much trouble and expense, and as your object may be gained with greater ease by the adoption of a different course, I take the liberty of suggesting it to you.
3. The following is an extract of my letter to Government, written in reply to a demand made by the military authorities that I should“ retract or support” certain allusions in my letter to your address, dated 30th Oct. 1843:
“ If Lieut. Duffin can satisfactorily explain the suspicious circumstances which I shall be obliged to enumerate, if really I have wronged him, there is no statement, no apology which I will not offer, no declaration, however public, which I will not voluntarily make, in the endeavour to remedy the great injury I shall in that case have done him ; and I do not here allude to any atonement which might be extorted from me by law, or required from me by the Government, but to a full, open, sincere acknowledgment of my mistake; and I will exert myself as strenuously to publish his innocence as I have hitherto done to keep back the proofs of his supposed iniquity.
“ If he be innocent, the severest investigation will be the most advantageous for him ; and, in search after truth, he will find none more willing to assist than he who now most unwillingly appears against him."
4. Assuming that the vindication of your character is your sole
George Powell Thomas, examined by Mr. Morton.-I am captain in the 64th regiment. I know the plaintiff; he is an officer in the 26th regiment. I also know the defendant; I have known the plaintiff since the latter end of 1840 or beginning of 1841. I know the defendant very slightly. I know him since I returned with General Pollock at the end of 1842. I do not know what he is now; he was then an A.D.C. to the Governor-General. I know the defendant's hand-writing (shewn a letter marked A.) This is his hand-writing. I received this letter when I was at Simla. Captain Herries I suppose was, at the date of the letter, 11th of November, 1843, in Calcutta. The Lieut. Duffin men. tioned in the letter is the plaintiff; the Mrs. Duffin referred to in the letter is the plaintiff's wife. No pledge ever was given by me on the part of Mr. Duffin, that the matters referred to in the letter should never be mentioned by Lieut. Duffin ; but on the contrary I demanded on Lieut. Duffin's part that Capt. Herries and his friend should not again refer to these matters. I never undertook to maintain secrecy; that is, I never undertook in so many words to maintain secrecy, but the impression on my mind was, that Lieutenant Duffin would not have expected secrecy from the other parties, unless he intended preserving secrecy himself, and I think this was the impression on the minds of the other parties. The circumstances that then took place are as follows :-On the morning of the 11th of January, at Ferozepore, Lieut. Duffin came over to my bungalow; he had this letter marked B. in his hand; it was open, and he was in a state of great excitement. The handwriting of this letter is Mrs. Duffin's. This is the intercepted letter mentiorel in letter A. After reading this letter, Lieut. Duffin requested me to go over to Capt. Herries. I agreed to go, and he insisted on accompanying me, promising at the same time that he would keep his tempor. On reaching Capt. Herries' tent, Lieut. Duffin went in; I waited till I was tired; then I went in to the tent, where I found Duftin addressing Capt. Herries in very insulting language; I took Duffin away almost by force. I observed to him that it would be absolutely necessary for him to apologise to Capt. Herries for the opprobrious terms he had just used towards that gentleman; he reluctantly authorized me to make such apology as I thought necessary, and as would not infringe upon his honour. I then went to Capt. Herries; and having expressed the regret which was, as a matter of course, demanded, as a preliminary to any pacific measure, I then desired of Capt. Herries that he would produce, for the full satisfaction of Lieut. Duffin, all letters that he had received from Mrs. Duffin (the plaintiff's wise) up to that date. He produced upwards of twenty. He then agreed that they should be given to Lieut. Duftin. I numbered them in Capt. Herries' presence.
This letter (B) was not one of those I numbered. The object of shewing them to Lieut. Duffin was to convince him that actual adultery had not been committed between Mrs. Duffin and Capt. Herries. At this time it was neither agreed that these letters should be restored by Lieut. Duffin nor kept by him. These letters were seen and read by Lieut. Duffin, who then said he would take them to camp to shew to Mrs. Duffin. After this there was a reconciliation between Lieut. and Mrs. Duftin. Capt. Herries signed a declaration on the Trinity, that no adultery had been committed between Mrs. Duffin and himself. This de. claration stated that Capt. Herries had given up all correspondence; but I cannot state whether it contained a statement of his having given up all the gayes d'amour ; this was stated, but it may have been verbally, and that the only things retained were a volume of Shelley's Poems and an engraving at that time on the table. I had no idea at the time that Captain Herries had a wedding ring of Mrs. Duffin's; he could not have retained one consistently with honour or his written declaration. Lieutenant Duffin took his wife back, and therefore I fairly concluded he would be the last person in the world to publish any of these matters, both on his wife's and his own account, for their interests were identical. Had it not been for his wife's sake, he would have had Herries out that day; no pledge of secrecy was given by Lieut. Duffin ; but I have no doubt Capt. Herries concluded Lieut. Duffin would be silent, and therefore thought, no doubt, that it would be a work of supererogation to exact any special pledge. I wish again to impress upon the Court the fact, that it was generally understood on all sides that secrecy would be observed, by Herries on his own and the lady's account, and by Duffin on his own and his wife's account, and by himself through motives of honour. Capt. Herries' anxiety was to satisfy Duffin; I do not remember that Capt. Herries exacted any pledge of secrecy on giving up the letters; but, as I observed before, I have no doubt it was generally understood secrecy would be observed. I understood we should all be silent. Herries said, of course these matters are strictly between ourselves; to this I assented, but I did not mention this to Duffin ; I thought it unnecessary to do so, but I may have been wrong. When Duffin said he would take the letters to camp, Herries seemed anxious to get them back ; but he, however, in consideration of the object Duffin had in view, allowed him to take them ; but Herries insisted he must have the letters back if Duffin returned from the interview fully satisfied of his wife's innocence. This Duffin has strenuously objected to ; I succeeded in persuading them to agree to a middle course-to the effect, that if Duffin returned satisfied with his wife's innocence, that the letters, instead of being returned to Herries, or kept by Duffin, should be burnt by me in the presence of Captain Herries, or some friend of his. The next day, Capt. Crawley, A.D.C. to Sir. Jasper Nicolls, placed himself in communication with me concerning the matters in question ; this was at a place one march from Ferozepore, whither the 64th regiment had proceeded, and whither Capt. Herries had marched in charge of the notorious Somnauth Gates. This arrangement did not include the intercepted letter. On the first day we discussed the matter Captain Herries stipulated that the intercepted letter should be burnt, but this was distinctly refused by Mr. Duffin, and the point was waived on my pointing out to Capt. Herries, that if he insisted on the destruction of this one letter, he would entail that publicity he was so anxious to avoid. I pointed out to Capt. Herries that Lieut. Duffin would not produce the letter against him, as to do so would be to involve the reputation of his wife, whom he had restored to his confidence. After reading the letters, Lieut. Duffin seemed well disposed to take back his wife. I had to use a great deal of discretion in the matter, as I was the only person advising both parties. I had a difficult part to play; and the promise of secrecy used by me to Herries was in the exercise of my discretion, and not by special authority. With regard to the statement in the commencement of the first plea it is erroneous ; no such pledge was given ; I wrote to Capt. Herries as soon as I saw it, to tell him that his impression of the circumstances was erroneous. Lieut. Duffin, at the time of the negotiation, said, he would rather break Capt. Herries' head than give up or destroy the intercepted letter, and he stipulated that he should keep this letter, and I mentioned this to Capt. Herries, who, after much difficulty, agreed to its being kept. This was on the day on which the letter was intercepted. Capt. Crawley was not called in till after this negotiation, and when the burning of these letters was settled ; he was very angry at what had been done on Capt. Herries' part. The letters were burnt by me in the presence of Capt. Crawley, on the day on which he was called in.. As I burnt the letters I shewed them severally to Capt. Crawley, who was not allowed to see the signature to the letters, only the superscription, and the numbers I had put on them. When Capt. Crawley was called in, it was agreed he was not to know who wrote the letters ; of course he knew who they were written to; this was necessary, all the letters so shewn were destroyed. No new stipulation was made for the intercepted letter by Capt. Crawley-I do not think he knew of its existence. No interview took place between Capt. Crawley and Lieut. Duffin. Had Capt. Crawley known of the existence of the intercepted letter, he would, I think, have insisted on its being destroyed, or he would have made its detention by plaintiff a reason
for causing him to give defendant a meeting; that is, to fight a duel. Lieut. Duffin did not enter my house while Capt. Crawley was in the house ; he could not do so lest he should have been recognized as a party concerned. This letter (exhibit A.) I re. ceived. I wrote an answer immediately to Herries ; I inclosed this to plaintiff, as I was anxious to let him see it. I did not take a copy of it. I got a letter from Duffin, acknowledging its receipt. I received an answer a long time after. I wrote no other letter to Herries between the dates of the letters (A.) and (C.) I wrote to Capt. Herries that he was in error in supposing that the intercepted letter had ever been included amongst those that were agreed to be destroyed. I do not recollect the precise words, but that was the purport of the letter. I never made any promise, except as I have already mentioned, that “ as a matter of course, the subject would not be revived. In my communication with Capt. Crawley, the names of Mr. and Mrs. Duffin were never mentioned. In the paper which I afterwards gave to Capt. Crawley, there was a blank left for the name. I never made any promise as to the whole matter being consigned to oblivion, as appears in the defendant's second plea; as I have said, destroying the intercepted letter, was distinctly refused.
Cross examined by Mr. Leith.–Captain Crawley not being satisfied with the way the matter had been settled, I gave Captain Herries a note in my handwriting, stating that in my opinion he had acted throughout as a man of honour and courage. Captain Crawley worded it, and I copied it. It was to be returned to me. I saw the letter posted in the public room at Simla ; it was, in my opinion, a copy of the intercepted letter I have before referred to. These rooms are the most public place in Simla. The posting took place before I received the letter which contains the libel with which the defendant is charged. By posting, I mean it was handed to me by a bearer of the plaintiff, who said he was ordered to shew it to me. The plaintiff agreed to take his wife back be. fore the letters were destroyed, and it was with this object the letters were given up by the defendant to be destroyed. Captain Herries is too much a man of honour to have acted from any other motive. Lieut. Duffin continued to live with his wife till about a month previous to the posting of the letter in the public rooms at Simla. I only heard this. During this time there was a coolness between Lieut. D. and his wife. This publication had nothing to do with Capt. Herries. The settlement took place about the 10th or 11th of January. I may have given Capt. Crax. ley an assurance on the part of my principal, that all letters on the subject of negotiation were then produced and destroyed ; but that could not include the intercepted letter, as, I believe, at that time, Capt. Crawley was not aware of the existence of the in. tercepted letter. Capt. Herries was not present when I and Capt. Crawley destroyed the letters ; Capt. Herries was present, I think, when I produced the letters. As I have said before, I gave a promise (a verbal one) that these matters should not be again referred to; that is, I said “Of course, these matters should not be again mentioned.” This was on my own discretion, as Duffin's friend. I had no distinct authority on this head; but of course I thought Dustin would be the person most anxious for secrecy, and had I had any doubt upon this point, I would have questioned Lieut. Duffin, and had a distinct answer from him. My idea was, Lieut. Duffin wished to keep this intercepted letter as a check upon his wife. I was particularly convinced these matters would never have been mentioned, as I had made it a stipulation with the other party that they should observe secrecy. Had I been consulted, and had my advice been followed, this posting would never have taken place. I always understood, in all my dealings with Lieut. Duffin, that secrecy would be observed ; this I thought was implied though it was not specified in words, and I felt myself authorised to make the promise of secrecy I did give. To my knowledge, neither the volume of poems or the print were ever de. manded of the defendant; the plaintiff was afterwards desirous of having them restored to him. This is my letter to Capt. Herries ; my impression was that Capt. Herries had always acted most honourably.
Re-examined by Mr. Morton.-If it is intended by the libel that a deceit was practised on me by Duffin keeping the intercepted letter, this is not so. I knew that he was to keep it. I was the mediator. I am certainly not aware of his practising any deceit. I had no express authority to give the pledge ; that pledge had reference to all acting on good faith, but at the same time I never dreamt of any party breaking the pledge.
To the Court.—I meant to pledge myself as to the destruction of the letters; that is, the numbered letters ; as to the keeping of the intercepted letter, it was no deceit on me by the plaintiff.
The following are the letters as exbibited :