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

Brady v McEachern [1839] NSWSupC 48

libel - Catholics, prejudice against - Penrith - Roman Catholic priests, locus standi of

Supreme Court of New South Wales

Stephen J., 9 July 1839

Source: Sydney Herald, 10 July 1839 [1]

Tuesday. -- Before Mr. Justice Stephen and a Special Jury.

Brady v. McEachern. -- This was an action to recover compensation for libel.

Mr. Windeyer opened the pleadings.  The plaintiff is the Rev. John Brady, and the de[fendant was] Editor of the Colonist newspaper.  The declaration as matter of inducement set forth that at the time of, and long before the committing of the grievance complained of, the plaintiff was a Roman Catholic Priest, and had been acting as one in the district of Penrith with great credit and reputation, and yet the defendant knowing the premises, and contriving to injure and defame the plaintiff at Sydney, on the 15th of September, published a false, malicious and scandalous libel in the following words:--

The Confessional. -- Not quite a hundred miles from the district of Penrith, there was an old wife, who, in her earlier days, was a believer in the doctrines of the Church of England, but hav[i]ng married a Roman Catholic husband, she allowed her religious predilections to give way to a love of peace and quietness, and joined with her better half in the worship of the mass -  As might be expected, under such circumstances, the old lady was not an over and above devout convert, and she grumbled occasionally at the fastings and penances which form so prominent a part of the ordinances of her newly acquired religion.  The confessional especially she held in utter ob[h]orence, it being altogether inconsistent with her ideas of propriety, to pour out the details of her occasional indulgencies and trifling faux pas, into the ears of an unpitying priest, who never failed to make her pay dear for such little breaches of etiquette.  She got on tolerably well while there was no priest nearer than Parramatta or Windsor, because their [visits] to the district being only occasionally, she was generally able to contrive some excuse for being out of the way, or shirking the duty.  Latterly, however, a worthy priest has been stationed in the immediate neighbourhood, and such excuses being no longer of any avail, go to confession she must.  As by this time a pretty long arrear of [?] had [?], and the bill for forgiveness was likely to be a lengthy one, she thought it better to bargain for the sum before-hand. -- After a good deal of higgling, she succeeded in getting the priest to allow her a clear score, for two pounds sterling.  On these considerations she immediately proceeded to the confessional, and in a short time had laid the whole details of her sins and back-slidings before the Rev. Father, who, startled at their enormity, insisted upon it that she had deceived and entrapped him into consenting to take a sum altogether disproportioned to the amount of labour to be performed, he therefore refused her absolution, unless she would pay him down the sum of five pounds.  The indignant dame was compelled to comply, but she left the Confessional protesting that be Catholics who may, she was determined in future to shelter herself nnder the wing of Bishop Broughton.

The Attorney-General stated the case at considerable length asserting that if the facts charged in the libel were true Mr. Brady would be suspended from the order of priesthood, and held in contempt and abhorrence by every Roman Catholic in the community.

In proof of publication, Mr. Greville, of the Colonial Secretary's Office, was called and produced a paper containing the libel signed by the defendant, and also a letter from the defendant dated October 1, apologising for not having made the affidavits required by the Act of Council, and stating that he had discontinued being Editor of the Colonist on the previous Saturday, and that as changes were being made in the office, the required affidavits could not be made for another week.  Mr. James Spilsbury, Printer of the Colonist, stated that Mr. McEachern had ceased to be Editor of the Colonist, for about a fortnight before the publication of the libel, which to the best of his belief he never could have seen until it was printed: the defendant at first declined to sign the paper, but at length consented to do so; the article was no in Mr. McEachern's handwriting.

The Right Rev. Dr. Polding. -- I am Bishop of the Roman Catholic Church, and have the superintendence of the Roman Catholic Clergy; the Rev. Mr. Brady is a priest of the Roman Catholic Church, a Chaplain of Government, and was appointed by me to the district of Penrith; he discharged his duties at Penrith; there is no other priest in the district, nor in the neighbouring district of Windsor; Mr. Brady arrived in the Colony 27th February; he was appointed by me indirectly on the 1st of March; on the second Sunday in March I accompanied him to Windsor; I inducted him into the cure; since then he has received salary as chaplain of that district; the district is very extensive; I have read the article the subject of this action; (the witness then went through the libel and proved the inuendoes) supposing that the Rev. Mr. Brady, or any Catholic priest, had been guilty of what is here imputed to him, I should have suspended him from his functions, and if he had applied to me for an exeat, that is to say, a certificate that he was free from all ecclesiastical censures, and fit to be be employed in his ministry, I should have refused it; without such a certificate he could not obtain employment as a priest; I mean all over the world; he would have been entirely deprived of means of support; he would have lost the Government salary as a Clergyman; the effect upon his character would have been its entire destruction, in a moral sense he would have had no character; he would have been degraded to the last degree; that opinion of him would not, I should think be confined to Catholics.

Cross-examined. -- There are several sorts of degradation; there are certain acts to which inherently and essentially degradation and detestation are attached; the act attributed to Mr. Brady is one; and exeat is the testimonial a bishop gives to a clergyman leaving his jurisdiction; it applies to the priesthood alone; it rests with the priest to ask for it or not; were a priest not having it to apply for employment, the bishop, not having other means of knowing his character, the absence of it would prevent him from being employed; Major Druitt's house is the boundary line between Parramatta and Penrith; at his ordination a Roman Catholic priest takes no oath as to any particular supremacy; there is no renunciation of the temporal sovereign; Mr. Brady came to me with the approbation of Lord Glenelg forwarded through the Governor; if a temporal power were to order me to do a thing which was forbidden by the spiritual power, I should first enquire whether the temporal power had authority; I should exercise my private judgment, and so would the most illiterate Roman Catholic; there is a book by which Protestants may become acquainted with the true doctrine and practice of Roman Catholics as to confession; it may be found in the Holy Scriptures; there have been many bulls, canons, and decretals on the subject; I am not aware that the practice of confession has been altered; the authorities alluded to may have explained the doctrine, or remedied abuses; for instance, the Council of Lateran requires that this sacrament shall be used once in the year, there being laxity of discipline introduced in the frequentation of it; the sale of indulgences is spoken of in Protestant history, not in Catholic; there is a connexion between confession and indulgences; to obtain indulgence a person must use all the moral means in his power to assure himself that he is free from the guilt of sin, and in the enjoyment of the grace of God; if a person has been guilty of sin we believe he cannot obtain remission of the same without a sincere sorrow and detestation of sin, with a firm determination never by any sin to offend his good God and expose himself to the consequences of his displeasure, and this is a part of the sacrament of confession; I have read Protestant histories which are exactly the same as Catholic histories.

By the Jury. -- Is there any authority in the Roman Catholic Church to take fees for confession or for pronouncing absolution?  So far from it, it is strictly forbidden, and a priest doing so would be reprimanded, and if he required fees he would be ipse facto suspended, and be unable to exercise any of his faculties; it would, as a matter of course, be followed by formal suspension.

By the Court. -- There are certain things forbidden to be done by the priesthood, upon pain of suspension, and this is one of them; by suspension he loses the power of exercising the faculties of a priest; he would not lose the character of the priesthood, which we consider to be inherent; it is forbidden the priesthood to receive anything in consideration of taking confession; it is not customary to give anything; the imputation conveyed to my mind by the libel is the idea of a man who traffics in spiritual holy things, who has no respect for God; that he is a trading, a simonlacal priest; the imputation of taking the second sum is an aggravation, inasmuch as it shews a disposition to take advantage of every circumstance; if the article had stopped half way down I should have considered it disgraced and degraded the plaintiff as a priest, as a man, and as a member of society; if a priest were to say to a person that he would go to take her confession for £2 it would be dishonourable; if a priest were to receive money voluntarily offered simply to pay his travelling expenses I should not consider it dishonourable.

This closed the plaintiff's case.

An application was made for a nonsuit, on the ground, first, that there was not sufficient proof of publication; and secondly, that the plaintiff had no locus standi in Court as a Roman Catholic priest.

Mr. a'Beckett addressed the Jury for the defendant in a very eloquent speech, contending that, so far from being a libel, the article was intended to bring what Protestants, whether rightfully or wrongfully he cared not, believe to be the doctrines of the Confessional into ridicule and contempt.  It was not a libel upon the individual, but a fair discussion upon a public question.

His Honor said, that the first question for the Jury to decide was, whether the defendant composed and published the libel.  If he composed the libel, and did not publish it, the verdict must be for the defendant; but if the defendant published, and did not compose, the verdict must be, for the plaintiff.  (His Honor here recited the provisions of the Acts of Council on the subject and asked the Jury for what purpose the defendant signed his name to the paper forwarded to the Colonial Secretary's office, under the Acts, if it were not to acknowledge himself to be the publisher of the paper.)  The next question for the Jury was, with what view the article was published; whether he intended, as alleged in the declaration, to bring the plaintiff into disrepute as a Roman Catholic priest, and to degrade him and bring him into contempt as a man and as a member of society.  If the Jury considered that the article was merely intended to discuss a subject in a general way, and not to injnre the plaintiff, there was no doubt that the verdict must be for the defendant.  Any discussion of a public matter, in which private character is not trenched upon, is justifiable; and, in considering their verdict, the Jury must draw a distinction between public topics, and topics which are calculated to bring individuals into contempt.  The discussion of a public question must not be made the means of attacking private character; private character must not be traduced because a public question is at issue.  He (the Judge) fully agreed with the principle laid down by the Counsel for the defendant; and if the Jury believed that the object of the article was merely to convey a story, by way of illustrating the discussion of a theory or a general question, the verdict must be for the defendant.  The Jury were at liberty to dismiss from their minds the evidence of Dr. Polding, and form their own opinion as to the applicability of the libel; the evidence on the subject being to assist, not to control them, in their verdict.  Had any excuse been shewn for the publication of the libel article: was it fair discussion on a public point, theological or otherwise?  These points being decided in favor of the plaintiff, then arose the question of, whether there was malice, which was the very essence of the offence; for unless they found that the publication was malicious, they must find a verdict for the defendant.  But in judging of malice, they must not affix the popular meaning to it.  Thus, where a man wantonly rode into a crowd and killed his own child, although the evidence was contrary to the fact, yet the law presumed malice.  In determining malice, the question to ask themselves was, whether there was any legal justification for publishing the article?  A celebrated text writer lays it down, that an action lies for the publication of any legal justification.  Whether or not the article complained of was a libel, he should abstain from giving an opinion upon; it was a mixed question of law and fact for the Jury to determine.  Then came the question of damages; and in awarding them the Jury must determine what injury the libel was likely to produce, not what it had produced.  If damages were to be given only for the injury done, a person of good character would be worse off than a person of bad character.  A man may stand so high in public estimation that no libel can affect him; but can it be said that, therefore, if he is slandered, he is to get no damages?  which is equivalent to saying, that he is without protection against any person who may libel him.  The plaintiff, as a minister of religion, was as much entitled to damages as if he belonged to our own church; he was not to have the shield of justice removed from him because he differed from us in faith.  While they remain subjects, all persons are entitled to the benefits of the laws, more especially a minister of the Christian faith -- of a faith which, like our own, professes to be founded on Holy Writ.

The Jury retired about a quarter of an hour, and returned a verdict for the plaintiff -- Damages £50.

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



[1] See also Sydney Gazette, 11 July 1839; Australian, 11 July 1839; and see Brady v. Cavenagh, 1839.

Published by the Division of Law, Macquarie University