Skip to Content

Decisions of the Superior Courts of New South Wales, 1788-1899

Halloran v Hall [1826] NSWSupC 30

Halloran v Hall

Supreme Court of New South Wales

Stephen A.C.J.,[1 ] 22 May 1826

Source: Australian, 24 May 1826

 

This was an action for libel. [2 ]

The plaintiff it appeared was Master of the Sydney Free Grammar School, and it was certain letters written by defendant, impeaching the plaintiff's integrity, that constituted the present grounds of action.  One of these letters, the first count included, and tended evidently to harass and oppress the plaintiff as projector of the Grammar School.  It appeared in the Sydney Gazette of Nov. 28, 1825, and was signed "Fidelitas."

Here the letter was read.

The second count, tending to vilify plaintiff, comprised a letter published in the Sydney Gazette of December 8, 1825, bearing the defendant's signature and was addressed to the Editor.  To these defendant pleaded the general issue; and, secondly, justification on letters purporting to come from Jacob Josephson, with whom plaintiff was once on terms of intimacy and under obligations to  but from a subsequent disagreement, their mutual dealings became the subject of public disquisition, and defendant considered in such case the article subscribed "Fidelitas" justifiable, and that plaintiff was not unanimously elected head master, there being 30 governors and only 14 present at his election.

Dr. Halloran, it was stated to the Court, had resided for many years in the Colony, and had been employed in the education of youth.[3 ]  One of the causes of the present action originated in a letter published in the Sydney Gazette of November 28, subscribed "Fidelitas," and it was contended that no person who had read that letter could avoid discovering its grossness, its tendency to vilify the plaintiff, and to sink him in the estimation of his neighbours and of the world in general.  Defendant, in justification, set up a plea that plaintiff's situation laid him open to criticism; but, was it criticism to prevent an individual from gaining his livelihood? was it criticism to throw him into general disrepute?  The plaintiff was elected head master by a full committee of the trustees, and it was maintained that private pique alone had actuated the defendant in penning his letters signed "Fidelitas," and E.S. Hall; and the assessors would feel themselves bound to give conscientious damages.

Mr. R. HOWE[4 ]- Knows the author of "Fidelitas," and letter subscribed E.S. Hall.  Has reason to think the manuscripts have been destroyed, but not since receipt of subpoena.  The reason for destroying those papers was because he (witness) wished not to retain any memento of plaintiff.  Thinks Mr. E.S. Hall to be the author who transmitted them for publication.  The second letter was received on the 8th December, when witness communicated with Dr. Halloran.  Witness in his conversations with the defendant, did not consider him to have been actuated in his letters by any particularly vindictive motives towards plaintiff - their mutual dislikes were pretty well balanced.  Witness thought at first that plaintiff was the originator of the Free Grammar School, but afterward saw reason to attribute it to Mr. John MacArthur.  Is a trustee, and believes that a number of young gentlemen are under the head master's care.

Examined by Mr. Wentworth - Is sorry to have known plaintiff.  Thinks him quite unfit for moral instruction, and that he has libelled witness and many others for some years past.  Received letters from plaintiff.  One witness considered too foul for insertion.  Thinks the words villain and masked assassin applied in plaintiff's correspondence to defendant, and were in witness's opinion, and in the opinion of a clerical friend, more abusive than argumentative.

Witness would feel delicate in bearing testimony to plaintiff's general conduct, as he was himself implicated wiith [sic] him in certain pending prosecutions.  Considers plaintiff to be a general libeller[5 ]  the libel commencing with "Bob Howe, a vastly ugly babe of grace," was written by the plaintiff.  Count O'Candle witness considered a horrible production.[6 ]  The babe of grace was made the subject of a charge of felony, in April 1822; but plaintiff was unanimously acquitted.  He was subsequently destined to stand his trial for the libel; but, no prosecutor appearing, was dismissed; and, this for no other reason, according to witness's opinion, but because be (Mr. Howe) declined appearing against plaintiff.  Never heard plaintiff make use of obscene language; and does not consider him unfit for head master, from a want of literary acquirements, but of m[o]rality.

Witness became a trustee, and gave his assent to Dr Halloran's election to the post of head master: because, as he said, it might assist plaintiff's family; and, indeed, plaintiff was so old and looked so unwell, that witness could not avoid thinking he might not live long.  He (witness) did write a letter of condolence to Dr. Halloran.  Is grateful for any sort of information, even though it be libellous.  Did court plaintiff's acquaintance.  The letter was in a complimentary strain; and implied, that a certain eulogy on the plaintiff, coming from a certain individual, could not meet with publicity; but concluded in those words, nearly; "but still the poor Doctor's (meaning Dr. Parmeter) attempts deserve credit, seeing that they are bestowed on one who deserves so much at the hands of the Colony;" and concludes with "grateful esteem," &c.  Is of the opinion that plaintiff deserves praise for originating the plan of a free grammar school ; but witness never, for his part, entertained any personal respect for Dr. Halloran - the latter did write an article in defence of witness, against Mr. F. E. Forbes; but it was not made use of.  Was much shocked on hearing plaintiff one day use the word God, not properly.[7 ]  Mr. Hall's son is not in the Institution.  He did go to Dr. Halloran's school some time since.  After "the babe of grace made its appearance," Mr. Hall removed his son from the school.  Was sued by plaintiff for the full quarter's amount, which the plaintiff gained; and witness joined in the judgment against Mr. Hall.

MR. GEORGE ALLEN[8 ]- Is secretary to the Committee of the Free Grammar School, of which, Dr. Halloran is head master - 14 trustees including witness were present at the election; none of the members were allowed to vote by proxy.[9 ]  Thinks that plaintiff is entitled to thanks for the service he did to the community in projecting the plan of a Free Grammar School.  Witness was authorised to act for Mr. Howe, by proxy.  In the head master's election, it was expressly concluded on, that all but twenty of his scholars were to be given up.  Witness thinks that the birth and appearance to the world of the "ugly babe of grace," induced Mr. Hall to remove his son from Dr. Halloran's seminary. - Has conferred with defendant on letter signed Fidelitas which witness himself never read, but it was read to him, as a friend, and in his professional capacity.  [Here witness wished to take the sense of the Court on the propriety of his answering, as to whether Fidelitas could be considered libellous, witness being one of the defendant's legal advisers.  The question was waived.[10 ]]  Knew but little of Dr. H. and that little not discreditable, before witness became a trustee, to which office he was unknowingly appointed.  Has heard reports prejudical [sic] to the plaintiff; which, if true, would unfit him for being head master, but is not in the habit of condemning on hearsay evidence, and particularly on reports circulated in the Colony, which are very frequently unfounded.  Dr. H. in speaking of Count O'candle, said, but for one verse he would have no objection to be considered the author.  Can't say that there would be more subscribers if there were another master.  Witness is a member of the Wesleyan Society, and upon hearing that plaintiff's scholars were in the habit of swearing, he mentioned it to plaintiff, who challenged investigation of his scholastic discipline, and treated the matter otherwise, in a very becoming manner.  Witness has no recollection of having read a work entitled Castigator[,] has heard plaintiff's reason for assuming the appellation of Dr. Gregory, it was in order to elude the officers of justice who were in quest of him for an alleged libel, contained in a letter against Mr. Canning.  Witness was not spoken to by any person about an attack on Mr. Crawford, principal clerk in the Colonial Secretary's office.  Considers that plaintiff in his school checked, rather than encouraged immorality.  There was an investigation by the school Committee into the conduct of the head and under master.  As no charge had been brought against the former, he was, of course, continued, and no charges could be sufficiently substantiated against the latter, upon minute enquiry.  Early foibles, witness considered should not ever after, operate against any individual - even being the author of such an article as the far-famed "babe of grace," `should not unfit a man for society, after a two-years' probation.  The trustees deemed it expedient to restrain the head master from interfering in any political controversy; and, not alone on account of fidelitas, but because it was understood that plaintiff intended becoming the editor of a newspaper.  A special committee met to investigate certain alleged derelictions on the part of the under master; and several young gentlemen were examined, but nothing could be brought against him.  The under master, a few days after, resigned, of his own accord.

Mr. SIMEON LORD[11 ]- Is a merchant, and has known plaintiff ever since his arrival in 1819.  His children have been educated by plaintiff, who, in witness's estimation, is better calculated for such a task than any other person in the Colony.  Considers that plaintiff's greatest fault is over-irritability; and, that unless roused by injury, no one can be more harmless.  Witness was of opinion, that Mr Howe did not speak correctly, when he attributed his not appearing to prosecute as the cause of plaintiff not paying a compulsory visit to Port Macquarie; as, with one exception, all the Magistrates were in favour of the plaintiff.

Mr. SAMUEL TERRY[12 ]coincided in Mr. Lord's favorable opinion of the plaintiff, as an instructor of youth, and the injurious tendency of Fidelitas.  Thinks if the latter was subscribed by the d-v-l, it would be a d-v-l-sh production - but still considers that the writer's motives were not personal.  It was the witness and Mr. Pitman who brought about the recovery of a box which had been left in plaintiff's custody, the 19th of October, 1825, by Mr. Jacob Josephson.  A letter was upon this addressed to plaintiff, apprising him of the circumstance of a box, containing some valuables, being placed in plaintiff's hands by Josephson, for the purpose of defrauding his creditors.[13 ]  Will not swear that the letter was not suggested by plaintiff.  Josephson's goods were not at the time advertised.  Witness strongly approved of plaintiff's giving up the box.

Messrs. WILSHIRE and CHISHOLM entertained a high opinion of plaintiff's abilities as a teacher of youth, and affirmed, that if any immorality practised in the school had come within their knowledge, they would have removed their sons immediately, nor would they have become trustees.

Mr. RICHARD DRIVER was a pupil of Dr. Halloran's for three years, and during that time never knew the plaintiff knowingly, to let any immoralities be practised.  [Here the plaintiff's case closed.]

Mr. Wentworth spoke for the defence.  Before entering into the merits of the present case, he would wish to lay down something of the law of libel; truth may be considered a libel in a criminal information, but could not be so held in the present case, where the person complaining holds a public situation of trust, and consequently subjects his conduct to the public scrutiny.  The learned Gentleman proceeded in proof of his positions, to quote from several law authorities;[14 ] commentators on parliamentary discussions, are protected by the law; so are critiques on books of an immoral or dangerous tendency, or on person committing breaches of trust, which latter clause was prima facie, in defendant's favor, and where parties are in the habit of libelling each other.  The malus animus, in such cases, according to Lord Kenyon, alone, constituted libel, and in this, the learned Counsel was positive the present case was entirely deficient.  Mr. Wentworth went on to affirm, that the individual who stepped forward to expose the immoralities of any publication or gross breach of trust, would deserve praise for purging literature of a vitiated taste, and would confer a benefit on society.  A large show of ridicule had been attempted to be thrown on the length of plaintiff's pleas of justification entered on the report, they were styled pleas of surplusage, but Mr. W. was prepared to prove them all.[15 ]  After some comments on the plaintiff's conduct as connected with certain transactions between Josephson and his Creditors, the following witnesses were called:

Mr. Jacob Josephson was first examined.  He stated himself to have been once intimate with the plaintiff.  (The witness requested he might be allowed to unfold his own history as connected with the plaintiff.) - Nearly two years since, it might be recollected, the witness was robbed, or said to have been robbed, of some thousand dollars, in consequence he was forced to compound with his creditors, who all subscribed to a deed, in which they consented to receive their monies by instalments at certain periods.  Witness upon this paid down a principal part of the debt, but subsequently acknowledged having got back all, or the better part of his dollars.  Some of his creditors supposing that the loss of the dollars was all a fabrication, filed a bill in equity against the witness's property, while others declined cancelling their former deed of argument, still consenting to be paid the debt by instalments.  In this emergency the witness went on to affirm that he consulted plaintiff, whom he had frequently assisted, and who always acknowledged it, and adopted his advice of secreting a portion of jewellery, not through felonious motives, but for the benefit of those creditors who had not joined in the bill of equity.  On the 6th of October, a box, containing valuables, was deposited with the plaintiff's consent, in his bed-room; and on the 19th of the same month witness stated himself to have been surprised by the appearance of plaintiff, who came into his house trembling, and holding out a letter, which plaintiff said he had just received.[16 ]  It bore the signature of Messrs. Terry and Pitman, and intimated unequivocally, that a box, belonging to the witness, had been seen going into plaintiff's house, and requesting that it should be rendered up to his creditors.  Plaintiff did not deny that such a box was in his house, and that it should be surrendered, as it subsequently was to the Under Sheriff, Mr. James.  It was plaintiff gave information of the box having been left with him, and who edited the letter requiring it to be given up.  Witness had lately received a letter from the Attorney General, requesting to know whether he (witness) felt himself guilty of any thing which might entitle the Attorney General to file a bill against him.  Witness sent back an answer that he was no lawyer himself, and could not tell (a laugh.)  Considered Plaintiff a very proper instructor of youth.

Mr. Macleod's examination followed next. - He knew plaintiff on his first arrival in the Colony, and at that time, and for some time after, received much kind attention from him, for which, Mr. M. still felt grateful.  He had seen the production termed Count O'Candle, it is a description of a wedding, and bedding;[17 ]the latter is the most objectionable part.  Witness thinks plaintiff has put him down as the author of certain scurrilous letters, reflecting on plaintiff.  "He calls me Cudgel," said the Witness, but he is mistaken.[18 ]

Mr. Cape, who is a schoolmaster, stated himself to be much annoyed by plaintiff's sons throwing stones at his doors, and styling him a cornuted monster, or cuckold, which Mr. Cape knew to be totally false.  Plaintiff's daughter acknowledged having once flung a huge peach stone at the witness's door.  Witness's son is candidate for the under master-ship, but neither the latter, nor witness himself, look to be head masters; does not know that plaintiff was at the time aware of his son's conduct.  After some further disquisition, Messrs. Carter, and Cooper were examined.

Mr. Hutchinson refused to mount the witness box, as he had received no subpoena, to enforce attendance, he was then merely a visitor in the Court; but whilst the dispute was pending, Mr. H. walked out, wishing the Court good evening.

The Learned Judge, entered into an explanation of the law of libel, and concluded, by expressing his opinion, that the plaintiff was entitled to some trifling damages.[19 ]

The assessors after some deliberation, found a verdict for the plaintiff, Damages, one shilling, without costs.

 

Notes

[1 ] Forbes C.J. was on sick leave from 23 February 1826 until 29 May 1826; John Stephen was Acting Chief Justice in this period: see Australian, 23 February and 3 June 1826.  For other 1826 cases involving education, see Walker v. Scott (No. 2), January 1826;  R. v. Broadbear and Broadbear, June 1826.

[2 ] From 19 May 1826, the defendant was editor of the Monitor: R.B. Walker, The Newspaper Press in New South Wales, 1803-1920, Sydney University Press, Sydney, 1976, p. 8.  In that capacity, he was a frequent defendant in libel cases.  This case was reported in the Monitor, 26 May 1826. In a separate editorial that day, the paper said that its policy was to insert the reports of trials just as they came from the reporter, without editorial correction.  The editorial went on to claim that the paper was not interested in the outcome, and went on to argue why there should have been no verdict for the plaintiff.  Lord Kenyon said that a retaliating libeller should have only small damages, claimed the Monitor, while a wiser Mansfield said none at all.

The Sydney Gazette, 17 May 1826, reported that it was also threatened with action over an alleged libel of Dr Halloran in its issue of 15 April 1826; and see letter from Gilbert M'Leod published on the same day.  The Sydney Gazette made a preliminary report of Halloran v. Hall on 24 May 1826, noting that the assessors were Richard Jones and Alexander Berry.  The Gazette's full report of the case was published on 27 May 1826.

[3 ] Messrs Norton and Rowe appeared for the plaintiff: Monitor, 26 May 1826, p. 11.  The Monitor gave a longer summary of Rowe's arguments than the Australian.  He relied on Comyn's Digest p. 868 for his definition of libel: "any Publication tending to throw discredit or contumely on an individual was in law a libel".  Rowe concluded his initial argument by saying that "whatever right an individual may have to keep poison in his own closet, he will not be allowed to disgorge and send it forth to the world."  The Sydney Gazette (27 May 1826) also gave a full summary, noting the reference as Cumming's Digest, vol. 4, folio 868.

[4 ] Editor of the Sydney Gazette.  Before being sworn, Howe objected to being examined, on the ground that he was a defendant in an action instituted by the plaintiff.  Stephen A.C.J. "ruled that the liability of a Civil action did not exempt the witness from giving evidence.  It was different in the case of a criminal prosecution.  He did not see that Mr. Howe could suffer by the event of the action, and might therefore be sworn.  The Counsel for the defendant, he had no doubt, would caution him from answering any question which was not necessary to be answered." (Source: Sydney Gazette, 27 May 1826.)

[5 ] According to the Sydney Gazette, 27 May 1826, Rowe objected to a  general question being asked about how many libels the witness thought the plaintiff had written since he knew him.  Rowe relied on 1st  Maule and Selwyn, 286 and on Philips on Evidence.  Proof of general reports were not admissible when the defendant put in the plea of truth.  Wentworth replied that that was not so where there were two pleas, of not guilty and justification.  He relied on Starkie's law of slander, p. 415.  Stephen A.C.J. "was of opinion that the objections would be valid, where a specific charge was justified as being according to truth.  In matters of slander, the truth of the charge was an ingredient, but malice was also necessary to be proved; and, as he frequently had occasion before to state from the Bench, he thought he should shut out substantial justice, if he did not give every opportunity to shew malice if it existed, and to disprove it if it did not.  If the plaintiff should recover, on any of the counts in the declaration, the damages should be regulated by his conduct as proved, and he was therefore of opinion that the evidence should be received.  The question might be put generally as to character."

The Monitor (26 May 1826) reported Howe as saying that "Since the year 1822, he had had no peace from the plaintiff's  pen, and had repeatedly rejected productions that would have left him in gaol all his life if published."

[6 ] According to the Monitor, 26 May 1826, Howe said that it "described sexsual [sic] intercourse in the grossest terms."

[7 ] Howe was offended that he had heard the plaintiff swear "By G-" which he considered criminal in a clergyman: Monitor, 26 May 1826.

[8 ] An attorney.

[9 ] The Monitor, 26 May 1826, reported that Allen said that "Judge Stephen was instructed to vote for the chief justice".

[10 ] The SydneyGazette, 27 may 1826, noted that the judge would not allow a question to be put which might have involved Mr Allen in breaching a professional confidence.

[11 ] A merchant, magistrate, and former convict.

[12 ] Another wealthy former convict.

[13 ] See Spark v. Jacobson, October 1826.

[14 ] The Monitor, 26 May 1826, gave a full account of Wentworth's argument:

"Mr. Wentworth for the defence, would, before he addressed himself to facts, consider the law of the case.  He did not agree with the authority as quoted by the learned Gentleman on the opposite side - which said that Truth was a libel.  The law was too clear to be disputed that truth was a complete justification.  He felt perfectly convinced that the publication in question was no libel at all, and would warrant neither a civil action nor a criminal prosecution.  It was in evidence before the court, that the plaintiff had been elected for a situation, in which he would have the charge of the morals of the rising generation entrusted to his care.  It had also been distinctly shown by Mr. Terry and others, that the motives which influenced the defendant, were the best and most honourable that could actuate the human mind.  It had been his firm and conscientious conviction, that the plaintiff was unfit for such a trust.  The last letter avowing his name and motives, proved indisputably the soundness of his principles; - if instead of coming to trial as he had done - he, as the defendant's legal adviser had put in a demurrer to the action, what would have been the event?  There were three great classes of libel - one was a certain species of publication of a libellous nature, yet however gross and severe the assertions contained, they were protected by law - he alluded to Parliamentary publications fair reports of trials, &c. &c. - the public good legalized all such publications. -

"There was another Prima Faciae presumption in favour of the defendant, to which the present case was referable - those who were called on to speak or write severely by the claims of society - as the office of a Critic upon a book - or the character given by a master to his servant - in 1st. Campbell's Nise Prius. Talbart v. Tipper, the plaintiff if bound to shew that malice is intended, and the defendant is required to discharge himself from it - liberty of criticism must be allowed, or how would the public taste and public morals be preserved - this was the dictum of Lord Ellenborough - the defendant in the present case did not go out of his way to libel the plaintiff, he states his object to be the preservation of public morals - the plaintiff is publicly accused of perfidy and breach of faith by an individual, and replies as publicly, and seeks by sophistical reasoning to vindicate himself from the charge - he appeals to the Colony at large, and thus challenges criticisms - the defendant as one of the public thus invited, takes up the cudgels to expose the sophistry and perfidy of the writer, and dispassionately to declare his own unbiassed opinion.

"In the case of Sir J. Carr v Hood reported in I. Campbell 355, the critic only cut up the work as an author and did not follew him into private life - the principles of the book were of an immoral tendency, and though a special damage was sustaiued, yet the learned Judge held the critic harmless because he had in view the public good.  It was the motives that brought that within the class cited.  The benefit of this prima facie presumption extended to all on whom the necessity or exigencies of the public weal call.  Critics whose province it is to expose unsound literature, and to detect vicious principles, have a most importent duty to perform, and are protected in the unlimited discharge of their reasoning faculty, such was the opinion of Lord Ellenborough - the learned gentleman contended that the plaintiff's letter was as much a publication as though it contained ten thousand pages, and the defendant had as much right to exercise criticism, as the defendant in the case just quoted from the books.

"In many cases the person of the author must of necessity be blended and commingled with his books.  Mr. Hall, he contended, was within the purview of the act - there was certainly extraneous matter in the letter but nothing libellous - the Malus Animus is every thing in a publication; Lord Kenyon had held that in order to constitute a libel, the malignancy must be made out and proved.  In this case, it was evident there was no defective intention, no fault in mind.

"The learned counsel here wished to take the sense of his honor, as to the necessity of entering into a defence as to the second plea of justification.  (the learned Judge decided that there was more in he defendant's critique on the publication of the plaintiff, than in his opinion, the laws of fair criticism justified - at all events, there was sufficient to call for defence under the second plea.  Mr. Wentworth then proceeded)  In this letter of "Fidelitus," - the court would perceive there were two charges of a libellous tendency - 1st.  That the principles advocated by the plaintiff in his reply, are of an immoral nature.  2nd.  that the plaintiff has been guilty of a breach of trust.

"I doubt not - notwithstanding the peculiar moral perceptions of some of the plaintiff's witnesses, but the court will yet see that the plaintiff acted with the greatest perfidy and baseness - and in open violation of every moral obligation between man and man.  After [t]he publication of "Fidelilas," Mr. Hall is in the Sydney Gazette, grossly libelled, three several times he was accused by inuendo of a breach of trust; and the appellations of "masked, assassin," and "discovered villain," were applied to him.  It was said by Lord Mansfield, that when two men were in the habit of publishing monstrous libels against each other, there could be no damages - and if no damages consequently no verdict - now if the Court be justified in awarding damages they must be nominal; in fact I conceive damages out of the question - the plaintiffs statement of the circumstances and motives which caused the trunk to be plaeed under his care, is a fabrication - it was a pre-concerted act of treachery, and there can be no doubt that the man who could invite his friend to do an improper or dishonourable act and then betray him as the plaintiff had done in this case, and of which he could adduce prooff, was capable of any act however perfidious - I would ask you geutlemen - with what grace a man holding such a place in society as the plaintiff - proved by his own witnesses to be the author of a thousand libels - undoubted and direct libels of no problematical nature - with what grace he can come into this Court? - why did the plaintiff in his first foul answer and other replies to "Fidelitas," have recourse to invective? why not send to that press which previously he had been weekly and daily in the habit of over-whelming with his productions - why not send a temperate and moderate address explauatory of his conduct?  Even Mr. Howe requested him to expunge the objectionable passages from his letter, and not give way to that scurrility and abuse for which he was so notorious - the next number might have contained a temperate refutation of the charges of "Fidelitas," instead of which he writes letters full of malignity.  I would ask if such a man as this be fit for an instructor of youth? whose constant habit has been to libel every body from the Government downwards? and whether Mr. Hall or any other person who should be the means of removing him from the chair he now fills, would not confer a lasting obligation om the community? a benefit on the rising generation, and on generations unborn? - If hornets and vipers are to vent their poison and calumny to the world, where would be society? does not he who endeavours to eradicate such, confer on the community the most important benefits? - The critique of "Fidelitas" was written without one word of asperity - it was couched in terms the most temperate, and had for its object a great public good.  If this is a to be called a libel, where is the liberty of the press? we may indeed have it in name, but we have lost the substance! on the other hand is it not clear that the abusive letters of the plaintiff in reply to "Fidelitas'" temperate effusion, were the only refutation he could offer? - has he not aforetime written in doggerel and prose, the most offensive productions that ever flowed from the pen of man? - why came the plaintiff into court? - because he was writhing under the conviction of perfidy and ingartitude? [sic] - and was conscious that the name of traitor and ingrate must stick to him to the latest hour of his existence! - the verdict he was confident would be that which the public and the press had already passed!"

[15 ] The Sydney Gazette, 27 May 1826, reported that Stephen A.C.J. said here: "It is true that any thing put forth to the Public is the subject of fair discussion, but, however it may be deemed fair criticism, it will still be for the Jury to decide how far the author has distinguished between the work criticised and the man.  It does not follow that in a criticism matter should be introduced which has a tendency to injure the character of an individual.  The critic must confine himself to the book, and only introduce the author so far as he is necessarily connected or blended with his work.  That criticism prevents or destroys the circulation of a work is nothing, as, if bad, it ought to be destroyed.  Whatever the character of works are, others have a right to pass their opinion on them, or bad works would not be written down.  This, however, I only say of candid criticism which every body has a right to publish, as otherwise no man would be at liberty to expose the works of others, however ridiculous they were, or however pernicious their tendency, but if any thing appears in a criticism not connected with the book, and tending to render the author ridiculous, then an action will lie.  Of this fact the Jury are to judge, and in the case before the Court I think there is sufficient evidence to go to the Jury."

[16 ] According to the Monitor, 26 May 1826, the letter was as follows:

"Sydney, 19th. October, 1825.

Sir,

Certain of Mr. Josephson's Creditors have received intimation that early on the morning of the 6th inst., a person was observed to convey an apparently heavey package from his house to yours.  As considerable property is believed to have been abstracted from his stock, there can be little doubt, what were the contents of that package.  From feelings of respect for you, we forbear to adopt any legal method of coming at the information.  We desire, and as we believe you incapable of intentionally, or knowingly, lending yourself to the furtherance of a fraudulent purpose, we only require from you the favor of an explicit declaration - whether the package, known to have been deposited in your house, be still in your possession? and in that event, to require that it may not be relinquished, except to the Sheriff, for the benefit of Mr. Josephson's creditors.

We are, Sir,

Your Obedt. Servants,

(Signed) SAMUEL TERRY

T.G.PITMAN"

[17 ] The Monitor, 26 May 1826, said it was applied to the Earl of Caledon.  However "The Chief Justice thought it unnecessary  o [sic] shock the ears of the court by reading the lines alluded to."

[18 ] The Monitor, 26 May 1826, said that William Carter, Master in Chancery then gave evidence.  He voted for the plaintiff on his election as head master, but he thought his conduct relative to Josephson and the trunk was "a gross breach of confidence between man and man, and complete perfidy".

[19 ] The Monitor, 26 May 1826, said that "Judge Stephens" referred to the "propriety of plaintiff's ... coming into court with clean hands."  On 27 May 1826, the Sydney Gazette claimed that the Australian's report of the summing up by Stephen A.C.J. was wrong, "for the Chief Justice spoke hypothetically, when His Honor said that the plaintiff was entitled to trifling damages".  Neither the Australian nor the Monitor had their shorthand writers in attendance, claimed the Gazette, unlike the Gazette's own shorthand reporter.  

The Sydney Gazette's own report, published on 27 May 1826, summarised the address of Stephen A.C.J as follows: "At very nearly 9 o'clock at night, His Honor commenced summing up: he observed that this was one of those cases of the violation of the civil rights of individuals which too frequently came before a Jury.  Libel was the worst species of slander; it set men against each other as much as the sword, had a tendency to excite the most evil passions, and to throw society into disorder.  An individual complaining in such a case, was entitled, if it were proved, to most exemplary damages; but when a person came into Court to seek redress, he certainly should do so with clean hand to shew that he had a respect for  the laws, and had not himself violated them. His Honor then proceeded to read the alleged libel through, and observed to the Jury that the question for their consideration was, taking the letter as a criticism on a previous letter from the plaintiff, whether it reflected more upon the character of Dr. Halloran than was necessarily mixed up with the work; but if, upon taking the whole of the publication into view, they were of opinion it was not justified, they would then return a verdict for the plaintiff."

Published by the Division of Law, Macquarie University