ALLEGED LIBEL ON THE ROMAN CATHOLIC CLERGY OF DUNEDIN.

New Zealand Tablet, Volume IV, Issue 173, 21 July 1876, Page 1 (Supplement)

ALLEGED LIBEL ON THE ROMAN CATHOLIC CLERGY OF DUNEDIN.

(Before John Bathgate, Esq., 8.M.) On Saturday morning last, this case was proceeded with. His Worship, on taking his seat at 10 a.m., said: Before resuming the proceedings in this case 1 have a single remark to make. I notice that three of the daily papers have published very full reports of the proceedings upon the last occasion of my sitting. As the case has excited, I have no doubt, a great deal of interest, I wish to send this caution along with any further reports :. that these reports are not to be taken as strictly accurate in every particular, or as containing in each of them an accurate account of what I stated in the course of the proceedings. In the ' Evening Star ' it says that in answer to Mr. Howorth pointing out in the matter of the Tablet, I made the following observation : — " lam strictly speaking sitting as a Court of Justices of the Peace to enquire whether a prima facie case has been made out." In the other papers there is an accurate statement of what I did say, and it is to the folio-wing effect : I said just quite the opposite — that I was " not " sitting as a Court. I apprehend that lam nob sitting here strictly speaking as a Court of Justices, but simply as a Magistrate making the enquiry. The error consisted in the omission of the word " not." It should have been "I am not sitting as a Court." Mr. Howorfch : I am instructed to say that it is a printer's error that appeared in the " Evening Star.' His Worship : Then there 5s another material error that I will only allude to to put myself right. There are one or two errors, but they are not of very great importance. There is one that makes me speak quite the opposite to what I did say, and therefore I shall just allude to it. It is again in regard to the article in the Tablet. In the report of the ' Guardian/ the following is stated as that which I said :—": — " Ido not think I can load the depositions with anything that took place after the date of the alleged libel." This is what I did say. The other two papers make it before the date of the said libel, which is nonsense. I have further to state that I observed a paragraph in the ' Evening Star' of the 13th July, to the following effect : — " We have received letters bearing upon the prosecution of the Editor of this journal, which, according to the decision of the Resident Magistrate, we should be justified in publishing, as being only a Court of Enquiry, no contempt could be alleged. The writers, however, must accept our apology for not publishing them. George Bell, the defendant, then read the following statement : I admit that I am the proprietor and editor of the ' Evening Star' newspaper. I did not write the alleged libel, nor was I personally concerned in the publication of it. The first time I saw it was when reading the • Star' at my private residence on the evening of 3rd July. Since the publication, I have not acquiesced in it. No one asktd me to publish a contradiction or refutation of it, and until the proceedings in Court I did not know that the matters alleged were false. The columns of the ' Evening Star ' have at all times been open to Bishop Moran and to the members of his Church, and whenever the Bishop has favored me with any letter or other communication, it has invariably received prompt attention, andl absolutely deny that he has any just reason for stating that he had serious doubts that I would have published a refutation if requested so to do. The'Tuapeka Times' has never on any previous occasion so far as I am aware, published a false statement or one that would give offence to any body of persons. Mr. Howorth : May it please your Worship, from what has just fallen from the Bench, it is quite clear that your Worship has given this matter since the adjournment a very great deal of consideration. I trust that your Worship, having hud only one side of the question before you, will -wholly suspend your judgment as to what may be the ultimate result of the present prosecution, and that your Worship will not come to any conclusion adverse to my client until your Worship has the whole case before you, namely, the defendant's statement, the evidence of his witnesses, together with the observations which I am about to adduce to the Court in support of my client's contention that this information ought to be dismissed. I have no doubt whatever that the very full publication which these proceedings have had in the various newspapers may to some extent have influenced your Worship's mind in favor of the case presented by the prosecution, but I confidently hope that when your Worship has heard my contention on behalf of the defendant — that if there is any such impression lurking on your Worship's mind it will be dispelled. I make bold to say that a weaker case than the present was never presented to a Court of Justice for serious consideration. The informatipn does not allege that the libel complained of was published maliciously. Mr. Macassey : The information says it is a false, scandalous, malicious libel. Mr. Howorth. : But it does not allege it was published maliciously. The prosecution has utterly failed to establish, any responsibility upon Mr. Bell for the alleged libel, with the exception that Mr. Bell|is proprietor of the paper ; and he cannot be held criminally responsible for the alleged libel appearing in the ' Star/ Tn« Worship : But yon are surely aware of the law of libel — that the proprietor of the newspaper is criminally liable though he may never have seen the paragraph. Mr. Howorth: Not if he proves it was published not from want of due care or caution. It has not been shown that since the publication Mr. Bell has in any manner approved of the libel or acquiesced in it. He has never been asked to contradict it, and, morever, the source from^whence the statements were obtained are disclosed in the paragraph itself . That source has hitherto been considered a reliable source. I mean the ' Tuapeka Times/ I have also to point out that no prosecution has been taken against the editor of that paper, or of any of the other papers in which the

paragraph has appeared. At least not up to the time the complainant appeared in the witness box. Mr. Bell is singled oat as the unfortunate scapegoat for somebody else's wrongs. His Worship pointed out that the sole question in this cue waa confined to the ' Star * newspaper. Mr. Howorth : Well, I take it that the charge we have to refute is — that a libel has been committed on the Roman Catholic clergy of Dunedin. The first ground I submit is that the publication is in. no sense libellous. The second ground is that it does not libel the Roman Catholic clergy of Dunedin, as a body, and Bishop Movan has no right to complain. As a third ground, it points to one per3ou only, and he alone, if he can be identified as the person intended, has the right to complain, if he be aggrieved. I contend, your Worship, that inasmuch as all contracts or engagements against marriage or restraint in marriage, are void at 'Jommon Law, no Roman Catholic ought to be allowed to come into this Court and et up his vow of celibacy in contravention of these laws. His Worship : There is no doubt of the general policy of the law — that there is nothing to discourage marriage — but yo.u want to show whether it is applicable to any person who holds himself subject to the canons and rules of any special Church — to wit the. Catholic Church. Mr. Howorth : I submit that no canons and rules of the Roman Catholic Chnrch can be accepted in contravention of the law- of England. The law allows marriage of persons, and no one can.be permitted to say when they come into Court that the law of celibacy or any other vow which has the effect of contravening the law can be allowed to override the law. His Worship : You should not say contravening the law, but against the policy of the law. - • Mr. Howorth : These vows may be right enough in themselves, but when, they come into collision with the law they ought to t»e held illegal. • ■ . , His Worship: That argument might apply to the remarks if the statement in the paragraph was true. But if it is admitted to be untrue, then here is a number of men subject to certain canons and rules that they do not wish to free themselves from. They acknowledge themselves to be bound by oath, and do not wish to be freed from- the canons, and they may say, "If we. are not adhering to these rules, we degrade ourselves in the eyes of our Church and of society. ' Mr. Howorth : This matter must be looked upon from a public point of view, and the law has a right to interfere. There is nothing contrary to the law in a person saying that one of their number has done that which is legal. Then as to another view of the case. Your Worship will recollect that you refused me the privilege of going into the history of the Church to show that this vow of celibacy has not always prevailed in the Church. I think I should have been able to obtain important admissions from Bishop Moran himself which would have thrown light upon this question, but, inasmuch as your Worship was so good as to say that you would take judicial notice of the history of the Church, I am content to Leave ib so. His Worship explained that he did not mean himself, but that the fact would be considered by the Supreme Court. Mr. Howorth : What I proposed was to read passages from standard works to Bishop Moran, and he would have been able to say whether he disapproved of them or not. Then the Court would have been informed whether there has been any difference of opinion in the Church with regard to celibacy. His Worship : I think you will find that there is a case where questions weie not allowed to be put to a Roman Catholic on account of his religious belief. Mr. Macassey : Darwin v. Mosley. His Worship : That is the very caso. Mr. Howorth : I have no doubt that your Worship will find that Popes and priests married in the early history of the Church, and that the observance of celibacy is even now a matter of difference of opinion between members of the Church. His Worshp : 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 jßoman Catholics will accept your authority. Mr. Howorth quoted the 9th section of Lord Campbell's Act, with the view of showing that the alleged libel was published, not through want of care or caution on the part of the defendant. His Worship : Do you wish to stretch that to apply to a newspaper proprietor ? Mr. Howorth : Your Worship has it before you, that Mr. Bell was not in way concerned or consulted in the publication of- the paragraph; that he did not approve of it; and that he has not acquiesced in it since. I shall adduce evidence to show that he was not in any manner concerned in or consented to the publica* tion. From the evidence that has been adduced, your Worship must be satisfied that tie claarge against Mr. Bell cannot be sustained. The very fact of its merely being a copy from another paper goes to show that there i 3 no malice whatever in the publication. His Worship:. While admiting your law generally, do you mean to say that a Justice of the Peace can take the matter of intention into consideration P That is a matter for the Jury. Mr. Howorth: Where the nutter is' not libellous, I submit that your Worship must dismiss the information. His .Worship: Judges themselves, in a matter where it was doubtful whether it was libel or not, have not taken upon themselves to decide as to the intention. Where there is a Jury, it is not for a single judge to decide as to the matter of intention. Mr. Howorth : Then I submit the paragraph is in no sense libellous. I propose just to analyse the passages in the paragraph, itself, and I will take that as to throwing off the trammels of the Church. I think there is nothing offensive in the expression or intended to be offensive. A Minister of the Crown or any one in

authority, might say> " Since I have off )jthe trammels of office (meaning the duties of his office), I shall do so and so. I Bubuiit that this is the fair construction to be put on the sentence that .the priest had thrown off .the trammels of the Church. It is not intended and cannot be considered to have any offensive meaning whatever. The paragraph goes on to say — " In doing so, he has followed the example of Pere Hyacinthe." Now what is the example of Pere Hyacinthe ? I propose to read to your Worship a portion of the biography of this celebrated man from " Men of the time." Mr. Macassey : My learned friend might just as well read a portion of "Paradise Lost." It has nothing to do with the question. . Mr. Howorth : I submit that I may read a portion of it. His Worship : What do you say a libel is ? You say that' the defendant is not in any sense liable. What is your proposition as to the law of libel P Mr. Howorth : The law of libel provides for any statement "containing expressions -of hatred or ill-will against a person or body of persons, or where it may be calculated to provoke a * breach of the peace. I submit that this paragraph does not contain any of those elements. In analysing the paragraph itself, I submit that it is competent for me to read from this work (" lie Men of the Time ") an extract from the biography of Father Hyacinthe, to show that any Roman Catholic Priest, in following his example, has done nothing dishonourable either in regard to himself or to his church. His Worship : Mr Howorth, will tnke this proposition, that the imputation brings him into contempt or ridicule of society. Would not that be libellous ? I do not say the world at large when referring to society. Take the Good Templars. Supposing that this imputation had been spoken against a member that he had broken Lis vow to abstain a great many times, and had so been brought into ridicule of •ociety. Mr. Howorth : That is a case in point. Supposing that Bishop Moran inierted a paragraph in his paper, and said that a Good Templar had broken his vows and taken to drinking His Worship : I am not aware that Bishop Moran has a paper. Mr. Macaesey : I have not heard of it either. Mr- Howorth then read from " Men of the Time" the particulars of Pere Hyacinthe's marriage, and contended there was nothing offensive in the paragraph in making reference to the character of such a man as Father Hyacinthe. No one — not the Roman Catholics themselves — had any right to take that in any offensive sense whatever. That is all I have to urge — that there is nothing in the paragraph itself which can be construed into libel at all. And I now come to the second ground — that the body of the Roman Catholic clergy in Dunedin are not libelled — that it is not a libel upon them as a body. That is the case contended for by the prosecution ; and in support of the contention the learned counsel cited The King v. Williams, 5, B. , Aldenon, 595. The question in that case was whether a criminal information should issue against the Durham clergy of the Established Church of England. The Soman Catholic clergy are not established by law. I submit that they cannot in this Court be recognised as a legal body. Mr. Macassey : They are authorised to marry. Mr. Howorth : They are persons authorised to marry according to. the Marriage Acts. It is alleged as a libel on the whole body, or Bishop Moran could not have brought the case into Court. The 1 language of the paragraph itself is so perfectly clear that it refers to one person only. It says : " A reverend father of the Roman Catholic Church, Dunedin, has thrown of the trammels of the Church." What is clearer than that it refers to one individual,? If he cannot be identified, then no one can be injured. His Worship: Supposing it is impossible to say it is one person out of three, is there no redress ? Mr. Howorth : No, I submit not. That is the case in point. I submit that 'on the authority of the case I have just cited it is clear that, if this paragraph applies to one individual of a particular church, it cannot .be considered as applicable to the whole. If I aui right in my contention on this third ground, the case made for the prosecution must altogether, fail. I will now proceed to the evidence which has been adduced on the part of the prosecution. I may pass over that of Messrs. Cahill, Fleming, and Griffin, with the observation that their testimony went to show that if a priest ceased to be a priest he could do as he liked. Mr. Macassey observed that Mr. Griffin had given no specific information on the point. His Worship : I may state that a Justice of the Peace presiding in such proceedings as the present has no power to weigh the evidence. To put a strong case, suppose that in defence there was conflicting testimony brought forward of a very strong kind sufficient to shake the whole case of the prosecution, has the Justice the power to balance the one against the other, and then to make up his mind and to say, "There is no case?" I apprehend that he has no such power. If you just look at the Justices of the Peace 9 Act, the words of the Act seem to shut out from the power of the Justices any dealing with the evidence for the accused altogether. It is left as it were for the jury to weigh the evidence. The Justice sits merely in a ministerial capacity, doing a ministerial duty, considering whether there is sufficient evidence to send the case for trial. Nothing he says does affect the innocence or guilt of the accused. Mr. Howorth : If your Worship is not satisfied of the sufficiency of the evidence there can be no committal. His Worship : There is the plea of alibi. There maybe exceptions, but I will put it as strong as this : I will say that a Justice may be perfectly satisfied in his own mind that there is no chance of conviction, and yet be bound to send the case for trial. Mr. Howorth : I submit that unless the Court is satisfied that there is a prima facie case, your Worship cannot commit. His Worship : 1 tlink you will find in Justice Johnston's work 1 1 1 1 1 .-) < -- pinla j :r g down to you.

Mi*. Howorth : I submit that until there is a pritna facie case made out for the prosecution, it is ' your Worship's duty to weigh tho evidence. I contend that there is not a. pritna facie case made out. It seems perfectly clear to me that your Worship must weigh the evidence, in order to decide if it is sufficient. Therefore, any observations that I may make upon the nature of the evidence itself may aid your Worship in coming to a conclusion. Has Worship pointed out that according to par. 744 of Justice Johnston's book, it is only for the Justice to say whether there is sufficient evidence to put the accused on his trial. Mr. Howorfch : I submit that that implies that your Worship must judge of the sufficiency of the evidence. His Worship : Judge Johnson goes on to say that it is not the certainty of conviction, but the desirability of more searching investigation of the case for trial. I may have grave doubts in my own mind, but the case may be of such importance to the individuals concerned and to society at large as to justify the Magistrate in committing. Mr. Howorth : There are abundance of precedents in this Court where prosecutions have been commenced in this Court and'been dismissed. lam speaking of this Court, when it was the Justices of the Peace Court. There are numerous instances where the Justices of the Peace have taken upon themselves the decision of the cases and have discharged the accused. I have not a note of any of the cases, but my recollection is to that effect. His Worship : Ido not think I have taken that responsibility. Anyone who does so is taking a judicial duty. Mr. Howorth : If your Worship thinks that there has been a prima facie case made out my client must submit to your decision and be committed. His Worship : My own opinion at present is that unless you can enlighten me to the contrary, that I have no power sitting as Justice to decide as to conflict of testimony or to weigh evidence. Mr. Howorth : I submit that it is competent for your Worship to do co under the Justices of the Peace Act. I can show that the evidence that has been given is not of a reliable character. For instance, Mr. Petre's evidence speaks of things which could not have existed. He must have forgotten what occurred or been misinformed of the fact when he stated that tne marriage of Father Hyacinthe caused a great scandal in the Church, and that he was not received into society. Now, from the biography I have just read, it shows how thoroughly mistaken Mr. Petre was. It says that Lady Stanley and Dean Stanley, who are intimately acquainted with the Queen, were amongst the guests at Father Hyacinthe's wedding. Mr. Macassey : Mr. Petre was speaking of the people of his own Church. Mr. Howorth : Why, Pere Hyacinthe was afterwards appointed to the cure of Geneva, and shows that he could not have lost caste. Mr. Petre, or at all events some of the witnesses said that if a priest were once married he was to be looked upon [as a thief or a convict. These persons are entirely wrong. His Worship : They are only looking at the matter from their own point of view. Mr. Howorth : They are welcome to enjoy their own opinions, but when they endeavour to show the mind of [the public it becomes so utterly absurd. Tour Worship will recollect that Mr. Petre was specially asked whether Father Hyacinthe would be received into society, and I think I am justified in stating that he is entirely mistaken as to the circumstances connected with Father Hyacinthe's marriage. The very fact of his having been appointed to a cure in Switzerland shows that he was highly respected even by his own Church. Mr. Macassey : If my learned friend has stated that as a matter of fact, I may say I am informed that it is entirely untrue. Mr. Howorth: I find that it is stated in "The Men of the Time." This is a standard work. Mr. Macassey mentioned that standard works were not always strictly accurate. For instance, in " The Men of the Time," the name of the present Chief Justice of Victoria was printed Paul instead of Stawell. Mr. Howorth : Bishop Moran and his witnesses have stated that a. .Roman Catholic priest would be "a perjurer if he did not keep his vow of celibacy as a priest. Now, if Brother John Hyde Harris, Brother John Hislop, and Brother Sir Donald M'Lean, were to perjure themselves by breaking their oaths and severing their connection with that much abused association, the Freemasons, would it be a libel on the Masonic body for Bishop Moran to take notice of such a circumstance in the New Zealand Tablet ? I think not. At all events, 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 regarded a renegade and a perjurer was not considered a bar to his admission ; and if I am correctly informed, great was the rejoicing of the Boman Catholic Church thereat. His Worship : But are you right in your facts ? Did Lord Eipon. throw over his allegiance to the Freemasons by becoming a> Boman Catholic? Did he tell his wife and his friends the secrets of the Order ? Did he open up the secrets of the prisonhouse ? (Laughter.) Mr. Howorth : lam not aware whether he went to that extent or not. I know for a fact that Lord Bipon did throw off his allegiance to the Freemasons, and that there was very considerable rejoicing by the members of the Boman Catholic Church them 1 selves. Again, with regard to the Good Templars. If it were said that a Good Templar had broken his vows, and taken to drink, that would not be a libel on the Good Templars. I will now direct your Worship's attention to the manner in which this action was commenced. And here I would beg to say that, while I have thtt greatest sympathy with Bishop Moran in his desire to protect the" good name of the ladies and gentlemen with whom he is connected, (Concluded on page 7-J