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Exparte Lyons - Mr. Attorney-General moved that the rule obtained in his case be made absolute.
Mr. Kerr hoped that the case would not be called on immediately, as through the illness of Mr. Francis Stephen, he had only just received his brief, and had not time to study it. Under these circumstances he thought it might be postponed for a week. He could not tell why it should be brought on to-day.
The Attorney-General - It is because the defendant are continually blackguarding Mr. Lyons, if I may make use of such a vulgar expression, in their journal. The case is set down for trial on the 17th instant, and it is evidently the object of the parties to put off the hearing of the argument in support of this rule until after the trial, when you hope the articles will have the intended effect. The present (continued the learned gentleman) is such a case that if Mr. Lyons had not interfered in the matter, the Authorities, either the Attorney-General or the Court, must have interfered. Every man who has a case in that Court has a right to the protection of the Court; and if such articles were allowed, a person might as well fight with a highwayman with a pistol. Mr. Lyons had no wish to press the case for the purpose of harassing the defendants; but after such an article as appeared in the last Herald, he was not called on to exercise any delicacy. He would again assert, that if Mr. Lyons had not moved in the present case, the Attorney-General would have officially moved the Court for leave to file an information.
Judge Burton - You must have filed an ex officio, Mr. Attorney.
Attorney-General - Your Honors could punish them for contempt.
Mr. Sydney Stephen could not see that making the rule absolute would be of any avail, unless they wanted to make use of it on the forthcoming trial.
Mr. Kerr then moved that the case be postponed to Saturday next, Counsel not having had sufficient time to study their briefs. Mr. K. read Mr. Francis Stephen's affidavit in support of his motion, which stated that in consequence of an attack of illness on the previous day, he had been prevented from delivering briefs to Counsels until that morning.
Judge Dowling - the case is down for trial on Tuesday, and therefore there cannot be much more damage done; and if any more libels are published they will be the subject of another action.
Attorney-General - Your Honor, it is the obstruction of justice we complain of.
Judge Dowling hoped there was sufficient integrity in twelve impartial Jurors to withstand the tone and tenor of any article.
Judge Burton - What effect will leaving the rule until after the trial have? - the injury, if any, is already done.
The Attorney-General read the joint affidavit of Mr. Want and Mr. Lyons, which stated that Mr. Francis Stephen was in Court the whole of the previous day. The cases had been postponed from the Saturday before, and the Counsel ought to have had their briefs on that day. Mr. Stephen had been in Court on Friday, and if he was taken ill in the afternoon, his briefs ought to have delivered before that.
After a deal of desultory conversation Judge Dowling said, that dealing with the materials now before them on affidavit, the Court was compelled to decide that the case must be proceeded with.
Mr. Sydney Stephen then addressed the Court against the rule. The first objection he would take, was, that the rule nisi had been obtained irregularly, inasmuch as there was not sufficient proof of publication. The mere swearing that paper was purchased at the shop of the defendants, although it might do for a civil case, was not sufficient for a criminal proceeding. It might have been sold by a clerk, which in a civil case would be sufficient to render the principals liable, but in a criminal case it was certainly necessary that the affidavit should state it was sold by one of the defendants. The affidavit of Lyons he contended did not shew sufficient grounds to warrant the granting of the rule; it stated that the article was calculated to have an effect on the class from whom the Special Jurors are chosen, not on the Jury itself, but on the class from whence they are chosen. The affidavit did not state that any facts of the case were shewn, but merely that there were some general remarks made respecting Mr. Lyons' character; this was certainly far too vague to grant a criminal information on. If a garbled statement or any falsehoods had been published respecting the case, it might then have been fairly said to have been an attempt to obstruct the course of justice, which in the present case he apprehended it was not. Mr. Lyons denied that he brought the action to take money out of the pockets of the defendants; now he had engaged four counsel to conduct his case, leaving the other side only two. Of course they had chosen the four whom they considered to have the most talent. No doubt Mr. L. had been told by his legal advisers that he would get a verdict, and if it was only one farthing the defendants would be put to the expense of paying the four counsel; and he would ask whether that did not clearly shew that he did wish to take money of out of his client's pockets? The next paragraph of Mr. Lyons' affidavit denied that he had any hostility to the defendant because they advocated political principles oppose to his own. If he had any hostility to the defendants on political grounds, he would ask what crime it would be, and it would be no libel to say he had; it certainly could not obstruct the course of justice to state it. As to Mr. Lyons' construction of certain portions of the article, he held it as nothing, Mr. L. could neither read nor write, and would of course swear to any affidavit on the subject that was drawn up for him. The influence of Mr. Lyons' purse was well known, and in the present case he had shewn it by retaining four counsel; he was aware it was optional, and that he might have retained all the bar if he pleased.
Judge Burton. - Had application been made to the Court, we would have restricted him to two counsel until the other side had retained two.
Judge Dowling. - It is a perfect obstruction of justice, but we could do nothing unless applied to.
Mr. Sydney Stephen was not aware that their Honors would interfere; he had refused a retainer which had been sent to him by Mr. Bartie, because he understood he had already engaged three Counsel, and the opposite party having died before the case came on, he had received no retainer.
Judge Dowling considered that Mr. Stephen deserve the thanks of the community for the manner in which he had acted.
Mr. Stephen continued. - He was quite aware that the defendants in the present case would not have employed him if they could have helped it; he knew by their writings that they had a very low opinion of his abilities.
Judge Dowling said that if either of the defendants were present, and heard him that day, they would certainly alter their minds. Mr. S. then argued at considerable length to shew that the article now complained of was no more than a reiteration of the former articles, and that if they did not tend to obstruct the course of justice, the present article did not. The learned gentleman concluded by asking whether the defendants, because they happened to be editors of a newspaper, were to deny to themselves that justice they would have done to any other person? Would the article have been considered an obstruction of justice if the editors had not been parties to the action? if it would not, then he contended that their being parties would not make it so, and if it would, then he considered it was a palliation.
Mr. Kerr briefly followed on the same side.
The Attorney-General addressed the Court at considerable length in support of the rule; but as the learned gentleman said nothing important on the subject that has not been said before, we do not think it necessary to follow him through his speech. With respect to Mr. Lyons having retained four Counsels, he contended that as Mr. Therry was out of town, and he (the Atty Gen.) might be called away by his official duties, he had in fact only retained two.
After a few minutes consideration, Judge Dowling said that he thought the publication was sufficiently proved to authorise the Court in making the rule absolute. They did not feel called on to enter into their reasons which had guided them; it would be sufficient to state that it was their impression that the obvious talent of the article is to prejudice the trial of the case. - Rule Absolute.
Dowling A.C.J, 12 August 1837
Saturday, August 12. - Before the Acting Chief Justice and a Military Jury, composed of the following Gentlemen:- Major Messeter, Captain Fyans, Captain Fothergill, Lieutenant Kennedy, Lieutenant Cheveraux, Ensign Knowles, and Ensign Campbell.
Ward Stephens, Esq, appeared on information, filed at the instance of Samuel Lyons, of Sydney, charging him with endeavouring to pervert the ends of justice, F. M. Stokes, Esq, formerly joint editor of the Sydney Herald, was also included in the information, but, as he is out of the Colony, the trial was proceeded with in his absence. The information alleged that long before the 26th day of September, 1836, it was currently reported that one Watt was virtual editor of the Sydney Gazette newspaper; and also that he was the author of a pamphlet written under the signature of "Humanitas;" and also that an action had been commenced by Samuel Lyons against the defendants for publishing a libel in the Sydney Herald newspaper, imputing to the said Samuel Lyons disgraceful, improper, and dishonest conduct in his trade or business of an auctioneer, which action was about to come on for trial; and that the defendants knowing the premises, and being persons of wicked and depraved minds, and wishing to pervert the ends of justice, and to prevent the said Samuel Lyons from having a fair trial, by prejudicing the minds of the jury, with force and arms, at Sydney, on the 26th day of September, 1836, did publish a certain false, slanderous, and malicious libel of the said Samuel Lyons. (The information set forth the whole of the article under the head "Auctioneers and Agents" which appeared in the Sydney Herald of the 26th September last, but which is too long to insert. The following are a few of the extracts more particularly relied upon:-
"Our readers will remember that, some time ago, we published a series of articles on the conduct of certain Auctioneers and Agents in this Colony, which were transmitted to us by a writer who appeared to have enjoyed opportunities of making himself pretty well acquainted with the subject which he undertook to bring under the notice of the public. In publishing those articles, we professed at the time, and have since more than once stated the same fact, that we were influenced solely by a desire to expose a corrupt system; and that to assail `individuals' was not our object - we were too `prudent' to be thus caught."
"Now, courteous, or gentle reader, (or, more properly, courteous and gentle reader; for, supposing as we do, that you are a subscriber to the Herald, we take it for granted that you are gentle as well as courteous) who do you think has saddled himself with all the enormities which we have pointed out as practised under the New South Wales "Auctioneering system"? who but, - Mr. Samuel Lyons! Yes! let there be no mistake about the matter - Mr. Samuel Lyons, and his lawyer (Mr. Unwin) `of course,' say that there can be no avoiding the conclusion that Mr. L, and none other, is the hero of the historical fragments which we have published under the title of "Auctioneers and Agents!! Mr. Samuel Lyons, therefore took immediate steps to clear up his `character' in public estimation; and, accordingly, the public will be gratified at witnessing the aforesaid character put in issue, in all probability, during the present sitting of the Supreme Court.
"We repeat, therefore, that Mr. Lyons's known attachment to certain principles and parties, and his avowed dislike of those who are opposed to either on public grounds, leave no doubt on our minds that he availed himself of the opportunity of fancying himself the object of attack, for the sole purpose of putting us to the trouble and expense of defending an action at law. The very first step which this man took in the matter showed the bent of his mind, and the motives by which he was actuated; for even before we had the slightest reason to suppose that it was his intention to institute proceedings against us, he had already retained no less than `four' of the leading counsel at the bar - evidently intending thereby, to deprive us of professional assistance, seeing that the number of barristers is at present so few. We beg respectfully to call the attention of the Court to this fact. Here is a common action for alleged libel; and the plaintiff, because he is able to draw upon his purse for the gratification of his bad feelings, retains nearly the whole strength of the bar, for no other purpose whatsoever but because he thinks it will embarrass the defendants. We do entreat of the Court to notice this fact. What does Mr. Lyons want with four, counsel in a trumpery case such as that which he has thus "got up" for the sole purpose of taking money out of our pockets by forcing us to defend it.
We have often deprecated the practice of making a public journal the medium of discussing the private affairs of the editor, but we contend that this proceeding of Mr. Samuel Lyons against us is `not' a private affair. It is a direct attack upon the political principles of this journal, by an individual to whom those principles are bitter because they tend to up-hold the respectability of the colony, and to defend the emigrant colonists from being trod upon by an adverse party: and it is, therefore, an indirect attack also upon all reputable emigrants, the Herald being their organ."
We ask the respectable emigrant colonists, whether the colleague of Mr. William Watt, in the production of the notorious pamphlet called "Humanitas," could have any sympathy with men who had the misfortune to come free to the colony; or entertain other than feelings of opposition towards public journalists who stood forth in their behalf, and held up their slanderers to public contempt? And if we show that Mr. Samuel Lyons was the colleague of that reputable person Mr. William Watt, in the production of the "elegant extracts" which we shall presently lay before our readers, we ask any man whether our assertion that his prosecution of this journal has originated in motives of a political nature - particularly when we are in a condition to prove, that he has also resorted to other means for the purpose of effecting an object so desirable to him as that of injuring the Herald - is not fully borne out by the facts? The publication called `Humanitas' having, owing to some after `apprehensions' been circulated only among a select few, the following extracts will be new to our readers. Let them peruse and mark the feelings with which these worthies seem disposed to view the emigrant colonists - let them read these, bearing in mind that a book of the character of which they are only a mild sample, was intended for circulation through the world, that a convict was employed to write it - and that Mr. Lyons was its foster-father, let them bear this in mind, and then think of this person's sensitiveness as to `character!' and of his retaining not less than four counsel to vindicate it! - Mark!"
After Mr. Raymond had opened the case, Mr. Therry addressed the jury for the prosecution. He said that, after hearing the information read, the case was so clear that he might safely leave the paper in the hands of the jury and say nothing to them, were it not necessary to state some of the circumstances which led to the publication, and which were not before the jury. Before he came into Court he had expected to have addressed a Special Jury, and he certainly did think that a jury of merchants and fellow citizens of the parties would have been the proper tribunal to try the case; and he did not consider that the defendant had acted fairly towards the jury, by calling them on at the last stage of a long pending litigation, of the previous stages of which they were entirely ignorant; but whatever confidence the defendants had in a Military Jury, it could not exceed the confidence he (Mr. T.) had. As many of the jurors were new comers, it was necessary that he should call their attention to the circumstances under which the article was published. A series of articles had been published in the Sydney Herald, under the title of "Auctioneers and Agents," and of these articles Mr. Lyons complained as reflecting upon him in his capacity of an auctioneer, by which he got his bread; and in fact had made a large fortune, and retired from business with the good opinion of his fellow citizens. During the term that this action was to be tried, and pending the action, the article now complained of was published; and with the leave of the Court a criminal information was filed by the Attorney General. The result of the action, however, was that Lyons obtained a verdict for £200. He came into Court averring that he had been a Convict, but threw himself back on his twenty years good character. With the character which he had maintained he felt bitterly and justly the attacks of the press, especially of a powerful press like the Herald: and his fellow citizens felt that he had a right to complain, for they awarded him £200 damages. A few days before the trial came on, the article for which the defendants were now on their trial appeared, and it would be for the jury to say whether the article was not intended by the defendants to vindicate themselves, and impugn the plaintiff; for if it was he would appeal to the Court whether it was not a libel. There was a case in the 2nd of Atkins were it was held that printing a brief was prejudicing the public with regard to the case; and if printing a brief was illegal, how much more so was it to publish comments in a paper like the Herald, which boasts, and he believed justly, of having the most extensive circulation of any paper in the Colony, and calls itself the organ of the respectable Colonists. In Fourth Term Reports there was a case where a defendant in a case posted bills vindicating himself, about an assize town, on the eve of a trial; and on the Court being made acquainted with the fact, the trial was postponed, and the Court above granted a criminal information. On that occasion Lord Kenyon said (the substance of the quotation was that it was highly unconstitutional for a party to a suit to endeavour to prejudice the public mind while a suit was pending.) The Editors of the Herald, however, think differently from this; they say, "we have a press at our command, and we contend we have a right to make fair remarks on a case pendete lite;" that is to say, "other people must be content with judges and jurors, but we a press at our command, and we will overawe all; we will prepare the public mind for the case." He called their particular attention to the manner wherein the article which formed the subject of this prosecution was worded. It professed to express surprise that Lyons should have supposed that he was alone intended, when it was apparent that it was the well-known system of managing auction sales, which the writer denounced. But when the jury came to the consideration of the whole of this publication, they would see that so shallow a pretext could not avail the defendants. Throughout the whole series of articles, the real object was to attack the character of the plaintiff; though that object, like the pipes of an organ, were concealed - the gilded counterfeits only being exposed to view. Like those counterfeits, the pretence of attacking a vicious system was put forth, while the libel itself emanated from a desire to libel the plaintiff, as the notes of the organ issued from the hidden pipes. Could any ordinary reader doubt that the object was to libel Lyons, and by that means prejudice the case. He did not care what obloquy it might bring on him, but he (Mr. T.) would always avow that he should be glad to see the emancipist reform and regenerate, and become an useful member of society, as Mr. Lyons had done; and in proportion to the depth from which they rose, was the credit due to them for rising. He wished to see the line between the good emigrant and the good emancipist as faint as possible while the line between the good emigrant and emancipist, and the bad emigrant and emancipist, should be as broad and distinct as it could be made. Mr. Lyons had obtained the King's pardon; he was the object of the King's mercy, and it was not loyal to attack him in the way he had been attacked; it was in fact attacking the fountain of mercy, to make the object of it the subject of vituperative attacks. (The learned Gentleman went through the article paragraph by paragraph, endeavouring to shew that it was impossible it could have been written for any other purpose than to prejudice the minds of the public, and more especially those from whom the Special Jury was likely to be chosen.) The writer after these three or four columns of attack upon Mr. Lyons, says, "we have often deprecated the practice of making a public journal the medium of discussing the private affairs of the editor." This put him exceedingly in mind of a chapter of Tom Paine's writing, where he concludes a long attack upon the Kingly power by saying "God save the King." The learned Gentleman concluded by observing, that the power of the press was so tremendous in England that it had been christened the "Fourth Estate;" but if it was powerful there, it was more so in a thinly inhabited Colony like this. So powerful was the press, that a writer on nautical science, who was to describe the hull, rigging, and sails of a ship, and to say nothing abut steam, would not shew more ignorance than a writer on the constitution, who was to describe the function of the King, Lords, and Commons, and say nothing about the press; for the press is as powerful and important in the view of government, as steam is in navigation.
The following witnesses were then called:-
Mr. William Charles Greville, clerk in the office of the Colonial Secretary, proved the publication of the Sydney Herald, of the 26th September, 1836, by the defendants.
Mr. John Purkess, clerk to Mr. Lyons. - I recollect purchasing a paper of the 26th September last, at the Sydney Herald Office - (paper produced) - this is the paper I purchased.
Cross-examined. - Mr. Lyons intended to retire from business, and his intention was well known. Mr. Lyons was a member of the Patriotic Association; I do not know whether he spoke at their meetings, but I know he was an active member and subscribed £50 to it.
John Gurner, Esq, chief clerk in the Supreme Court Office, proved, that at the time the article was published there was an action of libel pending between Mr. Lyons and the defendants, which was tried before the Acting Chief Justice and a special jury, and a verdict returned for the plaintiff, damages £200. (The declaration being handed in, was read by the Clerk of Arraigns.)
Mr. Newcombe, clerk in the office of the Colonial Secretary, proved the signature of the defendants to the affidavit of proprietorship of the Sydney Herald.
Mr. R. J. Want, Attorney. - It was at one time generally reported that a man named Watt, was Editor of the Sydney Gazette; Mr. Lyons, who was plaintiff in the action of Lyons v. Stephens & Stokes, is the Mr. Lyons alluded to in the article now before the Court; the defendants are the same parties.
Cross-examined. - It was reported that Watt was transported here, and so was Mr. Lyons; I do not believe that Mr. Lyons has been flogged within ten years; he was struck off the jury list on that ground, but was re admitted on proving that he had not been in this country; I have seen him serving as a common juror. I do not recollect seeing an emancipist on the special jury list - I will not say there are none:
This was the case for the prosecution.
Mr. Windeyer for the defendants, after a few introductory remarks, said that in this case the jury were judges not only of the fact but of the law of the case. His Honor would tell them the law, and it would be for them to judge from the law as laid down, and the facts that were proved, whether the defendants were guilty or not. In the case of the Editor of the Brighton Gazette, who published some remarks while a Coroner's inquest was sitting on the body of a person killed by the military, Lord Ellenborough said, that if there were no bad motives, although it might be illegal, the case should not go before the jury and the consequence was, that although the criminal information was granted the matter was never brought to trial. The fact of the Court having granted a criminal information went for nothing; for in the very case cited by Mr. Therry, a few lines above the sentence he had quoted, Lord Kenyon says, we are not called on now to determine whether the defendant is guilty or not, but whether he shall go to trial. The real question for the jury was, what the intention of the party, and to ascertain that, they must judge from the whole article, not from the portions which had been picked out by the learned counsel on the other side. If the defendants had not published this article, they would have had a statement made at the trial that they had not even had the grace to make an apology. The fact was that, as was stated in the articles now complained of, the series of articles, headed "Auctioneers and Agents," was not written by either of the defendants, but was forwarded to them by a person who had had good opportunities of watching the system they exposed; but as the defendants published them in their paper, and had the benefit of them, it was quite immaterial to a plaintiff seeking fro damages for injuries to his character resulting from those articles, what their intention was. Whatever was the intention of the publishers of those articles, the law said that they must stand by the consequences. The jury having returned a verdict for Mr. Lyons for £200 had nothing to do with the present case; they did not say the defendants intended to libel Mr. Lyons, but that the writer of the articles aimed at him as a Convict Jew and a felon: the intent of the defendants had nothing to do with the matter in that case. If the intent of the defendants was not at issue, and in fact had nothing to do with it, then, how could the defendants be accused of endeavouring to pervert the needs of justice by disclaiming any intent? It was impossible the intent of the defendants could have anything to do with it; had they been up the country, or lying in a bed of sickness, they must equally have suffered for the articles. The article now complained of was only one of a series of hundreds of articles against Lyons and others who made themselves prominent in politics. The Editors say, "the principles upheld by you, and the other associates of the man, Watt, tend to relax the discipline of the Convicts and injure the free Colonists, and therefore we will expose you." If the Jury could find that the article now before them was published "with intent to pervert the course of justice," because the publishers declared they did not attack Mr. Lyons individually in the articles on the Auctioneering System, there was no production, however innocent, that could not be charged with a criminal intent. If there was a sentence in the course of the article that the jury considered related to the trial that was then pending, they must look at it in conjunction with the whole article. Even Falstaff's bill, by looking only at the ha'porth of bread, and excluding the long list of charges for sack! sack!! sack!!! might be charged to have have