NOTE: In the following libel case, a man says he has been falsely libelled by being called a "kept man-mistress", which he believes means that he is accused of living off the wages of sodomitical prostitution; however, the lawyer for the defendants claims that that phrase could be meant to imply that he merely lives off the wages of prostituting himself to women; both sides of the question cite plays and novels to support their position.
This was an action for damages, on the grounds of an alleged libel on the character of the plaintiff, published in The New Times newspaper of Friday, the 20th of November 1818. It was a paragraph in a public letter, addressed by Henry Hunt to Sir Francis Burdett, on the subject of a letter produced at the then last Westminster election by the defendant, avowed to be written in America by Cobbett, strongly reflecting on the character of Hunt; but arraigned by Hunt in this letter as a positive forgery. In this letter was contained the following paragraph, which constitutes the ground of the present action.
"That such a thing as the kept Man-Mistress, Cleary, should be guilty of such an act of baseness, will surprise no one who reflects that he has not got a shilling to support himself, but the wages of his own prostitution, unless it be sometimes from your bounty."
In another paragraph of the same day's paper, were these words, speaking of the coarse epithets used by Hunt's letter towards Messrs Wooler and Cleary – "the former he calls 'a profligate drunken wretch,' and the latter 'a kept Man-Mistress.' We beg to be understood as giving no colour whatever to these libels, which we only repeat to reprobate."
SOURCE: Morning Chronicle 15 April 1820.
CITATION: If you cite this Web page, please use the following citation:
The names of the Jury, which was to have been Special, being called over, only four of them appeared, the remaining eight were Common Jurors.
Mr. CHITTY opened the proceedings, by stating to the Court and Jury the nature of the action.
Mr. BROUGHAM then stated the case, observing, that in the whole course of his own experience, and he believed his Learned Friends opposed to him on this occasion would say as much for themselves, there never was any instance of a libel published to be compared with the present, in point of malignity and atrocity, towards the reputation of an innocent man. To shew that this was a true description of his client, it was only necessary for him to state who and what Mr. Cleary was, and then to read the libel set forth on the record. Mr. Cleary was a member of the same honourable profession to which he belonged. He was a resident of the Temple, and followed the avocation of a conveyancer and law agent, and in this situation he was not likely to have incurred any hostility from the defendants in the course of his private transactions. He was not in habits of intercourse with the Editors or Publishers of this Newspaper, and could have done nothing to justify, on their parts, an attack of this nature. The defendants were the Proprietors, the Editors, and Publishers of a public Newspaper, of a very extensive and respectable circulation in this great city: it was called The New times. With the parties who owned it his client had had no manner of intercourse, for good or for bad; but it did happen, that Mr. Cleary followed his own conscientious opinion, and maintained his own political sentiments, which every subject of this country had a right to do, so long as they kept within the bounds of the law, and in such pursuits he became acquainted with a gentleman, of a party of Reformers, not very numerous to be sure, but which owned for its apostle Major Cartwright. With the Major, however, he had nothing to do in this case. Mr. Cleary attached himself to Major Cartwright, who, though he (Mr. Brougham) thought him wrong, yet he was certainly most disinterested and consistent in his sentiments upon this suject, though he owned he did not himself follow the preaching of the Major. Mr. Cleary, however, attached himself to this gentleman when he offered himself as a Candidate for the City of Westminster, where his success but too strongly verified the old adage, that "a prophet obtained no belief in his own city," for he had but very few votes. On this occasion Mr. Cleary took occasion to read a letter at the hustings, purporting to be written by Cobbett, containing some observations on the conduct of a Mr. Hunt. He felt that he ought to apologise for naming such a person as Hunt on the same day with the worthy Major, and this letter Mr. Hunt said was a forgery; and Mr. Cobbett too said it was a forgery. The consequence was, a letter written, or at least signed by Mr. Hunt, addressed to Sir Francis Burdett, and in this letter charges Mr. Cleary with being concerned in the forgery. The whole of this letter finds its way to publication in The New Times, and not only imputes to Mr. Cleary a direct charge of being guilty of the foul crime of forgery, but also a charge, in comparison with which the charge of forgery sunk to nothing; for all the libels contained in this letter vanished before the malignancy of imputing to Mr. Cleary a crime which it was impossible to contemplate, much less to name, without horror, and which he could not venture to mention. To Mr. Cleary, a gentleman of respectable rank and character, the native of a sister country, who had ever conducted himself with irreproachable character since he settled in this, was imputed a crime which, for the honour of the country from which he came, he would say this was the first time he had ever heard imputed to an Irishman – yet to Mr. Cleary was imputed this foul and abominable crime in these words: – "That such a thing as the kept man mistress Cleary should be guilty of such an act of baseness will surprise no one, who reflects that he has not a shilling to support himself but the wages of his own prostitution, unless it be sometimes by your bounty." – Thus stating, that Mr. Cleary is a wretch who was not able to subsist but by the prostitution of his person in a manner not to be named among Christians. If the Jury were of opinion with him that the charge of forgery, foul as it was, did not weigh an atom or a grain of dust when put in the balance against a libel of this abominable nature, they must agree with him, that they would have formed but a feeble notion indeed of this cause if they considered it in the light of an ordinary action for libel. This libel was aggravated by the mode of its publication, which seemed to be contrived for the purpose of sticking closer and rankling deeper in the wound it had inflicted. Coming from the pen of such a person as Hunt, it would have fallen harmless, because no one would have given it credit or attention for a single moment; but by the aid of this publisher the malignant nature of the poison distilled by Hunt received a new vigour. – He was truly grieved to find the respectable name of Dr. Stoddart amongst these defendants, as a proprietor of the paper in question, because he was convinced that such a libel could never had had his sanction, as he considered him an honourable man;but he had got into bad company, and he must be treated as one of them. He might be told by his Learned Friends on the other side, that it was Hunt who wrote this letter, and not any of the defendants. But how was this fact to be shewn, even if it were important. but letter was made public in The New Times, and there was no other authority for imputing it to Hunt. Mr. H. might have written and published it, yet his client might never have been hit by the slander of such an author; but it was in the columns of the New Times that person found the most effectual mode of giving vent to his calumny. It was The New Times that barbed the arrow, and winged its flight to inflict a deeper wound on the character of Mr. C.; and to the proprietor of the paper must Mr. C. now look for reparation. Before he sat down, he must add a short observation. He might be told that this article was not intended as a libel against Mr. Cleary; it might be said that he who published such a slander was next to him who was capable of committing the crime imputed. His Learned Friends might say it was only meant to point at Hunt; but would the Jury listen to such an argument? He would tell them the libel was against both. but, at all events, it would not be justifiable to injure the character of Mr. Cleary in an attempt to abuse Hunt. If, indeed, the attack had been made on the political principles or public opinions of Mr. Cleary, it would have signified nothing. But it was the true character of malice to press through a man's public to get at his private character, and then the poison would be sure to stick. The only question for the Jury to decided now was, did the defendants publish this libel or not? Upon the point of damages he would ask but one witness (and that one was in the breast of every one of the Jury), on whose testimony he was content to rest for ample compensation to his client. He would only wish each of them to ask himself, as in [the] case of Mr. Cleary, what sum of money he would take to have such an imputation against his character published in The New Times, a Paper of great circulation; and, he was sorry to say, so highly patronised? And the answer his own mind would make, would name the sum they ought to give to his client.
M. Wakinson, the Registrar of the Stamp Office, proved the publication of the paper, and George Stevens, Cleark to the Solicitor of Stamps, that Dr. Stoddart and Edward Quin were proprietors, and Andrew Mitchell, the printer and publisher of the paper. The paper of the 20th Nov. 1818, was then put in, and the letter containign the libel was read.
. . .
John Wright was then called. Witness had known Mr. Cleary, the plaintiff, for some time past; did not know Hunt personally, but believed his named to be Henry; saw the signature H. Hunt, and should understand it to have meant Henry; the name Cleary, he should suppose referred to the plaintiff.
Cross-examined by Mr. SCARLETT – Had had communication with Mr. Cleary; knew that Mr. Cleary had proved Mr. Cobbett's hand-writing to the letter, and which the libel stated to be a forgery; knew that Hunt had been sometimes called Henry; did not know from Mr. Cleary that the letter complained of had been published in other papers; had heard Mr. Cleary speak of the literary war between them; had conversed with Mr. Cleary, and learned from that he had published a pamphlet against Hunt; had conversed respecting the letter in the New Times; had no reason to suppose that Mr. Cleary did not believe it to be written by Hunt; . . . had known Mr. Cleary some time, but had not been acquainted with him until December, 1818; never heard of Mr. Cleary's living with a mistress.
Here the case for the prosecution closed.
Mr. SCARLETT then addressed the Jury on the part of the defendants. . . .
Major Cartwright – Witness was acquainted with Mr. Cleary. At the end of the year 1818, Mr. Cleary was afflicted with ill health, and, as far as he could judge, it proceeded from distress of mind; he thought him at that imoment incapable of writing as he had been accustomed to do. Mr. Cleary, he believed, was a paralytic.
. . . [Mr. SCARLETT addressed the Jury]: In the letter which is charged as libellous, it had been said that the plaintiff had been addicted to unnatural propensities: but that was a most extravant construction of the term. If the Jury should feel constrained to give damages to the plaintiff, they would recollect that the parties, Hunt and Cleary, ahd been engaged in a controversy, and all that the defendants had done was, to state that Hunt had chosen to say so and so of Mr. Cleary. The witness Wright knew that the letter that had been represented to be a forgery had been proved to have been written by Cobbett, and that thereby little credit was due to Hunt's assertion. As to the construction placed upon the words kept man-mistress, it was most extravagant. In the record, however, this had been averred to imply that the plaintiff prostitute his person in a most abominable and detestable manner. Now, what was the fair import of this expression? Why, a gentleman of polished courty manner would say, he keeps a mistress – he is patronized by the ladies who permit certain liberties. Cleary knew the meaning; he understood that nothing of an unnatural propensity was attributed tohim. The interpretation of the term kept-man-mistress might be construed among men of fashion, as implying that he was a lucky fellow – une homme a bonne fortune; that he was able to possess privileges with the fair sex, and to pay nothing for his amusement. Now a kept woman was one who lived with a man in an unmarried state; as a kept man implied one who was kept by a woman; the term of kept man, would perhaps be somewhat ambiguous, had not the word mistress been added. If it were possible that Dr. Stoddart could have permitted a slander of so foul, so atrocious a nature as that imputed to have voluntarily been inserted, then he would say that too heavy damages could not be given; but he denied that such was his intention, or that such was the interpretation. As to the allusion that he lived on the wages of his own prostitution, that merely alluded to his political connexion with Sir Francis Burdett, to which Hunt was opposed. In support of his opinion, the Learned Counsel referred to a Play of Beaumont and Fletcher's, called The Custom of the Country. Amongst the Dramatis Personæ, there was that of Surplicia, the Keeper of the Male Stews. Now from this perhaps the Learned Counsel might infer, that it meant a place of resort for the gratification of the most abominable propensities; but if they turned to the Drama itself, it would be found that five young men were provided for ladies of rank and fashion. In defending the present case, he was, in fact, invidicating the character of Mr. Cleary. He was instructed to say, that no suspicion was ever entertained by the defendants of the irreproachable conduct of that Gentleman. The present action was not brought for the sake of damages, but in the hope of plunging a dagger in the bosom of Dr. Stoddart. He knew that that Gentleman would be ashamed to impute such propensities to any man. He would appeal to them whether the construction he had placed upon the passages complained of were correct. Mr. Cleary knew they were. He also anticipated that that would be their opinion, and that they would give a verdict for the defendants.
The LEARNED JUDGE in proceeding to sum u the evidence to the Jury, said, they must look to the particular words of the declaration, which charged the defendant with imputing to the plaintiff the commission of an unantural, illegal, and detestable practice, and that he was supported and maintained by the prostitution of his person. Now, taking the whole declaration, his Lordship was of opinion, that unless the Jury were fully satisfied that such was the intention of the defendants, they were entitled to a verdict. . . . The use of the expression, as intending to convey that the plaintiff had received favours from any particular lady, and that he was also receiving pecuniary assistance from her, might or might not be a libel; it was not, hjowever, introduced into the declaration, and the Jury had not to consider it; the only question before them was, whether the expression could be construed to mean that which was charged, namely, that Mr. Cleary had been guilty of the unnatural practices stated in the declaration. Now, on the first view of the passage, it certainly appeared very obscure, and might possibly bear such a construction; but if, on further consideration, the contrary should appear, and that the intention was merely to charge Cleary with being kept by a mistress, the defendants would be entitled to their verdict. – They had all, no doubt, read the famous novel of Tom Jones, in which there was a character named Lady Bellaston, with whom the hero was said to have been acquainted in this way, so that the existence or probable existence of such a character was not to be doubted. The expression "kept man" would have been perfectly decisive, and the introduction of the word "mistress" was the only point on which a doubt existed; the letter altogether was written in a coarse and vulgar style, and it would be entirely for them to consider the meaning of the expression, on which alone their verdict could depend. These were the only observations which his Lordship considered it necessary to make for the purpose of illustrating the case. If the Jury were of opinion that the plaintiff was entitled to their vedict, the next consideration would be the amount of damages they would give. . . . There was also another point which had been strongly urged by the Counsel for the defendants, that of the delay which had taken place in the commencement of this action. The Paper produced in evidence was dated, and, of course, published on the 20th of November, [1818], and the action was not brought until Trinity Term, 1819. It certainly might have been brought sooner; the direction for the commencement of an action did not take much or require much attention; there had been a lapse of two years, and he thought the observation made by the Counsel, that if Mr. Cleary had supposed the intention of the defendants was that now charged against them, he would not quietly have saw down such a time and left it unnoticed, well worthy their consideration and attention. Some excuse had been produced by the illness of Cleary, but it had not been shewn how long that illness lasted, nor had it been stated that Cleary's mental faculties had been impaired by it; it would therefore be for the Jury to consider whether Cleary so thought it then, and whether the expression would bear the interpretation he had put upon it, and form their verdict accordingly.
The Jury, after retiring two hours, sent a communication to the Judge, stating they could not agree int heir verdict. It was then recommended that a Juror should be withdrawn, on which proposition the defendants' solicitors were consulting, when Mr. Pearson's Clerk informed the Court that his client would not assent to it, but was determined to await the verdict. At twenty minutes before eight (the Jury having retired nearly four hours) they returned with a verdict for the plaintiff – Damages 100l. (Morning Chronicle, 15 April 1820)
Rictor Norton (Ed.), "The Kept Man-Mistress, 1820",
Homosexuality in Nineteenth-Century England: A Sourcebook, 1 September 2014
<http://rictornorton.co.uk/eighteen/1820kept.htm>.
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