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

Aaron v. Davis [1842] NSWSupC 3

libel, action against Catholic newspaper

Supreme Court of New South Wales

Stephen J., 23 February 1842

Source: Sydney Herald, 24 February 1842 [1]

This was an action for a libel, which some time back appeared in the columns of the Australasian Chronicle .

            The Solicitor-General and Mr. Broadhurst appeared for the plaintiff, and the Attorney- General, with whom was Mr. Foster, for the defendants.

            MR. BROADHURST opened the pleadings.

            The SOLICITOR-GENERAL stated the case, and said that the plaintiff was a medical gentleman practising in the neighbourhood of Raymond Terrace; and the defendants were the editor, and proprietors, of the Australasian Chronicle . The jury were aware that this paper was the organ of the Catholic body in this country, and so long as it was confined to the legitimate enforcement of their own doctrine, no one would have any right to complain; but when they travelled out of their road to align private character, or to make it ridiculous, they rendered themselves liable to make legal compensation to the parties injured. The libel which formed the subject of the present action, had appeared in the form of the letter, headed " A Bigot", in which the plaintiff had been said first to have offered some disrespectful treatment on a certain occasion to the Catholic Bishop, and upon another occasion when said to have been summoned before a Police Office for shooting a widow's pig, it was said that he had objected to the oath of a witness, because as a Catholic it could not be legal. In the same letter it was alleged that he had misconducted himself to such a degree that after the enquiry at the Police Office, that the magistrates were compelled to send out the constables to put a stop to it. The libel concluded with an intimation that Dr, Aaron being about to leave Raymond Terrace, his then residence, for some other part, he ought to be regarded by all Catholics, who thence forward might be his neighbours, as a great friend to their body, - in effect an endeavour to stigmatise him as a marked man. The learned counsel was sure the jury would see that the reputations and fortunes of respectable men must not be assailed in this manner, and he felt sure that they would give damages corresponding to the wantonness of the attack, and the extent to which, from its tendency, it might injure the plaintiff.

            The defendant admitted the publication and the innuendoes, as laid in the declaration. This was the plaintiff's case.   

            THE ATTORNEY-GENERAL, for the defendant, said, he could have wished most unfeignedly that this action had not been brought into Court, as it involved topics which every good man would wish to avoid. He felt it all the more as being a member of the communion which had been so grossly stigmatised by the plaintiff. He (the Attorney-General) believed he should be able to show that the alleged libel was merely a fair and legitimate criticism on the public conduct of a public man. The right use of language was proper words in proper places, and the words constituting this so called libel were a just account of the plaintiff's doings. The first part of the letter, which did not appear to be much complained of by the plaintiff, was that opposition to the Catholic Bishop had been offered by [???]. But the sting of this terrible publication it appeared, was contained in the words of the plaintiff, that a Catholic's oath could not be legal, because it was the oath of a Catholic, and this was called a libel although true, an expression containing an insult to one- third of the Australian community, an insult disgraceful to one calling himself a Christian, and a man.   It was moreover, bad law, worse morals, and utterly disgraceful to the speaker in every way. The jury would see that the imputation of bigotry, which in the letter had been brought against the plaintiff could be entirely substantiated. The plaintiff had at the Police Office in question objected to the oath of a party because he was a Catholic; to support this ridiculous, illegal, and unchristian objection, he appeared at the office armed with, Grotins and Puffendorff, Croke Elizabeth, and Croke James, but the magistrates, Colonel Snodgrass, and Major Crummer, would have none of the plaintiff's croaking there, and like gallant and generous men as they were, who had fought side by side with their Catholic brethren, and shed their blood together for their common country, at once put a stop to the plaintiff's sectarian intolerance, by prohibiting the introduction of theology in the Police Office. The defendant preserving rather too energetically in his object against the will of the worthy magistrates, they were compelled to deal with him as his prototype in history had been served under similar circumstances, and whose enthusiasm and luckless fate, like that of Dr. Aaron's, was thus described -

The Doctor quoted Wickefort

                                 And Puffendorff and Grotins,

                                          And proved from Vattel

                                            Exceedingly well !

                              That the oath was quite atrocions.

                                      It would have moved a Chrisitan's bowels

                               To have heard the doubts he stated,

                                           But the constables did

                                            As they were bid,

                               And gagged him whilst he prated.


This was something of the treatment Dr. Aaron was compelled to endure outside the Police Office, for happening to disturb the magistrates by the loudness of his disputation, the constables were sent up to administer to him a quietus. He (the Attorney - General) would prove that the substance of the charges in the letter was true; that the plaintiff had treated the Catholic Bishop with any thing but that common respect due to a gentleman, let that persuasion be what it might ; he the Attorney - General would also show that the plaintiff had been charged with, and found guilty of shooting a widow's pig; that pig which might have been the progenitor or progenitrix of a little fortune to the poor widow. He would also show that the plaintiff had made use of the unchristian and illiberal expression imputed to him respecting the oath, and then he the learned counsel submitted that the defendant having made out his justification would be entitled to a verdict.

            John Barry, resides near Raymond Terrace. Remembers the Catholic bishop being there, when going the round of his duties. Thinks it was in October, 1840, and recollects a tent being put up, when Aaron interfered by calling one of the men named Darginon one side, which caused the putting up of the tent to be discontinued.   Aaron afterwards said that he had prevented the tent being put up. Remembered a case at the Police Office, when Aaron was charged with shooting a pig ; on being called on for his defence, he commenced by asking the deponent, one Paddy Johnson,   of what religion he was; Major Crummer said, Oh ! come, let us have no religious differences here. The plaintiff said, that Johnson being a Catholic his oath was not legal.

            Cross-examined by the SOLICITOR-GENERAL

            - Did not recollect whether Aaron was in the Police Court on the day in question. Lived about six miles from Raymond Terrace. The tent for the Bishop was on the township of Raymond Terrace . Came to the tent, on the day it was put up with a view to hearing the Bishop preach. When witness arrived at Raymond Terrace they were putting up the tent. Saw Dargin taken away by Aaron, and Aaron afterwards said that he had prevented the tent from being put up. Aaron had told witness that it was his (Aaron's) land, and his leave should have been asked. Would not be so illiberal as to say that the plaintiff had not said that he did not care about it (the putting up of the tent). Plaintiff might or might not have said so. A schoolmaster had taught him the meaning of the word liberal . Could explain the meaning of the word liberality. Liberality was liberal. Would not answer the question whether he had written the letter complained of. Did not see Aaron with any books at the office. He merely made a sort of speech on behalf of shooting the widow's pig. Would swear that Aaron's objection to Paddy Johnson's being sworn was not on the ground that the usual form would not be binding on him. When Aaron left the Court the constables were sent out after him. A noise was taking place outside, and Major Crummer said to the constables, when the noise was continued, "Go out and take the disturbers of the peace into custody."

            Major Crummer examined by the ATTORNEY- GENERAL - Was a Police Magistrate at Raymond Terrace. Remembered a charge against Dr. Aaron for shooting a pig, the property of a Mrs. Osborne. The account of the case was read by the clerk from the Police Office book; the case was for shooting a pig. The case was as above described. Recollected that Aaron said that the witness being a Roman Catholic could not be believed on his oath, unless he were sworn on his oath. Aaron's objection was to this effect. He quoted, at this time, something from Coke, to which witness paid no attention. Witness told Aaron that the Court was no place for religious controversy, and they could not have it there.

            S. D. Miller examined by Mr. FOSTER - Was the Clerk of the Peace at Raymond Terrace. This witness confirmed the evidence of Major Crummer, and said that he remembered, after the hearing of the case, there was such a disturbance outside the Court, that the magistrates were obliged to remark on it once or twice. This was the defendant's case.

            The SOLICITOR-GENERAL replied.

            His HONOR summed up, and the Jury, after having been absent from court about five minutes, returned a verdict for the plaintiff - Damages 1s.

            The plaintiff's counsel applied to his Honor to certify for the plaintiff's costs.

            The ATTORNEY-GENERAL and Mr. FOSTER opposed the application, on the ground that the action was a trumpery one, and might have been brought in the Court of Requests.

            His HONOR did not consider the action a vexatious one, and therefore he granted the certificate for the plaintiff's costs.

            Attorney for the plaintiff, Smith; for the defendant, Want.                                          

[1] See also Australian, 10 March 1842.   For a libel action brought against an Anglican minister, see O'Brien v. Brigstock, Sydney Herald, 1 March 1842.

Published by the Division of Law, Macquarie University