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2-143 (Raw)

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Dowling A.C.J, 29 June 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 her 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,
"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.