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

Josephson v. Fulton [1839] NSWSupC 12

libel - Penrith - contemptuous damages - satire

Supreme Court of New South Wales

Willis J., 18 March 1839

Source: Australian, 21 March 1839[1] 

SUPREME COURT -- (Civil Side)

MONDAY. -- Before His Honor Mr Justice Willis and a special jury.

Josephson v. Fulton. -- This was an action for Libel. The damages were laid at £500. The defendant pleaded not guilty.

The declaration set forth the libel, which contained in the Australian Magazine for the month of March, 1838, under the title of ``The Devil and the Man of Worth" and the inuendoes [sic] attached the obnoxious parts of the libel to the plaintiff to bring him into ridicule and contempt. Mr Windeyer opened the pleadings, and

The Attorney General addressed the jury. -- As the jury had heard, the libel was contained in a number of the Australian Magazine, a publication which died a natural death, and it was only to be regretted that it had not ceased before it had digraded [sic] the press of the colony by giving admission to a composition of the lowest and most insulting description. He cared not about the laughs on the other side, and he felt assured by the sneers of his learned friend that the defence would be conducted in keeping with the libel itself, and be made very ridiculous and funny; and he was sorry to say that such a course would be very palatable to the greater portion of the community, as it was but too true that the larger portion of mankind were gratified at any thing they could enjoy at the expense of their neighbour. But he called on the jury to place themselves in the condition of the plaintiff, and say whether (however, innocuous and ridiculous the article was) whether they could tamely bear the finger of ridicule and scorn to be pointed at them, and not have acted as the plaintiff had done. The laws were framed not only to protect the lives and property of the subject, but also his character; for without the latter, the former would avail him little in society. If a man was not allowed to live peaceably, and if his character could be assailed by every blackguard who (either through malice or private pique) chose to turn him into ridicule, without having an appeal to the law, few would care to endure life under such circumstances. He would be able to shew them that Mr Josephson was the person alluded to, as described in the inuendo [sic], and who was represented as a character on a par with the Devil. By the village of P -- was meant the village of Penrith, where Mr Josephson had occasionally resided; and the worthy little gentleman was meant to refer to Mr Wilson, Mr Josephson's son-in-law: And he could not help here observing that it was scarcely to be believed that Mr Wilson, although his name was mixed up so personally in the case, was privy to the writing of the alleged libel. Mr Wilson was a young man who had applied himself to business, and had accumulated a comfortable independence; But by whose instrumentality had he done so? Mr Josephson was married to Mr Wilson's mother, and at her instance he had brought Mr Wilson and the members of the family out from England, and had assisted them to the utmost of his power in the colony, where they were all happily established. Mr Josephson had paid their passage out, had advanced money to set them up, and had treated them in every way as his own children. The Mr Wilson alluded to he had set up at Penrith, where he first commenced, in partnership with another person, and he had got on until he was enabled to purchase the whole business, with the assistance of Mr Josephson, who had advanced him money to set up by himself; and Mr Josephson, although he had advanced the money, had never received one sixpence emolument from it. It could hardly be supposed, then, that he could have so great ingratitude as to be at the bottom of the insulting abuse cast upon his friend and benefactor in the alleged libel -- and a doubt upon this matter, which he could not avoid entertaining from the manner in which Mr Fulton had mixed up his name with Mr Josephson's added poignancy to the sting conveyed in the libel itself. But Mr Josephson had not stopped here in his liberality; finding that Mr Wilson was refused a license, on account of the house he then inhabited being disapproved by the magistrates for a public house. Mr Josephson applied to the Bench at Penrith, and entered into a bond to build a commodious house for his son-in-law to be completed in twelvemonths if the magistrates would grant his son-in-law a license,

-- which was done -- and this was the mansion alluded to the libel -- situated on the fertile and meandering banks of the river Nepean. He would be able to prove clearly every averment in the inuendoes; that Mr Josephson was the party alluded to as His Satannic Majesty, and that Wilson was the worthy little man meant; he should be able to shew that the defendant was the author of this malicious and scurrilous libel, in fact, he had made an admission that he was the author, with the same unblushing front with which he had written it. But his systematic persecution did not cease here; with a malignity which has scarcely a parallel, he continued to send a series of letters of the most irritating and scandalous description, through the post with the infernal intention perhaps of making him commit an act which none but a madman would think of? and to crown all, in the last Australian which appeared, and just on the eve of the trial, or rather the day on which the trial was set down for, he published an advertisement -- aye, and in the same office in which the magazine which contained the libel was printed, evidently with the intention of keeping up the excitement to the last minute that he would be enabled to seize, prior to the infliction of the punishment he so justly deserved. The jury would observe that the libel had been printed with great care, so as to render it as difficult as possible to fix the inuendoes; it had evidently been polished and corrected for the press by a hand fully acquainted with the difficulties which surrounded the proof of a libel case, but he would be able to remove all doubt from their minds on this subject. This cause had gone over three times, from term to term, but not from any delay on the part of Mr Josephson, who had been anxious to have it brought it to trial at once; and it probably would not have come before the Court at all if the plaintiff had not been in the vale of years, and not possessed of the nerve of youth, in which case it might have taken another shape. The plaintiff was an old man, and had resorted to the law for satisfaction, which he could not obtain in any other way. The defendant was the son of the respectable clergyman of Castlereagh, of long standing in the colony, who perhaps was well known to many of the jury -- and he was sorry to say that the defendant was the unworthy son of a worthy sire; for the only cause to which the plaintiff could attribute this system of persecution was one to which it was painful to allude, but which, however painful it would be, his duty would force him to lay before them. This unworthy son had the hardihood and indecency to make a charge of perjury against his father, but the magistrates, who knew the characters of either party intimately, scouted the charge as it deserved, and expressed their horror of such unheard-of depravity, and the dishonour recoiled on the head of this unworthy and unnatural son. Mr Josephson who was intimately acquainted with the parties, with a feeling which did him credit, remonstrated with the defendant, who returned the parental advice given him by Mr Josephson, with a torrent of abuse which amounted to blasphemy, for which, Mr Josephson felt it necessary to have him turned out of the house, and from this arose that system of persecution which had been laid before the jury, and this was the only cause of a continued system of annoyance, which none but a petty mind could have conceived. As he had before stated, the defendant was not content with the subject matter of the libel itself, but continued to send Mr Josephson the most insulting letters, and really were it not for the malignity displayed in them, one could hardly refrain laughing at the ridiculous language in which they were couched. In these letters, the epithets ``sneaking poltroon," with others of a similar exciting nature were mixed up with most ridiculous expression, which although they might make the vulgar laugh, must cause the judicious to grieve, and rendered it utterly impossible that any member of the community could be exposed to such persecution without seeking redress from the laws which were made to protect him. The defendant's conduct had been such, that it could alone be attributed to a drunkard, or a madman, but it was not to be passed over on that account -- the injury was equally great to the plaintiff, and the defendant could only be considered in the same light as a mad bull, who would be stopped in his course by the parish which was annoyed by it, in self defence; and if Mr Fulton had no property which could be diminished as a check to his course, he ought to be restrained as a mad bull would be in his licentious course, for the protection of the community in which he resided. He (the Attorney General) only asked the jury to make the plaintiff's case their own, and judge what they would do in similar circumstances. Was it to be borne that because a man was afflicted with personal defect or deformity, that he was to be subjected to continual annoyance by every blackguard who chose to ridicule him? The principle of the law was never better exemplified than in the present case, which had been made a ludicrous as possible to cover the malignity which actuated the defendant, who, as an anonimous [sic] assassin, had shielded himself by shaping the libel, so as not only to evade the law if possible, but at the same time to render the shafts of his calumny more acute. But in this hope he had deceived himself, as the jury would be convinced, from the testimony of the witnesses, as they must also be by their personal knowledge of the parties, that the plaintiff was the party attacked -- there could be little doubt who was meant by the huge protuberant lip alluded to, but the writer ought to have recollected that men were not their own makers, otherwise the greater portion would be fashioned differently to what they were. With respect to Mr Josephson being a usurer, Mr Norton, who had been his solicitor for many years, would be put into the box, and would prove that during his knowledge of the plaintiff, instead of his being a usurer -- instead of his taking advantage of the times, and charging 20 and 30 and 50 per cent. as had been done, he had never charged more than 10 per cent. in any money transactions, and he would also shew that instead of the usurer having taken a thousand pounds in extortion, as was endeavoured to be insinuated by the libeller, he had received but a thousand pounds for a property which was worth double and treble that sum, and the transaction was really a gift to the party who had made all that he was worth by the assistance of Mr Josephson, and who, if he were privy to the libellous production, was guilty of the blackest ingratitude. By reading the paragraph to which he alluded, any one would think that Mr Josephson was a usurer in every of the word, a Shylock, such as that character is depicted, but this would be completely disproved by Mr Norton, and he hoped that the jury would, by their verdict, shew the defendant and persons who might be similarly disposed to vilify the characters, and harrass individuals, that the law was not to be infringed with impunity.

Mr Roger Murphy, Mr R. Mansfield, Major Druit, Mr Norton, Mr John Purcell, and Mr Crane were put into the box to prove the averments, and fix the inuedos.

The letters, which were of the most ridiculous tenor, were read by the clerk, as was the libel itself, for which we must refer our readers to the March number of the Australian Magazine.

For the defence Mr √°Beckett addressed the jury, and said -- Gentlemen, by this time I have little doubt but you have arrived at the conclusion to which you will come upon this ridiculous action -- ridiculous to a degree that must call forth our unqualified admiration at the immovable gravity preserved by my friend in his statement of the case, and in his efforts to place this truly farcical exhibition in a tragical light. At the same time, I cannot but also admire the dexterity with which the Attorney General withdrew himself from Court after his oration was concluded, for fear of his being unable to carry on the farce, and betraying the weakness of his cause by an uncontroulable [sic] burst of merriment. Gentlemen, it is a fortunate circumstance that the solemnity of the law may sometimes be relaxed, and that cases of this sort afford it occasionally an opportunity for the display of the ridiculous. We are infinitely obliged to Mr Josephson for the entertainment. I presume, having formerly been the proprietor of a theatre -- which would have been the proper place to introduce such a farce -- his failure to assemble an audience to witness the entertainment there, has induced him to favour the public with its exhibition here. Gentlemen, you will have observed that the proceedings have partaken of the grave and the gay, the lively and the [?] -- and in the latter departments, my learned friend has not spared the most opprobrious censure upon my client, in his address to you, and in the course of his examination of his witnesses. The picture, too, which he drew of his own client, was somewhat startling; for if the inuendoes in his own declaration were to be believed, no other conclusion could be arrived at but that the Devil himself was to make his appearance in Court, in the person of the plaintiff; in short, if you take my friend's deductions as facts, he had clearly made out that Mr Josephson and the Devil are synonimous [sic]. The proposition was extraordinary, but, extraordinary as it is, it is actually made out by my friend's own witnesses -- for Mr Murphy unhesitatingly states that, from his long acquaintance and intimacy with Mr Josephson, he immediately recognized him to be meant whenever he read of his Satanic Majesty, the Devil, Old Nick, or any other name you like to confer on the old gentleman with a tail. Not that I exactly give credence to that evidence, for I am not yet aware, from any sulphureous odour, of the presence of Mr Josephson, nor am I given to understand that his appearance in Court at this moment is such, gentlemen, as to afford ostensible testimony of the diabolic attributes assigned to him by my friend. Gentlemen, a great deal of evidence has been given to fix the application of his ridiculous production -- for you can call it nothing else -- on the plaintiff; but is Mr Josephson to monopolise all the fiery-looking fur caps, all the snuff boxes, the piebald ponies, to himself? However, as it was convenient for him to appropriate the character, my friend was determined that the cap should fit, and so fixed the libel, as it is ridiculously called, upon Mr Josephson. But for the interpretation of my learned friend, I think it would have puzzled any one to make out what was meant by the article, which is really only one of those inexplicable charades which are sometimes inserted by the jocular to puzzle the brains of the inquisitive, and when probed, are found to have no meaning in them at all. I recollect reading the article in question, and asking at the time what it could possibly mean -- and it recalls to my memory a similar absurdity that occurred a few days ago, by a question put in my hearing, ``Why is The Australian newspaper like a humming top?" ``Can't you guess," said my friend. I said no. ``No" said he. ``No, well; no more can I." And the same might truly have been said of this article. Now really, if a stop is to be put to innocent merriment like this -- if the passing a joke is to be laid hold of to put a stop to the march of intellect and the outbreak of mirth, who may not be brought before a Court of justice to answer for some strained meaning applied to his words, by any fool who may fancy them to apply to him. No doubt, with the aid of a special pleader, like my friend, even the absurdity about the ``humming top" might be twisted into a libel. I can imagine his opinion being asked on the point: ``humming top," says my friend; ``hum -- let me see -- `humming top' -- something is clearly meant. Humming is, in the common acceptation, deceiving, cheating -- to hum, is to deceive -- a humming, that is a deceiving, cheating paper. `Top!' Everyone knows that a humming top is hollow; it makes an unmeaning noise -- it is noisy -- a libel clearly: it imputes to The Australian a deceiving, cheating, senseless, noisy, hollow, and unmeaning character -- and what ``more gross imputations can be put on a newspaper?" Now gentlemen, this must have been the kind of thing that was passing in my friend's mind when he drew this declaration, and so feelingly described the applicability of the inuendoes to his client; and I am sure that you will not give greater credit to his serious, that you will to my fictitious picture of the case, with reference to what is libel. Gentlemen, it has of late been decided, and the decision will, I trust, always be acted upon, that the jury are the judges of the meaning of libels, in civil as well as in criminal cases; and it will be for you, therefore, to put your own construction on the whole matter laid before you, and pronounce whether the matter laid in the declaration is a libel -- whether it be in fact calculated to bring the plaintiff into contempt, and do injury to his character. Gentlemen, in his speech, my learned friend opened with a great deal of eulogy in favour of Mr Josephson, and a great deal of abuse in reference to Mr Fulton, which was not in very good taste, as Mr Fulton is not in a condition in this action to disprove the imputations cast on him; but I do not wonder at the position taken by him, as it required some exertion on his part to restrain his risible muscles, and he was, probably to prevent laughter, forced to have recourse to invective. In a moment, gentlemen, I also will cease to smile, for the purpose of asking you seriously, whether this plaintiff, who stands so much upon character -- who has based his cause upon his reputation, can stand the test of enquiry -- and whether he really has a character which could be injured by anything, much less by the laughable and ridiculous matter which has been laid hold of to build an action upon. Gentlemen, great stress has been laid upon some ludicrous letters from the defendant to the plaintiff, some of which you have heard read; and if I may judge by the effect produced on the Court by them, I think I need not ask your opinion of the interpretation put on them by the Attorney General, who, in his sublime flight of indignant oratory, denounced them as ``an infernal attempts to drive Mr Josephson out of his mind, and commit suicide," As to the pathetic part of the business, the Attorney General's description of the lacerated feelings of the old gentleman who hat retired from the Vale of Penrith into the Vale of years -- his declining health -- his want of vigour precluding him from giving the defendant a good drubbing -- it appears that he has not yet acquired that pacific and forbearing spirit which renders old age respected, nor is he altogether wanting in malice, if we may judge from the instructions given to his counsel to abuse my client, and to hold him up to the world as something so unnatural and debased as to be below the common standard of man. Gentlemen, the malignity which could dictate these instructions, says but little for the respectability of that character upon which the plaintiff has taken his stand, and of which, so far as the law will allow him, he shall have the full benefit. Many of you may perhaps be acquainted with the plaintiff, and if you are, you will be able to appreciate the value of that character upon which he has taken his stand. But were he as pure as snow, what after all is imputed to him? If the alleged libel had imputed forgery, or swindling, or robbery, or perjury, or if it had imputed to him that he had swindled his creditors by pretending to have been robbed, when he had in fact secreted his property himself, then he might have complained, and have come to you to seek reparation. But what is imputed to him, even by the witnesses who have so dexterously fitted the hellish cap on his head. Why usury, which is no offence, which does not always fix a moral stain upon a man, and certainly constitutes no legal cause in New South Wales. There is no law against usury in this colony, any man may take what interest he pleases -- may be what is called a usurer; and Mr Norton Josephson's own solicitor, says that he was commonly reputed to be a usurer; the character of a usurer was generally fixed on him, and though from particular acts, Mr Norton has said to the contrary, I am inclined to place some faith in the old adage -- ``what every person says must have some truth in it." Gentlemen, you have heard the unsparing abuse bestowed on my client by the Attorney General -- you have heard him called a dissipated, depraved, blasphemous debauchee -- so callous and depraved that he called his own father to task, and for which, Mr Josephson called him to task. Gentlemen you will be able to judge how far Mr Josephson is qualified to exercise the paternal solicitude, and how far he is qualified to give advice, which has been so feelingly described, to Mr Fulton -- if you were to revert to the days of his youth, and his after course in life, you would not conclude that he was the most fitting person to instruct youth with any prospect of their moral improvement. I put it to you whether this plaintiff can with decency come to you and rely on his character. I will put it to you whether, in the language of the declaration, he has lost one good opinion by the matter charged as libellous. I will ask you whether Mr Josephson, coming to the colony as he did, and maintaining the character he has done since, can have suffered one iota in public estimation. I would not have alluded to past circumstances nor forgotten events in this person's former habits of life, unless called upon to do so, but when a man comes to you to take his stand upon the purity of his character, and asks you to award him damages for the injury of a reputation which could hardly be injured by any remarks, it is my duty to lay open here the character upon which the application to you is made -- and I feel more called on to do so by the unsparing abuse and insinuations case at his instance on my client. Gentlemen, you have heard that this plaintiff of such honourable mind and benevolent feelings, turned Mr Fulton out of his house, and to this circumstance is attributed the persecution, as it is called, which has been placed before you in the ridiculous letters to which I have drawn your attention; but you will also recollect that this sensitive man kept Mr Fulton in his house as long as he had any money to spend, and when he had nothing more to contribute to the usurer's fund, he finds immediate cause to drive him from the roof. Gentlemen, I do anticipate at your hands a verdict for the defendant, but if you should be of opinion that a verdict ought to go for the plaintiff, I am convinced that you will have no doubt but that one farthing will be ample recompense for the injury done to his shattered reputation, and long since deficient character.

Mr Therry contended that he was entitled to a reply, but His Honour in whom a discretionary power lay, said he thought that in justice he ought not to allow it, as either side had had full opportunity to lay their cases before the Court.

His Honour summed up very briefly, and the Jury returned a verdict for the plaintiff. Damages one farthing.

An application on the part of the defendant to certify to deprive the plaintiff of costs was refused by the judge, in consequence of the continued persecution, by letters, pursued by the defendant since the publication of the libel.



[1] This report was repeated in the Sydney Gazette, 23 March 1839.  See also Australian, 19 March 1839.

Published by the Division of Law, Macquarie University