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

Faunce v. Cavenagh [1838] NSWSupC 24

Brisbane Water cases - libel - convict punishment, illegal - gentlemanly conduct - damages, contemptuous

Supreme Court of New South Wales

Dowling C.J., 15-16 March 1838

Source: Sydney Gazette, 20 March, 1838[ 1]

Before the Chief Justice, and the following Special Jury: - William Cox, Esq., salesman; J. B. Blaxland, Esq., salesman; John Black, Bank director; John Betts, Esq.; J. Campbell, merchant; Henry Brooks, Esq.; Leslie Duguid, Bank director; F. C. Ebhart, Esq.; H. B. Bowerman, Esq.; W. W. Barrow, colonial storekeeper; John Brown, merchant; and Robert Duke, merchant.

Faunce v. Cavenagh - When this case was called on, Mr. Therry requested that the witnesses might be ordered out of Court and placed in a room where they could have no communication with any one; it was very little use ordering witnesses out of court, when parties could go out and communicate with them every minute.

His Honor said, he had no occasion to suspect anything particular in this case; all that he could do was to order the witnesses to withdraw in the usual manner.

Mr. Windeyer opened the pleadings. - The plaintiff in this case is Captain Alured Tasker Faunce, and the defendant Mr. George Cavenagh, Editor of the Sydney Gazette.  The declaration avers that the plaintiff was a captain in the 4th regiment of foot, and was and is a Justice of the Peace, and that the defendant well knowing the premises, but in order to injure and annoy the plaintiff, on the 26th of October, wilfully, wickedly, and wrongfully published, or caused to be published, in a certain newspaper, called the Sydney Gazette, a certain false, scandalous, and malicious libel, in the following words. - "The Brisbane Water cases have excited too much of the public attention and aroused too much of the public feeling for us to consider it necessary to enter yet more fully into particulars; it is impossible for any man to view with coolness the brutal treatment, to which a British magistrate and British gentlemen, were subjected at the mere caprice of a holiday military captain.  The most charitable conclusion that any one on a review of the circumstances can come to is, that the man himself must be the victim of extraordinary mental imbecility.  If we do not come to such a conclusion, it is absolutely dreadful to contemplate the depraved state of feeling which could wantonly urge on its possessor to such extreme length.* * * * * * * * And second, what are we to think of the Governor or Government, who after such a disclosure of the utter inefficiency, to use the very simplest word in our power of Captain Alured Tasker Faunce, have entrusted him with the protection or the guidance of any being whose life or liberty is of more value than that of an old stock horse, and who have marked their censure of his conduct in another way than by removing him to another and more distant district, where as he will be further from the influence of the press, he may again be able to pay such fantastic tricks before High Heaven as make the angels weep."  A second count charges a libel in the Sydney Gazette of the 9th November, but this is withdrawn.  A third count charges the defendant with having in the Sydney Gazette of the 11th November, published a libel of the plaintiff, in the following words. - "In our last number, we remarked upon the impudence of a man who has rendered himself so notorious for magisterial delinquency and mental incapacity, as Captain Faunce, coming forth to act as magistrate upon such an occasion, and we hinted to Mr. William Montague Manning that to gain his seat by using such tools, was not the way to ensure public confidence."  The damages are laid at £3000.  To this declaration the defendant has pleaded - firstly, the general issue, and secondly, a special plea of justification, to so much of the third count as charges the plaintiff with magisterial delinquency, because he says, that at Brisbane Water, on the 1st January, with a view to injure and oppress Henry Donnison, John Moore and Willoughby Bean, the said plaintiff without reasonable or probable cause, issued his warrant for their apprehension, and afterwards, maliciously put their bodies in certain shackles and irons and kept them on for a long time, and on this the parties have joined issue.

Mr. Therry said, my friend Mr. Windeyer has opened the nature of the case, and it now remains for me to fill up the outline which he has presented to you.  It is impossible that twelve gentlemen can be empannelled in that box, who are altogether unacquainted with the parties; the defendant is well-known as the editor of a public newspaper, while the plaintiff has been so perseveringly brought before the public by the defendant, that it is impossible but you must know him; but gentlemen whatever you may have known of the parties out of court, it is your duty to dismiss it from your minds, and find your verdict entirely on the evidence that will be produced before you.  These remarks I am quite sure are uncalled for, as I have not the slightest doubt but you will do your duty to the country and the parties.  The plaintiff, gentlemen, was, as you heard by the declaration, lately a captain in the 4th regiment, and, like many other officers, has retired from the honorable profession of arms to sit down and spend the remainder of his days amongst us, and I know no more useful members of society than have been furnished by the army.  Shortly after the retirement of my client from the army he obtained the situation of Police Magistrate at Brisbane Water.  The defendant is the editor of the Sydney Gazette, a paper that boasts, and I believe justly, of a vast circulation and consequent influence over the feelings of the community.  No doubt, gentlemen, the power of the press is prodigious, and although slander may be circulated by other means, there is no way by which it can be so efficiently circulated, and therefore slander through the press is slander of the most aggravated description; but it is impossible gentlemen, for you, as men of the world, not to know the immense power and influence of the press.  The libels charged are of the most aggravated description.  They not only hold him up to ridicule and contempt, but charge him with deliberate crime; they impute to him that as a magistrate he has been actuated by malice; they call him a public delinquent, and when doing that which he is sworn to do he is charged with being a tool, and it will be for you, gentlemen, to say whether language of this description can be tolerated in public discussion.  It is quite unnecessary for me to tell you what you will hear with so much more weight from the Bench, that every person has a right to publish his sentiments respecting every public man, but if he publishes that which is mischievous, malicious, or improper, he must take the consequence of it.  If the defendant had spoken of the plaintiff as having committed an error in judgment, I should not have disputed the propriety of discussing the merits of the case (but if he has committed an error deeply has he suffered for it), but when he charges him with public delinquency, with crime, he does that for which he must be made answerable.  What makes this case particularly aggravated is, that for the last-eighteen months the defendant has been the systematic libeller of the plaintiff.  If Mr. Cavenagh had come forward as a public writer to comment on the public conduct of the plaintiff, and fairly given the pros and cons, and afterwards, in summing up, had come to a conclusion unfavourable to my client, we should not have complained; but what we complain of is, that he threw himself into the arms of one party and became the vehicle of their sentiments.  So far back as November, 1836, (the learned gentleman here read a quotation from a paper of that date, stating that Mr. Donnison was on his way to Sydney, when the particulars of certain proceedings at Brisbane Water would be made public.)

Mr. a'Beckett submitted that nothing published before the date of the alleged libel could be admitted.  His Honor concurred with the learned gentleman, only what has since been published could be read.

Mr. Therry continued - You must perceive the animus, gentlemen, that actuated the defendant.  He does not say that he will procure a report from uncorrupt sources, if he had, and had been mistaken or misled, the plaintiff would never have brought him before a jury; but he says Mr. Donnison is coming, and when he arrives we will lay the particulars before our readers, and from the day that Mr. Donnison did arrive, to the present time, the paper has contained a perfect series of libels against my client.  I now come, gentlemen, to the articles complained of as libellous: the plaintiff is called a holiday captain, and is accused of having made use of brutal treatment, and I would ask any one whether such terms are not libellous?  What is the meaning of holiday captain?  Did it not originally allude to captains in fencibles or volunteers, who, during the war, were tradesmen all the week and captains on holidays, and there can be no doubt of its being a term of great contempt.  In the same paragraph he is accused of extraordinary mental imbecility.  Is that a term I ask you, gentlemen, likely to bring a magistrate into contempt?  Certainly, if he is not a man of mental imbecility he has the alternative of being a man of depraved feeling, so that in one sentence we have as much venom condensed as possible: we have the terms "brutal treatment," "holiday military captain," and "extraordinary mental imbecility," with the alternative of being a person of depraved mind.  But, gentlemen, it does not stop here, it goes on, "and secondly what are we to think of the Governor or Government who, after such a disclosure of the utter inefficiency, to use the very simplest term in our power of Captain Alured Tasker Faunce, have entrusted him with the protection or the guidance of any being whose life or liberty is of more value than that of an old stock horse."  Some of you, gentlemen, are magistrates, and I ask what would you think of your own usefulness in your respective districts after you had been held up as not being worthy to govern an old stock horse.  The history of the affair is this: - When the plaintiff was appointed to Brisbane Water there were very few respectable persons living there except the parties with whom he afterwards come into collision. Messrs. Donnison and Bean were persons in his own rank of life, and the only persons whose society he was likely to wish to cultivate, and nothing but a strong sense of his duty could have brought him into collision with them, especially as there was no magistrate but Mr. Donnison within forty miles.  It has been part of the policy of this defendant always to mix up the Governor with this affair, to insinuate that the plaintiff acted in pursuance of instructions from the Governor, and among the many audacious calumnies that were levelled against the late Governor, against that eminently endowed Governor, for so I may call him since His present Excellency has done so, this is the most unfounded; I say that His Excellency never gave any instructions, and this was only introduced for a particular purpose at a particular time, and in order to enlist the sympathy of the public in favour of the parties who were then commencing actions against Capt. Faunce.  Lately a paragraph has been inserted in one of the papers recommending that the trials be dropped on account of the new Governor, but gentlemen the Governor has got nothing to do with the matter, and I protest against his name being in any way mixed up.  Gentlemen, can anything be more calculated to bring the plaintiff into contempt than this paragraph about the old stock horse; I will suppose it was written of a higher magistrate, and I am sure the Chief Justice will excuse the liberty I take in the illustration; I will suppose that a person, in alluding to this case, said that it was tried before an intelligent jury, that seven or eight counsel were engaged in the case, but that the Judge who tried it was only fit to govern an old stock-horse; would not this be calumny, would not this be contempt, and if it would be so of the judge, the minor judge is equally entitled to protection.  But the plaintiff seems to think that there is no justice unless under the surveillance of the press, for in this article he complains that Captain Faunce has been removed further from the influence of the press; why, gentlemen, from this it appears that he thinks that a branch of the Sydney Gazette is necessary before justice can be administered.  What! will the Governor dare to appoint a magistrate to a place where Mr. Cavenagh is not prepared to send a deputy, whom he doubtless considers is as necessary as a clerk.  But being away from the surveillance of the Sydney Gazette the defendant considers that he will play such fantastic tricks as will make the angels weep: a very pretty occupation for angels truly to weep over the wrongs of Mr. Donnison; but he is a man that has got his wits about him, he does not seek the aid of angels, unless indeed angels from another quarter.  This libel, gentlemen, certainly is as gross as language can make it, and contains as much venom as can be condensed into a few sentences, and they are so worded that the animus of the writer is made most plain, and certainly the tendency of it is to bring my client into contumely and contempt.  Much less than this has been held to be libellous; Cobbett once said of my Lord Hardwicke, when Lord Lieutenant of Ireland, that he was as fit to fatten a sheep as any man in Lincolnshire, upon which Lord Ellenborough says what is the meaning of this but that he is not fit for the common occurrences of life, much more for the exalted situation he holds; but here the libel is plain enough, for it is directly said that the plaintiff is unfit to be trusted with anything whose life or liberty is of more value than a stock-horse.  The second count has been abandoned, and I shall merely quote the libel to shew the animus of the writer; speaking of the election for Chairman of Quarter Sessions he says, "and who do our readers think had the impudence to attend and vote for Mr. Manning, who but our old friend Captain Faunce of Brisbane Water ironmongery notority [sic]."  The attempt at wit here, gentlemen, is worthy of the mind that wrote it, and whether it was written by Cavenagh or another I care not; he is the responsible man, and whether he was the panderor, the principle matters little for my case.  Our old friend Captain Faunce - what is meant here but the old friend, who for eighteen months had been ceaselessly attacked through the columns of the Gazette.  Gentlemen, as I said before, this count is abandoned, and I merely alluded to the libel to show the animus which has at all times actuated the defendant. I now come to the third count, observing that the first libel referred to the Brisbane Water cases, and the second and third to the election of the Chairman of Quarter Sessions.  What had the election to do with the Brisbane Water cases? they occurred at different times and in different places, but it only shews that the defendant and his abettors were determined to hunt him down - it shews clearly the malignity of Mr. Cavenagh.  "In our last number we remarked on the impudence of a man who has rendered himself so notorious."  How was he rendered notorious but through the defendant's press; he himself was the author of the notoriety and then complains of his being notorious.  In the first count I remarked that the libel was calculated to bring the plaintiff into contempt, but, gentlemen, in this libel there are two distinct charges, - he is charged with magisterial delinquency, which is synonymous with crime, and with being a tool.  If the plaintiff acted wrong he was open to punishment, but to attack his mind was a most aggravated libel and tends to make my client unfit for any public duty and an object of public scorn.  What occasion was there for any remark at all if he was not determined to follow him into every walk of life? - impudence, what impudence was there? why it was his duty to testify who ought to fill one of the most important public offices in the Colony; it was his duty to come forward and it was highly libellous to call him a tool.  What is the meaning of the word tool? gentlemen, I find by a late edition of Todd and Johnson that it means a hireling, a wretch who acts by command of another; now all that Captain Faunce did was to attend the election and give his silent vote.  There was a gentleman there who either moved or seconded a resolution that the Attorney-General, from whose clutches he had just escaped, should not be allowed to vote, but not a word is said about his impudence, no gentle hint that it would have been more prudent to have kept in the shade.  The plaintiff, gentlemen, acted on that occasion from a sense of duty, and all the gratification that either him or I have received is from seeing with what efficiency and satisfaction the gentleman whom we voted, fill the situation.  Here, gentlemen, you have libels selected from a mass of others equally libellous, and I present them to you as being calculated to injure the plaintiff in his public and privet' character, to injure him in the district where he is Police Magistrate, for what can he do unless he vindicates himself.  Much will doubtless be said on the other side, gentlemen, about the liberty of the press, but is this the liberty of the press, to calumniate an individual in the way my client has been calumniated?  That gifted individual, Mr. Sheridan once said that the liberty of the press could two ways - by oppressive Acts of exofficio informations.  Here we have no oppressive Acts and certainly there have not been many manifestations on the part of the Attorney-General, of a wish to injure the press through the medium of exofficio informations.  But, gentlemen, Mr. Sheridan overlooked another way by which the press might be injured: it may be injured by it own licentiousness, and it is a truth that may be gathered from history, that the abuse of liberty is always followed by the loss of liberty, as a just punishment for the crime.  If the plaintiff has erred, gentlemen, deeply has he suffered.  Day after day verdicts of £250, £300, and £350 damages were returned against him but that did not satisfy the defendant and his abettors, revenge and ruin is their cry; every trifling act that he does is to be misrepresented and distorted; he is to be followed through life unless the defendant is restrained by a jury.  The defendant gentlemen, has had powerful abettors and it is of this we complain; that he has thrown open his paper as a sink for all misrepresentations that could be poured into it by men who were determined to ruin the plaintiff, but I am confident that you gentlemen of the jury, will not be made a party to any such conspiracy; my client, gentlemen, has been hunted and made a victim by a most powerful combination, and it you give all the damages laid in the declaration, you will not punish the defendant beyond his delinquency, not more than requite my client for the injury he has suffered.

The first witness called was -

Mr. W. C. Greville - I am a clerk in the office of the Colonial Secretary, and have charge of the affidavits made by the editors and proprietors of newspapers; this is the affidavit respecting the editorship of the Sydney Gazette, I produce the Sydney Gazette of the 26th October, and of the 11th November, 1837; these are left at the office under the Act of Council; the names of the editor and publisher agree with those in the affidavit.

Mr. a'Beckett - We admit publication.

Captain William Hunter, Military Secretary to the Commander of the Forces The plaintiff in the year 1837 was a captain in the 4th regt. of foot; I have seen him acting as captain; I hold in my hand the Gazette of October 26th; I have seen the article headed "Brisbane Water Cases" before; the terms "holiday military captain," "the man," "possessor," apply in my opinion to Captain Faunce; the whole article alludes to Captain Faunce; this is the paper of Nov. 11th. (The witness went through the article, sentence by sentence, which he considered meant the plaintiff.)

Cross-examined - I have no doubt the holiday military captain means Captain Faunce; if I had not heard of the Brisbane Water cases I should not have known to whom it alludes, unless I had read the whole article; Capt. Faunce is named in several paragraphs in the course of the article.

Re-examined - Knowing that Capt. Faunce was a military captain and police magistrate at Brisbane Water, I should have considered that the term holiday military captain applied to the plaintiff if I had never heard of the Brisbane Water cases.

The defendant's counsel here admitted that the plaintiff was a magistrate at the time of the publication of the libel.

The papers of the 26th October, 9th and 11th November, were handed in and considered as read.

This was the plaintiff's case.

The defendant's counsel moved for a nonsuit on several grounds.  The most material point was that there was a variance between the libel as published and as laid in the declaration, inasmuch as a portion of the article, which materially altered the sense of it, was omitted.

His Honor overruled the objection, because the declaration did not affect to set out all the libel, but said "one part of which libel is in words following," clearly strewing that the whole article was not set out.

Mr. a'Beckett addressed the jury on behalf of the defendant, as follows: - Gentlemen of the jury, I am not without hope that notwithstanding the eloquence of my learned friend Mr. Therry, that he has failed to make that impression upon you which, in a better cause, he would undoubtedly have succeeded in conveying to your minds, to the prejudice of my client.  Gentlemen, my client's case is as simple as it is strong, it needs no circum-locution nor colouring, such as my learned friend has given to his, and to the offence with which Mr. Cavenagh is charged I shall, therefore, at once come.  The charges against him consist of three libels, as they are alleged to be; one of which, however, (that contained in the second count) my friends on the other side have thought fit to abandon.  But, gentlemen, I shall not abandon it, my learned friend has read it to suit his own purpose, and I shall also read it to suit mine. I would now, however, draw your attention to the first count of the declaration, and invite you to consider whether its allegations of malicious publication against the defendant are borne out by the matter set forth.  Now, whatever may be the meaning of the particular paragraphs complained of, it is obvious that the primary object of the article from which they are extracted, was to attack the system of Governor Bourke in respect to the whole police magistracy, and not for the purpose of libelling Captain Faunce.  The article itself is headed "Governor Bourke's Magistracy," and the name of the plaintiff is merely introduced as an illustration of the previous remarks of the defendant in regard to the subject he is then discussing.  With the propriety, or impropriety of his opinions on that subject I have nothing to do, for whatever may have been the course taken on former occasions under similar circumstances, I shall not so far follow it as to make political allusions a part of my case.  My learned friend Mr. Therry has animadverted upon certain parties "lugging in the name of the Governor upon every occasion," and seems to think that it will be done upon this.  Certainly, if I wanted an example for such a course, Mr. Therry has this very day afforded me one, for although he very vehemently protested against the name of the Governor (Sir R. Bourke) being mentioned at all, he, in the same breath pronounced a most fervent eulogium upon him, and an equally fervent and vehement philippic against all who had been found in the ranks of his opposers.  Gentlemen, my friend had, no doubt, good reason for the zeal with which he expatiated on the virtues of Sir R. Bourke; but it seems to me that this is not exactly the place for the exhibition of such zeal.  We are both of us here as the advocates of private individuals, and such topics as my friend has introduced appear to me totally irrelevant.  You are here to try the issue between private individuals; the parties are Mr. Cavenagh and Captain Faunce, not Sir R. Bourke and his opposers.  Gentlemen, the first count of this declaration charges the defendant with the publication of the following libel:-

"The Brisbane Water cases have excited too much of the public attention and aroused too much of public feeling, for us to consider it necessary to enter yet more fully into particulars.  It is impossible for any man to view with coolness the brutal treatment to which a British Magistrate and British gentlemen were subjected at the mere caprice of a holiday military captain.  The most charitable conclusion that any one, on a review of the circumstances, can come to, is, that the man must be himself the victim of extraordinary mental imbecility.  If we do not come to such a conclusion, it is absolutely dreadful to contemplate the depraved state of feeling which could wantonly urge on its possessor to such extreme lengths."

Now, gentlemen, what libel is there here?  It is obvious that the whole paragraph alludes to the Brisbane Water cases, of which the public were already too well aware to need any further explanation.  They were aware that in those very cases, three successive verdicts had been given against Captain Faunce, for putting in irons, without any reason whatever, three gentlemen, two of them magistrates of the district in which he himself was residing, and for committing them upon charges of the most frivolous and absurd nature, at the instigation of accusers of the most abandoned and depraved character.  And if that was the case, gentlemen, is it not a fair comment to ascribe Captain Faunce's conduct either to ignorance or malice; or, in the words of the libel, either to "mental imbecility," or "depraved feeling".  But, gentlemen, if the whole paragraph had been set out fairly, you would have seen that, here at least, the defendant disavows imputing to Captain Faunce depraved feeling.  For after stating the two alternatives to which he is driven respecting Captain Faunce's conduct, the defendant says "that the first is the correct conclusion, however, we think must be evident from a perusal of the document we append, which however strange it may appear, is actually a certified copy of evidence given in a case of cattle stealing, preferred against Messrs. Donnison and Bean."  Now, gentlemen, neither this document nor the reference to it are incorporated in the alleged libel, because if they had been it must have shown at once that there was no libel at all.  It very ingeniously leaves the whole pith of the matter out, and then leaps to the fag end, where it is suggested that any man acting upon such a document as the one which is appended, is "only fit to govern an old stock horse".  And, Gentlemen, when you have heard a portion of that document, and bear in mind that it is a deposition taken before Captain Faunce, on a charge of cattle stealing, in his magisterial capacity, I think you will be of the same opinion.  Here is a portion of "this precious specimen of Brisbane Water evidence." -

"As to that part where he says that he brought upon him the odium of the inhabitants, in consequence of his having conscientiously discharged his duties as a magistrate, I say that such is not the fact, no person having been attacked by his powers as a magistrate, except in interested cases; I entertain a bad feeling against Mr. Donnison in consequence of several acts in my knowledge of his dishonor and dishonesty; I have no bad feeling in consequence of having quarrelled with him about a bargain in corn; I did not quarrel with him, I had no bad feeling then against him, and ran six miles after this in order to do him a friendly affair; I was not aware that he had represented to the Government that I was unfit for the situation I now hold; I have no bad feeling on that ground; in order to clear himself from that difficulty - that deriliction from conscience and honor, I believe that he would not hesitate to destroy the infants, and to make the most innocent and honorable man appear base and infamous; I except from that statement his own amiable children; a man who is not under the restraint of principles is to be doubted in all cases, even where his own children are concerned; I should say that applies to Mr. Donnison."

This, gentlemen, is a fair sample of the testimony of Mr. Ex-pound-keeper, Scott, but zany as he seems to have been, there was a malignity in his folly with which it was evident Captain Faunce sympathized, or he never could have suffered such a mass of insane rubbish to have found a place in his magisterial records.  So much for the first count of the declaration, and now gentlemen, we come to the second, where the libel charged is as follows: - "and who do our readers suppose had the assurance to set himself forward as one of the voters for Mr. Manning?  why neither more nor less than our old friend Captain Faunce, of Brisbane Water ironmongering notoriety."  Well, gentlemen, what is there libellous in this; what is there in the word ironmongering, any more than cheesemongering, fishmongering, fellmongering, placemongering, boroughmongering, or costermongering, that is so offensive to Captain Faunce?  The word ironmongering here means nothing, unconnected with other circumstances to which no allusion is made here, and my friends have, therefore, felt that this count was altogether unmaintainable.  But they have read it, they say, to shew the animus of the defendant, and Mr. Therry has dwelt upon the words "old friend", as a proof of the bitter and malicious feeling with which the paragraph was written.  "Old friend," he exclaimed with tremendous emphasis - who but a slanderer and maligner would speak of his fellow creature as "old friend"?  And then gentlemen as if you should doubt the poisonous insinuation of the term, he tells you that a person was successfully indicted for calling a magistrate a "judge of fat sheep."  Monstrous audacity indeed to call a magistrate "old friend" and a "judge of fat sheep!" it is almost as bad as "chaps and tomato sauce."  (The learned gentleman here read an extract from the trial scene, Burdall v. Pickwick, for breach of promise of marriage, where the counsel for the plaintiff, rested his case mainly on those all important words in the Pickwick papers.)  We now come, gentlemen, to the only accusation in the case worthy of serious consideration, viz. - in that part of the libel in which the plaintiff is charged with magisterial delinquency.  And here I will at once say, that I do not consider the term strong enough to warrant what in legal language is called "justification," and I advised my client that he was not called upon by the use of it, to plead more than the general issue.  The defendant, however, disdained any course but that which would afford him an opportunity of proving to the letter the truth of what he has asserted; that proof is forthcoming, and for the fourth time, Captain Faunce will have an opportunity of refuting it, if he can.  He has failed hitherto, and most rashly has he been advised if he has been taught to hope for success now.  Gentlemen, I now come to the facts of this thrice told tale, and trust I shall not weary your patience in again relating it.  We will begin with Mr. Moore's case, as that, in point of time, has precedence.  It was about September, 1835, that this gentleman was residing at Brisbane Water, a neighbourhood abounding with cattle-stealers and grog-sellers, of which former class, a fellow named Richard Cape, was at the head.  From him Mr. Moore made a purchase of some cattle and land, at a price which some of Cape's friends thought too little, and they accordingly did all in their power to compel Mr. Moore to give up his bargain.  This, however, he refused, and hence the foundation of the persecution which Cape and his vagabond abettors immediately commenced.  A charge of cattle-stealing was preferred against him before Mr. Warner, and a second charge of the same nature was repeated on the arrival of Captain Faunce, who succeeded Mr. Warner about October, 1836.  Upon this charge, though made by individuals of notoriously bad character, Mr. Moore was committed on the 18th October, and remained in custody until the 3rd November, being the whole of the time, day and night, in irons!  Without the shadow of an excuse for offering such an insult and degradation, Mr. Moore was also brought up to the bar of the Police Office in irons, for he was so found by Mr. Bean when he came to give testimony in his favour on the 2nd November.  He was released on the following day, and then only at the desire of the Attorney-General; had he been left to the mercy or discretion of Captain Faunce, there is no guessing how long his confinement might have lasted. Gentlemen, surely I might stop here, and ask if this is not "magisterial delinquency?"  To prove this would be more than sufficient to justify a much stronger term, but I shall be able to prove infinitely more, accumulating as I proceed, such a mass of testimony against Capt. Faunce, as would make you stagger with wonder, and start with indignation, were you not in some measure prepared to anticipate the facts to which I allude.  I have adverted to the testimony given by Mr. seen in favour of Mr. Moore; this led to a charge of perjury against the former gentleman by the scoundrel Cape; but this was too barefaced - too palpally false even for Captain Faunce to entertain, and, accordingly, without hearing a second witness, it was dismissed on the 15th November.  Baffled in this, the reckless desperado Cape, immediately thrusts an accomplice named Meadows into the office, crying out, "This man has lost a cow, and I charge Mr. Donnison and Mr. Bean with stealing it."  At this time Mr. Donnison was sitting on the bench, but no sooner was the charge made, than he was imperiously commanded by Captain Faunce to quit his seat, and take his place at the bar.  Gentlemen, would you have so acted, if a brother magistrate had been accused under similar circumstances; would you not, at all events, have paused before you had given implicit credence to a vagabond whom, the moment before, you had detected in a false and malicious attempt to fix on that brother magistrate the crime of perjury?  At the least you would have been too much taken by surprise to have entertained the accusation gravely and instantly.  Not so with Captain Faunce; it was sufficient for him that the accused were Messrs. Donnison and Bean, that the accuser was Richard Cape.  Upon no other ground can I account for his readiness to entertain the charge, unless indeed that he was prepared for, and expected it to be made.  With regard to the charge itself, you will see how utterly groundless it must have been, when I relate to you the circumstances under which it was made.  (The learned gentleman here went into a detail of the facts connected with the cow Blindberry, and then proceeded as follows.)  Gentlemen, of all these facts Captain Faunce was informed; yet he shook his head still doubtingly, and with reluctance suffered the parties to go on parole, until he should hear from the Attorney General. Messrs. Bean and Donnison subsequently had an interview with the Crown Officers in Sydney, and were then told that no further proceedings would be taken against them, until the matter had been tried in a civil action.  They communicated the result of their interview to Captain Faunce, who affected to express surprise at what had passed; said he believed Donnison guilty, and that he had written to the Attorney General to that effect.  Need I comment, Gentlemen, on the delinquency of a magistrate letting a party go at large on his parole, if he really believed him guilty, or of his expressing an opinion of his guilt without having sufficient evidence even to warrant his committal?  What could have been the motives of a man so acting; could they have been pure, impartial, unbiassed?  Was not something lurking in his mind, mingling with his feelings, and tainting all his views in reference to these victims both of his imbecility and prejudice, to which we can give no other name than malice?  Was there not an evident ill-will to these parties - a disposition rather to condemn than acquit them - an eagerness to believe, and a reluctance to discredit every accusation with which they were charged?  But gentlemen, there is much yet to follow, if you have still any doubt upon your mind that Captain Faunce was actuated by malice. Messrs. Bean, Donnison, and Moore were, after being suffered to go on their parole, suddenly again apprehended on the 2nd January, and once more carried before Captain Faunce.  From this time until the 26th, they each and all underwent a series of insults, annoyances, and degradations, which it is hardly possible to recount with temper, or remember with patience.  They were brought up day after day, from the 4th to the 11th, during which time the most ridiculous and frivolous charges were preferred against them; and, on the 14th, they were all put into irons, having then been imprisoned in the lock-up for nine or ten days.  And upon what charge, gentlemen, do you suppose Mr. Moore was ironed; why, for insufficiency of bail!  One could almost smile at such monstrous absurdity, but for the indignities which the charge entailed upon Mr. Moore.  It must be remembered, too, that these gentlemen were confined, with other criminals, in a small wretched place just large enough for security, but otherwise scarcely habitable, either in space or commodiousness.  Happily for Messrs. Moore, Bean, and Donnison Mr. Plaistowe arrived at the lock-up on the 12th, and immediately had an interview with Captain Faunce, upon whom his representation seems to have made a momentary impression.  After the irons had been put on, Mr. Plaistowe again saw the plaintiff, and insisted that they should be taken off. To this Captain Faunce consented, but more from fear than inclination, for you may judge, gentlemen, how far his animus was in favour of the prisoners, when in answer to an observation of Mr. Plaistowe that "if they were sent to Sydney in irons, and drowned in consequence, Captain Faunce would be answerable for their lives," he replied, "well, if I can't send them in irons to Sydney, I can march them in handcuffs."  You may conceive, gentlemen, that the man who could make use of such an expression as this, gave an order for the removal if the irons, on the demand of Mr. Plaisetowe, with no very good grace.  However, the irons were removed; the parties were conveyed to Sydney on the 27th, tried shortly after, and all acquitted.  Then followed their respective actions against Captain Faunce for damages, of which you are already acquainted with the result.  This, gentlemen, is a brief history of these memorable transactions, and I now again ask you whether "magisterial delinquency" is too strong a term to describe the part Captain Faunce took in them.  Is it not rather a mild term, compared with the conduct it describes; for my part, I am at a loss to conceive, language strong enough, by which to stigmatize the excesses which on this occasion have given rise to the expression.  Gentlemen, if I were to follow the example of my learned friend, by reference to Digests and Dictionaries, I might quote Johnson or Walker to show you that delinquency does not import the grave meaning which he attaches to it.  But beneath such an interpretation I have no desire of shielding my client.  On the contrary, I at once avow that I wish the word to be understood in its severest sense; he has so used it, and if the term be too strong, he is prepared to meet the consequences.  Gentlemen, my friend has talked about the liberty of the press - I am as strong an advocate for the proper exercise of that liberty as he, but in this instance I do not think it has been abused. Mr. Cavenagh has only done that which it would have been cowardly and dastardly in a free press not to have done.  I do not say that I agree with the tone of the articles generally in the colonial newspapers, but in the present instance I can conscientiously approve of, and defend, the tone which has been adopted by The Sydney Gazette.  It is a different thing when the press is resorted to as the engine of a discontented faction, or as the mouth-piece of some snarling clique, or hireling minion who has some base and selfish purpose to gratify under pretence of ministering to the public good.  Then, gentlemen, a press, so directed, ought to be trodden under foot, and scouted from society as a bane and pest of the most loathsome and disgusting kind.  But when, as in the present case, it comes forward to designate magisterial delinquency by its true name, to detect and denounce oppression and tyranny, it deserves eulogy rather than censure, and has a right to look to society for encouragement and support.  Gentlemen, it was well said by Mr. Justice Burton, that when an editor honestly discharges his duty, "where can he better look for protection, or from whom has he a better right to demand it, than from a jury of his country."  Gentlemen, it is with this feeling the present defendant looks to you - you who are more powerful than the highest authorities in the land, if you but dare to exercise the rights which you possess.  In a country like this, where the trial by jury is yet such an infantine institution, it is of overwhelming importance that nothing should stand in the way of its free exercise.  Looking at the Jury before me, I have every confidence that nothing will.  Gentlemen, you are not, as my friend would have you think, dealing with a systematic or a secret libeller.  Secret, indeed! what form of reprobation can be more open, or less covert, than that of a public newspaper - a newspaper, too, which my friend admits to be of extensive circulation and influence.  All my friend's tirade, therefore, about stabbing in the dark, is mere imagery - very well, like most of his flowing metaphors and poetic allusions, to amuse you out of Court, but, I would assure you, they have nothing to do with the present case.  Gentlemen, it would have been well for Captain Faunce if he had never brought this action. One would have thought that he would have been anxious to bury in oblivion, instead of again exposing to public scrutiny, scenes in which he figures so little to his own credit.  In saying this, let me at once disclaim any intention to attack Capt. Faunce in his private character, or as a private gentleman; in these relations I have for him the highest respect. I denounce him before you here as a magisterial delinquent on public grounds; on a knowledge of facts which have been thrice proved before a Jury of his country, and which will this day be a fourth time proved.  Yes, gentlemen, if ever there has been a doubt of the magisterial delinquency of Captain Faunce, it will exist no longer; if the impression of his delinquency was faint before, it shall now stand out durably and indelibly marked.  From other delinquents he shall henceforth be singled out as the magisterial delinquent, and if he make this land his grave, down with him to his grave the stigma shall go.  To this hour, when he dared to risk a fourth exposure of his oppression and delinquency, he shall ever revert as a dark spot in his memory.  Gentlemen, I have done; - to talk of damages is ridiculous, but whatever your verdict may be, sure am I that it will not be one which the plaintiff will wish to remember.  How can Captain Faunce be damaged by having that told of him to the public, of which they were so well aware before?  Strange that he should complain of the name he is called, and yet hesitate not to do the acts which that name designates.  He could oppress, it seems, yet blush to be called an oppressor; magisterial delinquency he does not shrink from committing, yet cannot bear to be called a "magisterial delinquent."  Could a more fitting name, gentlemen, have been chosen - or are we to apologize for the detection of oppression, and to preface its exposure by circumlocution and excuse?  God forbid, gentlemen!  we hesitate not, when a poor man commits a crime, to brand it by its severest name; are we then, when the comparatively rich oppressor does so, to doff our caps, and ask pardon for naming his delinquencies by their true appellation, lest it should sound unpalatable to his ears?  Never, gentlemen; if Captain Faunce is disgraced by the name he is called, he is still further disgraced by the acts he has committed.  For being called to public account for these acts, for being denominated a magisterial delinquent in consequence of these acts, he seeks damages at the hands of a jury of his country.  Three Juries have already given him an answer to his appeal, but, undeterred by their irrevocable verdict, he now makes another - not as defendant, but as plaintiff.  The result I will not anticipate, but of this I am sure, that whatever your verdict may be, it will only more closely bind together the name of Captain Faunce with magisterial delinquency.

Mr. John Moore - I have resided at Brisbane Water about eight years; I recollect purchasing some cattle from Richard Cape in September, 1835; I recollect having William Bramble, George Caulson, and Richard Cape bound over to keep the peace; I was at Brisbane Water when Captain Faunce arrived; a charge of cattle-stealing was made against me in October, 1836, by Mr. Cape or his stockman; I was brought before Captain Faunce who was then Police Magistrate; I was taken to the lock-up where I arrived about nine o'clock; I was committed and placed in irons; an iron was placed on one leg and a chain and basil on the other end; Captain Faunce was very rude in his manner, and talked about my getting cattle in a very cheap and strange way; he said I had some bulls in the bush which he would cause to be shot; he said he would have me brought up for manslaughter if they hurt any body; I asked permission to go home with a constable to put my place in order, which was refused; I was in the lock-up for fourteen days, without being allowed to go into the air; the lock-up is a close confined place about nine feet square; I was taken before Captain Faunce in irons several times; I was admitted to bail; Captain Faunce told me he had heard from the Attorney General and I was to be admitted to bail; I was brought up a second time; Richard Cape, and George Turner gave evidence against me; on the 2nd January, 1837, I was apprehended on a warrant.

The witness here retired, and the Counsel called -

Mr. Fisher, Crown Solicitor - I have the depositions from Brisbane Water in the cases that were tried, these are the depositions in the cases of Moore, Bean, and Donnison; this is the warrant for the committal of Mr. Donnison and Mr. Bean for cattle-stealing; this is the warrant for the committal of Donnison and Moore for cattle-stealing; this is the warrant for the committal of Donnison and Moore for perjury, conspiracy, and cattle-stealing; this a warrant for the apprehension of Moore, dated October, 1836; the signatures to these six warrants are in Captain Faunce's handwriting.

Cross-examined.  Among the papers sent up to Sydney was the documents respecting the transfer of the cattle; it was in Court at the time of the trial and would have been produced if required; Captain Faunce never withheld them; they were laid before the Attorney General when he decided upon filing the information.

Mr. Thomas A. Scott, Clerk to the Bench at Brisbane Water - When I received the subpoena to produce the depositions they were not in my possession; I am aware that on the 1st January, 1837, a warrant was issued for the apprehension of Mr. Moore for cattle-stealing; I generally file warrants and I filed this; a warrant was issued against Moore for insufficiency of bail; I do not know where it is, but I presume Captain Faunce has taken it.

[The plaintiff's Counsel here objected to any matter being gone into that was not in the special plea.]

I saw Donnison, Bean, and Moore at Brisbane Water; I saw Bean and Moore in irons in front of the prison about half an hour; they were not examined in irons; I have seen prisoners put in irons, but it is not usual to put them in irons before they are committed; I only saw Mr. Moore in irons once early in January; I do not know whether Captain Faunce was aware they were in irons, he did not see them; I have had no communication with Captain Faunce on the subject; the same day they were put into irons Captain Faunce had given permission to Mr. Donnison that he should go home to his family, and I was surprised to find irons; Captain Faunce told me Donnison was to go home that day, and return the following morning; it is usual to put prisoners in irons, but whether with or without the Magistrate's order I cannot say; they had been committed several days when the irons were put on; I heard Mr. Plaistowe tell Captain Faunce that the papers taken from Maltby Smith were not evidence against him, having been taken by force; when Mr. Warner was on the Bench they applied for bail; Captain Faunce was willing to admit to bail if Mr. Warner was willing; the Court was then cleared and Captain Faunce put the question to Mr. Warner, and handed him the depositions, and Mr. Warner said he saw the case in another view from what he had formerly done, and he considered bail ought not to be taken; the watch-house is a very inferior building; since Mr. Donnison and the others were in irons there have been no prisoners in irons.

Mr. Moore recalled - In 1837, on the 2nd January, I was apprehended on a warrant and taken before Captain Faunce the next day; I tendered bail but it was not accepted; William Pigott offered to become bail; I was then placed in irons; the first time was on the 18th or 19th of October, when I remained in irons for fourteen days; the second time I was in irons part of two days; in October my assigned servant was confined on the same charge with me; he walked about apparently where he pleased; two prisoners who have since been transported for life were confined with me for a short time, but they were not in irons; on the second occasion Mr. Donnison and Mr. Bean were locked up with me; they were in irons; there was an assigned servant of Mr. Donnison's in double irons, while mine was allowed to go about the Court; on the 14th or 15th I was placed in irons; Gorman a constable ironed me, Carpenter was present, but I am not quite sure that Drew was present, although I believe he was; I made no attempt to escape; I was committed on January 5th, but was finally committed on the 11th; we were removed to Sydney about the 23rd, we arrived I think on the 27th; I had greater liberty after I was finally committed than when I was first placed in irons; there were constables about the lock-up night and day.

Cross-examined - I was first committed on the 18th October; I was put in irons about half an hour after I was committed; the servant that I alluded to as walking about, was admitted as King's evidence; but he had lenity strewn him before he was approver; he was brought up charged with me and another man was admitted King's evidence against him, and therefore he could not have been King's evidence then; I do not know when he was admitted King's evidence; the two other men I allude to, were Mr. Donnison's servants; I think they were committed subsequently to being with me; during the fourteen days I was in irons I was not allowed to go out; in January I was allowed to have provisions and wine from my house.

Re-examined - I have not given evidence in these cases before.

By the Jury - When I was first ironed the chief constable said he was ordered; but he did not say by whom.

Mr. Willoughby Bean - I was before Captain Faunce on a charge of cattle stealing on the 14th of November, 1836; George Meadows charged me with stealing a cow called Blindberry, and Mr. Donnison with killing the cow; I had no transaction with Cape but as Mr. Manning's agent; in the month of March, 1834, Meadows claimed the cow, but he never substantiated the claim; Cape charged me with perjury, but it fell to the ground; Faunce said he would refer it to the Attorney General, but he afterwards told me he dismissed it; Cape brought Meadows in and said - here is a man that has lost a cow, and these two men, pointing to me and Donnison have stolen it; we were examined for two days, and then allowed to go at large until Faunce wrote to the Attorney General; Cape took a very active part in the prosecution, and was very busy; Meadows was exceedingly reluctant, and Cape kept urging him; I appealed to Captain Faunce, and he desired Cape to leave the witness; Captain Faunce asked me if I had any documents to show how I became possessed of her; I replied I had, but having been summoned on a case of perjury I was quite unprepared to meet such a charge; on the 20th of November, I showed two documents (produced) to Captain Faunce; one of these is the document strewing when Blindberry was branded as Mr. Richard's; this is the transfer from Manning to me; I was next examined on the 2nd January; I was apprehended by Drew and the flogger; I saw Captain Faunce the day after Christmas Day; I told him I had been to Sydney, and that the Crown Solicitor had said the proceedings were to be dropped as the Attorney General did not intend to prosecute; Captain Faunce said, it was very extraordinary, as he had received a letter from the Attorney General, to let the matter stand over until Meadows had an opportunity of bringing the matter before the Court of Requests; he said if he received any further intimation from the Attorney General he would let me know; when I was brought to the Police Office, Captain Faunce reprimanded me for communicating with the Crown officers; he asked me if I had written to Mr. Fisher; I said I had not, and he said it would have been better for Mr. Donnison if he had not; several witnesses were examined; I do no know why we were ironed; we made no attempt to escape; Gorman put the irons on under the order of Drew; the same parties took them off the next morning; there were many vessels sailed while we were in confinement.

Cross-examined - We objected to go in a vessel that sailed on the 18th, on account of the weather.

Mr. Henry Donnison- I recollect being before Captain Faunce in November, 1836; I went to the Court on ordinary business, and found Mr. Bean under examination; Captain Faunce put a question to me, but I declined acting as a magistrate, though I told him, that as it was only the oath of Richard Cape against Mr. Bean he could do nothing; while we were talking Cape brought in a man named Meadows, and said, 'this man has lost a cow, and I charge these two men, Henry Donnison and Willoughby Bean, with stealing it; we were examined for three days, when we were allowed to go until Capt. Faunce consulted the law officers; I came to Sydney and saw the Crown Solicitor; on my return I saw Capt. Faunce, and I told him that I had had a conversation with Mr. Fisher on this subject: I pointed out to him that I was peculiarly circumstanced, there not being another magistrate, and I had spoken to him on the subject of bail, and he said I should be put to no inconvenience on that account; I afterwards told Capt. Faunce that my solicitor had informed me that the Attorney-General had dropped the case; he said the only advice he had had from the Attorney-General was one in which he said that the charge was to lie over until Meadows brought an action against Mr. Bean for the recovery of the cow; I pointed out to him that Meadows might let the case stand over for two or three years, when he observed that it might be brought into the Court of Requests; Captain Faunce said he still considered me liable to appear before the Police at any time and would let me know when he received any communication from the Attorney-General; I told him I should write to the Attorney-General, and I did so; two or three days afterwards Mr. Bean came from Sydney, and told Captain Faunce that he had been informed by Mr. Fisher the case was dropped; Captain Faunce said he rather thought not, but would let us know; we had a good deal of conversation, and some conversation had taken place respecting a man named Hillier, who Captain Faunce had promised to bring before the Court; he said I had dealt very uncharitably with him; I said I had not done worse with him that he had with me - in expressing an opinion out of Court that Bean was guilty of stealing the cow, and me of receiving it; he said he was fully warranted in having done so, and had written to that effect to the Attorney-General; I was apprehended on January 2d, and examined the following day; on that occasion Captain Faunce told me my conduct, as a magistrate, would form a subject of enquiry; I told him I must question his competency; Mr. Scott was examined respecting my magisterial delinquency, and private conduct; I was charged with grog selling, and stealing shingles; Bramble was excessively insolent to me when I was cross-examining him; he said I was only a common criminal; I appealed to Captain Faunce; he said he could do nothing for me; I then said, Captain Faunce, I have already appealed to you as a magistrate, I will now address you as a gentleman; he then interfered, and told Bramble he must not speak to me in that way; Captain F. did everything in his power to irritate me - telling me first to stand back, then stand forward; on a second occasion he told me that I was to take my trial for magisterial delinquency; I was charged with injuring the character of a man named Bramble, in accusing him of intended arson; I have no hesitation in saying that the examination respecting the charge against Bramble was conducted very unfairly; I was committed for conspiring to accuse this man of arson, having as a magistrate asked Mr. Moore if he was afraid his house would be burned down by Bramble, and, on his saying yes, in conjunction with Mr. Warner, bound Bramble over to keep the peace; on the 4th January I tendered the evidence of Mr. Watson, and three other persons, but their evidence was not received; on the 13th of January I was brought up on a second charge of subordination; we were ironed on the 14th; I had obtained permission from Captain Faunce on that day to go and see my family, Mrs. Donnison being unwell; he told me to get ready, and a constable would go with me; I did so, and the constable said there was a counter-order; shortly after that I was put in irons; Captain Faunce told me that Carpenter should go with me; a shackle was put upon one leg; Mr. Moore and Mr. Bean were both put in irons; we had done nothing before this to cause us to be put in irons; Frost was at this time in to nominal custody, but he went where he pleased; the irons were taken off about ten o'clock on Sunday; I have had no communication with Captain Faunce on the subject of the irons; on the 16th January, upon my remonstrating with Captain Faunce, he said that he only acted according to his instructions.

Cross-examined - I read the articles on which this action is founded; I had nothing to do with their composition; I have not indemnified the attorney, and am not to pay any part of the expenses.

By a Juror - I was never taken before Captain Faunce in irons; Mr. Moore was; Mr. Bean was not.

It being past 5 o'clock, the Court was adjourned to

FRIDAY, MARCH 16.

Mr. John Plaistowe - In the early part of 1837 I went to Brisbane Water; I visited Messrs. Donnison, Moore, and Bean in consequence of hearing they were in custody; I arrived there January 12th; I asked Captain Faunce to take bail for them, and he said he could not without a second magistrate; I had a long conversation with Captain Faunce; I asked him if he would object to Mr. Donnison going home to see his family; he said Mr. Donnison might go with a constable; on the Sunday morning, between six and seven o'clock in the morning; all three of them were in irons; I went over to Captain Faunce on the subject; I told him I had seen them in irons, and was much surprised at it, and requested to know what was the cause of the ironing - if they had made any attempt to escape, or any fresh charges had been made; he said that a constable had informed him that, a man of Mr. Donnison's had said he would go through fire and water to serve his master, and that while he was talking with Donnison on the subject to his going home, Mr. D. had said if my men were to rise, what could your constable do, and that those two circumstances struck him so forcibly that he thought it necessary to put on the irons for security; I requested that the irons should be struck off, I almost insisted, I was very peremptory; I asked him why he had put Bean and Moore in irons, as this observation applied only to Donnison, and he said they were connected with Mr. Donnison; the conversation ended with Captain Faunce giving me an order to take the irons off; I pointed out to Captain Faunce that it was not only illegal but unnecessary; I pointed out the danger that would ensue to himself if he sent them to Sydney in irons, and in the event of any accident occurring to the vessel, and they drowned with their irons on, upon which he said, "if I can't send them in irons, I can or I will, 'march them in handcuffs; one day when I was speaking about the bail, he said he said that Mr. Donnison and Mr. Bean had spoken very improperly of him; I told Captain Faunce that the constables said that they had received his orders to put the irons on, and he said they were put on by his orders.

Cross-examined - He said there was no second magistrate, and if he was ever so inclined he could not grant bail; Captain Faunce regretted he was obliged to send a constable with him, but if he let him go without it would be an escape; there was some responsibility attached in allowing Donnison to go home, but it was not such a very great favor; I cannot say whether Captain Faunce said I can or I will march them in handcuffs; there is no doubt he spoke of the power he had, but I cannot say whether he meant he had the inclination; I have heard from themselves that they were not sent in handcuffs.

By the Jury - The lock-up appeared secure, but I did not examine it minutely; the iron on one leg was no additional security to their persons.

William Pigott- I offered bail for Mr. Moore when he was in the watch-house; Captain Faunce asked me what I was waiting for, and I said to go bail for Mr. Moore, when he said he could not take it.

Mr. W. B. Bradley, clerk in the Supreme Court Office - I produce the information against Henry Donnison, Esq., for cattle stealing, and Willoughby Bean for receiving, verdict "not guilty;" I also produce the information against John Moore, "not guilty;" the proceedings in a case of Donnison v. Faunce, for false imprisonment, verdict for plaintiff £350; also the record of Bean v. Faunce, verdict - on the second count, for putting in irons - for the plaintiff, damages £300; also the proceedings in the case of Moore v. Faunce, verdict for the plaintiff on the third count, for putting in irons, damages £250; the venue in these cases is laid at Brisbane Water.

This was the defendant's case.

Mr. Therry said, the proceedings have now arrived at that stage, that it becomes my duty to address you, gentlemen, on the evidence; and with whatever degree of confidence I addressed you yesterday, that confidence is now increased by a hundred fold.  I never felt greater confidence that I feel when I state that justice demands that large and exemplary damages should be given in this case.  The very able speech of my learned friend is one among the many assurances of his success in his profession; and I congratulate the profession in having such an addition of talent and respectability to their body.  Gentlemen, he very properly threw aside all extrinsic matter; he divested it of politics and made it what it really is - the case of Cavenagh and Faunce: I honor him for his taste, and will endeavour to follow so worthy an example.  - At the commencement of his speech, the learned gentleman made very little of the precedents quoted by me from Comyn and other writers, and quoted from a very excellent authority; and I will now repay my friend with a Rowland for his Oliver, by quoting from the same indisputable work.  (Mr. T. quoted the passage in which the member of the Pickwick Club, denied having used the word humbug except in a Pickwickian sense, and says he had no wish to injure the feelings of the person to whom he had applied it.)  This is the kind of doctrine my learned friend adopts; he declares that he will say nothing against the private character of the plaintiff; in his private character, he is fit to govern a nation; but in his public character, he is fit to have charge of nothing but an old stock-horse: in his private character he is every thing that is right - in his public character he is every thing that is wrong.  Gentlemen, I must confess that I am not gifted with such a nice sense of discrimination between what is done by a man in his private character and in his public character - what a man does, he does, and must answer for, whether done in his private or public character.  I will now proceed to open more important points.  My learned friend, in his address, got rid of the first count very easily; but I ask you whether it is in his public or private capacity that the plaintiff has been guilty of brutal treatment - has he deserved to be sneered at as a holiday military captain, or to be placed in the comfortable alternative of being either a man of depraved feeling, or mental imbecility.  I see many magistrates on the Jury, and I ask you, which of you would like to be held up as not fit to have charge of anything of more value than an old stock-horse; there is scarcely any term of reproach not embodied in these sentences, and I rely on them strongly as being calculated and intended to bring the plaintiff into contempt; the justification only goes to that part which accuses him of magisterial delinquency; part of the third count has not been touched.  Who is the old friend alluded to, - why the man who for eighteen months they have been holding up as a tyrant; the man towards whom the defendant has such a hatred that the English language with all its exubrance of diction is not sufficient to express it.  There is not one word of justification for calling the plaintiff a tool - a wretch who acts at the command of another; if they had intended to justify this, they should have gone on to say, that the said plaintiff being moved and seduced by the instigation of the devil, did vote for the said William Montague Manning, at his order and desire.  I should like to have seen my learned friends when they came to this expression, when they were drawing up the plea; how they must have dropped their pens in despair; here no justification could be attempted; so that all they had to do was to gloss it over and hope that the other side might forget it.  A more retiring part than was taken by the plaintiff on that occasion was taken by no person who was present: he merely gave a silent vote without opening his lips; my learned friend on my right (Mr. Foster,) and I took rather an active part, but the plaintiff did not.  I saw one or two of the Jury voting at that election, and I ask you how you would like to be told that you acted as tools to Mr. Manning or Mr. Macalister? - how would you resent it?  At this time, gentlemen, there was no discussion of the Brisbane Water cases; they were over, and the public was occupied with other matters, so that this attack marks the determination of the defendant to hunt the plaintiff upon every occasion.  What can be said in justification of such conduct; - here was the plaintiff in the mere ordinary performance of a duty that he was sworn to perform, and yet the defendant rakes up all the old matters.  What does this show but the deep rooted and perverse determination of the defendant to follow the plaintiff to the grave, to have an epitaph engraved on his tombstone, as he has instructed his counsel to say.  I have no doubt, gentlemen, I shall be able to convince you that if the plaintiff erred at all it was only an error in judgment, and I am sure you will not tolerate such licentiousness as has marked the defendant's conduct, nor suffer the plaintiff to be hunted to his grave for a mere error.  On this, gentlemen, the verdict must go for the plaintiff; it is too scandalous even to be attempted to be justified.  I now come to that part of the justification which alleges malice, and, under the direction of His Honor, I tell you that if there is not express proof of malice it must fail; it must not be malice in law, but malice in fact - a bad heart, acting from corruption.  My learned friend scouted anything else; he said nothing about inferential malice.  If the plaintiff, acting as a magistrate, acted irregularly, it is nothing without proof of malice; unless he acted from a corrupt heart, he is not answerable for what he did in his official capacity as a judge.  Is he to be charged with delinquency for a mere error; do we not see even the judges themselves making mistakes, and what is done by a single judge afterwards set aside by the full Court.  If in the office I hold, in which I give from fifteen to sixteen thousand judgments yearly, I was to be called a delinquent every time I committed an error, I would not hold office for a single hour.  All the strong points of the case, which were so much relied on by my learned friend, broke down entirely.  He first charged the plaintiff with the suppression of documents that would shew the perfect innocence of the parties, and that by such suppression he induced the Attorney General to file a bill against them, and put them on their trial.  Gentlemen, this was a grave, a serious charge, but the evidence of Mr. Fisher shows that the documents were forwarded to Sydney in the usual course; that they were before the Attorney General when he determined upon indicting the parties, and that they were in the Court ready to be produced at the time of trial if required, so that this charge is clearly refuted; and I am gratified to find so utter a failure on so important a point.  Another point that was relied on was that Pigott attended and offered money as security for Mr. Moore's appearance; - well, what if he did?  The plaintiff as a single magistrate could not take bail; that he wished to do so is clearly established in evidence, but he could not do so by himself, and when a second magistrate was in attendance he would not consent to it.  Then, gentlemen, there were the insinuations that he would not examine the prisoner's witnesses; well, gentlemen, what of that; it was a matter entirely within his discretion, if he considered there was a prima facia case against them he was not compelled to hear the prisoner's witnesses.  (The learned gentleman here read those sections of Peel's Act which declare that a single magistrate shall not take bail, and leaves it to the discretion of the Magistrate whether he will examine witnesses on behalf of a prisoner.)  You perceive by that gentlemen, that the imputation of not admitting the prisoners to bail was entirely groundless; the plaintiff could not do it, with this Act of Parliament before him he dare not do it, and my learned friend did not act with his usual candour when he kept that fact from your view, and with regard to the examination of witnesses it was a matter within his own judgment and he did not think it necessary to do so.  The witnesses mainly relied on to prove malice are Messrs. Moore, Bean and Donnison, and you will perceive gentlemen, from their demeanour in the box and the manner in which they gave their evidence that they are not actuated by a very kindly feeling towards the plaintiff; they are not likely to palliate his errors; that they have hatred the most bitter towards the plaintiff is quite apparent, and having hatred it is natural that they should put the worst construction on all his acts.  You have heard that they have been plaintiffs in action and that they have gained verdicts against him, and in fact it is quite evident that they come into the witness box steeped to the lips in prejudice.  Gentlemen, the evidence given by each of these gentlemen was widely different, as different as tragedy, comedy and farce, which are the names by which I shall distinguish their different evidences.  For tragedy we have Mr. Moore, for comedy Mr. Bean, and I think you will agree with me that the manner in which Mr. Donnison gave his evidence was exceedingly farcical.  I will first invite your attention to the evidence given by Mr. Moore the tragic hero and notwithstanding the prejudice with which it was given, I contend that the sum and substance of the evidence shews that there was no malice on the part of the plaintiff.  Mr. Moore said that he was put in irons while other persons who were confined on similar charges were not, but, gentlemen, he forgot to mention the different circumstances in which they stood, that he was committed and they were not, and therefore that the plaintiff had no right to put them in irons, and unless there is to be one law for the rich and another for the poor the difference in their situations in life had nothing to do with it.  If in ironing Mr. Moore the plaintiff acted illegally he had his remedy by action in the Supreme Court, and if he acted maliciously he might have applied for a criminal information, but he did not apply to the Court because he knew that he could not prove malice, and that malice could not be inferred.  Another circumstance that seemed to strike Mr. Moore as very extraordinary, was that Captain Faunce should say he had a very cheap way of buying cattle; and a very proper remark it was under the circumstances, for under pretence of buying a few head it is well known that parties take all the unbranded cattle they can find within thirty miles of a place.  Another remark that is complained of is, that the plaintiff said that if Mr. Moore's wild bull gored anybody he would commit Mr. M. for manslaughter, - serve him right too, gentlemen, for His Honor will tell you that if Mr. Moore let a wild bull run about and and [sic] after he had been complained to, it had killed anybody, an information for manslaughter could be supported, and therefore there is nothing so very extraordinary in the remark.  Gentlemen, the whole of the evidence shews there was no malice, and if there was any irregularity it was because too much lenity and kindness was shown; he was allowed to have wine, to communicate with his friends and family and to do everything that was consonant with his safe keeping, but the very meekness which the plaintiff exhibited has been attempted to be tortured into evidence of bad feeling.  The very instructions given by the defendant to his Council shew that there could be no malice; he describes him as associating with rogues and vagabonds.

Mr. a'Beckett denied having used the expression.

Mr. Therry continued. When the plaintiff went to Brisbane Water, Smith, Cape and six or seven others went before him and made affidavits, and if parties will make complaints of felonies what is a magistrate to do?  I say that the fact of these six or seven men going forward entirely negatives any presumption of malice that may arise: the plaintiff did not act until he was compelled to act by the weight of the depositions, which in his mind showed such a case that he was compelled to act.  It is all very well to designate people cattle-stealers but mere assertion is no proof and the magistrate can only act according to the evidence.  I do not complain of any thing said by Mr. Bean, who as I said before represents the genteel comedy in this case; he proves that Captain Faunce's conduct was kind; that when Cape was rude to him he stopped him and turned him out of Court; that after the charge was made he allowed him to go on his own parole; that the charge was not originated before Captain Faunce but had been commenced by another magistrate a twelve month before, and, gentlemen, I ask you whether this evidence does not rebut any idea of malice, whether if the plaintiff had been actuated by malice he would have allowed the parties to have gone on parole to Sydney in order that they might afford an innocent explanation of their conduct if they could.  I now come to the great hero of all these proceedings, Mr. Donnison, of whom I will say nothing unkind, but looking at these cases there is one fact apparent that he is a good hand at giving evidence, - why he treated us to a kind of pantomime representation of what took place in the Police Office.  He complained very much of Bramble's insolence, - why, what was more likely than that, when Mr. Donnison called Bramble a cattle stealer, he should say did I ever steal anything from you; and what is the fact, gentlemen?  why, that when Mr. Donnison complained to the plaintiff he stopped him the same as he had done Cape. Another piece of acting was the "come forward, sir," "go back, sir," "not so far, sir," which Mr. Donnison exhibited with so much comic humour; but is it not probable from the adroit manner with which Mr. Donnison acted in the box, that when told to stand back he went right back to the wall, and when told to stand forward he came right up to the table, so that although he did what he was told to do, he did it so adroitly as to annoy the magistrate exceedingly, and because an individual is a magistrate or a judge he cannot shake off this mortal coil so as to command his temper at all times, and it is not because a single angry expression escapes him that it is to be considered proof of malice- malice is made of much sterner stuff.  Throughout the whole evidence there is nothing to shew that Gorman in ironing the prisoners acted with the plaintiff's orders.  From the evidence of Mr. Plaistowe it appears that the plaintiff wished to grant Mr. Donnison the extraordinary indulgence of allowing him to go home to see his family after he was committed.  Does that look like malice?  Nay, he even regretted that he should be obliged to send home a constable with him, and when he told Mr. Donnison so he replied "what use would your constable be if my men were to rise and take me from him," and this, coupled with what had been reported to the plaintiff, that one of Donnison's men had said that he would go through fire and water for him, excited considerable suspicion in his mind that they meant to escape, and it is possible that he may have said "if these people attempt to escape they must be ironed," but why has the defendant kept Drew and the lock-up-keeper out of sight?  Why were they not brought forward to shew by whose orders they acted?  If it had been strewn that the plaintiff acted more severely to these gentlemen than he did to other persons in similar circumstances there might be something to show that he had acted from a bad heart, but the reverse has been proved.  He allowed them to go home, to go to Sydney, to see the Crown Officers when there was no precedent for such a course.  Gentlemen, can you find the plaintiff guilty of malice, with the fact staring you in the face that during the whole time these proceedings were pending the plaintiff was in correspondence with the Attorney General on the subject, and that the evidence in which the plaintiff acted was adopted by the Attorney-General as sufficient ground for putting these parties on their trials.  The evidence of Mr. Plaistowe, which is so much relied on by the other side, I will meet boldly.  At the first commencement of the conversation the plaintiff expressed regret at the parties having been ironed, and ordered the irons to be taken off: after this I think it is quite apparent that they were discussing the power of the magistrate and then Mr. Plaistowe says that the plaintiff said either I can or I will march them to Sydney in hand-cuffs; he does not affect to remember positively which, but you will perceive that on this word depends the meaning of the expression; if he said I will, it would appear that he had the will and intention so to do; but if he said I can, he was merely asserting that he had the power to do so, which, from the other parts of the conversation, appears to me to be by far the most likely.  There are many other points arising in my mind, but I will not detain you any longer; I will merely recapitulate those points on which I rely, as strewing that the plaintiff did not act from malice: - Allowing them to go at large on parole - the indulgence in the watch house and the anxiety to admit them to bail; he may have acted in error and illegally, but that is not the point.  Gentlemen, my learned friend expatiated most eloquently on the liberty of the press: no doubt, gentlemen a free press is a great blessing, but the abuse of it is a great curse.  If some mighty irresponsible person was using his high situation for the dispensation of curses, and acting in a tyrannical manner, in such a case as this a free press that would undauntedly attack the evil, would be the greatest blessing- the press has saved the constitution, and may do so again. But in a case of this kind it is widely different; what public benefit could accrue from the course pursued by the defendant; what public duty called on him to hurt the plaintiff in even the most ordinary walk in life what motive could he have had, but to gratify his own malignity.  The plaintiff was borne down by misfortune - Jury after Jury had been finding verdicts with heavy damages against him; and gentlemen, I do feel that the conduct of the defendant and his abettors was most contemptible; when they saw him a ruined man, ruined both in his peace of mind and in his circumstances, to follow him up and hunt him as they did; to hold him up as an

- outcast to virtue, peace, and fame,

His Children's curse, his country's shame.

The defendant's counsel has told you that he (the defendant) will follow him to the grave - nay, the grave itself shall not shield him; for he will write an epitaph for his tombstone; I ask you is a person for a mere error to be punished in this way.  Alonzo, said the poet, is dead, and so is my enmity; but not so the enmity of George Cavenagh; for when he is dead, says the defendant, I will engrave an epitaph on his tombstone, that shall point him out as a criminal to posterity.  I was astonished when I heard the learned counsel make the declaration; is it to be tolerated that for such venial errors as the plaintiff has been guilty of, that he shall be pursued to such lengths; if it is to be to be tolerated, I can only wish my friend an early grave, for although but a young man, an early grave will be far preferable to a life of scorn and public contumely.

The Chief Justice commenced summing up by observing, that this was a case of considerable importance to the public, inasmuch as the character of a-magistrate of the Colony was involved on the one side; while the the [sic] liberty of the press was said to be attached on the other; and he therefore invited the particular attention of the Jury to it, but called on them to dismiss from their minds any preconceived notions, which, in a small community like this, it was almost impossible they could have avoided forming before they came into court.  The plaintiff seeks compensation for two defamatory libels published in the Sydney Gazette, and I need not tell you that anything tending to bring a person into hatred, contempt, or scandal is a libel.  His Honor here recapitulated the whole of the pleadings.

The first question for you to consider is, whether the defendant published the matter complained of; of this there can be very little doubt, for it has been proved in the usual manner.

Then, does it apply to the plaintiff. Of that you can have no doubt after the evidence of Captain Hunter; independently of which, the plaintiff is named in several places.

And, thirdly, are the matters libellous - do they contain any stain on the plaintiff's character; do they impute anything improper to him, and on this point I am bound to tell you that prima facie it is highly libellous to tell a magistrate, that he has been guilty of brutal treatment, and has acted from mere caprice.  I consider nothing can be more libellous than to tell a magistrate that he had abused the powers entrusted to him for the public good, and has acted improperly, not from mere error in judgment, but from a depraved state of feeling.  The next paragraph which says that the plaintiff is incapable of managing anything but an old stock-horse, is also highly libellous.  It is on these points that you are to consider whether the defendant has offered such justification as excuses him.  In construing words of scandal we must construe them not in an abstruse or scientific point of view, but give them their popularly understood construction; but in construing the word delinquent you are spared any trouble, as the defendant broadly asserts, that he applied it in its worse sense and meant to impute to the plaintiff that he acted from impure motives.  (His Honor here recapitulated the greater portion of the evidence observing, that without wishing to impute anything improper to these gentlemen he thought that the evidence of Messrs. Moore, Donnison and Bean, ought, in consequence of the feeling which they naturally must have towards the plaintiff, to be received with great caution.  The evidence of Mr. Plaistowe he said was open to no such objection.)  It was necessary, His Honor continued, to find the plaintiff guilty, that the Jury should consider that malice had been expressly proved against him, not mere malice in law or inferential malice, but malice either in his sayings or doings.  On the first count the Jury must consider whether the plaintiff had acted from mere caprice and whether his conduct had been brutal.  The justification pleaded to the third count did not go to the charge of mental incapacity or to the being a tool.  The main broad ground on which the defendant rested, His Honor said, was, that he had done nothing which as the Editor of a public journal he was not authorised to do in discussing a legitimate topic, and it is necessary for the safety, welfare and happiness of the public that the conduct of public officers shall be criticised, but at the same time care must be taken that the power is not abused.  The question for the Jury, he said, was, do the articles complained of, fairly, freely and candidly criticise the conduct of the plaintiff: if the Jury believed that the plaintiff acted maliciously and corruptly, he was bound to tell them that the articles were perfectly justifiable.

The Jury retired about three quarters of an hour, and returned a special verdict; on the first count for the defendant; on the the [sic] third count for the plaintiff, damages - ONE FARTHING.

Mr. a'Beckett - Will your Honor certify for three counsel for the defendant.

Judge - Yes.

Mr. Windeyer - Will your Honor certify for a Special Jury and three counsel, for the plaintiff.

Judge - Yes.

Counsel for the plaintiff, Messrs. Therry, Foster, and Windeyer; for the defendant, Messrs. a'Beckett, Cheek, and Broadhurst.

The trial lasted the whole of Thursday, and until three o'clock on Friday, and appeared to excite great interest.

 

Notes

[ 1]See also Sydney Herald, 19 March 1838; Australian, 20 March 1838; Dowling, Proceedings of the Supreme Court, Vol. 148, State Records of New South Wales, 2/3333, p. 115.  See also Bean v. Faunce, 1837; Donnison v. Faunce, 1837; Donnison v. Fisher, 1838; Moore v. Faunce, 1838.

On these Brisbane Water Cases, see P.E. Tabuteau (ed.), The Brisbane Water Case 1837-8, Gosford District Local History Study Group, Narara, 1989.

In 1838, the British government announced its intention to end of the system of assigning convicts to work for private masters.  See Glenelg to Gipps, 30 June 1838, Historical Records of Australia, Series 1, Vol. 19, 461-462.  In the meantime, Governor Gipps was placing it under tighter restrictions, including the abolition of assignments of males in towns and as domestic servants: Gipps to Glenelg, 8 October 1838, Historical Records of Australia, Series 1, Vol. 19, 603-604, and see 616, 679 and 773 on the British government's approval of these restrictions.

Published by the Division of Law, Macquarie University