The Strange Case of Josiah Tutchen v The Observer

I've previously posted something of the Tutchen family, who married into Alister's family - Eleanor Tutchin marrying Alister's Great Great Uncle John Waters.  In looking at the Tutchen family I found an interesting case of alleged libel over a birth notice.  I had originally posted this as part of the post about John Waters, relating to description of Eleanor Waters nee Tutchen's family, but it is, to me, interesting in its own respect, so I felt a stand alone post was necessary!

Josiah Tutchen was the older brother of Eleanor Waters and arrived in Wellington with his parents and siblings on 8 October 1841 on the ship Arab.  


Josiah married Martha Havers in 1860.


He was by all accounts an interesting, intelligent, and compassionate man.  However, the report that piqued my interest the most and appears quite comical (although I'm sure the lawful Mrs Josiah Tutchen didn't see it as humourous at the time) is the following piece which appeared in the Auckland newspaper The Observer on 21 June 1890:

A Touching Correction

The following very touching 'personal' appeared in the Herald the other day:-

"To the Editor:  Sir, - With reference to a birth notice which appeared in the Herald yesterday, 10th, announcing the birth of a son to the wife of J. Tutchen, of Gisborne, I beg to state that the lawful wife of J. Tutchen, of Gisborne, is residing in Auckland.  I think it is only just to myself that this correction should be made.

Mrs Josiah Tutchen 

Auckland, June 11, 1890"

Stand up, Josiah, and explain your conduct

I'm sure that Josiah was left feeling a wee bit uncomfortable following that.  However, it appears that there was more to the story than The Observer was aware of, and it followed up with this addendum a couple of weeks later on 5 July 1890.  The Observer seems, by this point, to have its tail firmly grasped between its legs...

Is Marriage a Failure?

MR JOSIAH TUTCHEN'S EXPERIENCE

In our issue of last week we made some remarks upon the marriage question, and to illustrate one point referred to the marital experiences of Mr Josiah Tutchen, of Gisborne.  Writing from the information then before us, we employed strong language regarding Mr Tutchen's conduct.  We have since learned that our information was in some respects erroneous, and the full facts show that Mr Tutchen, in his treatment of his wife, had done nothing to merit the harsh terms employed towards him.  After conversation with Mr Tutchen, we have formed the opinion that he is a man of deep conscientious conviction, earnestness, and kindness of heart; and we have to express our regret that we should have injured his feelings by our unjust judgement.

In researching further, the motivation for The Observer's glowing reports of Mr Josiah Tutchen soon become clear, as reported by The Star on 1 July 1890:

LIBEL ACTION

Messrs Devore and Cooper have been instructed to take criminal proceedings against the proprietors of The Observer, for an alleged libel in Saturdays issue of that paper upon Mr Josiah Tutchen, of Gisborne.

The Observer, on 5 July 1890, nine pages following its glowing accounts of Josiah discusses the charge of criminal libel as reported by The Star.  Having quoted the Star's report (as above) The Observer comments:

Now, so far as our knowledge goes, there is no truth in that paragraph.  True we published an 'alleged libel', which consisted of a strong expression of opinion regarding a set of facts which were brought under out notice; but no proceedings ensued or were threatened, save and except the following:--

On Monday forenoon Mr Josiah Tutchen called upon us and made a long statement in explanation of his conduct, which he requested us to publish, and which we agreed to do, so far as it would be safe to do so.  

Sometime afterwards, we received a formal letter from Messrs.  Devore and cooper, with the usual legal 'demand' for certain things to be done, failing which Mr Tutchen would 'take such proceedings as he may be advised'.  This rather surprised (although it did not frighten) us, after the understanding arrived at with Mr Tutchen.  We had a brief conference on the subject with Mr Cooper, explaining to him our agreement with Mr Tutchen, and out objections to complying with the 'demand'.  As we were satisfied that unnecessarily harsh language had been employed towards Mr Tutchen, and that the publication, though not libellous, was unjust and one-sided, we drew up a form of explanation and retraction which we were prepared to publish.

That was the position of affairs when the Star paragraph was published, and we believe that at that time Mr Tutchen had agreed to accept our explanation as satisfactory.  Therefore, no criminal proceedings were in contemplation and Messrs Devore and Cooper could not have been instructed....

Take THAT The Star!!! 

Later, on 12 July 1890, The Observer quotes a paragraph published in the Gisborne Standard:

"If the libel action, Tutchen versus the Auckland Observer is really gone on with, there is a proposal to get up a subscription in Gisborne to defray whatever cost the Observer will be put to in fighting the thing to the end.  Nothing definite has been arranged, but at the proper time, there is reason to believe, sympathy with the newspaper will take a decidedly practical form."

It seems that Josiah, for his sins, appears to have had definite detractors within the Gisborne community.  The Observer appears touched by the sympathy of the Standard, but records:

We are much obliged to our Gisborne friends, but we are happy to be in a position to decline the proffered aid of the sinews of war.  Our experience is that libel actions don't pay, even when we succeed in them, and we have never failed yet.  When a man who thinks himself aggrieved comes to us with his complaint instead of ... trying to smother us with writs, we are glad to offer every reasonable explanation and presentation of the other side of the case.  To have published Mr Tutchen's statement would only have landed him and us into fresh libel proceedings, so we thought it best to state in general terms that there was another side to the story, which showed Mr Tutchen to be 'not so black as he is painted'.  Our facts, so far as they went, were absolutely correct; we only withdrew the strong language employed. (emphasis added)

Unfortunately we are unlikely to ever know the full story, and part of me wishes that The Observer had let Josiah's full account be published so that today, over a hundred years lately, we could learn the truth!  

Poor Josiah's detractors would not let sleeping dogs lie, however, and on 19 July 1890 they aimed straight at him, via a letter to The Observer:

An Admirer writes from Napier as follows:

Dear OBSERVER,-

I see it announced that you are to be criminally prosecuted for libelling Josiah Tutchen.  People who known Josiah laugh and think it a good joke on his part, and likely to end in a fizzle before it comes to washing the dirty linen in public.  Seriously, I think the OBSERVER ought to be congratulated on its courage in showing up such cases.  It is becoming a terror to evil-doers, and it will have the effect of checking gross wickedness much more effectually than all the parsons in the land, for they only condemn sin in the abstract and in a general way, whereas the OBSERVER hits it hard wherever it shows its  head.  There is a notorious case of similar kind of those you referred to last week in Napier at the present time, particulars of which I may be able to send you some day...

It appears that Josiah Tutchen had, at least formerly, been a Councillor in Gisborne.  He seems to have been elected to the Gisborne Borough Council on 14 June 1880.  This followed a failed attempt to gain a seat on the County Council the previous year.  Josiah had that time been elected, but after the petition of six local rate payers who claimed that he was not on the rates roll at the time of the election, the result was voided and Josiah lost his seat.  Following his eventual success in 1880, Josiah appears to have retired from local body politics in 1884, and then changed his mind and again put himself forward for election in September 1884.

To give a totally balanced view of the situation, it should be noted that Josiah may have been a trifle litigious.  In February 1890, months before the libellous remarks made by the hapless Observer, the Supreme Court  (Justice Connelly) was to hear the case of Johnston Robinson v Josiah Tutchen - the former claiming 500 pounds in damages for a claim of malicious prosecution.  A search shows that even earlier, in December 1886, a J Trimmer was also suing Josiah for malicious prosecution.

Josiah was not an impecunious fellow.  In June 1890, he was in the process of selling up in Gisborne, instructing Samuel Vaile and Sons to sell, by auction, his 13 properties, including his "delightful" own 12 room home.  Josiah had left Wellington as a young man and went to the Victoria goldfields in Australia where he was very successful by all accounts.  He returned back to NZ in 1853 at the age of 21 and proceeded to Otago where he bought up land, and farmed there for some time.  Once gold was discovered, the entrepreneurial Josiah supplied Cobb's coaches with oats and chaff for their horses, delivering the produce at different points along the coach route.  It is reported in his obituary that he also ran wagons to the diggings with goods for the gold diggers.  According to the paper, the cold climate of Otago wasn't to his  liking and so he left for the warmer aspect of Gisborne, to farm.  It's clear from reports that upon leaving Dunedin he sold a fair amount of land.  Later he moved on to farm in the Waikato and then finally to Tauranga, where he continued to farm up until his death.  He was reported to be a "very energetic man".  

31 December 1884, the Poverty Bay Herald reported that a widow named Eliza Richardson, aged 45, had been found dead on the "open land" that morning in Gisborne.  The Mail reported that Mrs Richardson had been living with her brother in law and his family, Josiah Tutchen and that she had gone missing the night before.  Apparently search parties were sent out and she was found with two carbolic acid bottles - once which was empty.  Apparently she had been "acting in a strange manner" just prior to her disappearance... It seems that Mrs Richardson was concerned that she might be sent to an asylum and had apparently said that she would rather "die on the hills" than go to one.  After her death, her sister, Mrs Tutchen is said to have found a note amongst her clothes saying that if she had been poisoned, it would have been at the hands of her family!!

In summary, it would have to be expected that Josiah had his enemies - both from his political and litigious activities - as well as gossips, remembering the scandal of Mrs Richardson's 'strange' death, and those quite simply jealous of his successes, and his 12 room 'delightful residence'.  

Finally, Josiah has enough, and pens the following letter to the Editor of The Observer:

A lot of curs are still slanging me in your paper.  They have not the manliness to publish their names, as they know I would take it out of their hides, if I could not get satisfaction in any other way.  They don't know what I have gone through as I don't want to expose anyone.  One tale is always good until the other side is told.

Succinct, and one can't help feeling sorry for poor old Josiah (while wishing he HAD exposed someone...)

Josiah retired to Tauranga, and died there at his residence at Eleventh Avenue in January 1911 at the age of 79.  Despite the shenanigans of 1890 - he left a widow and ten children.  He also left his two sisters - Mary, Mrs Edwin Bannister, then of Palmerston North and Eleanor, Mrs John Waters of Pipitea Street, Wellington - Alister's relation by marriage.


I've since been corresponded with a descendant of Josiah - satisfying, he clears up some of the mystery around these articles:


The family knew about the scandal but it was kept fairly quiet - Josiah's children didn't know much about the first wife Martha or her family the Havers (by the way Eliza Richardson - poisoning incident lady - was Martha's younger sister).  Josiah's second wife Marion Sarah Dawson was 38 years younger and Josiah fathered their last child at the age of 78!!  He didn't have any children with Martha. Josiah was an important fellow in Gisborne - he was a land speculator, farmer and town councillor - he owned a lot of land in the present-day Gisborne city centre. The scandal seems to have broken with the newspaper advert by Martha in 1890 but Josiah and Marion already had two children together by this time and he had arranged to sell his interests in Gisborne before the advert was published - I guess the scandal was in the wind. He had to move out of Gisborne pretty quickly - first to Cambridge, then to a farm outside of Matamata and then to Tauranga (seemed to lose a lot of his fortune in the process). Marion was never formally married to Josiah which created problems for her when Josiah died in 1911.


Josiah and Marion had the following children:



Alfred Carter Tutchen born 1892
Lillie Maud Tutchen born 1896
William Croft Tutchen born 1898
Frederick Watts Tutchen born 1901
Charles Claude Tutchen born 1903
Ernest David Tutchen born 1906
Hedley James Tutchen born 1909


And three more...