A CAUSE CELEBRE.

Otago Daily Times, Issue 15301, 15 November 1911, Page 19

A CAUSE CELEBRE.

THE TELEGRAM LIBEL CASE, ABUBE OF ADMINISTRATIVE POWER. | < Many instances of individual enterprise in procuring now* might be quoted did the spaco at our disposal admiL It m&y be remarked hero that it was the Otago Daily Times which led tho wav in despatching by telegraph full reports of important spwehes made by leading statu- ' men, and full detaile of sensational inci«* ' dents of prime importance. The first " time s a lengthy report was so forwarded was on the occasion of an ad-. . dress to his constituents at Timaru by , Mr (afterwards Sir) Edward Stafford, oxI.tewiet, and at tlie time Leader of the Opposition. Tlve Daily Times sent . its statt of reporters by steamer to Timaru, the main trunk railway having, at tho ■" time, not even been commenced, and a ■ report extending over seven columns waa placed beforo its readers next morning. With what interest tho address waa awaited may be gauged from tho fact that -- a Minister of tho Crown admitted that on the night of the delivery of the speech tho > 1 Daily Timos report was telegraphed, with- . out permission being sought from tho \ 'J'imca Company, to Ministers in Welling- • ton, so that it might bo perosod and 1 studied without loss of time. Ati important incident in, the history of tho' Otago Daily Times is that cohcorned < with the telegram libel caso of 1870-71. < This case aroso out of an alleged breach of trust on tho part of the Telegraph De- ' partmenl, and. as a result of an article ' written by mm, Mr Georgo .Burnett v .' Barton, at that time tho editor of the piper, was charged with having "on the , 3rd October, 18i0, written and published - a false and malicious libel of ana conoera- > ■ ing the Government of New Zealand, aa ' . by law established, and its administration of tho Electric Telegraph Department." This case, tho hearing of which, from first t to last, oxtended over a considerable

period, ©xcitjd a groat deal of public'in- „ , ierest. A very important constitutional point arose out of it—namely, whether the Governor could, as bo did, extend a free

. pardon to any individual before his eonI viction of any crime in any court. . 'The I Sovereign naturally possesses that power, t and the question in this case v?aa whether I a colonial Governor is also empowered to i oxcrcieo that prerogative. The commission t that is issued to a Governor authorises l him, of course, to pardon after conviction ; of an offenoe. In this particular case Sir , , G. F. Bowcn, Governor of the day, ox- , tended to Charles N. B. Mustohj sub- , editor of tho Ola go Daily Times, a froo , pardon in order, to extract from him tho . evijience which lie wu in a position, to i ( > gi?e, but had refused to give, on the i ground; that Ik> might thereby implicate ,' 'j f himself > In crimjnal.proceedings. • J t *.•Necosarilyjtha telegram libel cut can i • only be outhned by na.. The 8.8. Gctheft.' *•, , bui^'arrived'at the Bluff at 9.30 on tie v i evenipg of Thursday, September 29, 1870, i bringing a despatch from the MolDorirne i correspondent of tho Otago Daily Times - 'far telegraphic transmission from the Bluflto Dunedin. ThU despatch , ccniainod very important news no. i. ! : the;? Frimoo-Qorman war of 1 that_ y«i»r, and one particular item "?■ • 6f!,'interest ; related to the newt .of \ tho doclanjiion of Franco u a republic. .This news lia'd arrived in Molbouroe just ' , i fts tho steamer wa« leaving on September ■ '••j 24, and a sealed despatch containing it was j put oh boanl the GoUiouburg at Qooena- . cliff and entrusted to tlie captain for trans. k-.'4 i mission to the Otago Daily Times. • Tho •' boat arrived at the Bluff on a Thursday evening but tle newsnot wired to t ■ |rat»edtnV.itiai>-i.aa. the telegraph/ , u Office at 'the Bluff closed at 5 p.m. , . i ntfuage wm liaiided in for transmitsidn at ' 9 aim. the next day. Tho first slip of tho .nHw'.was : delivered in .tie Daily Times * ;. olßce iri hourand o-quarter later, but the i reach Dunedin till about"a quarter to"2 in the afternoon. Cofa'mftiting on this in its issue of the fol--1 lowing morning, the paper said.-—"We - assert that the Telegraph Office, acting, of course, under instructions from tho genefal Government, unnecessarily delayed our telegrams in order to serve a political pur ' ' pose. The object of this delay is sufficiently explained in tbo Wellington telegram which appears in another cblutnn. We have ontered into these particulars £ purely in self-defence, ns wo are. aware that tie delay in publishing the telegram < ' / < hos been severely commented on by the - public "—a crowd of two or thrfo htffidred ! „ people having waited outside, tho. Daily „ t Times Office for hours for "the issue of extras conlaining the message. The tele- "I gram from Wellington to which reference ~' was made was in tbo following terms s— "Beptembor 30.-—The English mail t«Je- f grama this morning were Kept back until ■ a message containing a «umrriiry :of tho , ■ news had been sent to the Government. ~ Tho contents of this message were com- ./! munieated by the Government to the. In- Jjj dependent, which thus issued an extra be- •$ fore a single lino of tho pra» telegrams l , was received. The Evening Post de- , nounces this conduct as grossly unfair and dishonest." • A.„ 4 Further facta in connection with tha , \ case were forwarded tho day after in tha -MJ following meesago from the Evening f. Poet" Before wo received tha first dip t (at 10.45) Mr Gisborne [the v Hdtt William ! i Gis borne,■ Colonial Secretary] supplied to ' the Independent—which issued them ai aa extra—telegrams containing the mosiim- '> portant heads of tha news, concluding ' : with tho following significant sentences; 'Still more astounding information *to . Vf arrivo for tbo newspapers,' and 'Memo. ; £ from information not directly obtainable —Franco reported i ropnblic," Tho Inde« ; ® pendent afterwords issued another extra' !>>,»s bofore otirs, containing; . an- uninbelligiblo - hash of news, but no angle item that Vr6 : not in our messages. The. this morning's isatio of the ; differ materially from iheir extra, 'nil' >!':/$ nr© simply a reproduction of ouiis, a few ; 'v| unimportant items which were in ourma. ■,<' : M sago—but which we did not print, "so being unimportant or antidpaied—being given word for word. It is perfectly. evi»,. ;' dent that the Government's firsfrtelegiwa was compiled from ours; that afterwards the Indcpndent rocoived, concnnently ' with us, 200 words at a time to each, a ■■■},v| hasty rechauffago of our meesago, ( and ; » that afterwards a copy, verbatimot libera- ' -<■>. tim, of our mesiage was supplied to tha ; Indepesndont. Tha lndepeodent's Melboumo telegrams wero genuine, and were , J publislicd in their second extra. ■' Onrsdid not arrive till long afterwards, at 3.40 » p.m." ' The whole point in the foregoing com- . -£ plaints lies in the fact that the messages to bo received by the Evening Post ana Doily Times aa associated papers were ox- i, 1 elusive and private. The Independent >•: was a' paper that did not receive newt -'k from the sources which supplied them, *> but it was a Government organ. 1 Tho use which was made of , the tek>grama th»t were the property of the Ologo . JJaily Times in Dunedin, and the Even* ' ing Post in Wellington, was distinctly i flagrant, and, taken in conjunction-witii ■' an incident which bad occurred onlythreo woeka previously, undoubtedly called for j strong comment from tho injured papem. The facts of this other incident were the followingOn the evening of Septomhar 8, 1870, tho Sues mail arrived at Hole* tika, and tho English and Australian tele* - grama for the Press Association" wero I handed in at the office there at 10 o'clock Thoy w'oro telegraphed at 10.15, andwere received before 12 o'clock at every news- - paper office to which thev were add ranch —except ai tho offlco of the Evening Poeti ; in Wellington. Instead of delivering thorn, slip>y slip, promptly to, that paper, m was done at every other office, the lelegraph office in Wellington kept tho . . messages bock till 7 o'clock, toe nextj morning. At that hour it sent them out, and at the eame hour it sent out U>e telegrams which had been despatched to the Indopondent from Ilokitika an hour later tlian those intended for the. Evening Post had been. Theee telegrams contained ,■, news of tho declaration of war between * Franco and Pmmia, and as a oor»e(jnencs , ■ of the delay on the part of- the department in delivering it* tslegrems, tie :

Evening Poet found fteell forestalled & Uie publication of the mwj by other I pipers—one, in particular, being the Hawke'fl Bay Herald. This paper published the news in its iesas of the morning of September 9—before the Post-haft received its telegrams—and inserted 'a paragraph stating that although the information contained in them had only been received at Hokitika late the night before, tlio telegrams had been received in time for the usual morning issue. An explanation of the circumstance# was demanded from the general manager of tho Department, but hie statement in reply as described as -"simply tinintclhgible." * With these facta before them—facts which indicated that the Government of the day was nmnipnlaiing the telegraphic service in each a-way as to ensure that the Evening Post would not forestall the Independent in the issue of important news from Europe—tho editors of the Evening Poet and the Daily Times and other* felt impelled to protest strongly against the unfairness of the action of the authorities. Accordingly, both the Evening Post and the Otago Daily Times took the Government so soundly to task over the matter that action was really forced upon tho Government in an attempt to vindicate itself. Tho criticism which appeared in tho Evening Post was admitted to bo even more severe and damaging than was that of the Otago Daily Tunes, but the former journal was not proceeded against in common with the Daily Times. This was in itself a peculiar circumstance, but another curious feature of the case consisted in the fact that instead of, as is usual in newspaper libel cases,, the - publisher being arraigned, the editor himself, Mr Barton, was-required to appear, and this gave rise to an impression that the prosecation of Mr Barton was instigated by 1 Mr Julius Vogel, then a member of the Ministry, who hid two years previously been required to relinquish his ] position of : editor of tie Daily Times, fn the couiee of the trial a strong point was made of this charge of political and ? rival® animosity on the part of Mr of»el against JLr Barton; lhe specific article to . which exception was taken was published in the' Otago Daily Times of October 3, 1870. After explaining the conditions on - which mail telegrams; had previously been supplied by the Government and detailing the steps token to securo an independent service on the termination of this, system by the Government, it proceeded to give the facts; in connection with , tho two cases to .-which wo have made mention, and. Baid: "AVo believe that .we .have legal evidence to prove the astounding fact that the Government not only suppressed the t news for several hours throughout the colony .but that it appropriated to its own use,, the telegrams to which it had no more i right than it has to the pockethandkerchiefs or tho watchcs of private individuals. . . . We have treated the

question at this length because wo. regard, it as,essentially a public question. Every individual in the community is as much interested in it as the Otago Daily Times. We-jpake no complaint on the score of any loss or inconvenience sustained by ourselves; but unless the Government can. furnish a satisfactory. explanation, wo shall feel bound to refer the matter to the consideration of the Supreme Court.", This article was followed up on October 7 by one in more emphatic terms, and tho effect, was that a great deal of public interest was speedily aroused over, .the matter., The Independent,' the Wellington, paper, which, as we have shown, had benefited by the peculiar conduct of the Government, sought to defend the action of Mr G&borne in handing it the Government messages. It defended also the claim of the Government that it was entitled to supply it* news to the press. newspaper controversy over the subject'was maintained till on January 17, 1871, '.Mr Spencer Brent, at that timo described as a law clerk, of Dunedin, acting on.mstructions ho had received, laid two informations against Georgo Burnett Barton," .barrister-at-law and recently editor of .the Otago Daily Times—Mr Barton had prior to the date mentioned retired from the editorship of tie paper—charging him with., having written . and published on, October 3 and October 7, 1870, ( falso and malicious libels against' the' Government of Now Zealand. Tho case was preliminarily heard at Dnnedin before'Mr A, Chatham Strode, K.M., on February 23, 24,'27, and March 6, 7, 11, 21, 27, and 30 of the same year, and as tho magistrate held that there was a case to answer defendant'was committed for trial in the Supreme "Court, whore, however, the pro-' cecdings were eventually abandoned. The Crown Solicitor' (Mr B. C. Haggjtt) and Mr' James Smith conducted the case on behalf of the Government and Mr James Macassey appeared for tho defendant.' The" case in respect to the two charges was investigated at very great length before Mr Strode and was reported fully: in the papers of the day. Before the hearing was commenced at all, Air Macassey, acting for the defendint, ap-. plied in the Supreme Court before Mr Justice H. S. Chapman for a rule nisi calling upon Mr Strode to show cause why a stay of proceedings should not bo granted. This rule was granted after argument, bat next day the case suddenly came, on before the Magistrate's Court and was proceeded with, aa the magistrate j had . not been served with notice of the rule.nisi.

We only pretend' to indicate very britfly the history of the case, which was in many respects a " cause' celebre," but four ; particular phases of it may be selected for reference: (1) The story of the despatch the manipulation of which provoked, the alleged libels j (2) the incidents which, supported the charges of violation of secrecy by the Telegraph Department; (3) (tie-connection of Mr Vogel with the case. and., the suggestion of animosity on his part; and (4) the granting of tho free pardon to Mr Muston and the constitutional question connected therewith.

The telegraphic despatch, of which it .was, complained improper uso was made, was prepared by the Melbourne correspondent of the Daily Times on September i! 4, just after the steamer Gothenburg had left Melbourne, and was telegraphed by him to Queenscliff, where it was placed on board the vessel by boat. Before the Gothenburg took her departure from Melbourne a second edition of the Argus (in which office, the Daily -Times correspondent was employed) was published, and copies of this issue wero received on board the steamer, but the news the publication of which occasioned the alleged libel-did not reach Melbourne until a third edition of the Argus was ready to rcceive it. It was this latest news that v.as contained in the menage from the Melbourne correspondent of the Daily Times which was put on board the Gothenburg as she passed Queenscliff on her voyage from Melbourne to New Zealand. Moreover, it was exclusive nows to tho Daily Times and Evening Poet so far as the press in New Zealand was concerned. And although tiio purser of the Gothenburg stated in evidence that he bod been in the Argus office in Melbourne and had .casnaily heard some of the news that appeared in tho third edition of that paper, it was tolerably plain, when the jiews contained in tho despatch addressed to the Otago Daily Times received publication before it was received by the papers for whose use it was intended, that there was only one source from which it could have bcc:; oocarsd. Iteo happened that Mr W. J. M. Leraacli, a director of the Otago Daily Times Company, was a passenger by the Gothenburg from MelLoorne, and when ho heard that a despatch for tho Daily Times thai had been placed on board the vessel, was suppled to contain vory important news, he cpolr* to the captain on the subject, and bfatkoiuo! him to open tho letter. This was dons, undor pledge that the matter contained in tho message should not go bcyotid tho captain, Mr Larnach, and Air Martin, a brewer, of Invercargill. Each of these three read the letter silently and said cothiag about it. Shortly before the Arrival cf the vessel at tho Bluff the captain resumed charge of the despatch. At Melbourne another newspaper despatch liad bom handed oa board—namely, a letter for the Independent at Wellington. This to entrusted to the purser who, on the RTm&l of the Gothenburg at the llhrff, haoded it to tho officer in charge itl OiA telegraph station, together with a second edition of the Argus and " three additional items of war intelligence written

by the purser on two sheets of paper." The purser, who at times becamo somewhat confused in his evidence, swore that he did not give the telegraph -operator any directions as to where to send these extra items of newsl Yet, the; telegraph officer, without instructions, added them to the telegram that hid. been, presented for transmission to the Independent. The punser said ho did not recollect having later on had a conversation with Mr Charles Lemon, . general telegraphic manager at Wellington, in which ne was alleged to have said that ho expected to b<> remunerated for his services. He would -not sweor, however, that Buch a conversation had not taken place. The telegraph operator at the Bluff confirmed tho receipt from the purser of two sheets of paper with war news. In regard to the" despatch of tho messages ho stated that he had sent 200 words alternately' to the Press Association and the Independent. It was also shown that a telegram was ,forwarded to the Colonial Secretary (Mr .William Gisborne), which, taking precedence of press messages by some considerable time, furnished tho Government with the, latest items of news, and contained the gist of the information which was contained in the Press Association's messages. It was an instruction in those days, wq should explain, to the Customs agent or .other Government officer at tho terminal ports to board the mail steamers on arrival, to acquire such items of general news as,were available, and to despatch a telegram of some 100 words to tne Government. The telegram which on this particular occasion was forwarded to Mr Gisborne, wns concluded with— " Memo, from .information not directly obtainable—France proclaimed a republic. More astounding news for the newspapers." This telegram was immediately upon its receipt by Mr Gisborno handed oyer to tho Independent, and that paper hurriedly publishing its contents in tho form of an extra ; neglected _to take the precaution of omitting tho incriminating and significant sentenoes at its end. When cross-examined during the hearing of the case against Mr Barton with reference to the, composition of this telegram, Mr Gisborno said ho had . first believed that it was compiled by the collector at tho Bluff from newspapers ar\d from a conversation on board the steamer. Somo of the news, ho said, might have been obtained from the Press Association message, but not in any illegitimate manner.

H may now bo acknowledged that tho whole truth concerning tlid improper uso that w mado of the Press Association mcfisago was never really arrived at. In the course of the examination of witnesses considerable stress was laid upon some other instances 6f allegedly improper practices in the control of the telegraphic system of the colony. Many astounding allegations were made, in fact, and not disproved. It was shown that on an occasion when Mr (afterwards , Sir E. W.J Stafford delivered an important political address at Tiniaru, Mr Giebomc, being then Acting Commissioner of Telegraphs, gave instructions that the verbatim report prepared by two Daily Times reporters for transmission to this journal, should be repeated to him at Wellington, and that was in fact done without tho cognisance or permission of tho. paper concerned.' It ( was further'thown. that Mr Halconilw (of tho Independent, Wellington), who was connected by marriage with Sir (afterwards Sir William) Fox, a member of the Ministry of the day, wrote on one bccasion to Mr Barton in these terms: " Wo have Rpecial advantages in undertaking the communication with Auckland, via Napier, which renders it desirable that that part of the work should be done by us; as by private agreement with the General Government we aw enabled to send'and receive messages for Auckland via Napier without charge for telegraph, the Government requiring in return ,a. copy of _ our summary of Auckland news. ' Tihaa proposed arrangement is, however, to be Kept private, arid I should be obliged by your not , mentionin? it "outeide the circle of thoee interested in these' arrangements." i ■ It'. was further alleged that Mr Charles tonon, general manager of the Telegraph Department for New Zealatvd, who ■ was tho brother of Mr John Lemon, of tho firm of Sumpter ind.iLwnon, Oamaru, had on a number 'of .occasions acted as the agent in Wellington of that firm, and had received payments as commission on the sales of grain effected through his agency. And, as we have previously indicated, it was shown that the Telegraph Department on September 9, 1870, delayed the delivery of. a telegram for . .the' Evening Post for eight'hours, whilo the Hawke's Bay Herald, which supported the Government of the time, received tho-same message as promptly as could-be desired. , :The belief that Mr Julius. Vogei, tho then Colonial Treasurer, was connected with the prooeodings, against Mr Barton gave a piquant interest to the case. Mr Macaesev, representing Mr Barton, did not neglect, to make all possible capital out of this aspect of the case, inasmuch as it was suggestive of the existence of malice, as a factor in the prosecution. He showed, as members of the Ministry who wero caJled as witnesses were obliged to admit, that tho Evening Post had published articles couched in even stronger terms than those employed by the Otago Daily Times with reference to the abuso by the Government of its trusteeship as owner of tho telegraph service of the colony,' but that no prosecution had been instituted against that paper. It was also shown that Mr Voxel's connection with the Otago Daily Time 9 had been terminated como time previously, and that subsequently, in alleged violation of Uie terms-of a bond entered into by him, ho had established in Dunedin tho Sun newspaper, which wis mado a vehicle to attack Sir Barton. It was suggested therefore, that the prosecution of Mr Birton had been instituted in order to gratify tho private spleen or ill-will of Mr Vogel towank him. This aspect of the question was one which attracted a great deal of notice in Dunodin, and Mr Vogcl, in political addresses in this city at the time, evidently felt it incumbent on him to deal with this question and to explain as best he could the circumstances in connection with the divulgence of news. A distinctly hoetilo clement was present at both meetings and the proceedings at them became highly disorderly. Speaking in the Princess Theatre, Mr Vogel said:

There are eomo drcumfitances about which I desire to givo an explanation in reference to tho charges made against the Government. I allude to the charges made through the columns of the Olago Daily Times in reference to the alleged violation of the integrity of the Telegraph Department.—(Hisses and confusion.) I etiy, let us forgot what has passed. — (Cries of "No!" and " Never!") ... I can hardly use sufficiently strong language; but' it is preposterous—(interruption)—to supposo that any Government would dare to violato tho integrity of tho Telegraph Department in_ eo extraordinary a manner.—(A Voice: " Excqit in 'New Zealand."—Applarae.) And no one couM believe fuch a charge except thoso who arc inclined to believe evil of. tho Government.—(A Voice: "Give us a song."—Laughter.) ' Mr Vogel then proceeded to offer this explanation of the incident: Tho person who had charge of the message for the Independent called at the Argus offico before leaving .Melbourne. He was personally acquainted witlf Mr George, tho' manager. He received the information from that gentleman, and he afterwards furnished the news at Southland to the operator at the telegraph offioe, who forwarded ' it to the Independent. That is the simple explanation.—{" Oh! 9I1!" and laughter.) Ae a result of these meetings held in Dunedin Mr Vogel, through his private secretary, Mr Ebenezer Fox, .arranged for the issue of a pamphlet embracing his speeches on tho burning question of the hour. This pamphlet was based 011 reports which appeared in the Evening Star and were corrected ' by Mr Vogel. It is interesting to observe that Mr Mark Colien. now editor of that paper, was one of the reporters present at 'the meetings, his notes of which were referred to in"court, Mr Vogel offered a detailed exfilanation to the effect that the extra pubished by the Independent was a facsimile of one issued by tho Otago Daily Times, and was cut from it by a correspondent ol the Independent in the Star office and

forwarded by him to Wellington by telegraph. This was denied m evidence, however, by Mr .7. E. Clayton, who forwarded the me-rssge : the telegram ho sent wao ono that appeared in t)io Star, and not' in tho Daily Times. Mr Vogel also referred to the.opening of the Times telegram on board tho Gothenburg by Mr Larnach, a director of the Daily Times Company, and suggested that it was from this source tlint the news came —that the captain had given the Collector of Customs the information. In the course of tho trial, Mr Macassey applied to have the pamphlet placed in a$ evidence, as Messrs Vogel and Fox were out of tho country, but this application was not granted. Mr Macassey argued that the magistrate should , dismiss the caee on the grounds: (1) That Mr Barton, as a public journalist,'made his statements as fair comment on facts, or supposed facts, before him; (2) that facts adduced in court both in respect to that particular caso, and to other cases bore out very fully the allegations that the Telegraph Department was subject to interference designed to serve political ends; (3)that the prosecution was dictated by personal motives against the editor, as evidenced by the fact of the editor instead of tho publisher (ns was usually the case) being chosen as the object of' attack, and the fact that the Evening Post (equally guilty, if guilt there was) had not been prosecuted. On these general lines Mr Macassey spoko at great length, pointing out that as many of the charges which had been made had been substantiated, thus the comment was warranted. Tho magistrate held, however, that ho had no alternative but. to commit Mr Barton for trial to the Supreme Court, as tho caso certainly should go before that tribunal.

Tho case was then to have been heard in the Supreme Court on a criminal libel count on June 6, 1871. When it was duly called on that date, Mr Haggitt, Crown Prosecutor, stated that ho was instructed to say that thore was no intention to present an indictment for libel against Mr Barton, who was consequently discharged. His counrel (Mr Macassey) sniid, on behalf of Mr Barton, and by his special desire, that tho Crown, by abandoning the prosecution, must be taken to do bo with the full knowledge, that thore was no withdrawal on his part of

anything which he had published; and further, that at was Ilia full intention to avail himself at the earliest period of a civil action against thcfo who had instituted tlio prosecution npinet him. On the next dav, accordingly, the intimation watt mado tliat Mr Harlem had irstied a writ against the Hon. Mr Fox, tho Hon. MrOisborne, the Hon. .Mr Sewell, and tho Hon. .Mr Vogel, and aga-inst Mr Spencer lirent, Mr Haggitt's clerk, in whose name the information against him was laid, to recover £5000 damages for malicious prosecution. Thin intended action was afterwards dropped.