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

Mudie v. Kinchela [1840] NSWSupC 67

assault, Mudie, provocative book by, duelling, gentlemanly conduct, Forbes C.J., attacks on, Kinchela J., attacks on, Attorneys General, attacks on

Supreme Court of New South Wales

Willis J., 26 October 1840

Source: Sydney Herald, 28 October 1840[1]

MONDAY. - Before Mr. Justice Willis and the following Special Jury:- T.C. Breillat, merchant, Joseph Whitehead, merchant, George Weller, merchant, T. Woore, Esq., William Brown, merchant, Thomas Brown, merchant, James Bowman, Esq., S.A. Bryant, merchant, Alexander Young, merchant, and W. S. Wilson, Thomas Arndell, and John Wilkinson, Esquires, talesmen.

            Mudie v. Kinchela. - Mr. Foster opened the pleadings.  In this case James Mudie was plaintiff and John Kinchela the younger, defendant.  The action was brought to recover compensation for an assault and battery; damages were laid at £1000.  The defendant had pleaded the general issue, not guilty.

            Mr. a'Beckett stated the case.  He said he had the honour of appearing as Counsel for Major Mudie, who had, as he should prove, been grossly and violently assaulted by the defendant.  He would state in the outset, that various unfounded rumours had been long in circulation in regard to this action, and the circumstances arising out of it; and, before he adverted to the facts which were in issue, he would draw their attention, for a moment, to the conclusions which had, in numerous instances, been formed in the public mind, in consequence of those rumours.  Indeed, if any proof were wanting that this cause had excited great public interest, it would be found in the crowded state of the Court.  The numerous persons present, not seen on ordinary occasions within those walls, afforded ample testimony that the prevalent feeling was not one of mere curiosity; but that it was felt that other questions, of real importance to the community at large, were to be tested by the decision of the Jury on this occasion.  It was quite natural that the gentlemen whom he was addressing, having no doubt mixed much in public society, should have been unable to shut their eyes to the manifestation of public feeling to which he had averted, or their ears to the expression of it.  No doubt, public opinion was much divided on the subject; and it was not at all probable that the jury, in their individual intercourse, would have arrived at the same conclusions.  But, whatever those impressions or prejudices so formed from prevalent rumour or established facts might be - whether for or against his client - he desired them to dismiss entirely from their minds.  It was in accordance with facts known to every person that his feeling had not arisen suddenly; it had, on the contrary, been engendering for a long time.  In fact, previous to the assault which caused the present action, the matters relating to it had been subject of discussion, not only at occasional meetings, but in many private circles; and, under all circumstances, it would be next to impossible but that the Jury must have formed an opinion on these extremely exciting topics.  He would not now ask the cause of this excitement, or more fully elucidate its nature and character; for it was not, legitimately, a part of his case.  If, however, it should be thrust prominently into the foreground by the other side, as probably it might, then it would be capable of a full and complete answer, and which, in reply, it would be his duty to give.  The main object which he had in view in alluding to its existence now, was to get rid of its effect.  The deep anxiety under which he laboured, was to clear away, if unfortunately any such existed, the mists of prejudice from the minds of the jury; and unless this were done, his efforts must be useless.  If, at the time he was addressing them, something should be passing in their minds, leading to inferences contrary to those arguments, backed by incontrovertible facts, which it was his duty to lay before them; if any one gentleman in the box had come to a pre-conclusion (on which subject, from their high character he confessed he felt no alarm,) then, indeed, would the seeking of justice by his client be rendered hopeless and futile.  Happily, however, he could with confidence dismiss all such fears; - their oath, solemnly taken, "to give a verdict according to the evidence," and according to the evidence only, was a sufficient guarantee that, if left to their own unbiased judgement, the laws of the country would be amply vindicated, and an example given that all the subjects of Her Majesty, however remote from the seat of government at home, would be efficiently protected.  To the jury, however, was confided the important duty of holding the scales of justice with an even hand; and he was the more anxious to impress them with a necessity for the exercise of caution on this occasion, from a knowledge that his learned friend, who would address them on the other side, would endeavour to warp their judgments by the exercise of those great powers which he so well knew how to bring into play.  As to the commotion in the public mind on the subject before the jury, he (Mr. a'Becket) could readily account for it, and his learned friend would, in his justification of it, probably remind them of the adage "Vox-populi, Vox Dei."  He (the learned counsel) however, was free to confess, that whatever might have been once his opinions, he had now no faith in that maxim.  The evidence of past history, and the record of modern events, combined with reflection upon both, had convinced him that the person who entertained such sentiments, stood upon dangerous ground, which was liable, every moment, to give way under his feet.  Could the maxim be appropriately applied, to the excesses so blood-thirsty and revolting as to make the heart sick at their bare contemplation, committed in France at a period within the recollection of many.  Would any one, a friend to peace and order, say "Vox populi, Vox Dei," when speaking of the bloody and still most recent chartist riots in England?  And when they looked at the Vox populi, even when exercised in the Colony he would ask them whether they felt inclined to consider it the Vox Dei.  Was the Vox populi which uttered those awful words "crucify him, crucify him" to be considered as the Vox Dei.  He would again express his conviction that all such dangerous doctrines would be not only dismissed from their minds now; but that if any such inflammable topic was urged upon their attention during the course of this enquiry, it would fail of its intended effect.  He (Mr. a'Beckett) sought not to excite their passions and prejudices; he would not appeal to the lower and grosser part of their nature, but to the higher and more refined - to those feelings which truly elevate man; and if any ignoble feeling was that day to be called into action, he would leave the advantage to be reaped from such a course, and the eventual discredit of it to his learned friend who was retained on the other side.  He would now come to the facts of the case; in detailing which, in the briefest possible terms, it was unnecessary that he should eulogize his client.  Those facts would, he confidently trusted, be heard now without any bias.  In stating them, he should most cautiously refrain from declamation.  Major Mudie was on old colonist, and an old man.  He once was, (what he believed the defendant is now) a magistrate of the Colony: - but he had for some time been absent from England, and lately returned.  Further than this brief statement, he did not require to be introduced to this Court, except to say that he came before it as a suitor to claim compensation for a grievous wrong.  He was upwards of sixty years of age - had not been in good health for some time, and especially for several days before the event which gave rise to the present action, had by advice of his physician been confined to his house.  He was subject, as would be proved in evidence, to determination of blood to the head, and to attacks of erysipelas.  Such was the plaintiff in this suit; and, as to Mr. Kinchela, the defendant, he would leave his learned friend to do full justice to him.  He would probably tell them, in glowing language, that the parties were to each other, the very antipodes.  The contrast, he would say, how delightful!  His client, he would tell them was a pattern of filial piety, of Hibernain gallantry, Hibernain generosity, and Hibernian courage.  The gloomy picture would be one, drawn between youth and age.  Mr. Kinchela, they would learn, had no stoop in is gait, no bend in his form, no tremulousness in his limbs, no grey hairs; but, in short, that he was a most pleasant, a most promising young gentleman, full, as he (Mr. A'B.) had already said, of Hibernian blood and courage; and that, so far from labouring under any disease or infirmity, he was stout, robust, and strong, under thirty years of age, whilst the plaintiff was above sixty.  Major Mudie, as had already been stated, had been confined to his bed from illness.  He wanted, however, one day to walk out; and although he had been charged with having written and published unpleasant truths of some parties, and falsehoods of others, he still thought he might perambulate in safety the streets of Sydney.  He had been warned that he would incur some danger of personal violence in so doing, but he knew that he was an old man, and he reflected that age in every civilized and well regulated community is a protection, even in the purlieus of Saint Giles's as much as in the precincts of Saint James's.  He was inspired with additional confidence, in believing that he would be protected from personal violence, should any such be offered in the streets, by a circumstance which had come under his personal observation a short time previously.  On walking out a short time previous to the affair in question, business called him to a low part of the town, where he observed a conflict, in which an old man was attacked by a young one.  It turned out that the young assailant was enacting the part of champion to his father, who, it was alleged by the stout strippling, had been insulted by the old man whom he was thus ill-using.  The poor old fellow, finding himself unable to repel the attacks of his assailant, said (and with justice all must admit) that if he had injured the young man's father, he was quite ready to cope with him, but he was physically unable to fight his stalwart son.  In this proposition the bystanders immediately acquiesced, and rushed in to prevent the old man from being further maltreated by the young one.  Major Mudie reflected that if such sentiments pervaded the generality of people in the lower walks of life, that, to a certainty, and in a more elevated degree, a similar spirit would be shewn should it ever be unfortunately required to be in his own case.  Again; he had heard of a most extraordinary duel in the colony, between two gentlemen, he believed gentlemen only fight duels, in which one of them had so grossly offended the other, that he refused to return his opponent's fire.  Here the matter ought to have ended; but a blood-thirsty second insisted that what he called further satisfaction should be had; and the party who had not discharged his pistol was again put up as a target to be fired at, and with the same result - he did not fire himself.  A third time would the blood-thirsty second have exposed the life of his friend; but the second of the other individual, as well as the principal himself, interfered, and said, they would not take so diabolical an advantage as that now offered.  This circumstance, it was stated, raised a feeling of strong detestation in the breasts of the inhabitants of that part of the colony in which it took place, and Major Mudie thought, after such manifestations of public feeling, he might walk the streets of Sydney in safety, secure of protection, if violence were offered.  Well, in all these calculations it now appears he was mistaken.  On the second of September he was walking down George-street, when he was accosted by the defendant, who asking if he was Major Mudie, assailed him [in] the grossest manner.  He struck him repeatedly with a heavy whip, and when the plaintiff endeavoured to defend himself, this gallant young man put in some facers with his fist and cut him on the mouth; and when parties interfered the defendant threw him his card, intimating that the spirited youth who had severely beaten an old man, was quite willing and ready to shoot him through the head.  Major Mudie, after walking a bout[sic] for a short time in a very confused state, went to Mr. Neilson's, a surgeon, whose evidence they would hear, and then returned home, thinking that whatever calamities and scandals had been uttered regarding this Colony, there remained one true event to be recorded, which would do more to disgrace the Colony than all the lies that had been published.  He had read somewhere, he believed in the Times newspaper, where an opponent of Governor Bourke described him as wishing to make a sort of Donnybrook Fair of the Colony, and he must say that it was only at Donnybrook Fair that he would have expected such a feat to be performed; but no, he was wronging the visitors of Donnybrook, for even they would not have allowed such an unfair, such an unequal, such a brutal attack as this to be made; at Donnybrook it could not have taken place.  No doubt his learned friend on the other side would say something about provocations, but he contended that no provocation could extenuate, he did not mean justify but extenuate, and he again repeated that no provocation could extenuate the gross assault they would hear described.  He warned the Jury that if they suffered themselves to be carried away by vulgar clamour or the eloquence of his friend, and only gave a nominal verdict that they would inflict a great stigma upon the Colony.  It would be said, true Major Mudie was grossly assaulted, but he had libelled the Colony, and therefore a Botany Bay Jury would give him no redress.  His learned friend on the other side would be seen to throw himself entirely into the case, so much so that it might he suspected that when endeavouring to defend his client, he was also striving to revenge his own wrongs.

            Mr. Richard Allen, Registrar of the Court of Requests. - I know the plaintiff and defendant, I was in conversation with Major Mudie in George-street on the 2nd September near the Sydney Bank, it was ten or eleven o'clock in the morning; Mr. Kinchela, the defendant, came up and asked the plaintiff if he was Major Mudie; he said he was when the defendant commenced horse whipping him; he struck him on the back very severely several times, at least fifty times, it was rather a heavy riding whip, a scuffle ensued and I saw some cross slashing across the head and face, a mob began to gather; I observed that the Major's hat was dented in; I saw no blows with the fist.

            Cross-examined. - I do not know that the plaintiff is a major; I believe the defendant to be the son of Dr. Kinchela, formerly a judge of this court; the affray lasted three or four minutes.  I do not mean to give the number of blows with any precision; I met the Major afterwards, his hat was dented in, but I did not notice that he had a stick; he asked me if I had seen the affair and if I knew anybody else that did, and I told him there was a Mr. Gray; I do not wish to state what we were talking about when Mr. Kinchela came up.

            By the Court. - The defendant is a young man rather stoutly built, he appeared a powerful man.

            Mr. Shuttleworth, clerk to Carr and Rogers.  My attention was attracted by the lashing of a whip, apparently on a person's back; I went to the window and saw the defendant horse-whipping the plaintiff; I did not lose sight of them for four or five minutes; they were struggling all the time.

            Cross-examined.  When I went to the window the defendant was striking the plaintiff very rapidly and hard; I think I saw about fifteen lashes, and several must have been given before I opened the window; the struggle lasted several minutes; I should think the defendant is not much shorter than the person called the Major; neither of them fell whilst I was looking on.

            Mr. John Neilson surgeon.  I know the plaintiff; I recollect his calling on me about noon; he was in a very tremulous excited condition, and said he had been horsewhipped by young Kinchela; there was a contusion above the eye and several marks on the chin as from the lash of a whip; just before this the plaintiff was under medical treatment; prescriptions came to my place from Dr. Wallace; he was in an infirm state of health; he was labouring under a disease of the lungs; I should take the plaintiff to be about sixty years old.

            Cross-examined.  I should say the defendant is about my size and strength; I think I could turn up the Major; I have been on friendly and intimate terms with the Major for some years; I knew him up to the period of his departure from the Colony; I saw him on board the ship, I gave him an affidavit.

            A long discussion here took place as to the right of the defendant to have the substance of this affidavit read, which was at length determined by the plaintiff, for the purposes of the action, admitting himself to be the author of the book called "The Felonry of New South Wales."

            Dr. Francis Wallace called, - I am a physician.  I am acquainted with Major Mudie.  I have attended him since he returned to the Colony.  He was in a very indifferent state of health previous to this.  I saw the plaintiff some hours after I understood the assault had taken place.  He appeared in a state of great excitement at the time I saw him; he was complaining much of the effect of some bruises which he had received.  There were the marks of a rather severe blow on the right side of the forehead; the lip was also swollen, apparently from the effects of a blow.  He complained of severe bruises about the body, and I saw a bruise on the right shoulder.  There was a slight effusion of blood, and the skin slightly raised.  It might have been produced by a fall or a knuckle.  The excitement more than the bruises was calculated to injure his health; although the bruise across the forehead was certainly severe, and I was afraid it might have led to erysipelas in the head.  I do not think the bruise could be produced by a ring on a person's finger, except it were a very large one.  It was six o'clock when I saw the plaintiff; he mentioned that he had taken some steps in consequence of the assault, but I am not aware that he had been to Mr. Norton.

            This closed the plaintiff's case.

            Mr. Therry then addressed the Jury for the defendant.  His learned friend (Mr. a'Beckett) had, he said, in opening this case to the Court, been exceedingly prodigal in compliments to himself, but he (Mr. Therry) knew from long experience that those eulogies were only put forth with a view to excite unusual expectation, and then to take advantage of its subsequent disappointment.  His learned friend had, also, in one part of his address, intimated that he (Mr. Therry) had been selected as counsel for the defendant, because of some supposed or real injury which he had suffered at the hands of this plaintiff.  He would at once fairly admit that he had been, on more than one occasion, an object of that person's abuse; but, at the same time, he would beg of the jury to cast from their minds, as he (Mr. Therry) had most en-entirely cast from his own mind, any feeling, either one way or the other, which a knowledge of such a fact might excite.  It would be his duty, in the course of this inquiry, to bring under their notice, and direct their attention to extracts from a book, bearing on its title-page, the plaintiff's name; but in so doing he should most certainly avoid advertence to any passage in which his own name might appear, and thus entirely avoid the imputation of having acted from motives unworthy of an advocate.  At the same time, he must be careful not to allow the apprehension of unfounded suspicion as to this motives, to interfere with his offering, on behalf of his client, a full, fair, faithful, and fearless defence.  And, he said, a fearless defence, because, he thanked God, so high was the character of the English bar for intrepidity, that the exhibition of courage, even under circumstances the most disheartening, had long ago ceased to be matter of praise, blame, or boast.  His learned friend had, in the early part of his opening address, inculcated with his usual eloquence, lessons of moderation; and yet, the latter part furnished a complete reply to the maxim he had laid down.  He had talked of every thing almost except the real business in hand; but it would be his (Mr. Therry's) duty to draw their attention to the real question which they were now impannelled to try.  His friend had discussed most learnedly, the melancholy affairs connected with chartism in England; he had deplored the horrors of the French revolution; and not content with this, he had with uplifted [hands], and in pious horror, abjured the doctrine of "Vox populi, vox Dei."  He had told them that he had lost faith in these doctrines latterly; and like the hero of Westminster (Sire Francis Burdett) had changed his political creed.  That might all be very correct, as no doubt it was very true; but, in the name of propriety and common sense, it might be asked, "what has it to do with the case you to try?"  His learned friend had introduced to them the parties in the suit, in colours with which his own imagination had clothed them; but he (Mr. Therry) would take the liberty of telling the court and the jury who they really are.  The father of the defendant was a gentlemen who formerly filled the high situation in the West Indies, of a Commissioner of Inquiry; subsequently, after receiving the thanks of the Sovereign for his former services, he received the appointment of Attorney-General to this colony.  Eventually, and for a short time, he acted as one of the Judges of this Court, and he now holds the office of Vice-Admiralty Judge of this colony.  As to his client himself, he was a man engaged in those pastoral persuits in which able young men of spirit, talent, and character, never fail, in this great colony, of eventually realizing a fortune.  The process may not always be equally rapid; the defendant was not a wealthy man; but, like many thousands of others whose capital is similarly embarked in New South Wales, he was struggling on successfully.  No more useful member of society could be imagined, than that of a young gentleman, devoting every energy - industry, enterprise and skill, to those pursuits, on the successful prosecution of which, after all, the prosperity of Australia must depend.  Such was the defendant; and as for the plaintiff, he (Mr. Therry), was quite safe in saying, that at least he was a person well known to the colony; and, as he believed, out of the colony also.  What he really was, he (Mr. Therry) could not tell; nor, so far as he was able to ascertain, could any one else.  He had, it was true, throughout this case, been called Major; his learned friend had styled him all along, as "Major."  Now this high sounding title might be very influential with some parties; but the highest place the plaintiff ever held in the army, so far as could be ascertained, (and if he was wrong let the plaintiff or his counsel say so), was that of a sub-lieutenant of marines, and it was evident he had as much and as valid pretentions to be an Archbishop as a Major.  He would, however, abstain from tracing the Major through his early career, down to his present position, for fear his learned friend should say, as he intimated he was desirous of doing, that he was actuated by a personal ill-feeling.  He would, however, state that the plaintiff in this action came to this Colony either in the year 1822 or 1823: that he remained in it thirteen or fourteen years.  He then (as, no doubt, he had a right to do) went back to the mother country - and would to God he had remained there; but he thought it right to publish a tissue of slanders reflecting on the characters of many good and virtuous people.  A popular fable tells us of the adder that stung the bosom in which it had been warmed into life; and thus it was that the plaintiff aimed a mortal stab at the prosperity of a Colony, in the bosom, in the soil, of which he had raised his fortune.  These such as he had described them - the one a colonist struggling for his own and the general prosperity, and the other a man who had ungratefully turned round and endeavoured to inflict a mortal stab on our adopted country, by misrepresentations calculated to dry up the stream of healthy immigration, were the parties to the action.  He was free to admit that, with respect to the case, it was undeniably one of assault.  It was impossible to deny that an offence of this nature had been committed by his client; but then came a material question - the question of damages, - and his object was to show that so gross and so extraordinary had been the provocation given by the plaintiff to Mr. Kinchela, that the damages must be reduced to the smallest possible amount.  On this subject he would read the opinion of one of the brightest ornaments of the English bar.  [The learned Counsel then read an opinion delivered in a similar case to the present, by Sire James Scarlet (now Lord Abinger), to the effect that the amount by a jury in assessing damages, or otherwise the greatest injustice would be done, and parties be thus encouraged to traduce their neighbours with impunity.]  Then, as to the assault itself, he would ask of what nature was it?  Was it of an aggravated description?  On the contrary, there was great discrepancy amongst the witnesses themselves.  One witness was of opinion that at least fifty blows were given in the course of three or four minutes.  Another stated that the blows might amount to fifteen or twenty.  But whether fifteen or twenty blows, what injury was inflicted?  The plaintiff, with what is called a "dent" in the hat after the struggle, first walked to the shop of Mr. Neilson, surgeon; then he visits his attorney; and, after that, retires to his room, and sends a messenger to Dr. Wallace, desiring that gentleman's presence.  It happened, however, that Dr. Wallace did not see the plaintiff until evening, and he then described Mr. Mudie as labouring under excitement.  He would repeat that no serious damage had been inflicted; and he would now tell the Jury, that the provocation in this case was to be found in a book, the publication of which by the defendant, after much difficulty, and with much reluctance, had (at least for the purposes of this action), been admitted.  Now, his learned friend had laid much stress on the age and station of the defendant; and there could be no doubt but that the assault was aggravated or otherwise, in proportion first, to the extent of violence used, and secondly, as to the position in society of the parties assaulted.  For instance - an assault upon a judge would call for more severe punishment than an assault upon his tipstaff.  It was important in these considerations, to weigh well what claim a plaintiff has to compensation, who violates, most outrageously, the decencies and proprieties which regulate society.  He would read an extract from the plaintiff's book of falsehoods and abuse, premising, at the same time, that he owed an apology for doing so, because in his anxiety to protect the defendant, he might give additional publication to the calumny which he was now about to read: - The extract was a portion of Chapter 5, being a vindication of Lieutenant General Sir Ralph Darling, and describing the conduct of Chief Justice Forbes as unwarrantable and unjustifiable on a particular occasion refered to.  He would read the extract from what was called "Mudie's Felonry," which runs thus. -

            "In spite, however, of the habitual sobriety as well as caution of the Chief Justice, he sometimes allowed the mask to drop.  At a dinner at Dr. Wardell's, under the excitement of wine, he fully betrayed both his republican principles and his hostility to the government, and went so far as to stigmatize Sir George Murray, then his Majesty's principal Secretary of State for the Colonies, as 'the rascally Secretary of State.'  His Honor next day apologised, it is true, and attributed his intemperance to the Doctor's champagne; 'in vino veritas'".

            What claim he would ask had the plaintiff to demand respect on account of his age after putting forth a book containing such a passage as that?  Did it now shew that he had no respect for the decencies of life?  He was glad of an opportunity of thus rescuing an eminent man from the calumny which had been cast upon him.  He would ask, even supposing the plaintiff was a guest at Dr. Wardell's table that day, what they would think of the man who would retire from hospitable board to vilify one of its most honored guests, for an expression made use of at that table?  But what would they think of a man, who was not one of the party and who invented an imaginary conversation for the purpose of holding up to revilement the second man in the Colony, and he would ask how far a man who could do this would be entitled to claim respect for his age, on account of the usages of society, that society whose usages he had outraged?  He would now turn to the provocation which caused the assault, provocation that he felt confident the Jury would consider the most gross that ever came before a Jury.  He would read two or three paragraphs before the one complained of, because as Mr. Kinchela was placed in the superlative degree, it became necessary for him to quote the positive and comparative.

            "Much injury has been done to the Colony from the incapacity of all the individuals who have been sent out as law officers of the crown, with the exception only of Mr. Plunkett, the present Solicitor General.  All the rest have been destitute of talent, and have been rather deficient even in ordinary respectability.

            "Mr. Bannister, who was the first Attorney General, under the government of Sir Thomas Brisbane, was a very respectable private character, and a very honorable man.  He had, however, been a captain in the army, and consequently had had little or no experience to qualify him the situation of an Attorney General in such a Colony.  Hence the differences that arose between Mr. Bannister and the late Governor Sir Ralph Darling.

            "Mr. Baxter, who succeeded Mr. Bannister as Attorney General, was a man of very intemperate habits, and being scarcely ever sober, left his business to be done for him by a convict clerk, who had been a lawyer of some sort previous to his transportations from England.

            "Even in this, the culpable folly of employing convicts in any situations of public trust, or of such a nature as to involve the public interests, was apparent; for, the drawing of indictments being left by Mr. Baxter to his felon coadjutor, the latter frequently, either from feelings of favor, or in consideration of a bribe, so framed the indictments as to leave flaws for the benefit of the prisoners, and yet so artfully, and to make it impossible to decide that the flaws were intentional.  In this way, several atrocious criminals escaped conviction."

            He must here pause for a moment to declare that this was a most gross exaggeration.  Mr. Baxter was one of the finest classical scholars he ever met, and although he practised with him for several years he never saw him intemperate in Court.  But he would read the extract which immediately led to the assault:

            "Mr. Kinchela, the present Attorney General, instead of possessing any superiority over his two learned predecessors, is inferior to them in every respect.  Deficient in legal knowledge, he has not even the address or manners, or the language of a gentleman.  His utterance is bad, and strongly tinctured with the brogue of Kilkenny; and to crown the whole, he is excessively deaf - a defect necessarily subjecting him to the most mischievous or the most ludicrous mistakes.

            "On one occasion, when he was conducting the prosecution of a man for stealing a bull, a witness was examined as to the identity of the stolen animal.  The witness said that several bulls had been shewn to him, that it might be ascertained if he could pitch upon the right one; and he stated that he was certain that he had done so; for the bull was called Peter, and on his calling out, 'Peter! Peter!' the animal had turned round to him.

            "The poor dead Attorney General, hearing only something about calling 'Peter,' and fancying the witness was [detailing a conversation with some man of that name, reaffirmed[LINE OMITTED] counsel, by addressing the witness with, 'well, sir, and what did Peter say?'  The effect upon the whole Court, the Chief Justice included, especially considering that the subject was a 'bull,' and the Attorney General an 'Emerald Islander,' may be conceived, but cannot be described!"

            This was most infamous.  What Dr. Kinchela, who for honesty of purpose, integrity, zeal, and devotedness to his duty, was never surpassed, worse than the sot, worse than the man who had committed perjury by allowing a convict to do that which he was sworn to do himself.  He spoke in a Court in which Dr. Kinchela had sat upon the bench, at the bar of which had practised, and he denied the truth of the statement.  It was true that his advancement in life was injured in consequence of his being attacked by deafness at an earlier age, than infirmity usually overtakes persons, but the mistake quoted, even if the occurrence did take place, was one which any counsel, having a stupid witness to deal with, might make.  The object of the defendant was, however, for what cause he could not tell, to hold up his client's father to ridicule.  Dr. Kinchela did not come out to this Colony a vagabond adventurer, the degraded member of an honourable profession, but came to this Colony holding a high official station, having been the friend of Curran, the lustre of whose setting sun he beheld, and bringing with him the good opinions of the Plunkett's, the Bushe's, and other luminaries, whose friendship he had enjoyed for thirty years.  And what must these men say when they read this attack upon their friend?  why, that he was entirely changed, and that there must be something in the atmosphere of the Colony to taint every one that approached it, when it had an effect upon such a man as Dr. Kinchela.  Oh! was it not wicked, was it not cruel to rob such a man of that jewel reputation which he had cherished for near sixty years with all a lover's fondness, with all a miser's care.  In early life Dr. Kinchela was the intimate friend and college companion of Bishop Jebb, one of the most eminent and pious men that ever sat upon the Irish Bench of Bishops.  How Dr. Kinchela spent his time in his youthful days would be seen from the following extract from Bishops Jebb's Biography:-

            "'My own hankering,' he writes, 'was always after the church.'  My brother said, 'You will live and die a curate.'  This, however, did not deter me.'

            "In the first two years of his college life, he published several poems in the Anthologia Hiberniea; a periodical journal of considerable merit, printed in Dublin.  These were his first literary efforts.  During the latter half of his under graduate, and the earlier part of his baccalaureate course, a choice society of six members was formed by him, and five contemporaries; who often breakfasted, dined, and supped, at each others chambers.  Literature was the great bond of their union; they read together works of criticism, and bellos lettres; composed little essays; and mingled, in agreeable variety, the playful with the serious.  They were nick-named by those who did not like their pursuits, and perhaps a little envied their college name and popularity.  'The Literati.  The name which was originally affixed in dull sarcasm, adhered to them in sober earnest, and, as names are often influential, it had its use in stipulating the possessors to deserve it."

            Of this society of six Mr. Kinchela was one.  As he spent his youth, so he spent his manhood.  The book itself had been admitted by the plaintiff, and if it had not, they had subpoenaed parties who could prove it.  At the end of the work, there were a number of certificates of character given to the plaintiff by different parties - among others there was one from Mr. Foster, the late chairman of Quarter Sessions, and he wished the learned gentleman were present in order that he might examine him, but after all his certificate did not amount to much, it was only that he knew nothing bad of the plaintiff, and had given him the benefit of his ignorance, but he was sure that he did not do that with a knowledge that it was to be made use of to give credence to a libel full of mis-statements, as this book was.  The fact was that the action was brought to set up the book, and nothing could be more agreeable in the second edition which was threatened than to have the verdict of the Jury as an endorsement upon the bill of abuse drawn upon the Colony.  A large verdict for the plaintiff would do more to encourage slander, and do more real injury to the Colony than all the misrepresentations of the plaintiff could possibly do.  Why was not this case tried before a common Jury?  did the plaintiff mean to insult a special Jury by saying that there was some sympathy, something congenial between them and slander.  The plaintiff claimed respect on account of his age, that he had disposed of, and then, as to the actual degradation inflicted, he was of opinion that to a person lost to all sense of honor there could be no more efficacious punishment.  In some countries, China, for instance a blow is considered a bad think only so far as it is painful, and it was in this vein that the Jury should look at it with regard to the plaintiff.  It was impossible to guess at what his learned friend would say, but he would probably suggest that if Dr. Kinchela was libelled, an action for libel was the proper course to pursue, but it must be remembered that until after the commencement of the action there was no proof of publication, but now that there was, it was probable that the plaintiff would have as many actions for libel as he could wish for.  The resentment of the defendant against the defamer of his aged father, was as excuseable as the resentment of a brother who revenged the wrongs of an injured sister, and if the jury had affectionate parents he implored them by the love they bore them, by the thousand kindnesses they showered upon them ere they could yet appreciate them:- by the general indulgence itself evinced in their behalf, to reverence filial affection, and to bear in mind that the act complained of was not an act of selfish vengeance; but one caused by the growing strong of a child's arm, in defence of an aged and beloved parent.  Thus, he hoped that they themselves might go calmly down the vale of life, unattacked by the serpent tongue of slander; that they might never know what it was to find the close of their career made miserable by the pen or voice of the defamer; or those infirmities which all wise Disposer of human events has made a condition appurtenant to age, exhibited to the world's gaze for the unhallowed purpose of mocking them.  And that they may never experience the cruel calamity of being traduced before the world, after they had lived a life of virtue, and cherished the noble desire of transmitting to their children an untarnished fame as the most precious portion of their children's inheritance.  Or, if such a calamity should befal them, he hoped they would have a song ready to raise his arm, and if requisite risk his life, to protect their grey hairs from insult; to avenge the wrong and the scorn put upon the head of a beloved and venerated parent, by the vulgar mirth and unfeeling scoff of a heartless mountebank; and to guard and ward off the blow aimed at him by the despoiler of his peace, and the assassin of his fame.

            (At the conclusion of this speech, some of the rabble testified their approbation by knocking with their hands and feet in the same way that is done at the Theatre, but His Honor instantly put a stop to it.)

            Mr. John Nix called - I arrived by the William Money from England, with Major Mudie on the 2nd June last.

            Mr. Richard Jones called - I am a member of Council.  Three or four copies of the Felonry of New South Wales were sent to me; I did not order them, I received them from Mr. A. B. Spark, I put them on my shelf where they remain to this day.  In pages (the book was handed to him) 348 and 349, appears a letter bearing my signature, I did not expect to see it published in this shape, but I knew that Major Mudie wanted it for his defence in some way or other in England.  I have heard of a subscription to defray the damages given in this case, I am not going to subscribe anything.  I know defendant only as the son of Doctor Kinchela, I should judge he was not wealthy.

            Mr. A. B. Spark called - I was agent for Major Mudie before he left for England.  I sent some copies of the book to Mr. Jones, to whom they were originally consigned, but he would have nothing to do with them.  I believe they passed through my hands before they got to Mr. Jones, I received them from the vessel, but I did not (I think) receive them as the agent of Major Mudie.  I got a few of the proof sheets of the beginning of the book from England, they came from Major Mudie.  I received the letter from Major Mudie in 1837.  Only a few pages of the book came.  I sent four copies of the book to Mr. Jones out of the box; I can furnish you with some now.  I sent one to the Attorney General.  The Attorney General begged it from me.  I do not know who shipped the books but Major Mudie sent the few pages of the book alluded to.  I know Doctor Kinchela, and consider him a gentleman of urbane deportment and manners.  I sent the four copies to Mr. Jones at his own request.  This closed the case for the defence.

            Mr. a'Beckett said his learned friend had asked why the present case had not been tried by a common jury.  The answer was to be found in the loud clapping of hands, which had been heard in the court.  He did not know who they were, but he complimented them on the good taste they had evinced.

            The Judge said it was a good job for the parties he did not know who they were, or he would have taught them to respect the decency which ought to be observed in a court of justice.

            Mr. a'Beckett continued: his learned friend had indulged in all sorts of topics except the one they had to try.  He had soared into the clouds and he (Mr. a'Beckett) had been in doubt whether or not he was in the Supreme Court, so completely had he (as well as every body else) been carried away by the eloquence of his learned friend.  But the jury, and every body else, must descend from the stilts on which his learned friend, by his poetical flights had raised them and come down to the level of the Supreme Court.  Why was the case not tried by a common jury, why be-because they knew that his learned friend was to be employed, and that he would make a fine glowing speech, and so mistify the case that he would humbug a common jury.  He begged pardon for using plain language, but his learned friend had become so very exalted, that it was necessary he should use every day language to remind the Jury where they were.  His learned friend had a very fine and very learned speech, but it had one fault; it had nothing to do with the matter before the Court.  The whole speech was so wrapped up that it would answer a political purpose.  What had the Jury to do with what the plaintiff had written about Sir Francis Forbes?  Would what the plaintiff had said about that gentleman justify the defendant.  There was something in the book to about a Mr. Therry, and it would be quite fair, after the course that had been pursued, for him to ask his learned friend whether that portion of it was true or not, but he would be more generous and not do so.  His learned friend had descanted very eloquently upon filial piety, but he would ask what must have been the feelings of Dr. Kinchela when his son returned to him after committing this brutal act.  Could he have received him with gladness and joy?  Must he not rather have turned from him with horror and disgust, saying that if this man was not too old to be struck and beaten, I was not too old to beat him.  He might perhaps regret some of the expressions made use of by his client, but there was no malice in what he said.  His object was to shew that certain persons for certain purposes had been put into situations which they were unable properly to fill, and as an instance he mentioned that a person had been appointed a Judge who was unable to hear what was going on about him.  On the other hand, look at the conduct of the defendant, whose malignity had been boiling over for years, until at last it vented itself in the disgraceful transaction which they had heard described.  He would not insult the jury by supposing that they would allow themselves to be mistified by his learned friend's eloquence, but would remind them that if they did not give liberal damages, they would inflict a lasting stigma upon the Colony.

            His Honor said that the indecent plaudits which had been heard that day from persons who did not know the respect due to a Court of Justice, shewed that no case had ever excited more interest and public attention, and it was therefore, not from any want of confidence, nor out of any disrespect to them, that he reminded them of the oath that they had taken well and truly to try the case according to the evidence.  As there had been a great deal of poetry used he would quote a short piece -

                                    The thoughtless world to majesty may bow,

                                    Exalt the brave and indolize success,

                                    But more to innocence their safety owe,

                                    Than Power or Genius ere conspired to bless.

The Jury had heard the eloquent and in some places irrelevant speeches of Counsel, and had heard the evidence.  That an assault had been committed was not denied, and therefore the plaintiff was entitled to a verdict, and the only question for the Jury was the amount of damages, and in estimating them they were to take into consideration the sufferings both bodily and mental of the plaintiff, and on the other to consider the provocation, but they must also remember that if the plaintiff had injured the defendant, the law was strong enough to give him redress.  They must also bear in mind the length of time that had transpired since the book first came out, when the irritation was given, nor must they forget that the recent return of the plaintiff to the Colony had revived that irritation.  With these remarks he should leave the Jury to decide upon the case according to its general merits.

            The Jury retired for a few minutes, and returned a verdict for the plaintiff - damages £50.

            Mr. a'Beckett applied to the Judge to certify for a Special Jury and two Counsel, which was opposed by Mr. Therry.

            His Honor said that if learned Counsel would make such fine speeches that it required a Special Jury to understand them, their clients must bear the expense, and therefore he should certify.
            Counsel for the plaintiff, Messrs. a'Beckett and Foster; Attorney, Mr. Norton.  For the defendant, Messrs. Therry and Windeyer; Attorney, Mr. Minithorpe.


[1]              See also Australian, 26 September and 27 October 1840.

Published by the Division of Law, Macquarie University