It is not often, in these unromantic times, that horsewhipping is mentioned in a Court of Law. Dunedin's first challenge to a duel was, unsurprisingly, over the matter of a lady's honour, which Dunedin's first doctor felt had been insulted by Dunedin's first Supreme Court Justice, Sidney Stephen.
Justice Stephen was not popular in the Dunedin of the 1850. For a start, his appointment was not requested by the Dunedin settlers. For a finish his salary was L800 — a large amount for a small colony. The only case in which he was involved during his 18 month tenure involved himself — a charge of conspiracy which was peripheral to a local scandal.
All of this, this writer finds very intriguing. What was the local scandal? What was the part of the woman allegedly insulted by the Justice and over whom the challenge to a duel was to be made?
RESIDENT MAGISTATE'S COURT, OTAGO.
MANSFORD V. STEPHEN.
[From the Otago Witness, January 34.]
A special meeting of the Bench of Magistrates was held at Dunedin, on the 22d instant, to hear a case of conspiracy and a case of assault.
The following Justices were present — Captain Cargill, W. H. Valpy, C. H. Kettle, H. Jeffreys, A. Todd, R. Williams, E. Lee, J. Macandrew, W. Purdie, D. Garrick, Esqrs., and A. C. Strode, Esq., R.M.
HIS HONOUR MR. JUSTICE STEPHEN V. WILLIAM HENRY MANSFORD, MARY JANE GRAHAM, AND HENRY WEBB.
The plaintiff, his Honour Mr. Justice Stephen, one of the judges of the Supreme Court, charged the defendants, W. H. Mansford, M. J. Graham, and Henry Webb, with "wilfully and wickedly conspiring, combining, confederating, and agreeing together, by handing about a document injurious to his reputation." Mr. Mansford objected to Mr. D. Garrick sitting upon the bench in this case, as being the plaintiff's solicitor, and as having in that capacity threatened the three defendants with an indictment for libel. The plaintiff denied that Mr. Garrick was his solicitor in this case, and argued that Mr. Garrick being concerned for him in another matter, did not affect his position in the present case; Mr. Mansford's objection was overruled by the bench.
Mr. Stephen opened his case by a statement of the evidence he intended to bring forward, and took occasion to remark strongly on the conduct and character of the defendants. [We have not published this speech for reasons stated in another part of our present number.] His Honour then called on:
Edward McGlashan, who, being sworn, stated, I saw the defendant on Tuesday evening. I saw three of the defendants, and two of them were three times together at my office. There was no document produced. Mr. Mansford stated to me that Miss Graham was about to leave the colony, and she wished to make a declaration. I stated, I did not consider I had power to take that deposition, as being extra-judicial, but that I would look into the matter. Mr. Mansford said he thought I was the proper person for taking the declaration. He said he would call back in an hour — and left my office. In my answer to whether I would take the declaration or not, I said I would inquire into the subject. The three defendants were then present. They showed me no paper purporting to be the declaration. Nothing was said by the other defendants at the time. The document was not left with me, nor did I see it. They called back in about an hour. Mr. Mansford, Miss Graham, Mr. Graham, jun., Mr. Stevenson, carpenter, and no one else. I think Mr. Webb was there then, but I will not swear to it. Mr. Mansford again stated I ought to take the declaration; he had been assured that I was the proper party to take declarations. I referred them to the Resident Magistrate as being the proper party, and requested them to go there. The third time was after they left the Resident Magistrate's office, and be it understood, that two then only came into my office — Miss Graham and Mr. Mansford. Mr. Mansford informed me that Mr. Strode had taken the declaration.
Cross-examined: I now think it was on Monday last.
Malcolm Graham, being sworn, deposed: I am the brother of the defendant, Mary Jane Graham. I remember, on Monday last, being in company with the three defendants. Mrs. Mansford was also with us. I accompanied them on that day to Mr. McGlashan's office, for the purpose of the defendant (my sister) being sworn to some statements which she called a declaration. I never saw the contents of that declaration; it was sealed up. I was never told the contents of it. I went a second time with them. They went into Mr. McGlashan's office. I saw them go into the Resident Magistrate's office immediately after leaving Mr. McGlashan's office. There were only two of the defendants (Mr. Mansford and my sister) went in. I was afterwards called in by Mr. Mansford to see my sister sign the document. I mean the declaration.
Cross-examined: Mr. Stephen endeavoured to dissuade me from going down to see my sister, and said that, if she were his sister, he would not see her again.
By the Court: I saw the document in Mr. Mansford's hand.
A. C. Strode, Resident Magistrate, being sworn, and examined by the plaintiff, stated: I saw two of the defendants, M. J. Graham and Mr. Mansford. Mr. Mansford stated to me that he wished me to receive a declaration from M. J. Graham, as she was about to leave the colony. I first, before receiving it, read it over. I did so in their presence attentively. That document had reference to you. The tendency of that document was to injure your reputation. I received the declaration in the usual form. It was signed in my presence by Mary Jane Graham, with an endorsement also signed by her that she wished the document to be left with Mr. Mansford after she left the colony. Malcolm Graham was called in to witness the signature to the endorsement.
Cross-examined: I stated that it was necessary to read it over before I could receive the declaration. Mr. Mansford gave it me. I believe the document was in Mr. Carnegie's handwriting. Mr. Mansford shewed me a letter from Mr. Garrick, as Mr. Stephen's solicitor, threatening a criminal information. The declaration was taken in consequence.
Mr. John H. Harris being sworn, stated: I reside in Dunedin. I know all the defendants. I have had a conversation with the defendant, Mansford, about some statements which M. J. Graham was supposed to have made against plaintiff. I asked him if he would tell me what statements had been made by Miss Graham and Mr. Webb to him relative to the plaintiff. He stated that he could not give up the statement unless he had Miss Graham's permission to do so: that even if be had Miss Graham's permission to do so, he should scarcely feel justified in giving her statement unless she could have legal advice upon the subject. He said, when called upon in a court of law, he would answer for the statement being in court. I said, I believe Mr. Stephen would not proceed against her.
W. H. Mansford, in his defence, stated: I deny having shown the document to any one. Mr. Webb asked to see the document. I refused to do to, as he was likely to be called on as a witness on the same side as Miss Graham, and that it would not be fair towards Mr. Stephen to allow Mr. Webb to see it. Miss Graham was brought to my house on the 7th January. I was from from at the time. On my return home I found Miss Graham at my house. I told her she had better remain a few days until I could make some arrangement for her. On the 12th of January Miss Graham received a letter from Mrs. Graham, dated January 10, stating, that after that period she would hold no more connexion with her; also, that she was never again to receive any support from her. Miss Graham is constantly left at my house and on my hands, which I conceive justifies the course I have taken, she having no other friends to go to.
Henry Webb, in his defence, stated: It appears from this summons that I am charged with conspiring, combining, and agreeing to injure the reputation of Sidney Stephen, by handing about a document. I was never seen by any person either to conspire, combine, or agree with either of the defendants or other parties, either in drawing up or handing about this document in question. That I was not seen during the time of the declaration being sworn at the Registrar's office. That I am perfectly unaware of the purport of the same. That I wished to hear the contents read, and I applied to Mr. Mansford, also to the other defendant, Miss Graham, during the time of her reading it. Mr. Mansford told me I might be one of the witnesses eventually, and it would not be fair for me to see it, to which I assented. I have not seen this document since. I was at some distance from the Magistrate's Court at the time of its being sworn, and I am totally unaware of any of the proceedings relative to the same. The Bench then retired, and after the lapse of an hour returned, and the Resident Magistrate stated that a majority of the justices did fully commit the defendants to take their trial at the next criminal sittings of the Supreme Court, to be holden at Dunedin. He also intimated that bail would be taken for the appearance of the defendants. The defendants, Mansford and Webb, on their recognizances for £50 each, and two sureties of £25 each; and M. J. Graham on her recognizances for £100, and two sureties of £50 each.
The bail was promptly procured from amongst the audience.
During the whole of the hearing of this case, the public expressed their feelings by cheers, groans, and hisses, particularly during the delivery of the complainant's speech. Of course such a proceeding is very indecorous, but when such license was allowed to the complainant, and such irregular proceeding as the Resident Magistrate divulging what he had learned in his official capacity, was tolerated, we cannot be surprised at the public giving expression to their feelings.
This was a case of alleged assault.
Mr. Mansford being duly sworn, stated: I am a storekeeper at Port Chalmers. On Monday afternoon last I was in Mr. McGlashan's office settling some private business with him, when his Honour Mr. Justice Stephen came in. He shook his fist in my face, and called me a lying scoundrel. He shook his fist in my face a second time, and said he would beat my brains out, and break every bone in my body.
By the Court: He said I had been circulating all kinds of slanderous reports about him, and that he would indict me for a conspiracy. I told his Honour that if I had injured him he had the law to protect him, and that it was very undignified for a man in his position to threaten me in the way he did. I do not recollect that he said anything more. No conversation occurred between us before he behaved in that manner.
Cross-examined by defendant: On your entering the office you might have said — I understand that you have been circulating reports against me. I do not remember your having said anything to the effect that I had been doing so, thinking I had only injured a female, and that I was quite safe. I will not swear that such was not said, but I have not the slightest recollection of it. You did not say words to the effect — If you circulate slanderous reports against me I will break every bone in your body. I cannot swear that these were or were not the words used at the time you held up your hand in my face; you were excited at the time. I will not swear that you either did or did not use words to the above effect on every occasion you held up your fist to me. I know Malcolm Graham: on Wednesday or Thursday last I said to him that you deserved to be horsewhipped through the town.
Mr. E. McGlashan, being sworn, said: I am Registrar of the Supreme Court. I remember that the plaintiff was in my office on Monday afternoon last. Mr. Stephen came in when Mr. Mansford and Miss Graham were in the office. I went to the door thinking he required to say something to me on business. Mr. Stephen addressed me in these words — "When I think of the first time I saw that unfortunate girl, pointing to Miss Graham; that I should be treated in such an ungrateful way after the kindness I have shown her. He said, alluding to Miss Graham, that she was a base ungrateful wretch. He then came in to the side of the room and addressed Mr. Mansford. He made some remarks to him about slanderous reports that he was circulating, and told him he was a lying scoundrel, holding up his fist in Mr. Mansford's face, saying, that if he caught him making such remarks again he would break every bone in his body. Mr. Mansford then said to him that he was forgetting his position — that if he felt himself aggrieved he had the remedy of the law. I felt a little excited at the time from the peculiar circumstances I was placed in. I saw him put his fist in Mr. Mansford's face twice, and the same words were repeated each time.
By the defendant: I think you made some remark to the effect that he thought himself safe in slandering a woman, but that if he (Mansford) used any more slanderous expressions about you, that you would break every bone in his body.
By the Court: Mr. Mansford was not excited at the time; he was very calm. Mr. Stephen was excited.
By the defendant: You sat down and wrote an affidavit in my office, which you took to the Resident Magistrate's Court, in order to obtain a summons for a conspiracy. On your first coming into the office you stated that you heard that parties had been making a declaration containing slanderous matter against you, or words to the to the same effect.
By the Court: Mr. Stephen and Mr. Mansford were close together. Mr. Stephen held his fist close to Mr. Mansford's face.
This closed the complainant's case.
The defendant then quoted from "Starkie's Law of Evidence" several passages, to show that the worth of a witness' evidence might be judged of by the method and manner of delivery, as by the words themselves; and went on to remark that the complainant's statements were, from the reluctant manner of delivery, unworthy of credit. He then referred to a discrepancy in the evidence of the other witness. (This witness appealed to the Bench, that his evidence was being misquoted; and an altercation ensued between the witness and the defendant). He further said that the complainant stated he came to Mr. McGlashan's office on private business; what was his own private business must have been concealed; what private business could he have with the woman there on that very same day and at that very same time he had come there to get the declaration taken. He was there upon no private business. His evidence was nothing but an attempt to deceive the Bench: he did not tell the whole truth, because that was a most important fact in the conspiracy against him. The provocation he received was most overpowering; no human nature could have borne that provocation; none but a Spartan could have borne it. The complainant had gone about in a cowardly clandestine manner to circulate reports injurious to his (defendant's) character. He had endeavoured to find some one who would give him information of those reports, but he could not succeed. He thought he might obtain it from a gentleman in the complainant's confidence, who might have been consulted as his legal adviser, but he could not get any information. Under these circumstances, could he (defendant) wait for the slow and tardy proceeding of the law? could he endure all this and not have his feelings ruffled? With these remarks he would leave the case in the hands of the bench.
The magistrates retired, and after an absence of about an hour, delivered the following decision — The Bench are of opinion that no assault has been committed by the defendant on the complainant, and that therefore the case must be dismissed. Had the complainant applied to the Bench to preserve the peace, his application would have been duly considered.
Dr. Purdie then addressed the defendant; and said — On behalf of the minority of the bench, he must express the opinion, that they deeply regretted to see the Judge of the Supreme Court in the position in which he had placed himself, and more especially that he should have expressed such a sentiment, as "that he could not wait for the slow and tardy administration of the law."
The Case of Stephen v. Mansford. — We understand that many persons present at the hearing of the case of Stephen v. Mansford, Webb, and Graham, are determined that the defendants shall not suffer oppression from want of means, and that a public meeting is to be held to consider the subject. The sum of £35 has been placed at the disposal of the defendants.
Threatened Duel. — We are informed that Dr. Manning has been bound over to keep the peace towards his Honour Mr. Justice Stephen for twelve months, in his own recognizance for £200, and two sureties of £100 each. The affair appears to have arisen out of the scandalous expressions applied by his Honour to Miss Graham in the late proceedings in the Resident Magistrate's Court. The doctor, conceiving it unnecessary "to wait the slow and tardy process of the law," took the opportunity of Mr. Stephen's leaving the Court to return a card which his Honour had left him, and to hand him one of his own; but finding that course had no effect, he yesterday sent his Honour a hostile message, upon which his Honour applied to the Resident Magistrate for protection. -Nelson Examiner and New Zealand Chronicle, 28/2/1852.
A more peculiar, though far from an agreeable interest, however, is connected with a series of proceedings in which His Honour Mr. Justice Stephen figures as the central and most prominent character. We condense the principal facts from lengthened reports in the Witness. At a special meeting of the Bench of Magistrates at Dunedin on the 22nd ult., Mr Justice Stephen preferred against William Henry Mansford, Mary Jane Graham, and Henry Webb, a charge of wickedly conspiring to hand about a document injurious to his reputation" The Witness does not publish his Honour's statement of his case, assigning as its reason for the omission that, under the protection of the law, it blackened and slandered the characters of those whom His Honour was prosecuting for circulating slanders. After a long examination, in which the Resident Magistrate seemed to many to take a very partisan course, a majority of the Bench decided to commit the defendants for trial at the next Criminal Session of the Supreme Court. The bail required for their appearance was promptly procured from amongst the audience, who had, by groans and hisses during his Honour's statement, expressed what the Otago correspondent of the Independent describes as their "irrepressible indignation." The next case was a charge of assault brought by Mansford against the Judge. The Complainant swore, and Mr. McGlashan, the Registrar of the Supreme Court, fully corroborated his testimony, that Mr. Justice Stephen had shaken his fist in his (Mansford's) face, called him "a lying scoundrel," and declared that he "would beat his brains out, and break every bone in his body." His Honour the Judge, in defending himself, observed that, "the provocation he received was most, overpowering ; none but a Spartan could have borne it; under these circumstances, could he wait for the slow and tardy proceedings of the law? could he endure all this and not have his feelings ruffled? The Bench decided to dismiss the case, not thinking that an assault had been proved; but Dr. Purdie, on behalf of the minority of the Magistrates, expressed deep regret that a Judge of the Supreme Court should have placed himself in such a position, and should have said that he could not wait for the slow process of the law .... We are further told that a Public Meeting was to be held on the subject, and that a sum of £35 had been placed at the disposal of the parties charged by the Judge with conspiracy. Still another fact in this equally extraordinary and painful history remains to be told. A Dr. Manning, indignant at the accusations against Miss Graham advanced by the Judge in his speech, sent a hostile message to his Honour next day; but His Honour applied for protection to the Resident Magistrate, and Dr. Manning was bound over to keep the peace. And all this was — not in California — but in a British colony! We willingly abstain for the present from comment on the whole affair, and shall be truly gratified if any further light should present it in a less scandalous aspect. -New Zealander, 28/2/1852.
ORIGINAL CORRESPONDENCE
To the Editor of the Otago Witness.
Sir, — Being desirous of ascertaining the law of conspiracy, I have searched in vain in a law library for the purpose of finding "Tom Jones," to which His Honour referred in the course of the proceeding in the Resident Magistrate's Court on Thursday last. Can you throw any light on the subject?
An Embryo Justice.
[" An Embryo Justice" has made a mistake. "Tom Jones" is a novel by Fielding, and not a law book. His Honour certainly referred to "Tom Jones," but not as a law authority; but to shew the absurdity of certain evidence which had nothing to do with the case, His Honour remarked, that the Bench might as well read a page of "Tom Jones" as read a letter of Mrs. Graham's, which the defendant desired to produce. — Ed. O. W.] -Otago Witness, 24/1/1852.
All of the above raises one central question: What was the substance of the document written by Mary Jane Graham and taken to Mr McGlashan?
A precis of the situation: Miss Mary Ann Graham is soon to leave the colony of Otago. She appears in the office of Mr McGlashan, accompanied by her brother and Mr Mansford, to discuss a certain document or declaration, presumably to be left with or notarised by Mr McGlashan in his capacity as Registrar of the Supreme Court. Mr McGlashan feels he is not the person to receive the document. It is then taken to Mr Strode, who reads it and is able to state in Court that it contains references to Mr Justice Stephen which would be injurious to his reputation.
Mr Stephen somehow gets word of the existence of the document. He suspects or is informed of its contents and accosts Miss Graham's friend, in Mr McGlashan's office with Miss Graham and Mr McGlashan as witnesses, making threats of violent assault. Mr Stephen refers to "the kindness I have shown her" — Miss Graham — whom he describes as "a base ungrateful wretch." Mr Stephen also refers to Miss Graham in unflattering terms when talking to her brother, to the effect that "if she were his sister he would not see her again."
There is also the reported detail that Mrs Graham (Miss Graham's sister in law) has refused to have anything more to do with her, including supporting her financially. Additionally, the attitude of the audience at the hearing should not be discounted. They are wholly on the side of Miss Graham and her friends and treat Stephen with contempt. It is possible that they knew plenty about the reason for the document being written, although ignorant of the document's actual contents.
What are we to make of all this? Here is a suggestion. Miss Graham was shown "kindness" by Mr Stephen, of a kind which, were it known to Mrs Stephen and the general public, could be as described by Mr Strode when he said "The tendency of that document was to injure your reputation." For reasons known only to those involved, Miss Graham decided to leave Otago and to leave behind a document or declaration containing the injurious words. Mrs Graham cut off all contact and money regarding Miss Graham.
I can think of a couple of reasons for Mrs Graham to do so. One would be the blackening of the family name by daring to produce a libellous document which is injurious to the dignity of a Justice and therefore that of the law. Another would touch upon the "kindnesses" received from the Justice, whose details might have been outlined in the document and the shadow upon the Graham family name that those details, if revealed, would cast.
What are we to make of the reception of Mr Justice Stephen's allegations by his audience? His situation was already a very unpopular one. It is impossible to know at this distance what knowledge the crowd may have had of the substance of the "document."
What are we to make of the challenge of Dr Manning? He was certainly a strong character, as revealed here. He was a married man, although not necessarily happily — advertising in 1855 that he would no longer be responsible for debts incurred by his wife. I could believe that his challenge was inspired by the words said in court by Stephen and nothing more.
The conspiracy trial was never held for the reason that when the fixture date came round, there was no Court, no Judge, and no accuser. Stephen had removed to Wellington, and his exit was marked by a notice in the New Zealand Gazette abolishing the Supreme Court in Otago. -A H McLintock, "An Encyclopedia of New Zealand."
Stephen left Dunedin on March 3rd, 1852.
Miss Graham left Otago for Wellington on the "Persia" on August 18, 1852. The fate of the "document" remains as unknown as its contents.
The "Californian" quality of the whole affair, and the effect of it upon the opinions of others in the Empire, can best be summed up by the following:
ENGLISH EXTRACTS.
Under the head of "General Summary of affairs of the Southern Colonies," in the Australian and New Zealand Gazette of August 21, 1852, we find the following: —
"A case has recently occurred in Otago which makes one blush at what is done in the colonies by those to whom the administration of the law is committed. A Mr Stephen, who was appointed by Earl Grey judge of Otago, charges two respectable residents and a respectable lady with handing about a document injurious to his reputation. The case is heard before twelve magistrates, and Stephen is permitted to pocket his dignity as the chief law officer of the crown, and to conduct his own case in the police Court, amidst the cheers, groans, and hisses of a mob! The document which was complained of does not appear to have been forthcoming, but the Government magistrate, Mr. Strode, who was on the bench, deposed that he had seen it, and it would have injured Stephen. In short, there was no document before the court. Nevertheless, the twelve Dogberries, to whom Sir George Grey has committed the peace of the settlement, committed themselves by committing the accused parties to gaol for showing about a document, of the contents of which neither the court nor any one else but Mr. Strode seemed to be aware, and that gentleman was allowed to become both witness and judge in the case. The defendents were then held to bail, which the audience promptly supplied.
"During the proceedings, one of the defendants, Mr. Mansford, objected to one of the magistrates named Garrick sitting on the bench to decide upon the case, because he, Garrick, was Judge Stephen's solicitor, and, in that capacity, had threatened the three defendants with an action for libel! Judge Stephen then denied that he was his solicitor in this case, but admitted that he was so in another. The Bench, nevertheless, overruled Mr. Mansford's objection, and Garrick was permitted to take his part in the farce.
"The next act in the said farce was that Mr. Mansford summoned the Judge for an assault! The complaint being that his Honor shook his fist in his face; called him a lying scoundrel; shook his fist in his face a second time; said be would beat his brains out, and break every bone in his body! Mr. McGlashan, the registrar of the Supreme Court, confirmed Mr. Mansford's statement in every particular, adding that the judge was excited. In this case; the worthy conclave of magistrates decided that no assault had been committed, and that the case must be dismissed; though the judge himself admitted all he was charged with by saying, "Under these circumstances, could he wait for the slow and tardy process of the law? Could he endure this and not have his feelings ruffled?" After this admission, Judge Stephen was not even bound over to keep the peace. During the proceedings, Stephen appears to have applied some offensive expressions to Miss Graham; for which Dr. Manning promptly sent him a challenge, when the judge applied to the magistrates to hold Dr. Manning to bail, which was properly enough done.
"The whole affair appears, to have wound up by a private fight between two of the magistrates — a Mr. Williams having thrashed Mr. McAndrew — the latter gentleman being dissatisfied with the decisions of his brother magistrates, and the former having considered his fists to be the best expounders of Otago law. 'The attack,' says the Otago Witness, 'was a disgraceful one,' and Williams' brother magistrates fined him thirty shillings, that being in Otago the price of assault and battery when committed by one magistrate upon another."
We have looked anxiously in the Wellington papers for Sir George Grey's prompt dismissal of the Otago magnates from the office which they have so much disgraced, but regret to say that we have not been able to find it. That Sir George has written to the colonial minister for powers to investigate the conduct of the judge, is a matter of course. The judge has been appointed to succeed Mr. Justice Chapman at Wellington, and it is impossible that Judge Stephen can have accepted that highly important office without first requesting Sir George Grey, under the circumstances, to probe such an occurrence to the very bottom. If Judge Stephen has accepted the office without having first demanded the inquiry, he has done what no other English barrister living would have done.
"The report of the above matters is contained in the Otago Witness, Jan. 24, and is transcribed into the Nelson Examiner of Feb. 28, from which paper we take it. We particularize the sources of our information, as the papers may not otherwise be noticed by the Colonial office; an investigation into the affair appears to us to be unavoidable." -Wellington Independent, 19/2/1853.
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