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2-144 (Original)

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Decisions of NSW Supreme Court
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Before the Chief Justice, and a Special Jury.
Lyons v. Stephens and Stokes - Mr. Windeyer opened the pleadings. The declaration contained four counts, the first charged the defendants with having published a libel of and concerning his conduct as a member of the Patriotic Association; the second charged him with certain conduct at the Public Meeting held on the Race Course; the third and fourth, reflected upon his character as an auctioner [sic]. Defendants pleaded the general issue not guilty, damages were laid at £2000.
The Attorney General in stating the case to the Jury said, he was afraid it would be necessary for him to claim their indulgence, if they should consider him tedious in laying the case before them, but they would see that if he should be so, it was not unnecessarily, as it would require more time wish. Mr. S. Stephen, who was the leading Counsel on the other side had stated on the evening previous that he would be indisposed this day, he did not then see him in his place, and was afraid it was rather through an indisposition to undertake the case than through any sickness of the would make as much of defendants' cause as it was possible to make of it. In a case of libel, the feelings of the Jury might be worked upon by Counsel, their passions excited, but such an effect was not desirable, it was not absolutely requisite that either Counsel or Attorney should use any extraneous matter. The defendants had had the opportunity if they could of putting a justification on the record, and they might have given evidence in support of it. But now having only pleaded the general issue, to try it required neither activity nor exertion on the part of the Counsel. Mr. Lyons from the length of time he had been an auctioneer must be known to every one who read a newspaper, or had any connexion with public sales. Defendants were the Editors and Proprietors of the Sydney Herald. Before he (the Attorney General) introduced to their notice the libels themselves, it was necessary that he should refer them to the position in which Mr. Lyons had stood for some time as an auctioneer, through industry, activity, and perseverance, ever zealous in the interest of his employer, with a strict punctuality in his payment, he had raised himself from comparative obscurity to the possession of a considerable business, a business by far the most extensive of any auctioneer in the Colony, this they would prove together with the fact that the object of defendants in writing the libels was solely to attack him, and to ruin him in his trade. In proportion to the estimation in which he was held, they would find the virulence directed against him. They would see that the libels bore internal evidence of the most rancorous malice, and if they judged the libel by the standard injury it was calculated to effect, they would see that such malice was of the most superlative character. If he (the Attorney General) was to impute to defendants the malice of fiends who did mischief merely for mischiefs sake he might be going too far, but if he charged them with malice, which, if indulged in would loosen all the bonds of society and destroy all confidence between man and man, he would be only stating the truth. He would point their attention to the internal evidence of malice which they bore as he went along. The mind of man was sometimes certainly not satisfied of the criminality charged against another, because it was staggered to discover any fit cause, but he would show them the causes in this instance, one of which was that of rancorous political hostility, the other of a base, low, mean, and grovelling character. It was because the plaintiff held the high station he did in his business, it was an object for them to have his patronage in advertisements, and because he did not favour them as they thought proper was the source from whence their rancour sprung. It was well known the Herald had been the advocate of certain political principles, and that Mr. Lyons opposed those principles, he went against that side which the Herald had taken, so far there was no objection every man had a right to support whichever line of politics he thought proper, and a right to disseminate his opinions if he chose amongst the community of which he was a member; to this he would not object, but it was mixing up private animosity with making them a cloak for private slander, dragging forth an individual to be held up to public scorn under the dastardly pretence of advocating a general principle. It was misusing the power of the press, that powerful engine for good, or for evil, as it may be directed. It was employing that for the sole purpose of bringing disgrace and ruin upon an individual, they complained of. Mr. Lyons was proud to say, that the libels had had no material effect upon him in this colony, for within the last quarter his receipts and sales had been increased above any previous quarter since his being in business. That circumstance showed the strong hold he had in the estimation of the public, and proved how those employed him valued his character. But not withstanding, defendants had not only circulated the se [sic] libels throughout the community here, but sought every opportunity of transmitting them to the merchants of England, nay, the defamation was carried through the medium of the press from pole to pole, such being the case, could any man withstand it, or escape the consequences of being so insidiously calumniated by the venality of the press. There was an inherent repugnance in our nature to forego - to give up prejudices which in early life we had imbibed, they clung to us in after life with the most obstinate tenacity. So we find with a man who has once erred, although he his willing to make all the reparation in his power, yet still a prejudice will exist against him, and any man who might have a large estate for sale, or a great quantity of goods consigned to him for disposal, he would naturally say after having read those libels, "although I think he is not guilty of the charges alledged against him, yet I may as well go to another;" this might be said by even the most candid portion of the community. But would it not also be said by other in this colony, where we are habitually looking at each other as if influenced by sinister motives. When he showed them what the injury might be to plaintiff, they would see the amount of damages (£2000) laid in the declaration, could be of no consequence, for he was clearing from £10,000 to £12,000 per annum by his business; it would be but a drop in the ocean, it was not therefore the money that he sought. The first attack made upon Mr. Lyons was so contemptible it would hardly have been worthy of notice, but when he wrote to them after the second appeared, they sent for answer, "they had only thrown a cap in the crowd and any whom it would fit, might wear it if they chose," - at the same time referring him to their solicitor for any further explanation. Mr. Lyons had been libelled for some time previous, little petty libels, but which were so truly contemptible in their nature that he never minuted them, being politically opposed to defendants, he supposed such squibs were only meant in good humour and he took them as such, but when at length from their continually harping upon him and a circumstance occuring [sic] which induced him to withdraw his advertisements from them, then it was that the phrensy [?] of these Editors became so great that they determined to hunt him down, and strip him of that trade in which he was embarked. He would trace all through the several papers and clearly show that Mr. Lyons was the only person meant. Mr. Lyons belonged to the class called Emancipists, he belonged also to the Patriotic Association, and was an active member; he and others were collectors for it. When the defendants honored him with their libels, they at the same time libelled Mr. Chief Justice Forbes, (he then read a paragraph respecting a recruiting party and continued.) That might be all very funny, there certainly was no great harm in it, but no one could have a doubt to whom "Sergeant Lyons" was meant to apply as described in the squib. In the same paper was another libel, but which certainly was not then before the Court, a libel upon Chief Justice Forbes, it was however never taken notice of, that learned gentleman was above bringing the defendants before the court to answer for an attack upon his character. It would be left to the future historian to show how low the public press had sunk in these our days, when it could find pleasure in assailing a character so eminent. (He then read a part of the article which had reference to the meeting on the Race Ground, and continued.) There was no mistaking who was meant by the "Political Auctioneer," or doubting that amongst the "Host of transported Jews" Mr. Lyons was included. These articles (he continued) were merely introductory, they formed scarcely any part of his case and he introduced them merely to show that Mr. L. was the political auctioneer alluded to, and was the only one who had the distinction of being noticed by the Herald paper. (He then read a part of the article headed Auctioneers and Agents, and continued.) The article was of very great length and the time perhaps would not be entirely thrown away, was he to read it through; but he did not think it necessary to weary them so much. The article had been drawn up with so much care that it would require the exercise of their sagacity to detect all the private slander (so mixed up were they with the pretending public discussion) and to clearly discover how the public matter had been made a cloak to conceal the base detestable motives of the private assassin. The article also threw out insinuations against the agents or merchants of the colony against men whose characters were alone a sufficient answer to the calumny: but this libeller intent upon his game - in order to run down - to crush his victim hesitated not to libel others, so that he could carry his into effect his object against the plaintiff. The defendants knew how Mr. Lyons had been upheld by the merchants and by men of every class from governor Darling, who reposed confidence in him down to the poorest individual who had property to dispose of by public sale. Not only was the character of plaintiff assailed, but the trade of the Colony was stabbed by these libellers, for when the British merchant read them, would he not pause ere he s
"Who shook the drop with hearty cheers,
And told the man of law to hold his jaws."
Indeed, the applicability was so palpable, that if half the town was summoned, they would say it meant the plaintiff. Nay, take even a passenger from the street, and if he had been but resident in Sydney for twelve months, he (the Attorney General) would state his existence that he would say - "Sam Lyons, to be sure." If that would be his opinion, and if they were satisfied it was him thus meant, who had been guilty of such gross conduct under the eyes of the mercantile body of Sydney - men shrewd and penetrating, who would immediately have detected him in any such act of swindling such as was described. He had formed, they say, a joint stock company with the agents of Sydney, who were the merchants; for all the latter acted in the capacity of the former also. But in order that defendants could get over the action, yet they must convict all the merchants as well as Mr. Lyons. He would ask them (the Jury) if there was ever so monstrous a libel brought before a Jury? And what amount of damages could compensate the plaintiff for a series of libels which would have swept from him an income of nearly £10,000 per annum. No damages could compensate that it was the writer's intention he should sustain. True, he had now sold his business, but he might after that trial resume it, or enter upon some other pursuit: but as he had before observed, the disgrace was not only entailed upon him, but attached also to his children. What sensation those articles might produce in London they could not calculate, but they knew here the enquiry was enormous for it affected so many that it became a general inquiry, so that the defendants in endeavouring to aim their shafts of calumny against Mr. Lyons, they made at the same time a stab upon the mercantile prosperity the Colony then enjoyed. They ought therefore to find for the whole amount of damages laid in the declaration, for it they did not acquit Mr. Lyons they would convict the Sydney merchants; and then it would be difficult to contemplate the consequences, instead of having the harbour filled with vessels richly laden with various kinds of merchandise from Great Britain and other countries, they would have no other shipping except such as brought from Great Britain and other countries, they would have no other shipping except such as brought those miserable beings whose wretched lot had forced upon them their shores. They (the Jury) however would, he was confident, mark their sense of such audacity, which would seek to effect a general ruin; and it was no matter what may be a man's wealth, rob him of his good name and he is poor indeed! Defendants' paper had the greatest circulation of any in the Colony, and they knew that plaintiff could bring action after action against them, yet still continued the attacks up to the last publication, when they saw that they could not but conclude that there was some person behind the curtain who formed a stock purse for the defence, otherwise it would be difficult to believe they should thus fix their sting at the risk of all they had.
Mr. Newcomb, clerk in the Colonial Secretary's Office, proved that the two defendants Messrs. Stephens and Stokes were the proprietors and editors of the Herald, and produced office copies of those numbers in which the libels were published.
Mr. John Purkis, a clerk to Mr. Lyons, proved the difference with the Herald in respect to an advertisement, and also that Mr. L. invariably used W for V.
Mr. Gurner produced plaintiff's free pardon.
Dr. Bland proved the applicability of the libel to plaintiff, Messrs. E. S. Hall, Edye Manning, and - Keith established the same fact.
The libels were then put in and read by the clerk.
Mr. S. Stephen then rose, after claiming the jury's indulgence on account of indisposition, he said he thought that after the opening speech of the Attorney General they (the jury) could have very little doubt, that in this case at least, there was hardly any prospect of plaintiff obtaining a verdict; for the Attorney General had alledged [sic] after having read the various articles, that he (the plaintiff) had not been greatly injured, had not been brought into public scandal and disgrace, or that he had suffered damage in any way whatever as stated in the declaration, no doubt then as he had suffered no damages, this action had been brought to annoy the defendants, and at the same time perhaps, to connect his (Mr. Lyons) name with that eminent man Mr. Chief Justice Forbes, or to make a display of the large amount of business he had transacted during the last few years, if so, then his object had been gratified; plaintiff they had been told was a man of large capital, but he (Mr. S.) knew that if by spending £2000 he could make the defendants spend the same sum, he would not hesitate to throw it into the ocean pound by pound if he could ruin the defendants by compelling them to pay in proportion; he had imagined by consulting so many counsel that they would as libel hunters, find out something which would fix upon the defendants, he had retained them long before the action was commenced, thinking no doubt he had retained the whole bar; he certainly had retained the most talented, for he (Mr. S.) could not pretend to compete with them, he could not say why the unnecessary haste should have been had recourse to, seeing that the jury which had been agreed to by mutual consent was not in attendance; it had even that day been pressed on, a day which ought to have been set aside for banco business.
The Chief Justice interrupted and said that day had been fixed for the trial by consent of the bar.
Mr. S. Stephen said he had not agreed to it, but the case was then before the Court, and he trusted that notwithstanding all these disadvantages under which he and his colleague labored, the ingenuity with which the case on the other had been managed, the bringing in even the name of the Chief Justice, let the Jury endeavour to see if there was any thing which entitled him to damages. If the remarks which had been read from the paper, were such as to call forth observations from the learned Judge how could the plaintiff so unnecessarily introduce them upon the records of that Court? Did that circumstance shew any desire to protect the Chief Justice from being thus brought before the public? Who had extended the publication of these libels as they are called? Why the plaintiff and his counsel. Why did they do so? It was done to create a prejudice against the defendants. They thought there might be some amongst the twelve jurymen, so much attached to the Chief Justice that they would rush right or wrong to give a verdict against them. What did plaintiff mean by introducing the name of Mr. Forbes, and of this being called his convict friend, was it to shew that he had been aspersed? Was he libelled by that? Was he anxious to escape any ridicule by explaining that he was not the friend of that gentleman? It could not be for his vindication, for when the time may come, if ever such a time should come, when the Chief Justice may think it proper to vindicate himself from any thing which may have been said of him in the papers, he will not heed plaintiff's assistance. With respect to the article which alluded to the hustings, a "drop," he (Mr. S.) was himself upon the drop, and when he read the squib, he thought the meeting was fairly ridiculed, he himself might have laughed at others; the matter was a fair subject for ridicule, the article nothing more than a mere political squib. Why does a public writer undertake his office if he is not to laugh at that which is ridiculous, to praise that which is praiseworthy, and condemn that which he conceives injurious or bad. If an Editor was not allowed to do that, the sooner the public look out for their own information the better. But Mr. Lyons was a public character, and were not all public characters fair subjects of criticism? How was he to have his principles known, if he was not liable to have his conduct and opinions canvassed? It had been shown that he was a very active member of the Patriotic Association, he was a political character. Was there any harm in that? Did he object to being called a political character? Was there any thing wrong to be found in the article headed the "Recruiting Party!" There was enough however, in it to call forth the ire of Mr. L. he was styled merely Serg. Lyons, a rank not sufficiently high for him, so that when the next article appeared he determined upon punishing the defendants if either his Attorney or any of his four Counsel could, that it contained any thing libellous. He (Mr. S.) would ask the Jury when he had read the article headed "Auctioneers and Agents." whether it was not a fair and honest expression of opinion upon an evil which was then in existence throughout the Colony? He would ask them to bear in mind, whether there was not a certain line of reasoning throughout, which plainly proved it was a bona fide statement of what was in existence? And that the mode defendants took was the best adapted for putting it down? They were aware that the Herald had been advocating the anti-convict principle, whilst some other journals, the Sydney Gazette for instance, when under the management of Watt advocated convict principles, which meant the extending indulgences to all those who came out, as it was termed under unfortunate circumstances. Every one amongst them at first coming to the Colony, was no doubt astonished when he first heard the terms "prisoners of the Crown" and "assigned servants," for his own part he for a time considered that the former were some unfortunate beings whom the Crown had made or taken prisoners in the course of war, and that the latter were merely apprentices, but when he became acquainted with the real meaning of the term, then he adopted the same phraseology, and would now no more think of calling an individual a convict then he would think of calling any other person by their proper name. The Herald, however, was determined that they should be called by their right names, and thus it was they set themselves against what they termed convict principles. They contended therefore that they were certain individuals who sought to gain an influence, endeavouring to extend those convict principles. Auctioneers for instance, who had a great number of advertisements sent them to papers that advocated convict principles, the papers in return forwarded their views. But the Herald would not do so, and they argued that all respectable merchants ought to be made acquainted with the manner in which such influence was exercised. Plaintiff it appeared was a very prominent character in getting signatures both for the Patriotic Petition and to the Address. Did it not shew therefore that by doing all this, he did it to extend his own influence, and did it not enable him to extend the influence of his class? Thus they would see that the course adopted by defendants was a fair and legitimate mode of reasoning. Or Why was the name of the Chief Justice? Why was "Convict Friends" introduced? Why merely to shew that Mr. Lyons possessed certain influence through the means pointed out. Thus it shows that with the first article, although it did not make for the plaintiff, how imprudent it was for him to have put it on the record. How could the Chief Justice have been introduced, except in the way he had stated? He would ask them (the Jury) to exercise their calm and sound judgment, and say whether the articles had been written with any other motive than to expose a system of convict influence in this Colony? They knew that in all speeches - all sermons - all books, there was something said by way of introduction, which had reference to the body of the work. The introductory article in this case showed the object that was to be attained. (He then went into a close examination of the various articles, commenting upon each material part and continued.) He would then ask the Jury whether there was any libel upon Mr. Lyons and the merchants, or whether it was not a fair criticism upon the business of the former, and other auctioneers in general? The Attorney General had expressed himself as being very glad in finding the Jury composed of so many respectable merchants, and to say that they were all slandered, he knew would produce an effect for the same purpose that the name of the Chief Justice had been introduced, viz. to produce a prejudice against the defendants. But he (Mr. S.) strongly suspected the Attorney General would find out that he was mistaken, for whether merchants might have been misled or not by the auctioneering system, he would find that when they went into the Jury box, they could not allow their feelings to lead them from their duty - to act otherwise than their oaths would dictate. He would then beg to inform them of the several points they would have to consider. The first was, were those articles written of and concerning Mr. Lyons? Next if they were libellous and tended to injury him in his business? But it appeared he had parted with his business having previously succeeded to his heart's content. He would ask them, therefore, whether that part which related to Mr. Lyons only was false? and being false whether it was calculated to injure him? And lastly whether it was malicious? For although it might have had a tendency to injure him they must be satisfied that it was also malicious. But supposing the marks to be true, then was it not a fair comment upon the system? Mr. Lyons had boasted of his public notoriety, that was the means by which he lived, the more he was known the more business he had. The evil elluded [sic] to Mr. Hall said "he knew what existed in plaintiff's rooms as well as in others, it was a matter of such general report he could not doubt its accuracy." Mr. Manning had said that, "stolen goods were sold at such rooms frequently." But it was not a fair way of judging of the articles, merely to put two or three persons into the box and ask their opinion upon detached sentences, they have been allowed to weigh and deliberate upon the whole of them; it had been proved that these evils did exist, then was it not right to suppose that these articles were written to put down a bad system which was injurious to the general trade. The other side said, that certain parts alluded to Mr. Lyons because he was a political auctioneer, his being so did not make the article libellous; it was not accusing him of any thing personal. Under these circumstances he would hope and trust that they would be of opinion when the articles were fairly considered in detail, not as read by the Clerk of the Court, but read and commented upon as he (Mr. S.) had done that they were only a fair criticism upon a system. If the evil did exist, were the comments fair upon the system? If not were they libellous? Then with regard to Chief Justice Forbes whose name had been introduced in the case, he knew it had been introduced for the purpose of creating a prejudice, he would shew that it was the key stone upon which the article was raised. He knew that many of the jury might be friendly to the Chief Justice - many of them might be acquainted with Mr. Lyons but if the former had been ridiculed his character stood too high to be injured by such an such an article. But had there not been a difference of opinion upon even greater men than Mr. Forbes? Even Aristides the most just of all just men was banished his country in consequence of a difference in opinion - some might think highly of Chief Justice Forbes, others might think nearl
The Chief Justice in charging the jury, observed that before he presented to them the various points, it would be necessary for them to consider, it was essential that he should warn them against being influenced by any thing they might have seen or heard respecting the case out of Court. It has been said that many articles had been published in the Herald newspaper respecting the emigrants in this Colony. He was bound to consider that all of them (the jury) were either persons who had come free or had been born in the Colony, but they were to dismiss all private feelings from their minds, and every thing which they might have heard out of doors. If they were capable of being influenced by any thing which did not appear in evidence that day, they were unfit to sit in the jury box. The plaintiff in the very outset of his case, avowed that he came to the Colony a transport, but that he is now a free subject, having received his Majesty's free pardon. Although it might be a very unusual thing for such a man to go into a Court at home to seek reparation for an injury done to his character, yet in this colony he had a clear right to come into the Supreme Court and ask compensation if by any one he had been wontonly [sic] injured. He might have come to the Colony a prisoner, but his subsequent conduct may have been quite reformed, and in that case he had as good a right to come there for protection as any other person. If the defendants really did write the articles with the view they alledge [sic], viz. to put down a bad and injurious system, they deserved the thanks of the community; if such a system was being carried on by the auctioneers, and their object was to expose it, they were deserving the warmest praise of the public. All the judges in this Colony come here with all those honest prejudices in favor of a free press, which are entertained at home; if a man be an honest man he never need be afraid of his conduct being discussed, and therefore has nothing to fear from the influence of the press when fairly and honestly exercised, (he then read over to the jury the whole of the evidence, commenting as he went along upon such parts as bore strongly upon the case, and continued) they (the jury) were not bound by what the witnesses had sworn as to the import of the libel, for after all they were the judges whether or not the matter was libellous. They had heard a very powerful address from Mr. Steahen, although he appeared to be laboring under indisposition, it had not prevented him from putting every point before them that zeal for his clients could suggest. He would tell them (the jury) that if there was no other object in view than to put down that improper system which was proved to him to have existed; if their honest purpose was to put that down which was working an injury to the trade here, and the merchants at home, if the object really was to put down the system, then they ought to give the defendants the benefit of that opinion; but as the Attorney General had emphatically enquired - was the object in view to put down the system, or to put down the man? did they think that under the pretext of putting down the system, defendants had sought to injure the man, either through political vengeance, or because he took his advertisements from them; the comments made even to put down the system ought to have been made fairly and candidly; did the articles apply to Mr. Lyons? for if they did not then the whole fabric of the action fell to the ground. If they did apply to him, imputing to him corrupt motives, and upholding the mischievous doctrines of the Convict class, were they written to put down the man; were they intended as an individual attack to bring about his ruination. If the system had existed for a long time, how did it happen that those articles were not written until he had withdrawn his advertisements; if they were satisfied of that, then that showed the animus; it showed the writers had in view; If they were satisfied of that, then it became their duty to give such ample damages as would satisfy the justice of the case; the press was a powerful engine, to be used only for good and legitimate purposes, not for injury and oppression; the jury in this case were the judges whether the articles were libellous or not; but if the writers would step out of their way to unjustly attack others they must take the consequences; on the other hand, honest integrity virtue and purity would, he was sure always be upheld by a jury of the country. The case was then in their (the jury's) hands, they would as honest men apply their minds to the whole case, read carefully over the various articles and say as reasonable reflecting men, whether it was merely an attack upon the system, or that the object was to put down the man? The case was in their hands and they would give such a verdict as would satisfy their own consciences and meet the justice of the case.
The Jury then retired, and after an an [sic] absence of nearly an hour returned with a verdict for the plaintiff damages £200.
His Honor then certified that it was a fit case for a special jury and three counsel.
Counsel for Plaintiff - The Attorney General, with Messrs. Therry Foster, and Windeyer Jun, For the Defendants Messrs Stephen and Kerr. The trial lasted from ten o'clock in the morning until eight at night.