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

Threlkeld v Lang [1836] NSWSupC 21

libel - Threlkeld, Rev., life of - Aborigines, mission to - ministers of religion, litigation between - Lang, Rev. Dr., attitude to smoking and drinking - damages, contemptuous - Aboriginal land rights - damages, assessment of - religion - missionaries - Pacific Islands

Supreme Court of New South Wales

Burton J., 21 and 22 March 1836

Source: Sydney Herald, 28 March 1836[1 ]

Monday, March 21. - Before Mr. Justice Burton and a Special Jury.

Threlkeld v. Lang. - This was an action for libel, in which the damages were laid at £1000.

The defendant pleaded the general issue - not guilty, and a justification.

When this case was called on, the learned Judge desired that the parties - plaintiff and defendant - with their counsel and the respective attornies, would attend him in his private room; with a view, as was generally understood, of endeavouring to settle the matter, without going to trial.  After remaining absent for some time, however, the parties returned into Court, and the case proceeded.

Mr. Windeyer opened the pleadings.

The Solicitor General said that his learned friend had told the Jury the nature of the present action, which was one of damages, for libel published in a Sydney newspaper called the Colonist, the editor, but the defendant was the avowed author of the libellous articles complained of.  The plaintiff was Launcelot Edward Threlkeld, and the defendant John Dunmore Lang - both being clergymen; one a missionary, and the other senior minister of the Scots' Church at Sydney.  The learned counsel said that it was not without pain he performed his duty in laying this case before the Jury.  He fully entered into the feelings of his client, who deeply regretted that he felt himself compelled to adopt this course of proceeding against the defendant on the record.  His client was well convinced that this was not an arena upon which it was fitting that a clergyman should willingly appear - he was well aware that his individual success would, in a great measure, be a defeat to the great common cause in which he and the defendant were embarked - that the present case would only afford grounds for the scoff of the irreligious and the infidel; and he (the plaintiff) would, therefore, have gladly availed himself of any other means whereby he might have been enabled to justify himself in the eyes of the world from the gross imputations which had been cast upon him by the author of the publications of which he complained.  He had, however, been compelled to resort to this mode of justifying himself, and counteracting the baleful effects of those most libellous publications which formed the subject of the present action.  No other course was left him but that of an appeal to a jury of his country, and thereby place the defendant in a situation to justify (if he could) by proving the truth of the alleged libels.  The defendant had put a plea of justification upon the record - as far as in him lay, he had thus heaped injury upon injury: he might, perhaps, have believed that he was right in the opinions he had expressed, and the statements he had made - he had brooded over the subject during several years - no doubt he had considered well upon it, and must have believed that he had strong reasons for the belief he entertained, before he could have resolved to publish to the world libels such as he (the Solicitor General) was about to read to the Jury.  But before he did this, it was necessary that he should allow to the Court and Jury the position in which the plaintiff stood.  Mr. Threlkeld was entitled, of right, to some little property, and even previous to coming of age, had devoted himself to the pursuits of the christian ministry.  After pursuing a course of study to qualify him for the office he proposed to undertake - undergoing an examination, and satisfying the Missionary Society of his fitness, he was ordered to hold himself in readiness to proceed on a mission; and in the interim he sedulously attended several public institutions for the purpose of acquiring some knowledge of medicine and midwifery, so necessary among the barbarous people with whom he might possibly be associated.  It was subsequently decided that he should be stationed at Raitea, one of the Society Isles, where he resided several years.  In consequence, however, of some misunderstanding between the missionaries in the South Seas and the parent society, a deputation, consisting of the Rev. Daniel Tyerman and Mr. Bennett, was appointed to visit the several stations in this part of the world, and arriving at the island where the plaintiff was stationed, selected him (on account of his proficiency in the Polynesian language) as an interpreter between them and the natives of the various islands which they visited.  At length, in the month of August, 1824, the deputation, accompanied by the plaintiff, arrived in Sydney, and the former considering it within the scope of their authority to found a mission to the aborigines of this colony, persuaded the plaintiff to remain here instead of returning to Raitea.  Application was made by the deputation to the local government for a grant of land, to be held in trust for the benefit of the natives, and the request being acceded to, the deputation, before their departure, selected ten thousand acres at a place called Reid's Mistake, near Newcastle, a situation where the ground was of little value for agricultural purposes, but where a large number of the natives used to congregate, on account, among others, of an extensive sea frontage, affording them facilities for fishing.  The deputation did not, before they left the colony, come to a definite understanding with the government, respecting every matter connected with the mission, but they sailed for England, leaving the plaintiff as representative of the Church Missionary Society here.  The plaintiff accordingly repaired to his station, which was about sixteen miles from Newcastle, built a house upon the land, and constructed a road leading from the township to the Society's grant, which otherwise would have been inaccessible except through the forest.  Here the plaintiff continued, carrying on the duties of the mission, until the close of the year 1827; but it appeared that the deputation had some misunderstanding with the London Directors, who did not approve of the instructions to the plaintiff, and they in consequence determined to abandon the mission altogether - resigning all claim to the grant of land, and affording the plaintiff's choice either of Raitea or of going home to England with his family.  This resolve of the Society was in consequence of the expenses of the mission being of a greater amount than they were prepared to appropriate for that purpose.  The plaintiff, however, had himself previously discovered that the expenditure was more than he anticipated; but during the three years he continued on the station he did not draw beyond the average amount of £200 per annum for the travelling and personal expenses of himself and his family.  To meet the gross expenditure, however, the plaintiff was constrained on one occasion to draw bills upon the Society to the amount of £500, which were dishonoured, and the plaintiff sued in the Supreme Court here by the holder.  The amount of the bills, and the law expenses, were subsequently paid by the Rev. Mr. Marsden, the Society's agent here, who also had directions to cause the mission to be discontinued altogether.  The plaintiff considered himself by no means well used in the matter; but in reply to the intimation made to him by Mr. Marsden, and the proposal to return to England, he said, sooner than abandon an enterprise in which he had risked his all, and in which he was so deeply interested, he would go and herd with the blacks - he would persevere, if he had not a house over his head or a blanket to cover him.  By a condition attached to the grant it was to revert to the Crown, in case the purposes for which it was given should be abandoned; but the plaintiff continued to reside upon it, and to carry on the mission, until the early part of 1830, when, upon the recommendation of Archdeacon Scott, he was allowed £150 a year, with rations for the maintenance of four convict servants, for five years - on condition of periodically reporting to the Archdeacon the progress made by him in the acquisition of the native language, and the translation of the scriptures into that tongue.  This fact was made mention of in the Colonist of the 19th of November, wherein the plaintiff is spoken of as ``marching under the broad banner of episcopacy;" and he (the Solicitor-General) begged of the Jury to look at the period of time when these publications were put forth.  As he had already stated, the plaintiff was employed by the government for five years, and it was just the time when that period was about to expire which the defendant had chosen to publish statements likely to become so detrimental to the interests of the plaintiff, in respect to the continuance of his employment after the original period had terminated.  This was a coincidence which he could not help calling to the notice of the Jury as affording a clue to the real motives of the defendant in making these statements.  The declaration in this case merely set out the passages from the various articles which were alleged to be libellous; but the Jury would have the right to take the whole of the papers with them when they came to consider of their verdict, in order that they might see the bearing of those parts which were set out upon the record.  The learned Counsel here proceeded to comment up the various passages charged as libellous, commencing with the paper of the 12th of November:- ``On proceeding to his station," the libel went on to allege, ``Mr. Threlkeld was furnished by the deputation with a carte blanche, authorising him to draw upon the Directors of the London Missionary Society for whatever sums might be indispensibly necessary for the mission.  And as nothing further could possibly have been required for that purpose, and especially at the outset of the undertaking, than was necessary for the formation of an agricultural or grazing establishment, the deputation had a right to expect that Mr. Threlkeld's wants would be comparatively few, and his demands on the society correspondingly limited;" ``but," the libel continued, ``what will the public think when we inform them that, during the period of two years and a half from the commencement of the mission to the aborigines, Mr. Threlkeld managed to expend upwards of two thousand seven hundred pounds of the funds of the London Missionary Society for the establishment of that mission; and that because the Rev. Mr. Marsden, who was then the agent of the society in New South Wales, would not allow him to draw upon the society for a permanent salary of £500 per annum, as he considered £300 a year, which he offered to allow him, was amply sufficient for the purpose, the zealous missionary left the settlement at Lake Macquarie, on which so vast an expenditure of public money had been incurred by his orders altogether, and came to Sydney, with his family, to get up a pamphlet of crimination, forsooth, against Mr. Marsden, representing himself as a deeply injured and persecuted man."  Now, continued the learned Counsel, the defendant having undertaken to justify the truth of this statement, must be prepared to prove that such a sum as £2,700 was expended as he stated.  Libels were always the more mischievous when they were compounded, as in this case, of a mixture of truth and falsehood.  True the plaintiff had proposed to Mr. Marsden to carry on the mission at a yearly expenditure of £500; but out of that sum only £180 a year was reserved for his own personal expenses and those of his family.  The next part of the libel to which he would call the attention of the Jury was in these words:- ``In the mean time, the Directors of the London Missionary Society became completely disgusted at the manner in which their mission to the aborigines was conducted, and accordingly, giving Mr. Threlkeld his ticket-of-leave, gave up the grant and abandoned the undertaking altogether.  The direct pecuniary loss which the London Missionary Society sustained through this individual, was greatly above three thousand pounds sterling."  If it should become necessary to go into any reply to the justification which had been set up in this case, the learned Counsel would be prepared to show, that so far from these allegations being based on facts, the plaintiff was on the most friendly terms with the Directors at the time, that it was in consequence of the funds of the society being somewhat embarrassed, that the undertaking was given up, and not from any apprehension of the plaintiff's trustworthiness, or capability of carrying into effect the objects of the mission; and yet the public were told, somewhat farther on, that ``through the gross mismanagement of the London Society's mission by the Rev. Mr. Threlkeld, both the London and Wesleyan Missionary Societies have been deprived of the extensive grants they would otherwise have possessed at this moment, and been virtually compelled to abandon the field of missions to the  black natives of this territory altogether.  The loss which the whole protestant community of all denominations in this Colony have sustained through the incompetency (to use the very mildest phrase which the case warrants) of a single individual, is quite incalculable, especially in these dark days of Popish ascendancy."  Again, the defendant went on to say, ``it is truly lamentable to reflect on the vast amount of good that might have been done to all classes in this most unfortunate Colony, through the means of extensive usefulness that have been enjoyed at different periods, and rendered utterly inefficient by incompetent and untrustworthy individuals."  The word ``untrustworthy" in that passage was not justified on the record, so that the jury had here, at least, an admission on the part of the defendant, that he had made an unjust charge which he was unable to substantiate.  But he went on to state, ``in ordinary circumstances, we should have been somewhat surprised at seeing a non-conformist missionary giving in his adhesion to the Archdeacon, and marching thereafter under the broad banners of episcopacy.  But we confess that a change of this kind on the part of so liberal a man (liberal of other people's goods) as Mr. Threlkeld, does not surprise us in the least."  He (the Solicitor General) would ask the jury whether such observations did not go to affect the character of the plaintiff as a missionary - to impute to him, that not only was he liberal of other people's goods, but that he was also a renegade, and had departed from the principles and directions of the Missionary Society?  But he would show from the fundamental principles of that society itself, that the plaintiff was not departing from them by receiving a salary through the instrumentality of the Archdeacon; the society comprehended christians of all denominations, and its objects were directed and confined solely to the dissemination of the gospel and the conversion of the heathen.  Therefore, although the circumstance of the plaintiff receiving a salary from the government might be offensive to the defendant, it certainly was not to those to whom the plaintiff was responsible, and who co-operated with him in the same meritorious work.  But the defendant continued, ``the injury done to the cause of christianity in this Colony, by men who have been sent out by the British public as missionaries to this southern hemisphere, but who have been utterly unfit for their office from the very first - some of them as to intellect and education, and others as to morals and religion - has been utterly incalculable; and the evil they have actually done to this community, has been done chiefly by their acting a part in our limited society, which the Lord hates, that of sowing discord among brethren".  The Jury could have no doubt that the passage applied to the plaintiff, and charged him, among other missionaries, with having been guilty of that ``which the Lord hates" - namely, of sowing discord among brethren.  Could a more serious charge than this be brought against a christian missionary? and could there be any doubt that the intention of the defendant was to apply that charge to the plaintiff?  There could be no doubt, also, from the whole context of the article, that the next passage upon the record likwise [sic] applied to the plaintiff. -``But," says the writer, ``the counterfeit missionary - the man who doffs his apostolic coat to-day, and becomes a mere sheep and cattle man, a mere worldling to-morrow - such a man is a perfect abomination, and sorry are we, from our very hearts, that the race has always been so numerously represented in this Colony."  Taking that passage in connexion with many others in the articles which would be laid before them, the learned Counsel had no doubt the Jury would be of opinion with him that the plaintiff was one of those parties alluded to as having doffed their apostolic coats, and become rearers of sheep and cattle.  Some of the passages which he had read to the Jury were taken from the Colonist of the 12th of November, and the article of which they formed a part, headed ``Missions to the Aborigines," was concluded in the paper of the 19th of the same month.  These publications did not reach the plaintiff until some considerable time after they appeared, but when he had seen them, he addressed a letter to the defendant, complaining of the injurious assertions and misrepresentations which they contained, and requiring a proper explanation and apology; conceiving himself bound to give Dr. Lang (whom he knew to be the author of the articles) an opportunity of retracting libels of so foul a nature, and which he believed must have been published under an erroneous impression, and without due reflection respecting their nature and tendency.  The fact of the plaintiff having written such a letter showed the extreme reluctance with which he had come before the Court this day - the letter was private, and contained an expostulation addressed to the defendant upon the injury which the plaintiff might probably sustain from publications known to have emanated from a minister of religion; as no individual, into whose hands they might come, would believe that they could have been published by a clergyman, unless upon the strongest grounds - the most irrefragable proof of the full truth of the statements they contained.  It was, in fact, the wish of the plaintiff that the matter might be decided anywhere but in a court of justice, knowing, as he did know, how injurious a prosecution of this nature would be likely to prove to the cause in which they were both ministers, by affording subject of animadversion for the irreligious and the scoffer.  That letter would, by and bye, be read to the Jury; but at this part of the case he would state, in order to show the spirit in which it was written, that the following were the concluding sentences:- ``In conclusion, I assure you it is painful to be necessitated to act in any way prejudicial to your reputation, or hurtful to your feelings as a man.  But the many gross misrepresentations set forth by you compel me to act, and I deeply regret to perceive your renewed hostilities now under notice in your newspaper.  Measures I shall instantly adopt in defence; but I give you the present opportunity of abating the severity of those measures, by correcting your erroneous statements, accompanied by such suitable, ample apology, to be published in the next number of your Colonist, immediately after the receipt of this letter, as becomes a clergyman; without prejudice to your own ministerial character, and in the strictest sense of justice to mine."  To this letter, the only reply condescended by the defendant, was the publication of a ``supplementary article" in the Colonist of the 31st of December, wherein, in reference to the plaintiff's letter, he says - ``Our character, as public journalists, stands committed in regard to the statements put forth respecting the mission to the aborigines conducted by Mr. Threlkeld.  We shall therefore hold ourselves in readiness to vindicate the correctness of these statements whenever they are called in question in a  respectable quarter, and in a proper manner; but as to Mr. T.,'s imputations of prejudice, calumny, misrepresentations, vindictive feeling, long continued wrath, base sordid motives, and in short of everything else that is inconsistent with the character of a christian man, much more of a minister of religion, to the writer of the articles we refer to, we must first be satisfied that Mr. T. is a man of unexceptionable character and conduct himself, as a professed christian, and especially as a missionary, before we can allow him to cast imputations of this kind upon any person whatever."  He (the Solicitor General) would ask the Jury whether that passage had any other than one meaning? - whether its plain import did not amount to an assertion that the plaintiff was not a man of unexceptionable character as a christian and a missionary?  It was anything but fair in the defendant to cull those isolated epithets upon which he founded his remarks, from a private letter - a letter which was written for the express purpose of explaining the circumstances upon which the alleged libels were founded.  Surely, after the opportunity thus afforded the defendant, it would have been but what ought to be expected, if Dr. Lang had sought an interview with the plaintiff, through a mutual friend, instead of holding him up to the public in this way.  If the plaintiff's letter had been intended for publication, some passages might have been considered objectionable; but it was not so intended, and with Dr. Lang alone rested the responsibility of having been the means of publishing any part of that letter, together with the most mischievous comments which accompanied that publication.  ``Six hundred a year," he says, ``to be expended by a single missionary for six years in succession, in establishing a mission to the aborigines of this territory? - it was a scandalous expenditure; and the man who could be guilty of expending other people's property at such a rate, must either have lacked conscience or common sense."  Why, it was almost unnecessary to observe upon such an article - if there were in the publications complained of, no libellous passages but that alone, the plaintiff could never have held up his head in society, if he had not afforded the writer an opportunity of proving the truth of it if he could.  The last part of the article complained of was a paragraph containing the following words:- ``The proposal which Dr. Lang submitted to General Darling at the suggestion of a resident minister of Eimeo, and of which General Darling testified his warm approbation, was that the missionaries' sons should be boarded and educated in the institution which His Excellency was so willing to assist in forming, under the superintendence of a married missionary who had resided in the islands, and could speak the Polynesian language.  Dr. Lang's connexion with it as a tutor was never contemplated.  And yet, because Dr. L. was in any way instrumental in forwarding a measure of such prodigious importance to all missionaries in the South Sea Islands, this individual who, after running and abandoning the cause of his own society, at Lake Macquarie, had come to Sydney to sow discord among other peaceable communities, managed, through his influence with some weak-minded superanuated missionaries here, to get the whole affair knocked on the head, &c."  Here were allegations which, if the defendant could put any one into the witness box to prove them, he would, of course, do so; but he went on to say- ``Yes, this personification of christian charity, who is perpetually harping about vindictive feelings in others, did all this to be revenged on Dr. Lang merely for telling him, through the colonial press, to return to his station at Lake Macquarie, and to leave the Roman Catholic controversy to men who were able to manage it.  This was the only offence which Dr. L. had given Mr. Threlkeld either directly or indirectly at the period we refer to; and to deprive the society, for this, of what would have otherwise been a very fortune to every missionary's child in the South Seas, his own included, was indeed Italian revenge.  In fact, we can never think of the grievous loss which the cause of protestantism and the cause of missions have thus experienced through this individual, but with the deepest regret, and the utmost indignation.  There are six things which the Lord hates, and the sixth, let Mr. Threlkeld remember, is `he that soweth discord among brethren.'"  He (the Solicitor General) felt it almost unnecessary to farther lengthen this introductory statement, which was merely made for the purpose of laying before the Jury the nature of the libel.  If he made any unnecessary or harsh observations on the Rev. writer of the articles complained of, he should deviate from the instructions he had received.  He would, therefore, abstain from making any such observations, or urging any topics which might have a tendency to excite a hostile feeling.  He placed the libels before the Jury, as the only means left his client of counteracting their effect - of setting his character right with the public.  The plaintiff sought for no damages at the hands of the Jury - even if they awarded the full amount of damages laid in the declaration, the plaintiff would never appropriate one farthing of them to his own use.

Mr. Justice Burton - You must not state that.

The Solicitor General - But notwithstanding that resolve of the plaintiff, it would be the duty of the Jury to treat him as they would treat any other individual of character coming into that court under similar circumstances.  It was but a few days ago, that a magistrate of the Colony recovered £500 damages there, for a libel on his character.[ 2]  But even in that case the probable injury that might be sustained was not so great as in the present.  There the parties before whom the plaintiff desired to justify himself were on the spot - his immediate friends and neighbours - here, however, the friends of the plaintiff - his brother missionaries, engaged in the same sacred calling as he was - were scattered over the world.  What would they think of the plaintiff when such a publication reached them? and would they not also estimate the opinion entertained of the enormity of the charges, by the amount of damages they beheld appended at the end of the trial?  The learned counsel would now merely proceed to lay the libel before the jury, which was confessed by the defendant; and then (more in compliance with custom, then from any opinion of the necessity, in this case, for so doing) call one or two witnesses to prove its application to the plaintiff and its possible tendency.  He would endeavour to show that the defendant had distorted facts, withheld truth, misrepresented truths as suited his purpose to mention, and created gross mis-statements, in order to lead the world to believe the statement published by him in his newspaper, the Colonist, that the plaintiff was a corrupt missionary, at whom the finger of scorn should be pointed, as the proper object of public indignation and contempt; as one who should be abandoned by his missionary brethren - scouted by the virtuous class of society, and be dismissed by the government as an improper character to be their missionary.

The plaintiff then called the following witnesses:-

James Backhouse, a member of the Society of Friends, having made his affirmation after the form prescribed by law, said - I am travelling here on religious business, sanctioned by the Society of Friends; I know the plaintiff and defendant, and have read the publications referred to here to-day; they apply to Launcelot Threlkeld, among others, but decidedly to him; upon reading those articles at first, I concluded that Dr. Lang, before he caused them to be published, would be satisfied that all he stated was correct, and though knowing and esteeming Launcelot Threlkeld, I thought he had evinced great want of judgment, to say the least of it, in his conduct of the mission; the passage containing the words ``liberal of other people's goods," is intended to convey the meaning that he was more liberal of other people's property than he would be of his own; knowing so much of the plaintiff as I do, I did not believe this, but those who do not know him might think otherwise; I consider that those words go to impeach his honesty in some degree, but not so far as to imply that he was a thief; by the word ``untrustworthy," as applied to the  plaintiff, I understand it to be intended to convey the meaning that he had acted indiscreetly in squandering large sums of money, and that, therefore, the writer considered him unfit to be entrusted with the mission; my impression, however, upon this part of the publication, is modified by my knowledge of the plaintiff; if I did not know him I should should say he was unfit for his office - that for sinister motives he had occupied property which he had no right, and availed himself of the pretence of the mission to prosecute his secular interests; by the passage commencing, ``we must first be satisfied, &c.," I understand the writer to mean that the plaintiff is not a man of upright principles as a christian or a missionary; such publications, if they reached England, would be suppressed as much as possible, if they fell into the hands of the Society, as they would have an injurious effect on their funds, but the opponents of missions would not be likely to suppress them; they would make a handle of them against missions.

Cross-examined by the defendant. - I have learnt the English language critically; the word ``untrustworthy" used absolutely would imply dishonesty in the plaintiff, and, of course, affect his moral character; it has a relative meaning, as implying unfitness for the duties imposed upon an individual, but I consider it one of those terms which ought to be used with a great degree of guard; when applied to the expenditure of money, I should think it meant a mis-appropriation; I have read the whole of the articles, and am aware that other missionaries are included in the remarks about sheep, &c.; I consider such publications to be injurious to missions; I admit that the interests of truth are paramount to all other interests, in their proper place; it may become necessary to state the truth at all risks, but not until all other means have been tried, does it become desirable to arraign individuals before the public in this way.

George Walker, also one of the Society of Friends, affirmed to the same effect as the last witness.

The Rev. Mr. Price. - I am a Minister of an Independent congregation, and was stationed at Port Stephens about three months ago; I know the plaintiff; I have read the articles in the ``Colonist," and am of opinion that they have a tendency to ruin the plaintiff's character as a christian, and if I did not know him I should think him utterly unfit to be employed as a Missionary; the circumstance of such statements being published by Dr. Lang, would have induced me to believe them to be true, did I not know the plaintiff; as it was, they tended to lower his character in my mind, until I saw him and enquired into the matter.

Cross-examined. - When I had an explanation with the plaintiff in reference to these articles, he did not show me any statement of his accounts; whether or not he ought to show me such a statement would depend upon circumstances; I thought the comments upon the plaintiff's letter to the defendant, in the paper of the 31st of December, so weak and contemptible, that I looked upon all the other statements in the same light; the plaintiff showed me no documentary evidence to do away with the impression which the publication first produced on my mind.

The Honorable Alexander McLeay, Colonial Secretary. - I know the plaintiff as a Missionary; he acted as such, and is paid by the Government; [the witness here produced a letter, dated the 29th of June, 1831, containing a recommendation from Archdeacon Scott, that the plaintiff should be employed to continue the Mission by the Government] if the Government believed that the plaintiff had misconducted himself, he would not be employed any longer; he has given perfect satisfaction to the Government, up to the present time; if the Government thought his moral character could be impeached, certainly he would not be employed any longer.

Cross-examined. - The grant of 1000 acres to the London Missionary Society was abandoned; Mr. Hankey, the Secretary to the Society, addressed a letter to General Darling, wherein he alleged the expence of the Mission as the reason why the grant was given up; it was nearly four years after that when the plaintiff was employed by the Government; I believe the Wesleyan Society applied for a grant, but I do not know the result of the application.

Re-examined. - I do not remember the terms of the grant to the London Missionary Society, whether or not it was in trust for the natives.

The letter referred to in the evidence of the last witness, and also the plaintiff's letter to the defendant, on the subject of the alleged libels, dated the 21st of December, 1835, were then read by the Clerk of Court, and the plaintiff closed this part of his case.

Dr. Lang then addressed the Jury, for the defence, in a speech of considerable length.[ 3]  He said, although he felt it necessary to appear in person in the present occasion, he did so not from any want of confidence or trust in the gentlemen at the bar.  But the case was one involving the character of a minister of religion in the Colony, and he, therefore, felt himself bound not to leave it in the hands of any man, however talented, to take up as a mere matter of law - The motive was ne respuolica detrimentum capiat.  It had been insinuated that he was influenced by a mean desire to speak in public: he repelled the insinuation.  There was not an individual in the Colony who had been more traduced than he was; and were he actuated by the motive thus attributed to him, he might avail himself of opportunities for bringing actions of libel every term.  But God forbid that he should prosecute any man under such circumstances, or come into that Court, as a minister of religion, to ask for a certificate of character.  The more honestly every man did his duty, the more would he experience similar treatment; but the Divine author of our holy religion, though assailed by the Scribes and Pharisees of his day, never prosecuted an action for libel.  The plaintiff in this case had come into Court for being accused of an extravagant and injudicious expenditure of public money; but he (the defendant) submitted that his having done so was presumptive evidence of the truth of those charges as there were other means whereby he could have refuted them had he been in a condition so to do.  But to institute an action for libel on such grounds, reminded him of those days when, for lack of argument, the disputant was reduced to call in the secular arm of the Inquisition.  Referring to the plaintiff`s letter to him which had been produced in evidence, the defendant said - it did not do for a man who professed himself anxious only that the charges should be left to arbitrators, to accuse this adversary of base and sordid motives, and gross misrepresentations.  What was he (the defendant) called upon to do?  He must first admit that he had written gross falsehoods, and then submit the matter to arbitration.  He thought he did the plaintiff ample justice when he published his letter of reply to the charges brought against him, and appended to it a vindication of those charges.  A minister of religion, it is true, had the same right as any other subject of the realm to the protection of the law; but it was as incongruous in him, when his character was assailed, to bring an action for libel, as it would be for him to fight a duel.  Let it not, however, be supposed that he was desirous to shrink from responsibility.  If he had done the slightest wrong to the plaintiff he was ready to suffer for that wrong.  But he had done him no wrong.  At a very early period of the history of his mission in this Colony, the Rev. Mr. Marsden had refused to sanction his extravagant expenditure - the Directors of the London Missionary Society had dishonoured his bills, and legal proceedings were the disgraceful result.  But the plaintiff then stated his own case through the colonial press, and in a pamphlet which he published, brought a variety of charges against Mr. Marsden, for matters connected with the abandonment of the mission; and, therefore, by appealing to the press, he had disqualified himself from appealing to the law.  Having thus shown that the plaintiff was disqualified from bringing this action, first as a minister, and secondly as the publisher of a pamphlet, he would proceed to state the circumstances out of which this case originated..  When last in England, he (the defendant) published three volumes on the Colony, and since his return here he had contributed - he did not deny it - several articles on subjects of colonial interest, to a weekly periodical.  Surely the subject of the aborigines was one which would be likely to claim the earliest attention of such a person, and it was natural, in treating of that subject, to point out the means that had been adopted for their spiritual and temporal welfare, and to direct attention to the degree of success which had attended those means, to improve the one or ameliorate the other.  When in London, in the year 1834, he received a letter from Mr. Fowell Burton, the Chairman of the Committee of the House of Commons, appointed to take into consideration the state of the aborigines, and had a subsequent interview with that gentleman on the subject.  Mr. Buxton [sic] requested that he (the defendant) would remain in England to be examined as a witness before the Committee; but as his doing so was incompatible with other engagements, he was requested to write a letter, which Mr. Buxton  said he would cause to be printed in the evidence before the Committee.  Just before the publication of the articles alleged as libellous, intelligence arrived in the Colony of the appointment of Mr. Buxton's Committee and the commencement of its labours; and he would ask the jury whether he was not then naturally enough led to take up the subject of the aborigines, and give an account of what had been done for their temporal and spiritual welfare?  The subject was taken up as a general subject, and not, as had been alleged, with hostile feelings towards Mr. Threlkeld, or as a means of gratifying private pique.  The Rev. defendant then proceeded to comment on the various parts of the several articles which were charged as libellous.  The funds of the London Society were drawn from the penny-a-week subscription of virtuous servant girls - the children in the cotton factories - and the christian widow's accumulated mite; and he made a most liberal allowance when he said that £500 of original outlay, and £150 per annum thereafter, would have been amply sufficient for all the necessary purposes of the work in which the plaintiff had engaged.  The object of the society was not to found a colony - its object was the dissemination of christian knowledge to the  heathen; and the purposes of the missionary were precisely the same - and the power, the Almighty power, by which he was to be guided and directed, the same in the forests of Australia, as the Apostles carried with them into the Porticoes of Athens and the Capitol of Rome.  He (the defendant) had hazarded his reputation as a minister of religion upon the fact that Mr. Threlkeld had expended in two years and a half, the sum of £2,700 of the Society's funds.  The plaintiff met this statement by calling it a gross falsehood.  He referred to Mr. Threlkeld's own pamphlet on the subject.  He had not seen that pamphlet for upwards of eight years, till shortly after the publication of these articles; but having gone over the accounts in it, he was so fully impressed that he could refer to it at that distance of time.  The defendant here referred to various items of expenditure and dates in the pamphlet alluded to, and proceeded: - At all events, making every allowance that he claimed, there still remained, on the plaintiff's own showing, an expenditure of £1080 a-year for two years and a half - and this sum not paid out of the Treasury of New South Wales, but contributed by virtuous servant girls and widows, who had been early taught to bring their mite into the Treasury of the Lord.  But there was a prodigious difference between charging a man with improvident or injudicious expenditure, and a dishonest appropriation of money.  In the estimate furnished to Mr. Marsden, of £500 a-year, he saw an item of two shillings a-day for tobacco; he found no mention of tobacco in the Acts of the Apostles!  It might be said that it was necessary to bribe the natives; but it was not the duty of a Christian Minister to do what was wrong in order to bring about what was right.  Smoking and chewing tobacco led to drinking, drinking to transportation, and transportation, very often, to premature death.  Here however, were £36 a-year charged to teach the natives to smoke.  But he would not take up more of the time of the Jury upon this part of the articles charged as libellous - he had shown that he had written the perfect truth, when he stated that the expenditure amounted to the enormous sum of £1080 a-year.  He had shown it on documentary evidence - on the plaintiff's own figures, and there was no denying it.  If the London Society's Mission had been properly conducted, the Wesleyan Society would also have obtained a grant, so that the plaintiff's failure, through his own Society, was a prodigious loss to the Colony through other Societies, who might have had extensive tracts upon which Missionary labours might be exercised.  The plaintiff had endeavoured to contend that the word ``untrustworthy" implied moral delinquency; but it had no such meaning, except so far as incompetency and extravagant expenditure is culpable.  When the phrase was used absolutely, it certainly implied moral delinquency, but when applied to the fitness or unfitness of a party for the discharge of any particular duty, it had no such meaning.  He should be sorry to throw out any such imputation, any farther than the fact of an extravagant, enormous expenditure implied untrustworthiness.  With respect to another passage which was relied upon - that wherein the plaintiff was alleged to have enlisted under the broad banners of episcopacy - he contended that it was perfectly fair in a public writer to mention that circumstance, from the high ground which the plaintiff himself had assumed, as an ordained missionary who would not be controlled by the members even of his own society in the expenditure of their funds.  He did not think it at all disreputable for the plaintiff to accept a salary from the government and report to the  Archdeacon; but it was the contrast upon which he relied, between thew plaintiff's present position and the high ground he assumed as an independent missionary.  Then, if the phrase ``liberal of other men's goods" were held to be libellous, he did not know what was to become of that ``liberty of unlicensed printing," which had been contended for by our great poet.  He asserted that the plaintiff had well warned the title of liberal, and the expression was not one which he would desire to withdraw.  The defendant continued to comment on the various publications at considerable length, but our space will not allow us to follow him.  Much stress, he said, had been laid on the circumstance of the plaintiff having sent him a letter; but when the Jury took into consideration all the imputations that were cast upon him in that letter, coupled with the fact that the plaintiff required an ample apology first, and after to refer the case to arbitration, they would not place him in a situation of greater blame on that account.  He could not apologise for writing what he knew to be true; and because he did not acknowledge himself a downright liar, the plaintiff had brought this action for libel.  He appealed to the Jury whether such a comment was not called for by the style of the plaintiff's own letter?  and whether, when a man condescended to make use of such epithets in a literary controversy, he must not lay his account to be asked whether he is himself the person he pretends to be?  The articles, he contended, were only a commentary upon the plaintiff's own pamphlet with reference to the mission to the aborigines; and the comments on his letter were called for by himself.  He did not see, on reviewing those articles, anything to regret or to recall; and he thought, after the plaintiff's letter and his pamphlet, he evinced no ordinary degree of presumption in coming into that Court to complain of libel.  It had been stated that the plaintiff's object was not damages, but a verdict - in other words, he desired that the recorded opinion of twelve honest men should brand him as a liar and a slanderer.  What man was there, who held character in estimation, would put it in competition with a sum of money, even if that sum amounted to all of which he was possessed?  But the Jury had a high duty to perform, and he felt that they would perform it impartially. They had not only character to protect, but they had  also the liberty of the press to protect from unwarrantable interference.  He would not take up more of their time, but would call two or three witnesses, and then leave the case in the hands of the Jury - satisfied that in what he had written, nothing had been extenuated, neither had aught been set down in malice.

The defendant was about to call his witnesses; but it being then eight o'clock in the evening, the Court, at the request of the Jury, was adjourned till the following morning.

Tuesday. - The Court re-assembled at ten o'clock, when the following witnesses were called by the defendant,-

Mr. Archibald McLeod - I have been in the Colony nineteen years, and have resided at Bathurst and at Norfolk Island; I have seen a great deal of the difficulties attending the forming of a settlement in the interior; but I think it would be as easy to settle a family for the instruction of the aborigines as for any other purpose; in either case, a house would be required, and a few acres of cleared land; the settlement of a family, as to cost, depends upon many things, but I have known many who effected it for less than £500; the families I allude to had no salary; but £150 a year besides the £500 at first would make a great difference; the passage in this article containing the words ``who doffs his apostolic coat," I understand to apply generally, and not to the plaintiff; I have heard of Mr. Walker, who was a Missionary, but I do not know him.

Cross-examined - I am not qualified to say much about the expenditure of a missionary; when a settler goes into the bush, he attends to his own business alone; it is necessary to give the blacks victuals and tobacco to attach them to any place; I had £200 a year at Norfolk Island, with a house, some ground, and rations for four servants, but I saved no money, as I had a large family to support, and to get everything from Sydney, I think the passage about ``doffing his apostolic coat" refers to the missionaries generally, and to the plaintiff.

Re-examined - If I had read a previous article about Mr. Walker I should think the words applied to him; if the government gave me the use of a large grant on which much improvements had been made, it would, of course, be of material assistance.

The Rev. Mr. Wylde - I am a licentiate of the Church of Scotland; I have read the articles in the `Colonist,' and, supposing the facts stated to be true, I should consider them, on the whole, as fair critique; I have read much severer ones in cases where they were not half so much called for; I speak supposing the statements to be true; if the word ``untrustworthy" were used absolutely, I should consider it implied dishonesty, but not so when used in reference to the distribution of funds for a particular purpose; the words ``who doffs his apostolic coat," refer to one who had given up the missionary character altogether, and, of course, not to the plaintiff.

Cross-examined - I do not consider those words to mean that the plaintiff had become a mere sheep and cattle man; they mean one who had thrown off the missionary character altogether; the meaning of the word ``untrustworthy," as used here, must be taken from the context; I think it means incompetent here, and does not charge any moral delinquency; I came out with Dr. Lang from England, and was placed in the Australian College by him.

Mr. Raymond, junior - I am clerk in the Colonial Secretary's Office, the letter I produce is a public record of the office, it is dated 18th August, 1829, addressed from General Darling to Mr. Hanky.  (The letter was here read, and purported to complain of the plaintiff's expenditures.

A copy of a despatch, supposed to be sent from Earl Bathurst to the Governor of this Colony, was attempted to be put in, but was opposed by the Solicitor-General observing that it was only the ``copy of of [sic] a copy."

His Honor said that he was incapacitated by law from receiving the record in evidence.

The Rev. Mr. Marsden - I know that Mr. Threlkeld was appointed Missionary to the London Society, a deputation that came out brought me letters; when they came to me to Port Jackson they were accompanied by Mr. Threlkeld; they expressed a wish that Mr. Threlkeld might act as Missionary to the aborigines, and Lake Macquarie was fixed on as the station; they requested that I would superintend it; this I declined without I had the control of the funds, as I knew that Mr. Threlkeld was not competent to manage the erection of buildings and take the management of land; I told the deputation in the long run, that I would point out to Mr. Threlkeld what I thought would be most useful; they then gave him an order to draw what money he might want; I did not interfere with the mission from the commencement, being aware that Mr. T. would get into difficulties for want of proper experience and not from a want of integrity; I know that Mr. Threlkeld wanted £500 a year; he had only £250; I told him that I would see that he had £300; I never saw his instructions from the Society, but I know that Mr. Campbell had instructions to honour his bills; I attributed his extravagance to want of experience; the London Society have withdrawn their support, but I do not know whether he is under the control of the Archdeacon or not; I am of opinion, and so will every reflecting person, that neither the London Society or the Wesleyan Society cold succeed from the manner in which they were carried on; I understand the whole of the expense of the London Society to amount to £3,000.

Cross-examined  - I did not consider that Mr. T. was badly treated by the Society's dishonoring his bills; I know that he was sued, but never believed that Mr. Scott would send him to prison; I did not consider £500 extravagant for the maintenance of himself and family, and other incidental expenses; I think he only calculated at the rate of £180 for his own use; the remainder was for the support of the mission, servants, natives, &c.; I should not object to the use of tobacco by the servants, for custom has established its use; I know that there were some steps taken about 6 or 7 years ago for instructing the children of missionaries resident at New Zealand and throughout the Islands; I wrote to the church Missionary Society on the subject, and they sent me £800 for the erection of a school house, which I caused to be erected on my own ground; but on writing for the children, the parent declined sending them, and I returned the money; I do not think that Mr. T. belongs to the London Missionary Society; I do not think it disreputable in Mr. Threlkeld to hold office under government; I think he has a right to preach to whom he chooses, and when he pleases; I have heard the articles in the ``Colonist" read, and think they had been better let alone.

John Campbell, Esq. (one of the Jury), produced a statement of the sums drawn for the use of the mission at Lake Macquarie, from August, 1824, to October, 1827.

Cross-examined - We were authorized to honour the plaintiff's bills by the London Society's deputation; part of the money was expended to building a house; I do not know that the plaintiff made a road to Newcastle from the grant.

Mr. R. Bourne was examined at some length, in the attempt to show that the plaintiff had been the means of ``sowing discord among brethren," but his evidence had little application to the issue.

This closed the defendant's case.

The Solicitor General then addressed the Jury in a very able speech in reply, but our space would not admit of our doing anything like adequate justice to it.  After observing that no part of the plea of justification had been made out, he said the defendant had urged that the plaintiff as a clergyman, had no right to bring an action for libel - that his Divine Master never did so; but he would ask, did his Divine Master keep a printing press?  Was it because the plaintiff belonged to that sacred calling, that he was therefore to be prevented from justifying himself?  Would any man become a clergyman on such conditions?  Was not the man who gave the provocation to fight a duel the most to blame, and he who felt himself constrained to accept the challenge the most to be pitied?  The plaintiff had used every means to avoid coming into Court - but what arbitration would satisfy Dr. Lang?  But if he was pen to that course, why did he not send a reply to the plaintiff's letter.  It was a breach of faith to publish that letter at all; yet the Jury had heard the state that he did the alaintiff [sic] ample justice by publishing it, with suitable comments - those comments - those comments holding him up ts [sic] an unprincipled man.  Another reason why the defendant alleged that this action ought not to have been brought, was that the plaintiff had committed himself to the press.  But that pamphlet was not published - it was not sold - it was merely a statement for the Directors at home; so that although Dr. Lang urged that the plaintiff had committed himself to the press, he had really done no more than print his letter to the Directors.  The plaintiff stood in the same situation with regard to that body, as he (the Solicitor General) did to the Secretary of State; and if he thought proper to send a printed letter to the Secretary of State, respecting any matters connected with his office, would that be called an appeal to the press?  He imputed no bad motives to Dr. Lang - he was not instructed to do so; but certainly he had shown that he had shown that he entertained no good feeling towards the plaintiff; whatever might be his motive.  He had shewn no reason whatever for these attacks upon his character; and could only have been actuated by a determination to assail him at all hazards -

``I do not like thee, Dr. Fell,

The reason why I cannot tell;

But this I know, and that full well,

I do not like thee, Dr. Fell."

The defendant had candidly told the Jury that he had libelled many persons.  But what right had he to interfere?  He (the Solicitor General) did not know by what right he did so.  As Cassius says,

``---- He doth bestride the narrow world

Like a Colossus; and we pretty men

Walk under his huge legs, and peep about

to find ourselves dishonourable graves."

Was it because the plaintiff was libelled among others, that he was not to appeal to a Jury of his country for redress?  It was attempted to be denied, that any intention existed of charging the plaintiff with having doffed his apostolic coat, and become a mere dealer in sheep and cattle.  But let the Jury look at the articles and say, whether such was not the evident intent of the writer.  The song itself, inserted in one of these articles, showed that.  It was in these words -

``On three hundred a-year from the mob,

I declare that I cannot exist;

But I'm sure I could live on one-half that amount,

If it came from the Treasury chest.

The London Society's up

And their promising mission is done;

But I'm still as snug as a bug in a rug,

and the grant is an excellent run."

What was the meaning of the word ``run" there, but a run for cattle?  And again, in another part of the libel, the defendant stated that the Society's grant, though wholly useless for agricultural purposes, was very excellent as a ``run."  How could he get out of that?  The defendant said that he had not a syllable to retract - that a man who would expend such a sum did either lack conscience or common sense.

Mr. Justice Burton. - Utrum mavis accipe.

The Solicitor-General - The defendant saw nothing to retract in that.  Did the society complain of the plaintiff's expenditure? And if they did not, was the defendant now, after a period of twelve years, to come forward and complain of it in this manner?  The fact was that Dr. Lang wrote at random, without being sure of, or caring what he was about.  Before he preferred such serious charges against a fellow minister, he ought to have taken pains to be right; but instead of having done so, he now comes into Court, and exercises all his ingenuity to show that the facts square with what he had written.  The learned Counsel commented at great length on the several alleged libels; and remarked that no attempt even had been made to justify the charge of untrustworthiness.  The defendant had been allowed, in the course of his defence, to travel into matter from which Counsel would be restricted; but what effect he anticipated would be produced on their verdict by a reference to much of that matter, he was utterly at a loss to comprehend.  The plaintiff was held up as dishonest - as being liberal of other people's money - as a sower of discord - as a sheep and cattle feeder - as one who had doffed his apostolic coat, to march under the broad banner of episcopacy - and what had been the reply of the defendant to this action?  He iterated the truth of the libels, came into Court to justify them, and then talked of character and the freedom of the press, and the privileges of a public writer.  But the fact was, that this action was originally commenced against the editor of the Colonist, when the defendant came forward and avowed himself the writer, behind the curtain, of these libels; so that he could not claim the privilege of a public writer, such as he contended for.  If he had stated matters fairly, the action would never have been brought; but the course he had pursued in this case, from that which he might and ought to have pursued, was as different as the friendly probe of the physician from he dagger of the assassin.  The learned gentleman concluded a very powerful speech, by expressing a hope that the Jury would estimate the nature of these libels by the amount of damages they would award.  Character to one in his situation was every thing -

``Who steals, my purse, steals trash, `tis something, nothing;

`Twas mine, `tis his, and has been slave to thousands;

But he that filches from me my good name

Robs me of that which not enriches him,

And makes me poor indeed."

He would be much disappointed if the jury did not give the full amount of the damages laid in the declaration.

The learned Judge then summed the evidence His Honor said that notwithstanding the long discussion which this case had undergone, it would be necessary to draw the attention of the Jury to the record, in order that they might see with what the defendant was charged, and the way in which it was assigned.  The plaintiff appeared before them in the highest character which man could assume - that of a christian missionary; and although he might not be possessed of such high talent and that superior education as some who are more expressly set apart for the ministry, he was equally entitled to be esteemed and to have his character protected.  He was stated to have been in this part of the world for twenty years.  It might be than when he was commissioned, the same number of persons equally qualified for the discharge of the ministerial office as those now to be found in the Colony, could not be procured; that might be, but it was alleged upon the record and was also in evidence that since his arrival here his conduct had been exemplary, and that, with respect to the particular mission upon which he was engaged, he was eminently qualified.  There was, therefore, every reason why his character should be protected.  On the other hand, the defendant, provided he followed that path pointed out by the gospel which he took into his hands, was also entitled to equal esteem and protection.  He also showed how long and how anxiously he had laboured in the same sacred cause, and what his motives were in writing those articles which had been complained of by the plaintiff.  He too, therefore, was also entitled to respect; and if he should be though to have taken a part that was not wise, he was, at least, entitled to credit for a conscientious desire to tell the truth, for he benefit of all christian missions whose funds had been derived from such a source as had been described.  In such a case as this, it was a difficult task to decide.  The victory of the one party or of the other, must be a melancholy victory; and he that gained would have cause to regret it.  It was imputed to the plaintiff, on the one hand, that he had been an unfaithful missionary, and it would be hard that he should go down to the grave with this record at his back.  On the other hand, it was alleged that the defendant had slandered his fellow labourer in the same vineyard; and ``I earnestly wish," said the learned Judge, ``that the parties would, even at this moment, themselves say that they had been mutually deceived, and relieve the Jury from their painful duty, by withdrawing a juror.  Let it not be said, however, that we urge them to this course; it is our duty to decide if the parties call upon us to do so." - The defendant had stated, as the motive by which he was influenced, the interest he took in the condition of the aborigines, and the injury done to other religious societies by the abandonment of this mission.  On these accounts he thought it his duty to publish these articles to all Christendom.  But it should be remembered that this duty was imposed by the defendant upon himself - there was nothing to drive him to write in a newspaper; though it certainly was no discredit to a man coming forward in a proper manner, mildly and moderately to state facts when it might be desirable the public should know.  Upon that issue he would put the case to the Jury, to say whether the comments were just, or whether unworthy motives were imputed.  In order to bring this question before them, it would be necessary to direct their attention to each passage declared upon, and the meaning put upon it.  His Honor would give no opinion of his own; but if the Jury should be of opinion that the plaintiff was charged with discreditable acts, and not merely acts of indiscretion - if he was charged with sowing discord - with being a counterfeit missionary - an abomination - an exceptionable character - with lacking conscience or common sense - with taking Italian revenge - and that the words ``personification of christian charity" were applied to him ironically, and did not mean what they implied at first sight - then their verdict must be for the plaintiff.  If, however, though these charges should, in their opinion, apply to the plaintiff; if they should be satisfied from the defence set up, that his conduct had been such as lawfully to give rise to them, then their verdict would be for the defendant.  This was the issue which the Jury had to try, however fatal it might be to one party or the other - namely, whether these publications were a fair comment upon the acts of the plaintiff, produced by his own misconduct; or whether the defendant had gone out of his way for the purpose of injuring his character, and bringing him into disesteem and obloquy?  His Honor then went minutely through each count in the declaration, commenting upon the various passages charged as libellous, and putting it to the Jury to say whether the meaning ut upon each had been made out by the evidence; and whether, if so, they had been justified on the other side.  With respect to the plaintiff's letter, he thought it certainly was not such an application as would be likely to occasion a retractation on the part of the defendant, but would rather shut the door to the reconciliation sought for; but still it was not incumbent upon him to put it forth to the world, and make it the subject of those comments which were relied upon as part of the libel.  He had thus gone through the record, and made such observations on the case as it seemed to him to call for; and the Jury would take the papers with them, and consider if the allegations had been made out.  He now left the case to the hands of the Jury.  If their verdict should be unfavourable to the defendant, they would take into consideration the amount of damages they would award, and not add insult to injury by depriving the plaintiff of what the record alleged he was entitled to - taking also into consideration, that it was difficult to believe that the defendant did not think he had some good grounds for writing as he did.

The Jury retired for about half an hour, and returned, saying they could not agree.

His Honor ordered them again to retire, when Dr. Lang rose and said, that now as the Jury had again retired, and there was a difficulty in their agreeing, he begged to state to his Honor, that labouring under excited feeling he might have written stronger than he ought to have done, and he now felt it his duty to disclaim having had any desire to impute moral delinquency to the plaintiff.

Mr. Threlkeld rose and said, that he came into Court very unwillingly: he had been dragged into it by the defendant.  He hoped that after this full explanation, would be abolished for ever all angry feelings between them, and that every one would be convinced, that if he had erred, it was solely an error in judgment.

Dr. Lang would disclaim any feeling of personal hostility against the plaintiff; he had taken up the matter purely upon public grounds - he would again disclaim any desire to impute moral delinquency to the plaintiff, and was quite willing to meet him with that christian feeling which he (plaintiff) had just then expressed.

After the Jury had been absent upwards of an hour, they returned into Court, and enquired if they could give a verdict, whereby each party would have to pay his own costs.  His Honor replied he had never heard of such a case.  The Jury then consulted for a few moments, and gave a verdict for the plaintiff - Damages, one farthing.

His Honor, on the application of Counsel, said he would certify for costs.

Counsel for the plaintiff, the Solicitor-General and Mr. Windeyer.  The defendant, in person.

It was past eight o'clock in the evening before the case was closed.  The Court was much crowded during the whole of the two days.

 

Notes

[1 ] See also Australian, 22 and 25 March 1836; Sydney Gazette, 24 March 1836.  For commentary, see Australian, 29 March 1836.  In its issue of 1 April 1836, a ``Correspondent" to the Australian noted the great rise in the number of libel actions against all newspapers since Lang established the Colonist just a year earlier.

For comment on the third Annual Report of the Mission to the Aborigines, see Australian, 8 and 12 July 1836.  The Australian thought that there had been a total failure in attempts at ``civilizing and converting" the Aborigines.

[2 ] See Wighton v. Howe, 1836.

[3 ] According to the report of this day's proceedings published in the Australian, 22 March 1836, Lang spoke for 4 hours and 25 minutes.

Published by the Division of Law, Macquarie University