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...

John Waters and Eleanor Waters nee Tutchen 1835 - 1925

Marion Sutherland's eldest son by her first marriage to John Waters, was also called John.  


John Waters Jnr (hereinafter 'John Waters) was born around 1835 in Haddington, just outside of Edinburgh, Scotland.  He was merely five years old when he arrived in Wellington, New Zealand on the ship Slains Castle, having travelled from Scotland with his parents and younger sister Christina.  It was January 1841.


*Note on the Slains Castle passenger list the Waters are listed as "Walters" - this at least explains to me, partially, why I haven't been able to find John Waters Snr's death entry - perhaps I should be looking under "Walters"?  


John followed his step-father Nathaniel Sutherland into the print industry - he was recorded as having been employed in the Evening Post office in Wellington.  Apparently he was variously employed at the Spectator, the Argus, the Independent, and the New Zealand Times.


John met and married Eleanor Tutchen on 2 May 1857 at the Wesleyan Church, Manners Street, Wellington.


John and Eleanor had a total of 15 children including:

1. Marion Waters (Jacka) 1859 - 1945 
2. Simon David Waters 1861 - 1882 
3. John Waters III 1863 -   
4. Nathaniel James Waters 15 May 1864 - 1940 
5. Sarah Eleanor Waters (Macey) 1866 - (after 1936) 
6. Jessie Christina Waters 20 June 1867 - 1946  
7. Mary Ann T. Waters (Crozier) 20 June 1869 - 1940 
8. William George Waters 18 July 1870 - 11 April 1879.  Little William died at the young age of 8 years 9 months (when he died, was listed as being John's fifth son, so there must have been another elder brother)
9. Archibald Thomson Waters 4 December 1871 - 29 January 1873.  This baby died at 14 months 
10. Frederick Ernest Waters 1873 - 12 February 1902  
11. Emily Helen Waters (Grierson) 7 September 1874 - 1966  
12. Annie Maria Banger Waters (never married) 20 July 1877 - 1955 
13. Ada Hannah Waters (Osborne) 25 January 1880 - 1971 
14. And two others

Marion Waters, listed as being John's eldest daughter, married Thomas Samuel Jacka on 21 January 1884.  The Jacka family appear to have headed north and settled in Mount Eden.  See separate blog post.


Sarah Eleanor Waters married William Charles Macey, son of Captain W.C. Macey on 29 December 1897.   They appear, according to John's obituary, to have gone to Australia and settled in Melbourne.


Jessie Christina Waters married Walter Franklyn Viles, second son of Josiah Viles of the  Wairarapa, on 25 September 1896 at St Mary's Church in Ashhurst.    See separate blog post.


Frederick Ernest Waters married Edith E. Upson, of Waiuku, on 24 April 1901 in Auckland, but unfortunately the marriage didn't last long, as Frederick died in Auckland on 12 February 1902.  I'm unaware of there being any children from this brief marriage.  Edith herself died in 1949.


John Waters III married Catherine Jane Wemyss, the youngest daughter of John Wemyss, Renwicktown, Marlborough on 2 July 1886 in Blenheim.  They settled in Ward with their family.  See separate blog post.


Nathaniel James Waters was in Gisborne in 1925 at the time of his father's death, and was apparently 'associated with Messrs Thorburn and Bush Men's Outfitter's of Willis Street.  He seems to have been around the Foxton area during the late 1890s, and is reported playing cricket in a Foxton Cricket Club game in 1895.  He died in Wanganui on 3 February 1940.

_______________________________________

Pipitea Point seems to translate to Courtney Place, Wellington and this is reflected in birth notices in the 1860s and '70s recording that the births had taken place in Courtney Place.

The following is a photograph of the Waters' home in Pipitea Point/Courtney Place, taken in 1859:

Below is another shot of the area, estimated to be about five years after the Wellington earthquake of 1855:

John and Eleanor celebrated their diamond wedding anniversary on Wednesday, 2 May 1917.  On 5 May 1917, the Evening Post reported:


Mr and Mrs John Waters, of Pipitea Street, Wellington, celebrated their diamond wedding last Wednesday, and received numerous congratulations.  Mr Waters arrived in Wellington with his parents in the Slains Castle in January 1841, and Mrs Waters, who was a daughter of Mr and Mrs Peter Tutchen, came out with her father and mother by the bargue Aroi [Arab] in the following year.  Mr and Mrs Waters were married at the Wesleyan Chapel, Manners-street, on Saturday, 2nd May 1857, by the Rev James Buller.  Mrs Waters has been the mother of fifteen children, eight daughters and seven sons, nine of whom are alive:- Mrs T.S. Jacka, Auckland; Mrs W.C. Macey, Melbourne; Mrs N.F. Viles, Colyton, Feilding; Mrs C.E. Crozier, Palmerston North; Mrs A. Grierson, Hutt; Mrs H.O. Osborn and Miss Waters, Wellington; Mr John Waters, Ward, Marlborough; and Mr N.J. Waters, Palmerston North.  There are thirty three grandchildren and seven great grandchildren.  Mrs Waters is the sole survivor of the Tutchen family, three sisters and four brothers having pre-deceased her.  Mr and Mrs Waters have lived in Wellington ever since their arrival in 1841, with the exception of a few years at "The Hollies" farm, Johnsonville, where their home was burnt to the ground.




Eleanor's sister and brother-in-law Mary and Edwin Bannister's brother John seems to have also once owned the home "The Hollies", situated in Johnsonville.  It was the venue for some of the Waters' family weddings and events until gutted by in November 1896.  Apparently both John and Eleanor were away from the home at the time of the fire.  The property was insured for 150 pounds with the Commercial Union office. 


Wife Eleanor died on 23 June 1922 at the age of 87, after 55 years of marriage.  This indicates that she was probably born around 1835.   Eleanor was buried at the Bolton Street Cemetery (although it was known at the time as the Sydney Street Cemetey), where John would later join her.  The Rev. CC Harris officiated at the funeral.  Also buried there were four infant children as well as Archibald and William.


John Waters died at the age of 89 in 1925.  His obituary is very kind and notes:


For many years past Mr Waters had been recognised as one who possessed the best personal knowledge of the city from its infant days to the present time, for his lived practically the whole of his long life here, and retained good bodily health, clear mental faculties, and took the keenest interest in all matters pertaining to Wellington.  When in doubt about events of days long gone by, those desiring information or verification as to past happenings were invariably referred to Mr Waters.  With his parents, he landed at Pipitea Point when a boy of six years of age and he lived in the same place in Piptea Street all the intervening years.  In this respect his record is unique.


The late Mr Waters was born in Haddington, Scotland, in 1836, and with his parents arrived in Wellington in the ship Slaines Castle in January, 1841.  Wellington was celebrating its first anniversary of the new settlers.  Although so young, Mr Waters remembered the scene.  In those days there was a Maori village at Pipitea Point, and there were other Native settlements in the Hutt Valley and on several parts of the harbour front.  Features of regattas in those times were the canoe races for the Maoris and the contests of boats' crews of the small sailing vessels in port.  


The  hills around Wellington were then densely forest clad.  There were, of course, no streets in those days.  The foreshore of the harbour from about where the Hotel Cecil is now to Stewart Dawson's Corner was then known as "The Beach".  Along the Beach there was an irregular row of small houses, and bush covered the hills behind those houses.  The only open patches were on small areas at what are now Thorndon and Te Aro flats.  The houses were in many cases constructed of mud with a framework of rough logs and saplings.  He remembered when horse-racing was held on Te Aro Flat, on an oval track, from about Upper Ingestre Street down to where Te Aro House is now, and thence round to about Taranaki Street and back to the starting point.  At that time a stream used to flow across the flat from Polhill Gully to the sea at the north end of what is now Taranaki Street.  The land between Tory Street and Cambridge Terrace was then a swamp.  Mr Waters was of opinion that the earthquake of 1855 raised the ground there several feet. 


The late Mr Waters was a printer by trade, and served his apprenticeship with his stepfather, Mr N. Sutherland, on the "Spectator" newspaper, and subsequently was a member of staffs of the "Argus", the "Independent", the "Evening Post", and the "New Zealand Times."


In May 1857, Mr Waters was married to Miss Eleanor Tutchen, who predeceased him some three and a half years ago.  The late Mr and Mrs Waters  celebrated their diamond wedding in 1917.


The article also records that the time of his death, John was survived by nine children (as listed below), 33 grandchildren and 31 great grandchildren.


Mrs Jacka of  Auckland (Marion) - husband is Thomas Samuel Jacka
Mrs Macey of Melbourne (Sarah) - husband is William Charles Macey
Mrs Viles of Colyton (Jessie) - husband is Walter Franklyn Viles
Mrs Crozier of Palmerston North (Mary Ann) - husband is Charles Edwin Crozier Mrs Grierson of Lower Hutt (Emily) - husband is Archibald Grierson
Mrs Osborne of Wellington - (Ada) - husband is Harold Osborne
Miss Waters of Wellington (Annie)
Mr J Waters of Wellington (John)
Mr N J Waters of Gisborne