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

Ex parte O'Shaughnessy, in re Lang (1835) NSW Sel Cas (Dowling) 806; [1835] NSWSupC 48

criminal libel - Lang, John Dunmore - convict rights - press freedom - emancipists, right to run newspapers - criminal procedure - Grand Jury - criminal informations

Supreme Court of New South Wales

In banco, 2 June 1835

Source: Sydney Gazette, 4 June 1835[ 1]

Mr. Wentworth then rose, and moved for a rule, calling upon the Rev. John Dunmore Lang, D. D., to shew cause why a criminal information should not be filed against him for libel.  The matter charged as libellous was contained in a certain newspaper called The Colonist, of date the 2d April last, of which publication it would appear that a Mr. Kenneth Munro was the alleged editor and publisher, and he having been applied to, to give up the author of the obnoxious article of which he, the learned gentleman, now complained, returned an answer enclosing a certificate in the handwriting of Dr. Lang, admitting that he was the author of the article in question, and that the same was published with his sanction.  These facts would be established in the affidavit of Mr. Francis Stephen, attorney for the applicant which he would now read to the Court.

Mr. Justice Burton enquired whether notice of this motion had been given to the other side, as it had been ruled by the Court on a similar motion which took place some few months since, that where the Judges were bound to grant an information on a prima facie case being made out, it was unnecessary to put a party to the expense of appearing to oppose what in the ordinary course must be granted, and it was therefore advisable to let him have an opportunity of coming into Court in the first stage of the proceeding, if he though fit to do so.

Mr. Wentworth begged to remind their Honors that subsequent to the rule laid down by the Court, referred to by Mr. Justice Burton, it had been found impracticable, in-as-much-as it was impossible to furnish the opposing party with the affidavits on which an application was made before the motion took place, and he would then be compelled to come into Court without knowing the nature of that which he was called upon to answer.  It had been therefore subsequently settled, that the practice in this respect should continue as stood formerly.

The Chief Justice coincided, and Mr. Wentworth proceeded.  The alleged libellous production he had just referred to, which was of the most scurrilous nature he had ever read, was levelled at Mr. E. W. O'Shaughnessy, the Editor of another Sydney newspaper, called the Sydney Gazette, and had not only a direct tendency to hold him up to public scorn and contempt, but it was also directly calculated to injure him in his calling.  The learned gentleman then read several passages from the article complained of, which for scurrility, he observed, exceeded anything of the kind that had ever come under his observation.  Indeed it was a matter of surprise to him, how any man could patiently wait under such an injury for the interference of the law on his behalf, and not inflict that immediate chastisement on the writer, which it must be manifest to every one such imputations must be immediately calculated to excite.  Mr. O'Shaughnessy had, however, patiently waited to obtain redress by legal means, and hence arose the present application to the Court.  If any thing were wanted to bring home intention to the writer of this scurrilous matter, it was contained in the subsequent number of the Colonist, where the author, in referring to the previous article on the same subject - the one now before the Court - avows it as his purpose to oust Mr. O'Shaughnessy from the situation he now holds.  Mr. Wentworth having read the affidavit of the applicant, was about to offer some further remarks on the subject, when he was interrupted by

The Chief Justice, who said - ``Go no farther, Mr. Wentworth; take a rule nisi" - returnable on Saturday next.

 

In banco, 13 June 1835

Source: Sydney Herald, 22 June 1835[ 2]

Saturday June 13. - Exparte E. W. O'Shaughnessy.  - In this case a rule Nisi had been obtained on a former day, calling on the Rev. Dr. Lang, to show cause why a Criminal Information should not be filed against him, for a false, scandalous, and malicious Libel, published in the Colonist Newspaper, of the 2nd April last, of which the defendant was the author; the defendant being at the Hunter's River on the 6th instant, when he should have appeared to show cause, the case was postponed until this day, when the defendant appeared in person to show cause against the rule, and on being called on by the Court he submitted an affidavit, in reply to that of Mr. E. O'Shaughnessy, on which the rule was founded, which is as follows: -

(In the Supreme Court of New South Wales.)

Edward O'Shaughnessy, of Sydney, in the colony of New South Wales, Gentleman, maketh oath and saith, that on the second day of April last, past, there appeared in a certain public newspaper called The Colonist, or Weekly Journal of Politics, Commerce, Agriculture, Literature, Science, and Religion, for the Colony of New South Wales, Edited, Printed and Published, by Kenneth Munro, in Sydney, a certain article entitled, The Literary Profession, or The Colonial Press, in which said article, amongst other things, are the following observations of, and concerning him, this deponent; that is to say, ``If Mrs. Howe, (meaning the proprietor ofThe Sydney Gazette, in whose service the deponent now is,) therefore, has had to lament over the gradual but almost total destruction of a splendid property, she must ascribe the circumstance in great measure to the insult she was most unfortunately advised to perpetrate on the common sense and good feeling of this community, in elevating Mr. Edward O'Shaughnessy (meaning him this deponent) to the rank of Editor of The Sydney Gazette.  Nay, if the colony had not actually been almost as totally devoid of right feeling, as such conduct had a direct tendency to make it, the property in question (meaning the said Sydney Gazette,) would have been utterly annihilated years ago.  For in what other part of the British Empire, we would ask, would any number of reputable persons be found to allow a paper, edited by an individual who was only yesterday, as it were, a transported felon, to enter their doors?"  And deponent saith, that in another part of the same article are the following observations of and concerning him, this deponent, that is to say - ``We shall be told that Mr. O'Shaughnessy (meaning him this deponent) is a reformed personage.  We deny that he is so.  A modest retiring disposition is the uniform accompaniment of sincere penitence, of genuine reformation; and we maintain, in the face of the whole colony, and without the least fear of contradiction, that if Mr. O'Shaughnessy (meaning him this deponent) had possessed such a spirit in any degree, he would have shrunk back from a situation of such peculiar prominence and responsibility as that of Editor of The Sydney Gazette, even although it had been injudiciously offered him on the one hand, and though he had been quite fit for it on the other.  The brazen faced impudence of the man who could presume to step from the situation of government-man, or assigned servant to the late Mr. Robert Howe, into that of Editor of The Sydney Gazette, or in other words, literary dictator to the lieges in this colony, and could set himself down, in a sort of magisterial chair, to pronounce authoritatively on the character and actions of reputable men, and to issue forth opinions to a gaping public thrice a week on matters of government and legislation, sufficiently proves that he has no right or title to the epithet reformed, and that he is just as bad at heart as when he was legged in Dublin.  And has His Majesty's colony of New South Wales indeed come to such a pass that he must all be schooled, forsooth, by a fellow like this?  But it is not on these general grounds alone that we would exclude Mr. O'Shaughnessy (meaning him this deponent) from the office into which he has most impudently intruded.  The man is naturally quite destitute of the talent and vigour of mind which are indespensably necessary in such an office, to command the respect and to influence the opinions of the public.  If he has talent at all, it is a talent for abuse; and the dish he is in the habit of serving up to his readers thrice a week, is mere mawkish prosing and miserable verbiage.  Under such management, how could the proprietors of The Sydney Gazette expect that their property could be saved from ruin?"  And deponent further saith, that in another part of the same article are the following observations upon him, this deponent (which observations purport to be part of a pretended speech in the House of Commons in England) that is to say - ``I hold in my hand a file of that respectable colonial journal, The Sydney Gazette, which it seems is now conducted by that paragon of Editors, Mr. Edward O'Shaughnessy, (meaning him this deponent,) who had the honour to be transported from Dublin a few years ago, and who (thanks to the admirable system of penal discipline in our Australian colonies), instead of being sent direct to a penal settlement, agreeably to Sir Robert Peel's express orders, along with the other special scoundrels of his class, was suffered to remain in that hot-bed of pollution, the town of Sydney, where he lived as comfortably all the time of his sentence as ever he had done in his life, in the capacity of government-man or convict-servant to the late Editor of The Sydney Gazette, and where he now conducts that hopeful journal himself, as a literary dictator to the colony, and ever and anon advocates the necessity of a House of Assembly for the said colony, on the very same grounds as those on which it is now advocated by my honourable friend."  And this deponent saith, that in the following number of the said newspaper, there appeared the following observations, avowing the motives which induced the publication of the foregoing observations respecting him this deponent, that is to say, ``Nay, we have no hesitation in informing Mr. O'Shaughnessy (meaning him, this deponent,) that one of the objects of our last leading article was to oust him from the situation which he now holds, to the manifest injury of the whole colony, and that we shall be greatly disappointed if that object should not be accomplished sooner or later; for we hold Mr. O'Shaughnessy's (meaning this deponent) occupation of the situation of Editor of the only paper in this colony which is published thrice a week, a positive disgrace to the colony, and a clear proof of the utter inefficiency of its press in times past."  And this deponent further saith, that although it is true that he did not arrive free in this colony, yet he has for several years become free by the expiration of his term of sentence, and during the period of his residence in this colony, he has always conducted himself as a reputable and orderly member of society, and hath for some time past been employed as Editor of The Sydney Gazette; and the said deponent saith that the said publication is a false, scandalous, and malicious libel upon him, both in his said trade or profession; and as this deponent verily believes, from the nature of the publication, the same was composed and printed with the express intention of injuring deponent in his character and circumstances, without any just cause or provocation.

E. W. O'SHAUGHNESSY.

AFFIDAVIT OF THE REV. DR. LANG.

(In the Supreme Court of New South Wales.)

John Dunmore Lang, of Sydney, Doctor of Divinity, and Minister of the Scots Church, Sydney, maketh oath and saith, that an article published in a certain public newspaper called The Colonist, on the second day of April last past, of which he acknowledges himself to be the author, was written wholly and solely with a view to point out to the reputable and virtuous portion of the inhabitants of this colony, the moral unfitness, and the political incompetency, of any person who had arrived in this territory as transported felon, for having the management of so powerful and influential an engine as the Public Press, in any country, but especially in a country appropriated by the Parliament of Great Britain for the transportation of felons - this deponent believing that any measure, which has the effect of placing the press in the hands of such persons in this country, must have a direct tendency to degrade the character of this community, in the estimation of all reputable men in the mother country, to lower the standard of public morals in the colony, to counteract the ends for which this colony was originally established as a Penal Settlement by the Imperial Parliament, and to prevent the attainment of those political privileges and advantages for which its free inhabitants have repeatedly petitioned.  And this deponent further maketh oath and saith, that it his belief and conviction that the voluntary assumption of the management of the press by an emancipated convict, or transported felon who has obtained his freedom, in this convict colony, is itself a sufficient and satisfactory evidence that such emancipated convict is not a really reformed character, and cannot therefore be trusted by society, with any degree of safety or without the greatest danger to its own best interested, with the management of so dangerous an engine as the public press, especially in the colony established for the reformation of convicts; but that while this deponent, acting on such belief and conviction, conceived it his duty, as a member of society, and more especially as a minister of religion, to adopt all such fair and honourable means as the public press afforded, for effecting the discontinuance of a system, which was nevertheless tolerated, and is still in full operation in this Colony, notwithstanding the danger and detriment to the whole community with which it was fraught; it was by no means either the wish or the intention of the said deponent to injure the plaintiff in this action in his private character, or to prevent him from earning an honest livelihood, in any other reputable situation than that of Editor of a public Newspaper which he was competent to hold.  And this deponent further maketh oath and saith, that although he was not influenced to write the article aforesaid by any personal provocation he had received from the said plaintiff, but was actuated merely by a regard for the general welfare of this community, it is, nevertheless, true and notorious that the said plaintiff has embraced every opportunity, both before the publication of the said article, and again and again thereafter, of employing the public Press, in his capacity of Editor of the Sydney Gazette, for the purpose of blasting the reputation of this deponent as a member of society, and of ruining his character as a minister of religion, of which this deponent can exhibit abundant evidence; and that therefore, the said plaintiff having given much provocation, and having also taken the law into his own hands, is not entitled to seek reparation for any supposed injury he conceives he has sustained from the publication of the said article, as he does not come into Court with clean hands.  And this deponent further maketh oath and saith, that it is his belief and conviction, that the present action has not originated in any consciousness of injury sustained by the plaintiff through the publication of the aforesaid article, but has been brought at the instigation of certain evil disposed persons, who have taken up a strong feeling of hostility towards this deponent, for his zealous and successful efforts in promoting the moral welfare and the general advancement of this Colony; this deponent being credibly informed; that a subscription-paper has been circulating in the town of Sydney, to collect money ostensibly for the purpose of enabling the said plaintiff to obtain justice in this case, but really for the purpose of prosecuting the said deponent, if possible, to his entire ruin.

JOHN DUNMORE LANG.

After concluding the above affidavit, Dr. Lang addressed the Court as follows:-  ``May it please your Honors, although I am not accustomed to speak for myself in such a situation as the present, I account myself fortunate in having an opportunity to address myself to your Honors in my own behalf, under any circumstances; it is a privilege I have seldom been permitted to enjoy in this Colony, although for years past, I have applied myself in a variety of ways to the consideration of the advancement of the moral and political welfare of the Colony: constituted as the Press has been, I have felt myself compelled to remain silent, while my character was transduced, my best motives impugned, and my actions misrepresented by that Press, unable to stand forth to speak in my own vindication.  I have long resided in this Colony, and, during a series of years, I have had occasion to regret that the progress of the system of reformation, which was the primary object of the Establishment of this penal Colony, was not only slow, in the natural cause of events, but that it was retarded by powerful counter-acting influences within the Colony, I found that the state of society, as regarded virtuous feeling, was degraded, and that the standard of public morals was reduced to such a scale, that even crime itself was dignified by the name of misfortune.  In looking for the cause of this state of things, it was not difficult to discover that the Press had been mainly instrumental in producing the effect in the press, that powerful engine which the Almighty had placed in the hands of man for the intellectual advancement of his species, had, it appeared, been employed to perpetuate the moral degradation of society.  The fountain of knowledge had been polluted; moral poison had been cast into that spring which was intended by Divine Providence, to pour forth its healing waters over the face of the earth.  It appeared to me therefore, that no general reformation could be hoped for his this Colony, until the press itself were reformed; until that source whence the evils flowed were purified - until the hands of men to whom Society could look up with respect.  In considering this important matter with reference to this Colony exclusively, I could not but observe that the Sydney Gazette, a Journal which boasted of being the oldest Journal in the Colony, the only one which puts forth its sentiments three times a week, was in the hands of an individual who had been a few years before transported for his crimes, and had but just emerged from the situation of Government man or Convict servant, a situation compared with which, in reference to moral character, the lowest pauper in England had much room to boast; and further, that this individual was assisted in his editorial labors by another transported felon, whose term of punishment was actually unexpired.  Impressed with a sense of deep regret at the existence of this state of things, it appeared to me to be the duty of every true friend of the Colony, to expose as far as in his power, the system which admitted such enormities.  With this view therefore, was the article written, for which I am now called before your Honors to answer, as a scandalous and malicious libel.  That article was written in order to impress on the minds of the virtuous portion of the community, the important principle, that an individual who had been transported to this Colony for his crimes, was morally incompetent to direct such an engine as the press of New South Wales; and that a state of things which permitted it, was a disgrace to the Colony, dangerous to the interests of pure morality, and the greatest obstacle that could be thrown in the way of the attainment of the political rights and privileges, which all classes of its free inhabitants so ardently desire.  The principle contended for in the article referred to, viz:- that an emancipated Convict is incompetent to conduct the public press, could not for an instant admit of question in England; and if, as your Honors are aware, such a state of things exist in this Colony as to require the discussion of such a question here, it only shews that we are at the antipodes as much in point of moral feeling, as we are in point of geographical position.  No emancipated Convict in Ireland, England, or Scotland, would dare to make such an attempt on the forbearance of the community, as to assume the management of the press in any of His Majesty's three Kingdoms; and if the enormity has been practiced and tolerated here, it only shews how far we have sunk as a community below the standard of Public feeling in England, and how necessary it is for those who have the welfare of the Colony at heart, to make the most strenuous efforts to put an end to the system, which admits of such enormities, and thereby to elevate the tone of Public feeling to its proper English level.  It will, no doubt, be argued in reply to this reasoning, that the state of things in this Colony has this difference from that of England, that the community is composed in a great measure of emancipated convicts, and a great number of convicts in actual bondage; but I beg to submit to your Honors that this difference so far from rendering it expedient, makes it in fact the more preposterous and dangerous, and a matter of still more urgent necessity to bring such a system to an end.  Your Honors are well aware of the strength of that feeling which constitutes what is called esprit de Corps.  I would ask, what is the nature of those feelings which constitute the esprit de Corpsof the emancipated convict, in what channel do his sympathies flow? his sympathies must naturally be exercised in favour of all of the same class as that to which he belongs, for the tenants of the jail and of the hulks, who are undergoing punishment for their crimes.  Your Honors are also aware, that it is a principle in human nature scarcely to be controlled, that when our sympathies are exercised in favour of a person, that sympathy is readily extended to his acts.  Sympathy for the criminal, therefore, on the mind of an emancipated convict becomes sympathy for his crimes; feelings of kindness towards the one becomes feelings of tenderness to the other; in proof of which I need only state a fact which is well known to your Honors, in reference to the state of Public feeling in the Colony, that the name by which crime is distinguished in this Colony is misfortune.  The natural result, therefore is, that the standard of morals and of Public feeling, under the influence of the Press conducted by emancipated convicts and Ticket-of-Leave-men, has been lowered throughout the Colony, and the Press generally has sunk to a corresponding level.  But this is not the only way in which the principle of esprit de corps operates to the injury of the community; the Press being in the hands of emancipated convicts, produces another and not less important effect.  Taking it as I do, for granted that an emancipated Convict who assumes the management of the Press in this Colony, is necessarily not a reformed character, what regard can the man who has no character of his own have for the character of others.  His object, under the influence of a well known principle of human nature, must necessarily be to reduce all to the same level with himself, to obliterate the sense or recollection of his own disgrace, by destroying the distinction between vice and virtue.  Now, your Honors, considering that the Sydney Gazette had been the chief source of pollution and degradation of the Press of this Colony, and that it had arisen from that Paper being under the management of Convicts, as well as from its having been all along under the influence of men, whose sentiments and opinions had been formed, and whose characters had been cast in that mould, it appeared to me that I should be discharging a most important public duty, by pointing out to the Colony the true character of the system which had permitted such an enormity, and that the Press might thereby, if possible, be wrested from the grasp of such unworthy persons.  I will now proceed to read the article to your Honors which has been designated as false, scandalous and malicious, by which your Honors will see that the origin and object of that article, were such as I have pointed out.  The Reverend defendant then read from the Colonist of the 2nd of April the article on which the information was founded, after which he again proceeded.  It will, your Honors, doubtless be urged in reply to these observations in the article now submitted to you, that an emancipated Convict is restored to all the rights and privileges of a free subject, and may therefore undertake the management of the Press, as well as fill any other situation for which he is competent.  I admit that the emancipated Convict is restored to all the rights and privileges of a free subject, inasmuch as he is as free to claim and certain to receive the protection of the law as a member of society, in the exercise of whatever reputable calling he may engage in; but if it is meant to be insinuated as is generally done when the case is argued by the Press of the Colony, that the emancipated Convict is restored to all the rights and privileges of a free subject, as that he stands in the same position in all respects whatsoever as any other free subject, or when the sentence of transportation has never passed, I deny the position altogether as dangerous and inconsistent.  If the restoration to rights and privileges which an emancipated Convict who has undergone the sentence of transportation can rightly claim, is to be understood in so wide and unlimited a sense as this contended for, then may we expect to find an emancipated convict, provided he have received the requisite education, sitting on the Bench with your Honors, or pleading as a barrister at the bar of this court; for these are objects of ambition to which every free subject may look forward under our happy constitution, whatever be the humble station of his birth.  But your Honors are aware that no such anomaly can occur even in this land of anomalies.  For in order to keep the fountain of justice pure and undisputed, and to maintain a becoming respect for this honorable Court, it has been found expedient to protect it from the intrusion of such individuals; insomuch that it is not only incompetent for an emancipated convict to sit on the bench with your Honors as a Judge, or to plead in this Court as a Barrister, it is even incompetent for him to practice in the lowest rank of the profession as an attorney.  If, therefore, it is indispensably necessary for the interests of justice and morality in this Colony, to protect this Court from the intrusion of emancipated convicts into any department of the legal profession, are these interests equally concerned; and does not regard for the public welfare equally demand that the situation of Editor of a public newspaper shall be protected from a similar intrusion, especially in an age like the present, in which the Press claims for itself a species of absolute domination over all classes of society, over all men?  If a judge act corruptly, he is amenable to justice and may be impeached with comparative facility; if a barrister or attorney act corruptly, it is in the power of this Court to strike him off the rolls.  But if the Editor of a newspaper act corruptly - if the director of the public press disseminate opinions that are subversive of the peace, and ruinous to the morals of society - by what law shall we bring him to justice?  At what bar shall we impeach him of his moral incompetency?   The interests of justice, and the welfare of the public, demand therefore, that the situation of the Editor of a public journal shall be protected from the intrusion of incompetent persons, - of persons in whom the public cannot place confidence, just as much as the situation of an attorney, of a barrister, or of a judge.  And if a situation of such commanding influence in society, as that which secures to an individual the management of the press, is nevertheless intruded into by an individual, morally and politically incompetent to hold it, one in whom the public can have no confidence, and who only employs his power for the injury of society, it becomes the duty of every honest man - of every man who has the welfare of society at heart - to impeach that individual of his incompetency at the bar of public opinion, as I have done the plaintiff in the article for which I am called to answer this day.  In short, the man who would maintain that the restoration of an individual upon whom the sentence of transportation has passed, to the rights and privileges of a free subject, renders that individual morally and politically competent for any situation whatsoever, that man's motto is not Fiat Justisia, butRuat coelum; or, in other words, ``Let all distinctions that subsist in civilized society be done away with; let those landmarks, which the Eternal has established between right and wrong, be entirely removed; and let the world revert to that state of chaos in which it existed, ere the Creator said Let there be light, and separated the light from the darkness."

I am no lawyer, and cannot appeal to legal authorities.  But I appeal to your Honors, whether there are any to refer to in this particular case.  Nay, I am confident there is not a single case in all the law-books in England, of an emancipated convict assuming the management of the press.  I shall take the liberty, however, of citing one or two cases from the ancient classics, to point out in what manner public opinion usually operated, in excluding individuals, in the condition of the plaintiff, from situations of influence and prominence in society, even when the standard of public morals was pitched far lower than it is in Christian nations.  In the reign of the Emperor Augustus, a freed-man, who had had somehow acquired an immense fortune in the city of Rome, conceived himself entitled, on the ground of his wealth, to occupy one of those seats in the Roman amphitheatre, that were appropriated, by the law of Otho, to Roman citizens of equestrian rank.  The poet Horace observing the circumstance, was so moved with indignation at the individual that he addressed him in an ode on the subject.

``Thou who hast undergone corporal punishment, and whose legs have been bound in double irons, how canst thou presume to assume the rank and place of the honorable citizens of Rome?"  During the same Emperor's reign, a regiment of Roman soldiers had allowed themselves to be taken prisoners by the enemy - a circumstance which was held much more disreputable in ancient than it is in modern times - and the government had resolved not only to ransom them from the enemy, but to resotre them to their place among the troops of the line.  Horace felt, as highly indignant at the measure as he did in the case of the freedman, upon which occasion he likewise composed a beautiful ode.

``The restoration you propose is not only disgraceful, but a serious loss to the commonwealth.  Wool, when once dyed, never recovers its original colour; and when a virtuous character is once lost, it cannot be restored."  I should be sorry to subscribe to these sentiments in their full extent.  I only quote them to show, that public opinion has operated in all countries, in excluding from situations of prominence and influence in society men who have once degraded themselves by their criminality in the eye of the law, and to show your Honors that the object of the article, which is stigmatized as a false, scandalous, and malicious libel, was nothing more nor less than to establish this important principle.

It will doubtless be urged in reply, that to exclude emancipated convicts from any situation in society which they have ability to occupy, is repugnant to those principles of charity that distinguish the Christian religion; and that, therefore, the right hand of fellowship should be held forth to help the emancipated convict over the stile, into every situation which a free man, on whom the sentence of transportation has never passed, may lawfully occupy.  But your Honors are well aware that there is a spurious charity in the world which often passes current for the true; and that individuals can never have claims upon our charitable feelings inconsistent with the exercise of justice to society at large.  ``Jampridem, equidem," exclaimed the famous Cato in the Senate House at Rome, when Julius Caesar, who was afterwards emperor, was pleading for the manifestation of charitable and kindly feelings towards the men who had been engaged in Cataline's conspiracy.  ``It is long, indeed, since we lost the proper designations of things.  For to make free with and to squander away other people's property is now called liberality, and the audacity that perpetrates the most flagitious actions is styled boldness and spirit: at such a pass, in regard to virtuous feeling, has the commonwealth arrived.  But if public feeling, if public morals, are indeed in so low a state, let men be liberal, if they please, with their own property, and with that of their friends; let them show their kindly feelings if they so incline, to common thieves and robbers: but let them not sacrifice our best interests to persons of this description; and while they manifest a benignant disposition to a few miscreants, let them not devote the whole class of reputable men to one common ruin."

The Rev. Speaker then read the following paragraph from the article complained of:-

``We are aware we shall be met with the argument which was once used by the late Mr. Robert Howe himself, when, relating the circumstances of his own conversion at a public meeting in the Wesleyan Chapel, he observed with a pardonable degree of self-complacency, ``Tell me not what I was, but what I am."  We shall be told that Mr. O'Shaughnessy is a reformed personage.  We deny that he is so.  A modest retiring disposition is the uniform accompaniment of sincere penitence, of genuine reformation; and we maintain, in the face of the whole Colony, and without the least fear of contradiction, that if Mr. O'Shaughnessy had possessed such a spirit in any degree, he would have shrunk back from a situation of such peculiar prominence and responsibility, as that of Editor of The Sydney Gazette, even though it had been injudiciously offered him, on the one hand, and though he had been quite fit for it on the other."

Why, when your Honors consider what sort of an engine the press is, and what sort of jurisdiction it claims over all classes of society, over all interests whatever, I am sure your Honors will admit that a really reformed emancipated convict would never presume to assume the management of such an engine, or the exercise of such a jurisdiction.  And yet the plaintiff has the assurance to come to your Honors to demand the punishment of the writer of this article, because, forsooth, it has a tendency to injure him in his trade or profession.  Why, if he ventured to carry on such a trade, or to exercise such a profession, in England, the populace would have him burnt in effigy for the insult he had dared to perpetrate on the virtuous feelings of the community.

I submit then, to your Honors, whether the article for which I am this day called to answer, as a false, scandulous, and malicious libel, is, in any respect, either false, or malicious; and whether it is not rather a fair comment on the principle or text which it proposed to establish, viz. that an emancipated convict, that is, an individual who has once been transported to this colony for his crimes as a felon, is morally unfit, and politically incompetent, to undertake the management of the press in this convict colony.

But the plaintiff has not only imputed malice to myself, as the writer of the article referred to, but has made affidavit that he had given me no provocation.  Now, although I can assure your Honors, that not a line of that article was written from malicious feelings towards the plaintiff, or under the influence of personal provocation, but that it was written merely to establish a principle of the utmost importance to the welfare of this community; it is not true, as it is stated in the plaintiff's affidavit, that he had given me no provocation.  For months before the article was written, The Sydney Gazette was filled with papers and paragraphs of every description, written in a style of the most personal and provoking hostility towards myself.  I made it a rule indeed not to read such articles, nor even to look at the Gazette at all.  And it was only when some particular paragraph was forced on my attention that I came to know any thing of it.  But having very recently had occasion to look over a file of the plaintiff's paper, with a view to this defence, I can assure your Honors, I had to encounter a perfect dunghill of personal abuse.  In such circumstances, I submit to your Honors whether this Honourable Court is not called on to discourage and put an end to such prosecutions as the present, on the part of such individuals as the plaintiff.

It will doubtless be maintained that the character of my article, and the course I have taken in this defence, are inconsistent with the genius and spirit of the christian religion.  But that religion, which was designed for the reformation of mankind and signed for the reformation of mankind and the moral renovation of the world, carries in it terrors to evil-doers as well as praise to those that do well; and there is nothing for which it ever eviences a deeper anxiety, than the fountains of knowledge and the sources of instructions should be kept pure and uncorrupted.

During the whole course of my residence in this Colony, I have ever exhibited the most kindly feelings towards the emancipists; and as a writer on the actual state of the Colony, I have not only evinced the propriety of extending the elective frauchise to all respectable persons of that class, but maintained their eligibility to sit as members of a future House of Assembly - a situation to which I trust I shall ever be held ineligible myself as a minister of religion.

But if it should be represented as inconsistent with the character of a minister of religion, who, it will doubtless be alleged, ought always to be meek and lowly, like his master, to assume the vindication of the rights of the public and the claims of virtue, in this particular instance, I beg to observe that there are occasions on which this mild and gentle demeanour is as unbefitting a minister of religion as an opposite demeanour is on all others.  When the divine author of Christianity found the temple at Jerusalem polluted with the presence of unworthy persons, did he merely go up to them and request them in a very mild manner to walk out!  No! he made a whip of small cords and scourged them from within the sacred precincts.  And I submit to your Honors whether I have been doing any thing more, as a minister of religion, than merely acting on this precedent and following up this example, in endeavouring, in the article for which I have this day been called to answer before your Honors, to cleanse and to purify the press in this colony.

At the conclusion of this address, the Chief Justice gave the opinion of the Court, that there was sufficient matter on the faces of the affidavits presented, for the consideration of a Jury.

The Rule was therefore made absolute.

 

Forbes C.J., 13 June 1835

Source: Dowling, Select Cases, Vol. 7, Archives Office of New South Wales, 2/3465

[p. 3]

[1835

Saturday

13th June]

[The Judges of the Court, as it is at present constituted in granting criminal informations must be governed by the same rule as would influence a Grand Jury in finding a Bill of indictment.]

 

Exparte E, O'Shaughnessey In re J.D. Laing D.D.

 

This was an application for a criminal Information against the Editor of the Colonist Newspaper for a libel.  The deft shewed cause on affidavit and was heard in person, & contended that sufficient was shewn to induce the Court to discharge the rule on the merits or at least to call upon the Court to exercise its discretion on dismissing the application.

Forbes CJ.  We must hold in this case as we have held in repeated instances before, that until the Constitution of the Colony of matters of their kind is altered, it is the duty of the Judges to act as Grand Jurors, and are bound to exercise functions of similar to such a Tribunal.  The question before us is whether there is a sufficient body of facts, unmet or unexplained as would warrant a grand Jury in finding a Bill of indictment, & [p.4] sending the matter to be tried by a Petty Jury.  Now applying our minds to the affidavits, & to the explanation offered in argument, it appears to us that a Grand Jury would be justified in finding a bill.  If so then it is our duty to grant the Information, & send the case to a Jury of the Country.

Wentworth for the informant.

Rule Absolute.

 

Notes

[1 ] See also Australian, 5 June 1835; Sydney Herald, 4 and 8 June 1835; Australian, 9 June 1835; and, for continuation of the litigation, see Sydney Gazette, 9 June 1835; Sydney Herald, 8 June 1835.

[ 2] See also Sydney Herald, 15 June 1835, reporting the same hearing:

``Exparte E. W. O'Shaughnessy. - In this case, in which a Rule nisi had been obtained on a former day calling on the Rev. Dr. Lang, as the author of a false, scandalous, and malicious libel, published in the Colonist of the 14th April last, to shew cause why a criminal information should not be filed against him, the defendant now appeared in person to shew cause against the rule.  The Reverend gentleman read a lengthy affidavit denying generally his intention to injure the plaintiff, either in his private character or in his business; but merely to point out the moral and political unfitness of emancipated Convicts to exercise the management of the press.  The Reverend defendant then addressed the Court in a highly eloquent speech of two hours' duration, a detail of which will be furnished in our next number.

``His Honor the Chief Justice, in delivering the opinion of the Court, stated that in exercising the functions of a Grand Jury, and in applying their minds to the affidavits submitted in the case, the Court was of opinion that there was a sufficient body of facts to go to a Jury, and the Rule must therefore be made absolute."

For other reports, see Australian, 16 June 1835; Sydney Gazette, 16 June 1835.

The Australian, 19 June 1835, reported a long summary of Lang's two hour speech to the court.

Published by the Division of Law, Macquarie University