Bull v. Wilson. - This was an action brought to recover compensation for an assault, committed under the following circumstances: - Plaintiff was editor of the Colonist newspaper; defendant a merchant in Sydney.  Owing to something published in the Colonist, defendant horse-whipped the plaintiff in the public street.  Damages were laid at £1300.  The Attorney General having stated the case at considerable length, called,

William Kerr. - I am employed in the Colonist Office, and recollect a piece of poetry that was published in the paper.  I was in Hunter-street, and saw Wilson with another gentleman going towards the office.  Knowing that Mr. Bull was ill, I went to answer any questions they might have to put; I went in by the private door; Mr. Wilson was speaking to one of the compositors; Mrs. Bull came down stairs and said, that Mr. Bull was too unwell to come down.  Mr. Pearce, who was along with Mr. Wilson, said in a taunting manner, that he hoped it was not a nervous disease.  Wilson then mentioned his name, and said, he would not leave the house without seeing him.  Mrs. Bull then went up stairs, she returned, and Wilson, Pearce, and I, went up to Mr. B's bedroom.  Wilson said he had called in consequence of an article which had appeared in the Colonist of that day.  Mr. Bull enquired what article he alluded to?  Wilson then took out a paper and pointed out the paragraph.  Mr. Bull said he was not in the habit of telling who was the author of any article in the paper.  But if there was anything in the article which offended him, he was sorry for it.  Wilson in rising to take his leave said, he would have satisfaction.  His manner was exceedingly imperative.  Mrs. Bull was present and was much alarmed.  After the transaction Mr. Bull had a medical man attending him.  I saw Mr. and Mrs.Bull returning together on the Monday that the assault took place.

Cross-examined by Mr. Therry - I am employed at the Colonist Office.  I do not fill any particular situation on that paper.  I do every thing that I am required to do.  I was present when Mr. Wilson came.  I knew him, and his object.  I think that Wilson had more sense than attempt to beat me.  The Irish System has been as prominent as John Thomas Wilson in the Colonist.

Re-examined. - Mr. Bull said, if there was any thing offensive in the article, he had his remedy.  I have seen Mrs. Taylor with Wilson in the public street.

Charles Windeyer.  - I am one of the Police Magistrates, and was coming down George-street, near tot he Waterloo Warehouse, I saw Wilson with a whip in his hand; I heard high words, and looking round, perceived that Wilson had Bull by the collar, he struck him several times; I called for a constable and gave him into custody; I think ten or a dozen blows were given;  On my return to the Police-office, I preferred a charge against him, and he was bound over to keep the peace.

Cross-examined.  - I have read the poem called ``The Family Man," no doubt it was very irritating; it was calculated to injure him in the estimation of his neighbours.

John Nicholson. - I am a medical man, and attended Mr. Bull last March; on the 31st he called upon me and complained of being seriously indisposed; I recommended him to go home to bed;  He was bled.

Cross-examined. - I saw Bull in the afternoon of the day on which the assault took place; I saw him out three or four days afterwards.  This closed the plaintiff's case.

Mr. Therry then addressed the Jury on the part of the defendant, in a speech at once able, luminous, and logical, but called no witnesses.  His Honor the Chief Justice, then recapitulated the evidence to the Jury, who, after a brief consultation returned a verdict for the plaintiff.  -  Damages £5.

Dowling A.C.J., 29 June 1836

Source: Australian, 1 July 1836

Bull v. Wilson. - This case, which has excited much public attention, came on for trial on the above day, before the Chief Justice and a Special Jury.

Mr. Windeyer (with whom were the Attorney General and Mr. Foster) opened the pleadings, setting forth the nature of the action, which was for a violent assault in horsewhipping the defendant, &c.

The Attorney General stated the case on behalf of the plaintiff, of the circumstances of which he was satisfied the Jury were aware from the publicity they had acquired.  In laying the case before them, he was unwilling to conceal any thing.  He was ready and anxious that the whole facts should be known.  His client was the Editor of the Colonist newspaper - a paper established not merely for the discussion of politics, commerce, agriculture, literature, and science, but also for the discussion and promotion of the interests of religion and morality.  For this latter purpose this newspaper had devoted its utmost energies, and amongst its efforts in this pursuit it had condemned and exposed the state of disgraceful concubinage, in which many person were living in Sydney.  In this pursuit too, he had not spare the wealthy members of the community - he had furnished portraits of several of those most conspicuous for immorality, after the fashion of ``Lodge's Portraits."  Many of these persons were to be seen driving in gigs with their mistresses - some of them married men deserting their houses and families, cohabiting with married women, and with them visiting the Theatre and other places of public resort.  The learned Counsel here went into a description of the visitors of the Theatre, whose conduct he censured.  He was himself an approver and supporter of the legitimate drama, believing that in the words of the Poet, ``its end both at the first and now was and is to hold as `twere the mirror up to nature; to shew her own feature, scorn her own image, and the very age and body of the time his form and pressure."  After lamenting that the drama had been diverted from its proper objects in this Colony, he proceeded to vindicate the claim of the Colonist to the approbation and gratitude of every good citizen, for the zeal and ability with which it advocated the interests of morality and religion, and putting down by exposure and just censure, the system of open and barefaced profligacy that prevailed in this immoral community.  The conduct of the defendant came under the observation of the Colonist, and he became the subject of an article in that paper, entitled ``The Family Man."  It had been written to expose the conduct of the defendant, who was living with a Mrs. Taylor, an actress of the Sydney Theatre, and a married woman, who lived with her husband happily, but from whose society she had been seduced.  It was to expose and censure conduct such as this, that the poem had been written.  It was only a moderate and merited exposure of such conduct of the defendant, who was at this time - it should be borne in mind, connected with various religious societies.  It was a public disgrace that a person who was living in this state should take a prominent part in such societies, and the hyprocrisy [sic] of such a connexion, was a fit topic for the animadversion and censure of the Press.  The learned Counsel then proceeded to read the Poem, and comment upon it in a strain of much humour - after which he described the assault as a most aggravated one.  He described the defendant as coming to the house of the plaintiff - rushing up to his bed-room, and threatening within the hearing of his wife, to inflict punishment upon him.  At this time Mr. Bull was very ill, and such was the effect of this visit on his wife, that being then near he confinement, she miscarried on the following day. - On the first day that Mr. Bull went out, the defendant, who was a stout man, carried his threat into execution, in George-street, the most public street in Sydney, -- with a whip, he struck him several severe and violent blows, tore his clothes, and thus committed a most violent assault in the presence of the Second Police Magistrate, who would testify to the fact.  The Jury would bear in mind that Mr. Wilson was a wealthy man - that in the words of the song, he had a splendid ``show room," which would go in some way to satisfy the damages of this action, which was an action for a most wanton assault committed under the most aggravated circumstances.

Three witnesses were called on behalf of the plaintiff.  Mr. Kerr, of the Colonist newspaper, who was at the house of Mr. Bull when Mr. Wilson called on the day of the publication of the Colonist, in which ``The Family Man" appeared.  He stated that Mr. Wilson was shown up stairs to the room of Mr. Bull - that he there enquired of the name of the writer of the Poem.  Mr. B. refused to give the name of the author, but told Mr. Wilson his course lay open to him, or words to that effect.  Mr. Wilson, on coming to the house, enquired of Mrs. Bull if Mr. Bull was very ill, to which she replied ``only a severe cold."  Mr. Wilson's manner was very violent, and on leaving Mr. Bull he said sufficiently loud for Mrs. B. to hear him, that he (Wilson) would make Bull's back smart for it.

Mr. Windeyer, the Second Police Magistrate, certified to the assault, which was the severe infliction of several blows, with a horsewhip, on the back and person of Mr. Bull, in George-street, close to Wilson's own house.  Mr. W. interfered, and restrained the defendant from further violence.  Mr. W. had read the Poem of ``The Family Man," and considered it calculated greatly to irritate the defendant, and to injure him in the estimation of his neighbours.

Dr. Nicholson deposed to the delicate state of Mr. Bull's health.  He had been in attendance on Mr. B. for several days previous to the assault; he was considerably worse afterwards.  If every body believed what was stated in the Poem, he did not think the defendant could be much injured by it.

This was the plaintiff's case.

Mr. Therry on behalf of the defendant said, that if he possessed any of the attributes of eloquence or ingenuity, for which his friend the Attorney General had given him credit, this was not a case that admitted of any scope of occasion for their display.  He would with confidence rely upon the plain and sound discernment of twelve impartial men to appreciate the nature and character of this action.  It was an attempt on the part of this plaintiff after satiating himself with the slander of this defendant, to seek further to injure and impoverish him by a demand of damages in an action for an assault, which his own conduct had provoked.  Happily, however, he had disentitled himself to damages, or at least, only to the minimum of damages which the law would allow.  As to the assault, it was not denied.  Indeed, after the testimony of that respectable witness, Mr. Windeyer, it would be an insult to the understandings of the jury to deny that an assault had been committed; but if the defendant were called upon to lay down a penny, and demand three farthings change from the plaintiff, the Jury would compensate the plaintiff beyond the extent of his suffering, and punish the defendant beyond the measure of his delinquency.  He (the plaintiff) had forfeited all claim to any thing but nominal damages - for his (Mr. T.'s) client stood before the Court in the position of claiming for his defence, that he received the greatest provocation for what he had done that one man could receive from another.  Before this assault, he had slandered the defendant; since the assault, he had slandered him weekly - and to-day again, he slandered him through the instructions given to his Counsel.  He gave his consent to hear every epithet of ignomy [sic] and disgrace upon him.  Indeed, his defamation of the defendant was notorious.  The Attorney General had told the jury that he was sure they were aware of the circumstances of this case.  Truly might he have told them so, for who was not aware of them.  The whole circumstances were within the knowledge of every person.  They were celebrated in prose and property.  The John Thomas affair, and Andrew Wylie's letter, were as common as household words; so also was the poem descriptive of the defendant's descent to hell, to hire two devils to give Dr. Lang a thrashing.  With what effrontery then can this plaintiff presume to come into Court to demand redress from a jury.  He has proposed to redress himself.  He has avenged himself with his own weapon of revenge, and his weapon has been barbed with deadly venom of slander.  It is a just sentiment which states that the crime of slander is greater than the crime of theft.  There was another noble, and perhaps as just a sentiment which regarded slander as a greater moral of offence than murder itself; for murder travelled not beyond the grave.  The deed itself placed a boundary to its effects.  When you take the life of a man, you take that, which at some time he must have lost; but when you take his good reputation, you take that which might have endured for ever.  The tomb places no limit to the voice and venom of slander, which may continue for future generations to blacken the memory of its victim.  Thus, then, did his client stand before the Court claiming as a provocation for what he had done - that the greatest offence had been perpetrated against him that one man can perpetrate against another.  This plaintiff then having gratified his palate by a series of articles written in a spirit of the bitterest rancour, in poetry or prose, had not right to come before a jury and ask of them to put money in his purse.  No! good Iago! No - you must be satisfied with the revenge which you yourself have sought, and with which you were satiated.   It was no excuse to say that these slanderous articles were not written by this plaintiff - it might be, or he even supposed they were not - but he refused to give up the name of the real author, and this only could excite pity for one who could submit to the degradation of pandering to the slander of another.  But all these slanders were put forth, we were told, for the advancement of morality and religion.  Indeed he was at a loss to know in what character to recognise his learned friend to-day.  His speech was divisible into three parts - one was an address in support of religious reformation worthy of a Missionary Apostolic.  The second was a criticism on the drama, with an apt and beautiful quotation from the Father of the Drama, and in the third and last part of the speech, he recognised the character of the Attorney General speaking to the merits of this case.  But upon this reformation point, he would join with his learned friend.  He denied that the cause of religion and morality required such impure alliance, and such unholy help-mates as obscene poems, and the dragging of our neighbours frailties before the public gaze.  He had hitherto thought that the reformation of morals had been brought about by instilling into the mind principles of religion, and planting the seeds of virtue.  He had heard that the teachers and reformers of morals were careful, that whatever could introduce error or passion from the mind should be removed - and that they were intent in forming them to habits of piety.  With what morality could the virgin's mind be imbued from the reading of such obscene and doggrel [sic] verses as had been read that day.  How could the youthful mind be improved, or the faculties be expanded by reading the disgusting details of such letters as those of Mr. A. Wylie; what good precept can be imbibed or practical lesson afforded from being informed, as Mr. Andrew Wylie informs us in his letter in the Colonist, that there is a yellow house on the Race Course, which is a notorious brothel?  What benefit can it be to morality or religion to gratify a depraved taste in filthily groping into the details of private life, and making a newspaper a weekly reservoir of all the filth that slanderers and scandal-mongers may think proper to fling into it. - Again and again he protested against the alliance of such obscenities and indecencies, either with religion or morality.  He might well retort the unmerited aspersion of hypocricy [sic] with which his client was charged, upon the source from which these precious productions were supposed to emanate.  If they were correctly attributed to one whose mission was presumed to be one of peace and charity, well indeed might the charge of hypocricy [sic] be against him who so flagrantly violated the instructions of Him who told him ``whatsoever things are true, whatsoever things are honest, whatsoever things are just, whatsoever things are pure, whatsoever things are lovely, whatsoever things are of good report; if there be any virtue, and if there be any praise think of these things."  Surely such a person did not find a sanction for the course he had chosen in the admonition of the Apostle, with whose lesson he ought to be familiar, ``Brethren, if a man be overtaken in a fault, ye that are spiritual restore such an one in the spirit of meekness, considering thyself, lest thou also be tempted."  But lessons such as these were not congenial to the mind of the slanderer - and therefore a gallery of portraits, after the fashion of Mr. Lodge's, must be got up for scandal to gloat her haggard eyes upon.  Next comes the hollow pretext of her slanderer, should such and such a man be eased of the fear of being stigmatized, they will not scruple to immerse themselves in vices.  This is a fallacious mode of argument.  There has been no scarcity of libels of this description, and yet we have not heard of mankind being reformed by them.  Besides, consider how ineffectual this remedy must be from the ill-use that would be made of it in aspersing blindly and indiscriminately all kinds of families.  And, moreover, consider this--that persecution always begets resistance - whether the cause be a virtuous or a vicious one - it makes a man attached to the cause in which he suffers, and tough obscene ribaldry may contribute to deprave a man, he could not believe it ever contributed to improve him.  Besides, slanderers may adhere to truth.  Many extensive matters had been pressed into this case - but no attempt was made to prove the truth of any one of the facts and speeches set forth in the obscene poem that had been read to the Jury that day. - Indeed to show the true character of the description of libellers to which The Colonist newspaper belonged, he would quote the character from one who practised the art of writing, and understood it well.  Count De Busy, in his Autobiography, writes thus:  ``About five years since, not knowing how to amuse myself in the rural recess where I then was, I verified the proverb, that idleness is the mother of mischief: for I set about writing a history, or rather a satirical romance, without designing to make an ill use of it, but only to employ myself at that time, or at most only to divert and to obtain a few praises from them, for being a good writer.  As true incidents have never enough of the marvellous in them to be very entertaining, I had recourse to invention, thinking it would please still more, and without entertaining the least scruple of the injury I might do the parties concerned, I mentioned a thousand particulars which were mere fictions.  I made some men happy with ladies who had never been so much as once listened to by them, and even others, who had never intended to address women in any manner; and because it would have been ridiculous to make choice of no berth and figure for the chief heroines of my romance, I pitched upon two who were not wanting in any good quality, and were even possessed of so many, that envy might contribute to make all the ill things I might say of them credible."  This was a faithful picture of the poem that had been read - fiction abounds where facts were wanting, and the poet seeks to divert and gain applause, reckless of what feelings he might wound, or what neighbour.  And what diversion or pleasure, but a sinful one, can such a style of writing supply?  What is the pleasure but that which a depraved mind may be disposed to take in the disgrace and dishonour of a neighbour!  He would next ask this libeller who delegated to him the office of censor Moura in this community.  He would ask him in the language addressed by the criminal to Mosses, in Exodus, ``Who made thee a judge and ruler over us?"  This was not a criminal prosecution instituted at the suing of the King, but the action of a private individual seeking damages (indeed!) for an assault which his own slander provoked and merited.  Indeed, a very able and eminent writer - one closely connected with this Colony, from the interest he has evinced in its advancement - Mr. Buller - himself an excellent and moral man - has suggested that writers of this discription [sic] deserve to be treated in the way in which it is not denied my client treat Mr. Bull--

``For to the honour of literature be it said, that the libellous Sunday papers are rarely supported by any literary men; they are conducted chiefly by broken down sharpers, ci devant markers at gambling-houses, and the very worst description of uneducated blackguards.  The only way, by the bye, to check these gentlemen in their career of slander, is to be found in the first opportunity of inflicting upon them that personal chastisement which is the perquisite of bullies. - Pooh! you say, they are not worthy the punishment.  Pardon me, they are not worth the denying ourselves the luxury of inflicting it.  You should wait, but never miss, the convenient opportunity.  In the spirit of Dr. Johnson's criticism on the Hebrides, ``they are worth seeing," (said he,) ``but not worth going to see," these gentlemen are worth kicking, but not worth going to kick."

Thus it was.  Mr. Wilson did not go to horse-whip Mr. Bull - but Mr. Bull came to Mr. Wilson's to be horsewhipped by him.  It took place at Wilson's own door; he had notice of it - and if his object were peace, why on his first going out did he not go to the Police-office to exhibit articles of the peace against Mr. Wilson - if his object was peace, why did he go to Mr. Wilson's very door to beard, and taunt, and provoke him to the assault he knew he so well merited?  But, no! his object was money - and that was pretty clear from his mode of acting, as well indeed as from the speech he instructed his Counsel to make to day - for his learned friend very coolly invited the Jury to retire, and find by way of verdict - Damages - John Thomas Wilson's show-room - and that too, was only to go in part satisfaction of the damages.  Money, then, was the first object of this action, and next the object was, reformation of morals.  If this action succeeded, it would be considered as the hoisting of the standard of morals so oft inculcated in the Colonist.  Standard of morals, indeed!  Yes, but such a standard as Stockdale attempted to hoist in England, when he was prosecuted for the publication of the most infamous and obscene book that had ever been published.  On the floor of the Court of King's Bench in England he insulted the Nation, by declaring that the work he had published, was more calculated to advance the moral interests of England, than any book that had been published, with the exception of the Holy Volume.  And what did the Jury suppose that book was?  Why the memoirs of Harriet Wilson - or twenty years of the life of a Harlot - abounding in obscene anecdotes, such as are to be met with in the letter of Mr. Andrew Wylie, and other articles of the Colonist.  It was to be hoped some new emigrant ship would bring out the worthy Stockdale as a co-Editor to the Colonist, and with the co-operation of the talents of La belle Harriette, it might continue to furnish for many years to come defamatory portraits after the fashion of ``Lodge's Portraits."  Stockdale would be a worthy compeer for this worthy plaintiff -

``Arcades ambo

Et cantare pares, et respondere parati."

The learned Counsel proceeded to advert to the circumstances of the assault, which were of a far less aggravated character than they had been represented; for Mr. Wilson, instead of rushing rudely up to Mr. Bull's room, was politely shown into it by Mr. Kerr.  And then as to the assault itself - the worthy and excellent Magistrate who gave evidence of it, and he moreover admitted it was calculated greatly to irritate and injure the defendant.  The case was now in the hands of the Jury - a tribunal composed of twelve men, who would not do injustice to a neighbour, knowing that they might themselves tomorrow be the victims of the injustice they inflicted upon their neighbour - for all the fictions and falsehoods, contained in the present Poem might at the slanderer's will and pleasure be directed against the most moral and estimable men in society.  In truth, the plaintiff sought to establish the tyranny of the Press in this, and that tyranny next to money was the object of this action.

Gentlemen - said Mr. Therry in conclusion, if you bow to this yoke, believe me you will find that the ``yoke is not sweet," nor the ``burden light."  If you delegate to a man whose mind is imbued with a gloomy saturnine enthusiasm that drives him along the course he has chosen, whether for good or for evil, with inexorable firmness, if you establish in him the despotism of the Press in this community, you will find, at no distant day, that you have raised up a creature resembling the splendid fiction of a recent romance, the hero of which constructs a human form with all the corporeal capabilities of a man, but not being able to impart to the work of his hands a perception of right and wrong, he discovers too late, that he has only created amore than mortal power of doing mischief, and himself recoils from the monster which he has made.  So, too, if you raise up a man, regardless of the checks and decencies which moderate the world's censure, and make the intercourse of mankind urbane and humanized - one from whose scoff religion affords no shelter, and from whose slander the grave affords no sanctuary - if you erect such a man into a despot over every family in the land, to select for torture his victim as he pleases, you will have inflicted a mighty mischief on this community, which many generations of time cannot repair, and like the fabled hero I have mentioned, you will yourselves recoil from the monster you have made.

The Chief Justice charged the Jury, reading the evidence and offering such observations as suggested themselves thereon.

The Jury retired for about ten minutes, and returned a verdict for the plaintiff, Damages £5.

Dowling A.C.J., and Burton and Kinchela JJ, 9 July 1836

Before the three Judges sitting in banco.

Bull v. Wilson - This was an action brought to recover compensation for an assault, damages were laid at £1,300.  The Jury gave a verdict for the plaintiff for £5.  The Attorney-General now on the part of the plaintiff, moved for a new trial upon the ground of misdirection, in doing which he said, he had not seen the notice in sufficient time to put other ground upon it, or he could have done so in order that he might more clearly satisfy the Court that justice had not been done; he must therefore take it as it was.  The smallness of the damages was of itself a ground sufficient upon which a motion for a new trial oould be founded, but that not having been stated in the notice, he would confine himself solely to the misdirection.  Their Honors would observe, that in this case no justification had been pleaded, the only plea put upon the record was that of the general issue; therefore no justification was attempted, nor could have been legally intended by defendant.  It was even admitted by Mr. Therry (his Counsel) that there must be a verdict for the plaintiff.  What he had to complain of in the Judge was, that he did not direct the Jury to confine themselves solely to the assault, and not take into account the feelings of the defendant.  The libel complained of by him (if libel it was), was published on Thursday, and it was not until the Monday following that the assault took place.  The law makes allowance for the feelings of human nature (as in the case of manslaughter) as where no time is allowed for the passions to cool, but in this case defendant let five days go over, and took the law into his own hands.  It would be a dangerous doctrine for the Court to allow a man to give way to his feelings after a lapse of five or six days.  He could not suppose that his Honor the Chief Justice, would take any umbrage at his complaining of misdirection, for although in theory a Judge is supposed to carry all the law in his head, yet they know it was not always so in practice.  He would acknowledge that Counsel on both sides might have been to blame, but knowing that defendant's Counsel would endeavour to show that the article published in the Colonist was the cause of the horse-whipping, he, therefore, thought it proper to lay the whole case before the Jury, in order to show that no verdict would have been given for it, and to show them it was not a libel case, but an action for an assault and battery.  His Honor would recollect, that he told the Jury that they must take the publication as a gross and scandalous libel.

The Chief Justice said - You cannot take notice of every thing a Judge may incidentally introduce into his charge.  All observations which I make to a Jury that bear strongly on the case, I make a note of; there were several things you introduced into your speech, as for instance, Mrs. Bull having miscarried, which was not proved; I did say it was not the duty of a newspaper Editor to condemn the private character of men, and if they did do so, they must expect to be subjected to acts of violence.  If Wilson had been ever so abandoned ever so profligate, it was no part of Mr. bull's business to expose him, it would do more harm than good.  I left to the Jury Wilson's laying wait for Bull as a matter of aggravation.

The Attorney-General said - He would submit that a great many observations were made which ought not to have been introduced into the charge by which the Jury were so led away, that they overlooked the nature of assault in estimating damages.  If the publication was a libel, and an action had been brought, the Judge could only express his opinion upon it, it was for the Jury to say whether or not it was a libel.  But no Jury could be impannelled who would give a verdict in such a case - it was a mere jeu d'esprit.  Wilson's name was never mentioned, but the cap fitted him.  Perhaps he himself would think it a feather in his cap to look upon it as no libel.  But the consideration of the Jury ought to have been excluded from the publication.  It should not have been allowed to go to them either as a set off, or in mitigation of damages for an assault.  The publication not having been in evidence, they ought to have taken notice of it.

Mr. Justice Kinchela - Did you not mention it first yourself?

Mr. Therry - Why, your Honor, he invited me to sing the song.

The Chief Justice - I put it to the Jury, that no libel however gross was a justification.

The Attorney-General continued. - If it had not been in anticipation, that he would have no opportunity of replying to the opposing Counsel he would not have taken such a course, but as it was he put prominently forward to the Jury the alledged provocation, at the same time telling them that they could not take it into account, Bull was still liable to an action for the libel.  There were also other libels alluded to.

The Chief Justice - I excluded them.

The Attorney-General - But your Honor, the opposite Counsel did not.  He put questions to the witnesses which were little speeches in themselves.  There was something said by him about little devils, did your Honor ever see that, I am sure I never did?

The Chief Justice - I asked if he could prove it, he said he could.  His object was to mitigate the damages.

The Attorney-General continued - He would have preferred one farthing to £5 damages, as then the difficulty would not have been so great; £5 was nothing; if the Jury had given a verdict against them, they could then have shown that it was contrary to evidence.  His Honor did not tell the Jury to exclude from their consideration some topics so powerfully enforced by Mr. Therry.

The Chief Justice. - I told him that he ought not to introduce them.

The Attorney General. - In Mr. Therry's printed speech he mentions about two devils coming for Dr. Lang.  It was clear the jury had taken a stronger view of the speech than his Honor, in which so many topics were introduced, that he was in hopes he would have had a reply.

The Chief Justice. - If you had asked for a reply upon good grounds, you should have had it.  How should a Judge stop a gentleman in addressing a Jury?  It was your own wide opening which led to what you now complain of.

The Attorney General. - The Jury had given only £5 for as aggravated an assault as had ever been committed.  It was laid down by the Judges, that the place of assault ought to make a great difference in estimating damages, there being a great difference between being assaulted in a private street & on a public exchange.  This assault was proved to have been committed in one of the most public parts of Sydney, and not with a slight stick, but with a horse whip.  It had escaped him not to ask Dr. Nicholson, what his bill was for attendance, but no respectable practitioner would attend for less than £5, so that the court would see that justice had not been done to the plaintiff.  There were many observations made by the opposite counsel which ought not to have been allowed.

The Chief Justice. - If you had confined yourself to the simple action of assault they certainly would not have been allowed.  I certainly give you the merit of having taken the Bull by the horns.

The Attorney General said, he acknowledged his error, but the errors of counsel were no justification for those of a Judge.  It certainly was a case which excited interest, and perhaps the feelings of counsel on both sides led them into a great many irregularities; that being the case the court would ask themselves, had justice been one according to law?  Looking at the evidence he would ask, was £5 damages sufficient for a man filling a respectable station in society for being so assaulted when in ill health, unarmed, without even a stick.  Looking at the irregularities of the counsel, the feelings of excitement on their part, and the jury not having been told to exclude certain matter from their consideration was the reason why such small damages were given.  He was sure that their Honors would grant a new trial, in order to do justice to the plaintiff, and to convince the defendant that the law was sufficient to uphold its own supremacy.

Mr. Therry in opposing the motion observed, that he felt obliged to the Attorney General for the compliment he had paid him, and if he deserved it, it was owing to the utter contempt in which he held the character of a slanderer, who pryed into the private affairs of others.  The Attorney General had thought proper to extend a part of his dissatisfaction, to him (Mr. T.) in saying that counsel were both to blame.  Now he had done no more than taken up the Attorney General's own weapons, with whom there was a great difference between his precept and his practice.  It was he who introduced the poem, when the song was read he invited him (Mr. T.) to sing it, and promised him an encore.  He made a speech of an hour and a half, ten minutes only of which was occupied by the subject of assault.  After such an inflammatory speech they were told to look at the record.  But as the topics were brought forward in aggravation, he had a right to advert to them in mitigation of damages.  The notice was limited to the misdirection of the Judge, what was the misdirection alledged?  It was in the summing up, but it was only what the Judge noted down they could take notice of, and not every stray word that a counsel might take down.  The Judge distinctly told the Jury they were not to take the libel into account.  But even if he had used the words alledged, he would have been justified.  In looking at this poem, this jeu d'esprit, this jeu d'esprit indeed!  Who could look at it and pretend to brand it as any thing else than a scandalous and infamous libel?  The question of damages was peculiarly the province of the Jury, but his learned friend had said, if the court were of opinion the damages were too small they would grant a new trial.  Were the functions of a jury to be thus superseded?  Was the Judge to be the dictator of the law and the fact?  After some further remarks he concluded by saying, looking at the filthy details which had been raked together in the poem, the verdict was proper, neither morality nor justice required a new trial.

The Attorney General in reply observed, that no twelve men would pronounce the poem a libel; if it were, the jury had no right to take it into account; the court would see they had allowed some set off, in giving such outrageous small damages, for such an assault as his client had been subjected to; without a new trial were granted justice would not be done.

Mr. Justice Burton in giving his opinion said, there was no constitutional ground to disturb the verdict, for which he must say he was sorry.  But he was one of those who considered that the constitution had vested the safe-guard of the public in the hands of the jury.  He must not lose sight, that this was not an ignorant jury, brought from the country, from their rural avocations; by the record they were informed that it was a special Jury; in such a jury each party have the power of striking out a certain number, and they became, something like an arbitratiou; the defendant waited four days after the publication of the article, it was for that reason why he (Mr. B.) took the liberty of saying he would have differed from the jury, but it was for them to form their own grounds for mitigating the damages.  If Wilson had felt his character impeached, it was his duty to have come before a jury, and have taken their sense of the injury he had sustained.  The waiting four days was rather an aggravating than a mitigating circumstance; it was probable the jury had been led away by the opening speech of the Attorney General, and the advantage taken of it by Mr. Therry, but there was no blame attributable to the learned judge; the case was left to the jury, as being one peculiarly for them to estimate the damages, as he was of an opinion that the verdict had not been caused by any misdirection of judge, but by the evidence, brought forward, the speeches made and the jury's consciences; he therefore thought the verdict ought not to be disturbed.

Mr. Justice Kinchela was of the same opinion.

The Chief Justice said, he must confess he was a little surprised at the verdict, his apprehension was the damages would have been excessive.

 Frankenstein.