THE 'STAR'S' LIBEL ACTION.

Evening Star, Issue 4177, 17 July 1876, Page 2

THE 'STAR'S' LIBEL ACTION.

CRIMINAL PROSECUTION. Saturday, July 15. i‘uf mc J. Bathgate, Esq., R.MVr The following is Mr Howorth’s address and liis Worship’s summing up iu the above case : May it please your Worship,—From what has just fallen from the Bench, it is quite clear your Worship has given this matter, since the adjournment, a groat •leal of consideration. I trust your Worship, having only heard one side of the question, has wholly suspended yonr judgment as to what will be the result of this prosecution, and that you will not come to a conclusion adverse to my client until, you have a full statement before you of the observations I am about to adduce to the Court in support of my contention that this information ought to be dismissed. 1 have no doubt that the very full publication that these prooecdiugs have had in various papers, may, to some extent, have influenced your mind perhaps iu favor of the case presented for the prosecution ; but I confidently hope, when your Worship has heard the contention on behalf of the defendant, that if there is any such impression remaining on your mind it will he dispelled. I make bold to say a weaker case than this was never before presented to a Court of Justice. The information does not say that the defendant published the paragraph complained of maliciously. The prosecution has failed to produce proof of malice. Beyond the mere technical liability of my client’s being proprietor of the paper— The Magistrate: That may be efficient. I draw a marked distinction between tbe proceedings here and in the Supreme Court. Mr Howorth : It has not been shown that my client assents to the publication or that he lias approved of it or acquiesced in it. He has never been ashed to contradict it, and the source has been stated from whence the paragraph was taken. No prosecution has been taken against the ‘Tuapcka Times,’ cy any other paper in which it has appeared. The Bishop has singled out my client as the unfortunate scapegoat to sutler for other people’s faults. The Magistrate : The sole question in this 9a§e coujiu<4 to tlje newspaper.

Mr Howorth; The tfhole gist of the contention on the part of the prosecution is that the publication of that paragraph is a libel on a body of persons—that is the charge I nave to meet here. I submit that the publication is not in any sense libellous. As a second ground that it is no libel on the Roman Catholic clergy, and that Bishop Moran has no right to complain, and as a third ground the paragraph points to one person only, and he alone has a right to complain if aggrieved. Further I contend that iuasmuch as all contracts or engagements, either against marriage or in restraint of marriage are, according to the law of this country, illegal, a Roman Catholic cannot be allowed to come into this Court and set up a vow of celibacy in contravention of the law. The learned counsel referred to Baker v. Vernon’s reports, and Hartley v. Rice, 10, East. 240. The Magistrate: There is no doubt it is the general policy of the law not to discoungo marriage, but you have to show whether it is applicable to any person who holds himself subject to the canons of any Church.

Mr Howorth : I submit that cognizance of the canons of any special Church cannot he received if they are in contravention of the Common Law. The law of the land permits marriage of all persons, and no one can be allowed to say in Court thac celibacy or any other law can contravene the laws of the realm.

The Magistrate : Not contravening the law, but against the policy of the law. Mr Howorth ; There is, perhaps, nothing apparently illegal in a person entering into a covenant in restraint of marriage until it comes before a Court, when its illegality is at once manifested.

.The Magistrate: That argument might apply If the statement in the paragraph is true, but if admitted to be untrue there is a body of men who apply it to themselves, and they say~“lf you accuse us of breaking these canons and rules we are degraded in the eyes of the Church and of society.” Mr Howorth ; I submit it must be looked u P on in a public point of view, and any person engaging to do what is contrary to law, it cannot be a libel to say one of them has done what is legal. Then as to another view of the case, your Worship will recollect you refused me the privilege of going into the history of the Church to show that celibacy has not always prevailed in the Church. I think I should have been able to have obtained important admissions from Bishop Moran in regard to that, but as your Worship was good enough to say you would take judicial notice of the History of the Church, I will leave it in the hands of the Court——

The Magistrate : You are taking a broad view of my words -1 meant the Supreme Court would take cognisance of that argument.

Mr Howorth: What I wished was to have read passages from Church history on which Bishop Moran might h-. ve given better information to the Court.

The Magistrate : I think it has been held that in case where Roman Catholics are concerned, questions of that class are not allowed to be put to them. Mr Macassey instanced Darwin v. Mosley. Mr Howorth : I think your Worship will be aware that marriages of priests and of popes were allowed in the Church, and that there is dissension in the Roman Catholic body now on the subject, so that the practice may again prevail. His Worship : You will find that Roman Catholics do not accept of the authority of Protestant writers. When you come to the Court you should satisfy yourself that the Roman Catholics will accept your authority. Mr Howorth ; I submit also that the 7th and 9th Victoria, generally known as Lord Campbell’s Act, is a bar to the present proceedings. By Lord Campbell’s Act, 6 and 9 Vic., c 96, s 9, it is enacted, “That whensoever upon the trial of any indictment or information for the publication of a libel, under the plea of not guilty, evidence shall have been given which shall establish a presumptive case of publication against the defendant by the act of any other person by his authority, it shall be competent to such defendant to prove that such publication was made without his authority, consent, or knowledge, and that the said publication did not arise from want of due care or caution.” Here your Worship sees the Star simply copied from another paper. It gives the authority, and if it has taken due care or caution it puts an end to the criminality of the offence. Your Worship sees the section “ It shall be competent for the defendant to show that it was published without his know ledge and consent, and that he was in no 'rise concerned in the publication, that he did not approve of it and has not acquiesced in it since.” I shall adduce evidence to show that my client was not in any manner concerned or consulted in its publication, and I submit your * orship, on that proof being adduced, must be satisfied that the charge against Mr Bell cannot be sustained. The fact of its merely being a quotation from another paper goes to show there was no malice in the publication. The learned cousel cited Starkie on libel in support of this view.

The Magistrate : It is possibly an answer for the purposes of a civil case, but the rule is by far too extensive for a criminal process.

Mr Howorth ; The real intention of the party as proprietor is to be taken into consideration to establish criminality. It was not brought to his knowledge. The Magistrate: That is matter for a jury.

Mr Howorth : If it is your Worship’s opinion that the matter is not libellous, it is your duty to discharge the information. The Magistrate : YouVill find that Judges themselves have exercised great doubt in matters of this sort, and have net taken upon themselves to decide in such matters. It would be a dangerous thing to put such power in the hands of a single' Justice. Mr Howorth : On my proving that Mr Bell knew nothing of the matter, there can be no possibility of criminal intention on his part. I also contend that the passage is in no sense libellous. I submit that in the expression “ thrown off the trammels of the Church'” there is nothing offensive intended. A clergyman may say so in reference to his clerical duties, and use the words in that sense, that is, as having put aside or fulfilled certain duties. It cannot therefore be considered to have any offensive meaning.. Then there can be no libel in saying he has followed the example of Pere Hyacinthe. What is that example ? I propose to read a portion of Father Hyacinthe’s biography from “ Men of the Time.” 1 J

Mr Macassey : My learned friend might as well read a chapter from ‘Paradise Lost.’ It has nothing to do with the question. The Magistrate : What is your proposition as to the law of libel ?

Mr How'orth ; The law of libel is that the matter set out as libellous must contain something calculated to bring discredit upon a body or {person, or to provoke a breach of the peace. In this case I propose to show that nothing has been said derogatory to Bishop Moran or the Church. Mis Worship : Mr Howorth, will you take this proposition, that the imputation brings him into contempt or ridicule of society. oulcl not ti.ifit be libellous ? X do upt s<iy the world at large when referring to society. Take the Good Templars. Supposing that vhw imputation ha 4 been spoken against a

member that he bad broken hli tow to abstain a great many times, and had so been brought into ridicule of society. Mr Howorth: Supposing Bishop Moran were to insert a paragraph in his paper to the effect that a Good Templar had broken his vows, could it hi said to reflect upon the whole body of Good Templars ? I submit not I am proposing to show that Father Flyacinthe has not regarded the vow of celibacy as binding, and it is therefore competent to me to read an extract from a standard and independent publication. Mr Howorth read from “ Men of the Time ” as follows : Soon after this Father Hyacinths left France for America, landing in New York October 18,1869. He was warmly welcomed by the leading members of the various Protest-mt sects in the United States, but though he fraternised with them to a certain extent, he constantly declared that he had no intention of quitting the fold of the Catholic Church, The Pope, after frequent solicitations on the subject, at length consented, in February 1870. to relieve Father Hyacinthe from his monastic vows, and he accordingly became a secular priest under the title of the Abb£ Loyson. .... On September 2,1872, he was married in London, at the Marylebone Registry Office, to Emily Jane, daughter of Mr Amory Butterfield, and widow of Mr Edwin Buthven Merriman, of the United States Dr Stanley, the Dean of Westminster, and Lady Augusta Stanley, his wife, were present at the marriage. The Abb<s Loyson was elected cute of Geneva, but he resigned this post in 1874, on the ground “ that the spirit which prevailed in the Liberal Catholic movement in Geneva was neither Liberal in politics nor Catholic in religion.” A translation by Mrs Loyson of some of her husband's " letters, fragments, and discourses ” was published at London in 1874, under the title of “Catholic Reform, with a preface by Dr Stanley. Dean of Westminster.

There cannot therefore he anything whatever offensive in making an allusion to the marriage of Father Hyacinthe, and nothing • even that the Roman Catholics themselves have a right to feel offended at, in any sense whatever. Those are the grounds I have to urge on that point- that there is nothing in the paragraph itself which can be construed into a libd. Secondly, I maintain the body of the Roman Catholic clergy are not libelled as no person is mentioned. The learned counsel here cited The King v. Williams, 5 B and A, 695. In that case as in all other cases of libel of bodies there is a serious offence charged——it was that of disloyalty to the Crown—and it was allowed to proceed. The Magistrate: It might be an offence against the country, not applicable to the body themselves.

Mr Howorth : I have further to submit that in other cases—take for instance Reg. v. Gatherede, and Reg. v. Osborne, In these cases, and in others which I have been able to examine there appears to be connected with libel a serious charge. My learned friend quoted the case of Reg, v. Brent. In that case there was no offence charged against the New Zealand Government, and it was alleged that Mr Macassey; It was quoted to show that a stranger might set the law in motion.

Mr Howorth: I am going to use it for another purpose. lam going to use it in ordel* to show that Judge Chapman draws a distinction between the Minister and the Government as by law established. There is no established Church m this country, and therefore the body of Roman Catholics cannot be treated as on© established in the sense his Honor to think necessary. All religious bodies in this country are on an equal footing, and therefore I have to submit in a legal sense that a libel will not be against the Roman Catholic clergy as a body unless there is something to bring the Church into disrepute. Mr Macassey: Are priests authorised to marry ?

Mr Howorth : Private persons are allowed to marry, and therefore this paragraph has no bearing upon the whole body. It is convenient for my learned friend to say it is a libel on the whole body, as otherwise Bishop Moran could not bring it into Court; but! submit it is not a libel on the whole body but only on a particular individual, and he alone has a right to complain. , The Magistrate : If this were an action for civil damages, there might be something in that. °

Mr Howorth ; The rules of construction ought to be more closely followed in criminal cases.

The Magistrate: Is it not true that to libel on; of a body of men would be a libel on the whole body of men ? Mr Howorth ; I do not know of a case of that sort; but the language of tke paragraph is perfectly clear: “A Roman Catholic clergyman”-what can b, more clear than It refers to one. • If he can be identified, he has a right to complain; if not, no one is injured. I have a case exactly in pointLe Fanu v. Malcolmson, 1 H L cases, 637.

The Magistrate : But if only the individual may sue is there no redress ? Mr Howorth : It cannot possibly injure ttie body, when only one is pointed at. Le Fanu a case shows that the Irish factories were spoken of generally. No particular factory was specified. It does not say. as here, “A reverend father.” It does not say “an Irish factory,” but merely in general terms “in some Irish factories,” yet it was held to show that a partitular factory was intended, and a verdict having been found in favor of the plaintiff, the Court upheld that verdict. Therefore, I submit on the authority of that case, it is clear if this paragraph applies to an individual of a particular body, it cannot be considered to apply to the whole body. In fact, if lam right in my contention on these three points the case for the prosecution must altogether now Proceed to the evidence adduced by the prosecution. I may r»ian over that of Messrs Cahill, Fleming, 3 Griffon with this observation: that their testimony generally tended to show that when a priest ceased to be a priest, he could, do us li 6 liked so far as nuurvius ia concerned. J * Mr Macassey : Mr Griffen said he Kd nn information on that poiut. The Magistrate; In reference to your remarks on the evidence. I may you are well enough aware of, that a Justice of U X &nch P rooeec %s has no power to weigh the evidence. To put a strong case, suppose that m defence there was conflicting testimony brought forward of a strong kind sufiicient to shake the whole case for the prosecution,, has the Justice power to balance the one against the other and make up his mmd and say there is no • * »PP re hend there is no such power! The words of the Justice of the Peace Act seems te shut out from his consideration all evidence whatever for the accused. If on the part of the prosecution, the Justice of the Peace shall be “of opinion” that such evidence is sufficient, it seems to me to shut out the consideration of conflicting testimony. He has merely to say whether trial ° ieUt eVidenCe t0 Send the SS

Mr Howorth: But I submit that it is + to Wcigh the evidence, and if Md u The Magistrate: In ordinary circumstances and as a general rule/but I will put it as strongly as this: I will say that a Jusmiiuffl- pei '- fectl > T satisfied in his own • , there is no chance of conviction and yet be bound to send a case for trial. ■ ,Mo worth: I submit that unless a f Td' * ° aSe * S mac * e out tlie cflse ° u Sbt

vi^ou^ 18^8^6 : Xt may Uot en<X in con *

t.^sr° rth: But - 1 »>*">>*. not

The Magistrate: I think Judge Johnson hears me out. He says: — “lf they neither discharge the accused nor remand him, then his legal adviser may address the Bench for the purpose of showing the insufficiency of the evidence to warraut a commitment; and if he shall satisfy the Justices thereof, they may order the accused to be discharged or remanded.” Mr Howorth : That implies your Worship must judge of the sufficiency of the evidence. The Magistrate: Then Judge Johnson goes on to say, “It is not the certainty of conviction so much as the propriety of more searching and thorough investigation which ought to determine a Justice.” I may have grave doubts in my own mind in any case, and yet that case may he of such importance to a person and to society at large as to justify a committal.

Mr Howorth : There are abundant precedents in this Court of informations laid and persons discharged. There are numerous instances where Justices have dismissed the accused. I have no case in which your Worship was the presiding Justice. The Magistrate ; I do not think you have. As I stated, my duty is not a judicial duty, as I pointed out. Mr Howorth : I was about to observe generally-

The Magistrate : I think unless you can enlighten me to the contrary it is not competent for me to weigh the evidence. Mr Howorth: It is competent for your Worship to do so under the Justices of the Peace Act, and I may say the evidence given is not sufficient to justify commitment, and that it is not of a very reliable character. Mr Petre speaks of a state of things in England which could not have existed, nor could he have been properly informed of the facts. He said Father Hyacinthe was not received into society. From the biography I have just read it shows how thoroughly mistaken Mr Petre wa,s in his evidence. The Yen. Dean Stanley and Lady Augusta Stanley, who are on intimate terms with the Queen, were guests at the wedding. Those were his associates. Speaking of his own * Church, Pere Hyacinthe was afterwards appointed to a curacy at Geneva. Surely he had not lost caste even in his own Church, Other witnesses spoke of The Magistrate : They only gave evidence from their own point of view. Mr Howorth : Your Worship, the very fact of his being appointed to a cure in Switzerland proves the esteem in which he is held.

Mr Macassey : If my friend takes that to be true, I am informed it is entirely untrue. Mr Howorth; At all events, Bishop Moran and the witnesses have each expressed the utmost horror that a priest should perjure himself by casting off his vows. Suppose Brother John Hyde Harris, Brother John Hislop, and Brother Sir Donald M‘Lean should perjure themselves and break off their connection with that much-abused body, the Freemasons, would it be a libel on the Masonic body of New Zealand to notice it in the columns of the * Tablet f I think his Lordship did not think so when Lord Eipon in 1874 cast off his sworn allegiance to the ancient craft and entered the fold of the Romish Church. The fact that he might be lowered or perjured in the eyes of the Masons would not prevent his entrance into the Church. But, if I am correctly informed, great were the rejoicings in the Roman Catholic Church thereat.

His Worship : But are you right in your facts ? Did Lord Ripon throw over his allegiance to the Freemasons by becoming a Roman Catholic ? Did he tell his wife and his friends of the secrecy of the Order ? Did he open up the secrets of the prison house ? (Laughter.)

Mr floworth : I am not aware whether he went to that extent. lam informed as a fact that Lord Ripon did throw off his allegiance to the Freemasons, and that there was much rejoicing in the Roman Catholic Church in consequence, A similar illustration is afforded in the case of the Good Templars, and is exactly in point. Would a paragraph stating that a Good Templar baa broken his vows and taken to drinking be a libel on the whole body ? I have also to submit a few observations as to the manner in which these proceedings have been commenced, and while I have every sympathy with his Lordship in his desire to protect the ladies and gentlemen of the Order, I must say, with due respect, that this information has been laid without due regard to courtesy and good taste—without his Lordship taking the trouble to acquaint himself with the circumstances under which the paragraph was inserted, which, no doubt, he should have done.

His Worship : What does Lord Campbell’s Act say upon that ? Mr Howorth : It goes to the root of the whole question of libel. His Worship ; Does the Act allow the newspaper to apologise ? Your argument is that there is no libel.

Mr Howorth : My argument is that there is no libel. I submit that Mr Bell should have had an opportunity given him of retracting the stat-raent. That opportunity was never offered to him, and I think I am perfectly justified in stating that the ordinary rules of courtesy and good taste have not been followed in this case. A criminal information has been rushed at, as it were, without even the poor preliminary of a lawyer’s letter. Mr Macassey : That is a very poor one, Mr Howorth : Well, in a case before the Lord Chief Justice in England, he drew attention to the omission of the usual preliminary letter, and said that nothing could justify such a course without absolute necessity. That course has been followed. The publication of the matter was a mere inadvertauce, and the suddenness of the proceedings showed animus against the defendant. When Bishop Moran said he did not believe Mr Bell would have published a denial he had no right to state any such thing. Your Worship has heard Mr Bell’s denial that Bishop Moran had any ground for such a conclusion, and therefore in reviewing the evidence a totally different appearance may he given to it when taken in connection with its surrounding circumstances. The evidence does not in any manner support the prosecution, but shows there has been considerable animus imported into it that should have been avoided. I think I have noticed the principal points of the case, and in conclusion I would remind your Worship that no possible good can come from this case by sending it to a higher Court. Feelings that should never have arisen have been created in the public mind, which is being agitated to an unnecessary degree. My client and all persons with whom he is connected desire to live in peace and harmony with their Homan Catholic friends ; but I submit these proceedings are caleu'ated to create a wide breach between sections of the community. At all events, a state of feeling must arise that we must all deplore. Bishop Moran said if the historical part of the matter is gone into, the controversy will never end ; but unless your Worship is prepared to dismiss this information, a grave responsibility rests with you in sending it to a higher Court. We cannot possibly foresee the angry feelings that may arise amongst various classes in this Province. It is a great pity that Bishop Moran has brought this case into Court. As I have already urged, the paragraph attacks one individual only, and this is sufficient answer to the allegation that the whole body is attacked by it. I have to ask your Worship to give the evidence foU consideration, even the

statement of Mr Bell, and I subnet that the information must be dismissed. The Magistrate: At this stage pf the proceedings, the first point I have to consider is, Las there been a libellous paragraph published—has a misdemeanour been committed, or is the contention of the counsel for the defence correct, that the publication of the paragraph is not in any sense libellous ? The law of the matter is laid down with sufficient clearness to enable me to come to a right conclusion with regard to my duty in the matter. 1 may notice once or twice counsel has suggested that I was apparently indulgent to one side and showed favor. I must repudiate anything of the kind. lam here to administer the law to the best of my ability without fear, favor, or affection to any one. His Worship cited “ Eu-sell on Claims,” 1 Viet., 322. In a foot-note commenting on Rex v. Jenner he states that a libel upon one of a body of persons without naming him is libellous, as the whole may be so described. Has the newspaper published what actually reflects on a number of people and thus reflects upon all? They, according to their different opinions, may apply it so. The general definition of the law of libel is very well laid down in 1871, in the case of Perrott and Co. To make words libellous it must tend to bring the persons libelled into contempt with society, or in the society whose standard of opinion the Court can recognise. Now the paragraph speaks for itself. If it had been true I think the contention of the learned counsel so ably urged would have applied. If it had been true there would have been no libel; but it is sworn to be false, and justification has not been maintained for the defence. Now it is sworn by the prosecution that in their eyes a Roman Catholic has committed a sin of a grave and serious nature. Oue of the witnesses went the length of saying he could not imagine greater degradation could be imputed to an individual than was contained in that paragraph. It was not ©ne of the ordinary imputations which may he made against one person, but one the gravity of which consisted in being applied to a person in the position of a clergyman. The paragraph being sworn to be untrue, then this presents itself to my mind. It is not for me to determine a point of law. Generally, perhaps, the law of libel is plainly laid down, but in this matter it seems to have required the assistance of learned e mnsel, and to quote cases and authorities. Then I have no authority, sitting here to discharge ministerial duty, to assume the functions of a Judge and take those into consideration. It is enough if Ibe satisfied that there is something in the case for the prosecution - an apparent foundation for the complaint—a prima facie case as it were to go before a jury. Judge Johnson says it would he far from desirable that a charge of that sort should be dismissed when there is some evidence in sapport of it to go to a jury. It is not the certainty of conviction, as I put it before, hut the propriety of further investigation that should guide a Justice of the Peace in regard to the case. I would submit on all hands that this matter is one of very great importance. The prosecutor and witnesses have sworn it is a very serious matter. There is a great deal iu what has been so ably urged for the defence ; I think there has been a great deal of ability shown on the part of the learned counsel; I think the subject has been so ably handled, that so much the more is it fit for the determination of the Supreme Court. I have no hesitation in saying that a false imputation against a clergyman of any denomination in a community such as ours, where all are equal before the law, published and sent abroad throughout the world is matter of importance and of a grave character. It has sufficiently of a libellous aspect primd fach lam not deciding absolutely on the point but I think there is sufficient to require that the question be referred to the Supreme Court, when the law will be laid down after full argument on both sides. It would be a sorry day for a community for a single Justice to decide after hearing counsel on both sides. It is for the good of the community that* searching inquiry should be heard by the Supreme Court. Then comes the 6th and 7th Victoria, generally known as Lord Campbell’s Act, before quoted. The whole working of that paragraph is that the case must go before a jury for their consideration. I have no right to consider whether it has arisen from want of due care and attention. These are matters for a jury—not for a Justice. And I may here remark that this section cannot be extended to a publication by a newspaper. It applies to those cases by which an agent may disseminate matter by a handbill and other ways. But if it was intended to protect an editor or some one concerned in a newspaper office we might have had every day such cases cropping up. I may say I dare say the defendant never saw the paragraph, and that if he had seen it he would not have inserted it. Ido not think there is anything in the point taken by Mr Howorth. One point was that “no good could possibly come of sending the case to a higher Court,” I have no power to deal with that, for I have no judicial power in dealing with this question at all. But I cau say as there has been a primd facie case of probable cause of complaint it does not settle the character of the matter. So far as the defendant is concerned he leaves this Court innocent of any criminal charge until found guilty by a jury. The prosecutor pursues this matter at his own risk, He brings before me a primd facie case, and I am bound by the law to allow it to goon that ground, for I cannot take upon mo the junctions of a Judge, and cannot determine a minute point of law. Neither can I take the function of a jury on the evidence. As I said before, although extenuating testimony was urged on the part of the defence to lead me to believe there is not thc-slightest hope of a conviction, as a Justice of the Peace lam bound to send it before a proper tribunal, as justice will be compelled to he done to all parties. In this case publication is proved of the paragraph complained of, Mr Bell admits that °he is the proprietor of the paper. All that amounts, in_ my opinion, to such a case as obliges me, in the exercise of my magisterial duty, to send this case for trial, and the more from the effect given to points in the defence, which I am, from my position, not entitled to decide. I therefore leel bound to send the case to the Supreme Court, the defendant to he admitted to bail—himself in LIOO and two sureties of i.50 each.