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The End of a Libel
Suit The Law and the Facts in the Case - $50,000 Damages asked for - The Jury Give Plaintiff a Verdict For Six Cents The New York
Times  Contributed by Horretta Wilkins, transcribed by Dena Whitesell |
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Early in September, 1877, Thomas Keitt, a mulatto member
of the South Carolina Legislature, residing at Newberry Court-house, in
that State, and sometimes called, among his intimate associates, '"Col.
Keitt" was arrested at Newberry and committed to jail on a charge of
bigamy. The fact of his arrest was communicated to The Times on Sept. 5,
in , a special dispatch from Washington, which was published in The Times
on Sept. 6. On this publication Ellison S. Keitt, a brother of the late
Lawrence M. Keitt, sued The Times, in the United States Circuit Court, for
libel claiming that he was the only "Col. Keitt" residing at Newberry
Court-house ; that the dispatch referred to and reflected injuriously upon
him, and that it was false. He asked for $50,000 damages. The trial was
begun on Wednesday last, before Judge Shipman and a jury, in this City and
yesterday the plaintiff received a verdict awarding him 6 cents damages.
The printed dispatch from Washington set forth that one "Col. Keitt, of
Newberry, S. C.," had been arrested and held to await the action of the
Grand Jury, at that place, on a charge of bigamy; that he was a near
relative of Lawrence M. Keitt, who was somewhat conspicuous in Congress
before the war, and that the expose' would make a stir among the best
people in that section. The plaintiff, in his complaint, set forth that he
was widely and favorably known and respected in South Carolina and other
States; that the publication in question was false, defamatory, wicked,
and malicious, and was published with intent to injure him in his good
name and reputation. Nelson Smith and William A. Beach appeared as counsel
for the plaintiff, and Joseph H. Choate and Allen W. Evarts for the
defendant.
On behalf of the plaintiff a large number of depositions were read, among the depononts being was widely and favorably Gov. Wade Hampton, Gen. John S. Preston, Arch Bishop Lynch, of Charleston, Attorney-General Youmans, and other eminent residents of the Palmetto State. These gentlemen all deposed, in effect, that they had known Ellison S. Keitt for periods varying from 10 to 25 years; that they knew his brother, Col. Lawrence M. Keitt, who had been for years a member of Congress, and who was killed in battle near Richmond, in June, 1864; that since his death the plaintiff was known to them and generally throughout the State as "Col. Keitt," or as "Col. Keitt, of Newberry," and that they knew of no other Col. Keitt. On cross-interrogalion they all deposed that he was a white man, but some of them had heard of a colored man named Keitt, from Newberry Court-house, who had been a member of the Legislature, and had held other public offices since the close of the war; they never knew of his being called Col. Keitt, and did not know that he had ever held any Militia rank, but had heard that he was convicted of bigamy in September, 1877. Col. A. H. H. Dawson, of this City was examined, and testified to his introduction to and acquaintance with, the plaintiff as Col. Keiit, of South Carolina. Under cross-examination by Mr. Choate, Col. Dawson, referring to the profusion of military titles in the South, said "it would be a small crowd that a man could throw a stone into, down there, with-out hitting a Colonel." Mr. Choate asked the witness whether Lawrence M. Keitt was not the same Keitt who was commonly known as having assisted Preston & Brooks in his assault on Charles Sumner, on tho floor of the United States Senate in 1856, but the question was excluded by the court on general grounds of the avoidance of acerbity and unpleasant reminiscences on this trial, Mr. Choate claimed the right to prove it as an element tending to show in what respect the Keitt family had won its most historical renown. Ellison S. Keitt testified in substance that we was citizen of South Carolina, born at Orangeburg, and had lived since 1862 at Newberry in 1863 he went into the Confederate Army as a Captain; on the evacuation of Charleston he was placed in command at Sullivan's Island, and, after that period, was called Col. Keitt, and became so known throughout the State; in ,1868, 1869, 1871, and 1872 he visited the North and was widely introduced as Col, Keitt; he knew a colored man named Tom Keitt, who had achieved political distinction and was born a slave in the Keitt household, but he had never held any military rank or title. It was a common thing for slaves and ex-slaves to adopt the names of their former masters—sometimes they adopted fancy names, the names of distinguished men--they had numbers of Washingtons and Jacksons down there, and there was also a Rufus Choate. This information created a lively ripple of amusement in court, which Mr. Choate heartily enjoyed, and thereupon he proceededt to cross-examine Mr. Keitt. The witness admitted that he had never received an actual commission for any rank in the rebel service, and that it was only after the war closed he was known as Colonel, having been, as Mr. Choate phrased it, "a Captain in war and a Colonel in peace." Mr. Keitt said he did not think it was a very common thing for persons at the South to call each other "Colonel" or "Major" when they had not been in the military. The name Keitt belonged to Tom, the colored man, only by adoption. "Just the same," rejoined Mr. Choate, as your title of Colonel? Is Tom white or black?" "He is "a mulatto" replied the witness. " Did you know his mother?" continued Mr. Choate. The witness said he did, and that she was a slave to his father, and was black. " Then Tom's white blood didn't come from her?" queried Mr. Choate. "I suppose it came from his father, whatever its source may have been" said the witness. "What is his height?" "About five feet eight or nine inches" answered Mr. Keitt. ''About as tall as you are?" was Mr. Choate's next ingenuous inquiry, "No, Sir;" said the witness promptly; "I am about six feet, Sir—in my boots." The witness went on to say that Tom was at one time his slave, left to him by his father's will, and that Tom's mother also was born a slave on the Keitt plantation; the witness father owned about 100 slaves or more, most of whom were born slaves to him: Tom was at the time of his birth the only one of mixed blood, but at the time the elder Keitt died there were two or three other mulattoes, who had been born among them. When witness returned from the North in 1872 he found Tom was a candidate for election as County Commissioner, and he was elected and filled the office acceptably; he was afterward made keeper of the Poor-house, and in 1876 and 1877 was elected to the Legislature; for the latter office Tom was opposed by Judge Pope, Dr. Barrow, and Col. Keitt, the witness but Tom defeated them all; in September, 1877, he was convicted of bigamy and sent to State Prison. His arrest made some sensation in Newberry, but not in the State at large; it got into the leading and local newspapers down there, of course. From this point Mr. Choate led the witness to admit' squarely that he was well known wherever he was known at all, and that among those who knew him he was still as well thought of as ever. He had been a widower since May, 1862, and that fact also was generally known to all his personal friends. "Then" rejoined Mr. Choate, "no one would have supposed that you could commit the crime of bigamy?" The witness replied in effect that some of his friends, who had not heard from him for some time, and did not know whether he was married again or not, wrote to him, and as times were very corrupt in South Carolina then, there was no telling what a man might not do. His friend Gen. Garlington wrote asking if it was true, and offering to defend him on trial if it was the fact that he had been so charged. " Probably he thought that the defense of a widower against the charge of bigamy would be an easy matter," suggested Mr. Choate. Mr. Keitt closed his testimnny by saying that he had telegraphed a denial of the charge to the South Carolina press as soon as it was known to him that his denials were printed, and a few days afterward he put the case in the hands of a New-York attorney to seek a retraction from The Times and protect his interests. An explanation appeared, but it was an unsatisfactory one. For the defense it was shown, by depositions of numerous residents of Newberry, that the negro Tom Keitt was reputed by local gossip in the county to be the natural son of some member of the Keitt family by a slave mother, among the affiants being many county officials and old settlers in Newberry; that he had held various public positions, and was ultimately convicted of bigamy. Witnesses were examined orally also, showing that the writers and the publisher of the dispatch had never heard of the plaintiff, nor that he was known as Col. Keitt; that the dispatch containing the alleged libel was published as ordinary current news, and was intended by the correspondent who wrote and sent it to refer to a negro, there being a political contest at the time for the possession of his seat as a member of the Legislature, and it was thought that this arrest was a means resorted to get rid of him politically. Gen. Carlos J. Stoibrand, now a resident of Columbia, S.C., but who had been Chief of Artillery of the Fifteenth and Seventeenth Army Crops, under Gens. McPherson and Sherman, during the war, testified, also, that he knew Tom Keitt as a member of the Legislature, and taht he had at first been pointed out to him as Col. Keitt, a member of the Legislature from Newberry County, Keitt being at the time a member of the committee before which the witness had official business pending. When the testimony was closed Mr. Choate said that the facts allb eing now before the court, so that the motives or malice could be fairly judge of, he felt it his duty to offer this plaintiff any proper publication, as a vindication, which he might ask, and which was due to a gentleman; as they believed the plaintiff to be. Mr. Beach, on behalf of the plaintiff, declinded the offer, unless it was accompanied by the offer of such a sum of money as would be a reasonable compensaiton for the expanse to which Col. Kiett had been subjected in vindicating himself. This offer having been declined, Mr. Choate proceeded to sum up the case in a closing argument for the defense, insisting, among other things, that there was entire absence of malice, and that in any event the plaintiff's reputation had not bee injured appreciably by the publication. Mr. Beach exhausted the case in an argument of two hour's duration, and demanded a full verdict for damages. Judge Shipman charged the jury yesterday morning. After stating the character of the action, he said that a libel was a false and malicious publication, tending either to injure the memory of one dead or the reputation of one living, and exposing him to public hatred, contempt, or ridicule. Every publication which charged or imputed to any person that which rendered him liable to punishment was primafacie a libel, and implied malice in the publisher. The publication of this article was not denied, or the responsibility of the defendant for damages, if the publication was untruly spoken of or concerning the plaintiff. Neither was it denied that, if it was spoken of or concerning the plaintiff, it was untrue in fact and malicious in character. The first material question of facts was whether it was uttered of or concerning the plaintiff. (The court here read the alleged libeious publication.) The plaintiff said that he had long been the only resident of Newberry Court-house, known as Col. Keitt; that he was well-known citizen of South Carolina; had filled offices of honor and trust, and taht for many years past he had been universally known throughout the State as Col. Keitt, and was recognized by that title as the brother of the late Lawrence M. Keitt, and was by marriage and descent connected with prominent families in that State. He also claimed that the publication could have no other intent than to cast upon him a charge of crime. The defendant claimed that it refereed to one Thomas Keitt, a mulatto, who lived at Newberry; who had been a member of the Legislature; who had been arrested for the crime of bigamy; who was called "Col. Keitt," and who was reported to be the natural son of some one of the Keitt family other than the plaintiff. The question of fact, the, was, of whom was this publication uttered? The plaintiff urged that the assertion that the libel concerned a negro was a pretense, because it was abundantly proved that the negro never was an officer of the Militia, and never was known as or styled "Colonel;" and, further, that the testimony in regard to his paternity clearly showed that there was no general reputation on the subject, the talk being only occasional gossip and scandal. He further said that he was the person referred to. The defendant asserted that Thomas Keitt was aptly identified by the description in the publication. The court would her say that if the author of the publication intended to have the community understand that it described the plaintiff in such terms as unavoidably to convey to the minds of all persons who were acquainted with his name int eh information that he was charged with crime, it was not a defense to say that, although the language naturally and obviously pointed to the plaintiff, the publication was applicable to another person, whose identity was concealed from the knowledge of the public. It was not a defense that the description was applicable to some other person, if the natural and obvious and intended meaning of the language did not point to such person, but did intentionally point to the plaintiff and conveyed to the public the charge that he had committed the crime named in the publication; and when the court said that if the author of the publication intended the public to understand that the plaintiff was meant the court did not mean that it was necessary to prove that the editor of the paper had such intent. If the editor or publisher made his newspaper the vehicle of a libel he was responsible, although he did not know it was a libel. Who, the, was intended by the utterer of this publication to be understood as charged with crime" Did he mean the plaintiff or Thomas Keitt" The jury had heard the testimony of Mr. Carson and Mr. Kirke, for the defendant, on this subject, and they must look at all the circumstances, and an examination of the tenor and phraseology of the libel itself would be important. Mr. Carson's testimony was that he was informed by Mr. Kirke that a mulatto member of the Legislature of the name of Keitt, and styled Col. Keitt, had been arrested for bigamy, and that it was supposed by the party friends of the arrested person that his arrest was caused by persons of the opposite party for the purpose of having his seat in the Legislature declared vacant. Did Mr. Carson intend to communicate by this dispatch the information that one Thomas Keitt, a mulatto, was the person designated, or did the mean a different person, answering the description of the plaintiff? If the latter was true, it was immaterial that he had in his mind and knew that Thomas Keitt was the man actually charged with the offense. If the publication charged the plaintiff with crime, and if, while the utterer had in his mind the facts in regard to Thomas Keitt the publication intentionally communicated to the public the untrue statement that the plaintiff had been arrested, then the defendant was liable. if neither of these facts were found in favor of the plaintiff then the defendant was not liable. If the jury found upon the questions thus submitted in favor of the plaintiff, then the only remaining question was that of damages. If an editor published a false and malicious publication he was liable to pay the actual damages which the plaintiff had sustained in his feelings and reputation. If no actual damage was sustained, then the verdict might be for nominal damages. If express malice was proved the jury might give vindictive damages, but such damages were not claimed here. The plaintiff had stated that he was annoyed and wounded by the publication, and that he received a letter from Gen. Garlington, an old friend, in regard to it; that he took immediate measures to correct it by telegraphing to the Charleston News and Courier; that he had a large acquaintance at the South, and had made many acquaintances at the North, and feared that the publication would injure him among mere acquaintances and those unaware of his domestic condition and affairs. It was also shown that the article was the subject of comment at Newberry and of current remark. The plaintiff was entitle to compensation for the actual injury to his reputation. That his reputation had not suffered among his friends was manifest. How much it had suffered among those who knew him casually, mere acquaintances, could not be accurately told. In the matter of damages there was no arithmetical rule, but the jury could give just damages for the injury actually sustained. They were not to give damages merely to punish the defendant, neither were they to pay the plaintiff, either in whole or in part, for his outlay or expenses of suit. They were to deal justly, impartially, and unintiuenced by prejudice or passion, and to give such a sums as in their judgement would be a meet recompense for the injury which the plaintiff had sustained. The jury, after a retirement of about three hours, rendered a verdict for the plaintiff for 6 cents, as above stated. |
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