1842-05-25, Newfoundland Patriot

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SATBIQT.
ST. JOHN, NEWFO^piiAND;
No. ^.vaa*9..-I»rlce 7d.
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«»<«s3$S3!V^
Edited Pfiiiel&^nblisbe^y
NEAR  THE COURT-H^UBE.
•• ntsB PA-raioT. TRUTH nm oiomoes PRIJCEPT3 iwv
«• Pluokb to RELIGION, LIBERTY; aH*^VV."
LA¥1NT£LLIGENCE,
lso frefluenllysetfe-tth against them in^tho JVete/ouWrJ/ani
CENTRAL CIRCUIT COVRT.
TmrRSDAr Morning, 9 o'Clock!
LIBEL CASE.
Simms vs. Nugent.
Damages laid al £2,000 !
This case being set down for to-day,
considerable interest was excited in town,
and a large number of persons assembled
outside tlio Court-house anxiously awaiting
the hour of admittance.. As the hour of 10
advanced, large crowds congregated at the
entrance,and constables wero in attendance
to keep offthe pressure.—The Court opened at 10, and was crowded in every part
in a very short time. The very inconvenient place set apart tor Reporters (with
the except ion of that allowed to the Editor
of the Ledger) rendered it painful ,to take]
even a brief note of the proceedings, and
consequently our report ofthis case will
be defective.
The ,Jury empannelled to try this1 easel
was composed ofthe following gentlemen :
Charles Fox Bennett, H. P. Thomas,
H. Bowring, John Stuart, W. Richards,
Nicholas Mudge, J. Wyatt, Hannibal
Murch, Robert Brine, James Johnston,
Monier Hutchings, Robert Carter,
Immediately on thc Jury being called
over by the Clerk,
Mr. Nugent rose and read the following
affidavit :—
JN" THE CENTRAL CIRCUIT COVRT,
St. John's,   >
tojcU.        \
Cjj__ni.Es Simws vs. Johx Valentine Ncgeivt.
John Va.eutitie Nugent, of St John's, in tiie Island ol
"Sen .unJUnd, Gen lemon, the above defeudani. mak
©.ith and satin—lhat in the above cause a rule of C<
haa *een issued for a Special Jury to try the same, and
that the panel ut Grand Jurors whence the Special Jurors
•re taken is composed of persons fjreaily prejudices! against this Deponent, and that this Deponent lias
beard and believes that, collectively and individually, tht
said Grand Jurot* have expressed strong feelings of hostility to this Deponent, aod tbat several ofthe Grrnd Jurors have frequently ezpieesed an opinion thnt this Deponent ought to be driven (rom this Island, or an opinion
to that tanoi and eifect, and that Deponent firmly believes
thai this hostility to-this deponent ha* arisen solely from
bia having maintained religious and political opinions op-|
posed to those ef the said Grand Jurors and for no valid
ot reaeocable cause whatever. Thai Deponent was duly
and unanimously elected Member of iho lata House of
Assembly for the Districtof Placentia and St. Mary's,
and se such Member was unanimouslr appointed by the
House of Assembly io the first Session of the -Second
General Assembly, to repair to the seat ofthe British
Government as a Delegate from (he said House of Assembly,to treat with Her Majesty's Government upon 'lio
afiairs ol this coloaj,and was duly recognised and ret i-
•d ae such 1'elcgi.te by the said Government of her Mi-
jesty, aod faithlully disohared the trust so reposed in h in
but during (be absence ol Deponent tiorn this Islam! on
•u:h Delegation several slanderous and defamatory libels
. were published of snd concerning this Deponent in certain Newspapers of Saint John's, lalsely Imputing to this
Deponent the several charges of abetting rebellion, of!
being a vagabond, of being a pauper, ol being a pest to
society, aud of flying from the counlry to defraud his
(this Deponent's) creditors, or charges of thc same »er >r
•nd effect. That Deponent upon his return to this Is.
land from the said Delegation appealed io the lavs ofhis
country fur redress, and brought actions at law for the
•ame, severally, agsinsi Henry Darid Winton, Proprietor ofthe Ledger Newspaper, and John Williams McCou-
bfsy. Proprietor ofthe Tunes Newspaper. That for ths
trial,of these sevoral cases the said defendants piayedl
Special Juries, and" the said cases were tried Cy Special
Juries accordingly. That the said Honry David Winton,
pleaded the tiuth in justification, bin declined examining
wmtesses in proof of the same, and although ou the sriJ
trial there was no evitknce whatever otlered thit' »•
said Plaintiff, this Deponent, was justly charged as al
•aid, and although positive evidence wis given thst
conduct ofth* said Plaintiff, this Deponent, was tnaMcedi
by a desire to promote peace, yet, aud in opposition tflrUhe
Judge's charge, did 'ha said Special Juiy bring in
diet for lhe Defendant, end this Deponent further saith
that althoogn in- the ease of Nugent vs. McCoubivy Se
truth of ibe libel* had been pleaded injusfification.and no
evidence was offered on the pert of the said Defendant
McCoubrey.to impeach tho character of the said plaintiff,
this Deponent, and although mos* respectable evidence,
thst ofth* Speaker ofthe Isle House *l Assembly, that
th* moral aod political character of tb* staid Plain iff
thi* Deponent, were exemplary, yet did the Special Jury
in ths said cause return a verdict of only Forty Shillings
damages, and that this Deponent lias heard i ml arily
believe* that several ofthe said Grind Jurors have't lated
ibat thoy would hang tbis Deponent, or that thia Depo.
n*f_t ought to be hanged, or word* lo that tenor aad et-
J'fc-ct.and ihis Deponent further saith. that lie has seen published in a publie Newspaper, to wi1, in the Public f<d-
gtr and Nenjotmdlana General Advertiser ot Tues ay,
- I full March last past, a notice- in the torm of a req-iis, ion
*o convene a Mooting of '* the Gentlemen oo iho I pe-
, cial Jury panel for the Central Dis'.iict. to maet ia ihe
Grand Juiy Room in the Court House on Thursday,
next, at 12 •'Crock, to consider what course it may be
rWieW^ ot some 12000 persons—whilst here
Ik—■     «*->«-—    *-. 11 *_.■___• ■.«__*       ire    taast        -William       1 hnmm.    f,_     IC. Ir*.*" ;•■«*___     , . .   ■  - ,  «    .    ' , * >*/■___
body consisted but ot some 60 or
. httte. The'defehdarit IreWqftoW
the case alluded to, to show that on thei
bare suspicion of prejudiced feeling, the!
venue was changed—The Judge changed
!the hearing from London to Liverpool—a
motion was made to have it back again, but
'refused,;because there were 12000 Jurors
|.masi_^8h'asi thepand df Jurors thero eon-
._, __ine« following,, to wit,. William Thomas, C. F.I
Bennett, Waltei Grieve. D. MackoUar, fc. ^coM./Roborl.
iJob". Peibr MdBride, TtcrinetirM'Lea,' Valium Warren,
and that on tho said day; io w~pfTft*i(sda.y, 17ih
March, such Monties, as aforesaid was heid by the Gen-
lomcn ou the said Special Jury panel a* Deponent
firmly believe*. iyjd that Deponent heard end verily be!
Ifevcs that ifio siid Meeiing wns held for tho purpose of
.devising moans to barrassand i ijtiro said Deponent, and
[Deponent further saith .ind verily believes that at tbe
[said Meeting strong expressions of hostility to thia Deponent were used by several oftho said Special Jurors.
And thnt Deponent has Ik-..rd and believes that at the
said Meeting a resolution passed appointing five persons
be a committee to i-ivcstigate and report upon tho several matters complained of. And this Dapooent further
aith that thia Deponent heard nad firmly believes that
,jn Iho ibird day ofthis present Ma), the adjourned Meeting 1.1' the said Gen lumen on the Special Jury list was
held at tho Grand Jury Ituom for the purpose ot receiving
the Report ef the saiJ Committee, and thai at the said
last mentioned Me-ting, strong feelings of hostility to thn;
Deponent were mini cited, and this Deponent furlher
-nith, that he ha* heard and verily believes that at the
said last mentioned meeiing a subscription of the Body!
[of Special Jurors was determined lo be raised for the
instituting law proeoedings against, and oihor-
wise harrassmj ihis Deponent, and this Deponent fur
ther saith, that be heard and firmly believe* that a( tin
isaid last mentioned meeting, it was arranged that tho
said Charles Fox Bennolt, William Thoma-, Poter Mc
Bride, and Benjamin Scott, ahould commence the aaid
law.proceedinge agsinst this Deponent. That on Friday, iho 13th instant, the said Chailes Fox Bennett,
Wm. Thomas, Peter McBrido and Benjamin Scolt. filedI
[an affidavit accordingly in this honourable Court, io attach this Deponent forthe publication of certain obier-
raions on the' Special 'Jury system of Newfoundland.
That this Deponent further aaith that under the said rule
I tiir a Special Jury in this «ase, a Special Jury has bntn
struck as Deponent heard and believes, but thnt this
Deponent did not get Twenty Four hours notice of such
•trilthg, having been served, in the afternoon of Wednesday the llth instant, with notice to attend tho striking!
I-it' (lie same on the noon of Thursday the 12th instant
Iland that on the said panel so struck and reduced,
rname of Henry P. Thomas appears, who is brother lo lhe
|*.iid Wilitm Thomas whose name appears at the head
the said original requisition convoniug the said Meet-
j of tbo Gentlemen oftho Special Jury panel as alore-
j saul, and also the rtnme of Edward Francis, a partner in
Trade with thc said William Thomas, and the said II
P. Thomas, and also the name of Robert Carter who is
brother to Peter Weston Carter. Esq., a Magistrate of
the Court of Sessions or Police Court ot Saint John's
whose name is associated with tho said Plaintiff in the de
in the county, affording a wide range  for
challenge.    Justice  (said   the defendant)
ought not only to be pure, but, like Caesar's
wife,beyond suspicion ; and he quoted another case to show how jealous were the
Judges pf England ofthe purity ofthe tribunals of Justice. The plaintiff in the
case quoted was a total stranger, and thei
defendant was a member of the Special'
|jury of the County—and this circumstance
"was conceived sufficient to change the
penue. Inthe case of Sel by the Judge
ruled because the case was free from political feeling—but the case then before
Ithe Court was founded entirely upon pot
liticai grounds ! The Chamber of Com**
[.merce o_|St. John's, of whifili the present
ipanel wore tho representatives, had all,
wuh thejexecption of Mr. Dunscomb, signed petitions, in which the character of the
defendant had been maligned and the most
unfounded aspersions made against him.
j The Court desired to know the object ofl
the defendant's motion.
Mr. Nugent said his motion was to set
aside tbe present Jury. He was in the
hands of the Court, and he conceived that
lant's motion— it. appeared, his Lordship
aaid—to be the object -of the defendant to
[gain time by theaa motion»-~for these «x-
[tracts and other matter* wtrte ormight'have
been discussed on the previous motion.
As to the change of venue, a defendant
might abuse every panel in every district,
stir up commotion and avoid a trial altogether. It was nonsense to say that the
whole country was interested in trials
of this kind—To be sure the defendants
[were interested, and would feel-desirous
to interest every body else—the object to
be gained was impunity.
The Clerk being about to swear the
Llury,
j Mr. Nugent moved that they be sworn
individually.
( The Court objected, as not being the
piactice—|thc defendant might challenge
|«and examine each.
[ Mr. Nugent challenged the rtame of
[Hannibal  Murch-.
Mr. Nugent—Mr. Murch, did you ever
say that you could not conscientiously try
this case 1
Mr. Murch—Not exactly words to that
effect. I stated that the country might fancy that I ought not to try it. And I confessed that I would rather be off than on
{the Jury.        /?
Tho Court (to Mr. Nugent)—Are you
'satisfied to allow Mr. Murch to remain—if
jnot you mutt call evidence to prove tho
assertion.
I   Mr. Nugent called in Mr. John O'Mara.
Mr. Row objected to the evidence.  Th*
ne v_/Ourt, ana no uuiiueivcu  *-»•«•'    *    ,       .    * J       •     , .u     t ._—     „,i ,v.<_r
able to adduce evidence corrobo-1 defendant had examined the Juror and that
if he was a
"ratirfc   ofthe facts in liis affidavit .    __,
tion would not be refused.
( Mr. Nugent then proceeded to read extracts from thc petitions to which he referred, showing thc Court that direct attacks
has been made upon him personally. He
apprehended that he had shown by these
extracts that the  case vvas bound up  inti
motion he had the honour to make. He
next referred to thc evidence of Sir Tho
mas Cochrane before th'e House of Com
mons, to show that that gentleman was
concurrent with him, in his opinions on the
state of the administration of Justice.    Sir'
that time was wholly inadequate to admin-
cUration in this cause, and  lha-. Deponent furt'ier saith , mat ely  With the politics of the Country, and
[lhai he hus heard and believes that the said Robert Car-j:showj„g tlc£at, the Court Could have 110 rea-
fth_) sitme tenor and elft-ct. And Deponent further saith!
.that the name of Charles Fox Bennett, a Magistrate of
Ijthe said Court of Sessions or Police Court of Sair.t Johns
tnd ore ofthe parties who subscribed the said original
requisition and mado and subscribed the abovo affidavit
:aud prayed for an attjehment against this Deponent ap*-
'Ipears on the said reduced panel of Special Jurors, and also
the name of Robett Jub, al>o a Magistrate ofihe Court of
Session* or Police Couit of St. John's, and also the name
if Wm. Warren, Junior, one of lh« names subscribed io
'the said oiiginul requisition, and the name of Wm. Richards whose name appears subscribed to a pe>ition ot the
iC'.iambet ol Commerce of St, John's to H':r Majesty,
'bearing date Dec. 1338, in which calumnious and false
{charges are made against the House of Assembly of
'which thii Deponent was then a Member, and also tho
me of Robert Brine, who snl n* a Special Juror to try
e said cose of Nugent vs. Winton, and also the name of
(Gilbert   Clapp, wno sal  as a Special  Juror to  try   the
 of Nugent v. McCoubrey. and   also the   names ol"
jJohn Wyatt and Monier Hutchings, who eat as Special    	
[Llurors to try both oftho cases before mentioned, thn De- Justice Bourne) had hoard, and heard even
[poncnt saih that he heaid and believes that in  a co.iver-f t,        defendant   himself,   the   Judges
on this causo  the said  Monier Hutchings said  of! , __. i •   i I   __• °
.hi. Deponent •' DeviU' cure to him, vhy didn't l.e hold;wcre gentlemen of high reputation,
hit tongue" or words to the same lenor and etfect, andj    Mr. Nugent said he gave the evidence to
Deponent further saith that on the said reduced panel the!s|low that a highly responsible public   offi-
jnameofJohn Stuart  appears   and  that  deponent he.rd concurred j,, the viewsof the   House ofj
[and  behoves  that in a conversanoo  on  this  cause   the . ?,
id John Stuart speaking ot thi* Deponent said, "We lllj Assembly. .     .
floor him" or worJs rf the  same leaor aod  effect,   andh      The Court had a high  opinion of   Judge
Tucker, and other Judges—the former now
should suffice.
.Mr. Nugent referred to precedent.
The Court—Do you object to Charles
Fox Bennett.
Mr. Nugent—Yes.
The Court—Do you object to Nicholas
Mudge.
Mr. Nugent—Yes.
The Court—Do you object to Monier
Hutchings.
Mr. Nugent—Yes.
The Court—Do you ohject to John
Stuart ?
Mr. Nugent—Yes.
The Court—Then you object tb all.
Mr. Nugent    In fact to all, my   Lord !
Mr. Row objected that the affidavit  did
[jto each Juror.    Everything alleged  in the
ister justice, and he'(Mr.   N) agreed with1 affidavit might have been heard on theother
him, although thero wcro other parts ofhis]
evidence wiih which he widely differed.
:    The Court—Mr.  Nugent,  the evidence
given by Sir Thomas Cochrane respecting
the Judges,   was given   behind their backs
J—had they   been present, thoy might,  perhaps, be able to say something agains-.  Sir
JThomas Cochrane.    From what he (Chief
and effect, and
!also tho name of Hannibal Murch ; and trtis Deponeni
jtunher suth, that he heard and believe* that the said
i. ibal Murch,in a conversation un this cause, saiJ
ho could not couscieiiiio-jslv sK to try this cau»e, or
word9 to the same tenor snd eifect. And that this causej
'has beenin.tituted at the suit of Charles Simms, Esquire,
[las n Magistrate ofthe Court of Sessions or Polico Court,|
'of Saint John's, io recover dam *ges £2000 for lhe alleged publjua-.ion ot certain observations on the proceedings in the saul Court In this Depotiont, nnd therefore
[land for all and singular the reasons abovo alleged D«*|
[ponent further saith, that he verily believes tbat if tin
bc heard by the sniil Special Jury or any ol
'them r fair snd imprrtisl trial cannot be expectedH
The Court—Was this before the Jury
was struck ?
Mr. Nugent replied that it was
The Court can you name the person who!
jh^eard these expressions ?
Mr. Nugent replied that he had witnesses to prove them.
In making the present motion, he said,
I'the Court was aware that he had previously
moved that the Special Jury empannelled!
to try this cause be set aside and the case
[heard beforo a common Jury.    He hed also'
held a' highly responsible situation in a
neighbouring colony, and that opinion was
;not to bo shaken by what Sir Thomas Cochrane might aay, or the House of Assembly either j
Mr. Nugent—It was quite beside the
case now to dwell upon the truth or the
[untruth of Sir Thomas Cochrane's evi-
{dence. He would now refer to the history—I
Mr. Row (for the plaintiff,) opposed the
licoursp pursued by tho defendant. He]
1; wanted to know what the motion vyas,
tt Mr,. Nugent said the motion was to set
-aside the present Jury. The number of|
Jurors altogether for this District was, he
understood 87, of these nearly one half were
absent—When the Jury was struck there
Iwere 62.—In tho case which had been
[cited by the Court there was a panel of]
[11,952  to challenge—he^ [Mr. N.] had  a!
'motions.
[j The Court ruled that evidence should be
.taken.
i John O'Mara sworn, and examined by
Mr. Nugent—Had had a conversation with
Mr. Murch—that conversation Was in substance what he (Mr. M.) had just stated-
he expressed himself as feeling averse to
'sitting on the Jury.
j The Court thought Mr. Mureh a very
proper juror and Mr. Nugent agreed.
j Mr. Nugent next challenged John
Stuart: Have you Mr. Stuart, formed an
opiriron upon this case 1 Did you* say that
you " would floor" the defendant ?
j Mr. Stuart explained that ho had never
read the article alleged as libellous, and
not acquainted with the merits of the
case -, that he never expressed himself in
the manner alluded to.
This explanation was satisfactory.
.    Mr. Nugent asked  permission to put a
question or two to Mr. Mudge : viz.
Have you, Mr. Mudge, seen the article
upon which this actiop is grounded ?
Mr. Mudge—You mean the newspaper 1
No, I havo not.
Hate you expressed an opinion Upon it?
[—No,. I have hot.
Robert Carter, being next calledj
[    Mr.Ntigcnl proceeded to put tho questions
following—-Mr; Carter are you a ooonettion
Jof Mr; P. VV; Carter» the Police Magistrate ?
I—Yos» a brother.
[    Po you recollect "Using ady expression!
[relative to the present case ?
Pou't recollect any cinveriatioa on tho
panel of twenty-two!    He also.submitted(subjecii. ^
(that not having the, legal time of notice] [    Th* Courts The Juror Cao be sworn,
(twenty-four hours) was sufficient of. itself I     Mr. Carter, sworn—Don't recollect hnvrntr
to not aside the present Jury ; it had been jany conversation with Mr. Doyle on thc sub-
|Court resisted the motion, on the authority {[already ruled here in a Case on the records | ject
ofacase in Dowling's report, which  hefof the Court
L..k~._»_„,l „,„« nnlannlairniiMinthonrMcnl.1        The   .CoU
Patrick Doyle, J. P_, Urorn*-Heard Mr,
pe* em -te adopt i0 jeU'io.i to ihe injurious aspertiouslsubmitted was not analagous to the present,'
Uie vvuu, .,
The ,Court could  not grant the defen-vCartcr say «'itwas time to pot «v«top t#