SUPREME COURT.—CRIMINAL SESSION.

Otago Daily Times, Issue 557, 30 September 1863, Page 5

SUPREME COURT.—CRIMINAL SESSION.

Tuesday, 29th September. (Before hw Honor Mr Justice JUchiaonu.) His Hoaor took his seat at 10 o'clock. SENTENCES. Patrick Fitzsirnmons, convicted on Monday of receivingl money stolen from the person of Henry Diamond, was sentenced to be imprisoned in the Gaol with hard labor for twelve months. John Boyle, convicted of robbing Thomas Renny of a purse containing' money and valuable property, was sentenced to be imprisoned in the (iaol with hard labor for twelve months. Thomas Davis, convicted of stealing property from the shop of Heury Murray, Maclaggan-street, was sentenced to be imprisoned in tiie tfaol with hard labor for two years. LIBEL. James Gordon Stuart Grant was charged with nits* demeanor in publishing, on the 18th June last, a false, scandalous and malicious libel, on Julius Vogel, the editor of the Daily Times newspaper, Hunedin. The prisoner was allowed a seat outside the felons' dock. The Registrar of the Court read the alleged libel, entitled "Jeshurun playing on Ms harp to thj Christian electors of Dunedin." The Crown Prosecutor, assisted by Mr Gillies, coadu\:ted the prosecution. The prisoner was undefended by counsel. The Crown Prosecutor in stating the case remarked on the scurrilous character ot the terms used in the publication read, and their antagonism to the spirit of Christianity and justice. He appealed to the jury whether it was rig at thut any maii should be insulted on account of his busiuess, profession and religion in such a way as had been done in the publication laid before them 1 The libel in question came under the character of a malicious and blasphemous libel. It was formerly the law that truth should not be pleaded as a j astification of libel, but it had been altered, so that ie might now, provided the statements were true, and that it was for the public benefit that they should be knoun. iJut the nature of the imputations could not be defended on that score ; and the prisoner did not avail himself of that provision, but pleaded Not Guilty. ■

His Honor said that it appeared to him that the complaint was more as to the manner than the matter of the publication, for a Jew could not be considered libeiied by being called a Jew, etcepting it was done iv an offensive manner. It would ba better to call attention to the " plums" of the composition— those expressions which were deemed malicious and libellous. .

Mr Gillies called His Honor's attention to the words —" Which he now repays with fl.grant ingratitude, and the foulest misrepresentations of the fathers and founders of this country," and said it was sufficient to establish a libel, that the publication was intended to bring tha party alluded to into ridicule or contempt, which was evidently the object of that placard. . J ; Thomas Knowles Binns, examined by Mr Grillfes: I am a waiter, and called on the prisoner in June last, and saw him. I asked if he would let me have a couple of the pamphlets published in reference to the Election at Dunedin. He gave me thirty printed copies of the libel, headed " Jeshurun." I gave him half- a-crown for theaj. I told him I thought I should be able to make something- by selling them. He said he had sold some at a shilling each, and for others he had obtained five shillings. . Cross-examined by the Prisoner: I was sent by Mr Tuckwell to endeavour to obtain of you a few copies of the hand bills. '

Joseph Sykes Webb, examined by Mr Gillies: lam Editor of the Daily Telegraph, published in Dunedin. I know Julius Vogel, who U Editor of the Daily Times. I have aeeu the publication in which the "Editor of the Jew's Harp' is referred to, and it is intended to point t> Julius Vogel undoubtedly. The document appeare;! when Mr Vogel contested the Election at Dunedin, for the House of Representatives, with Mr Paterson. . '■■''■'

'I his closed the case for the Grown.

The prisoner said that he felt justified in the course he had taken, as a challenge had been thrown out by Mr Vogel in the leading articles in his newspaper, in which he frequently endeavored to bring the old settlers into ridicule. And more especially an attack had been made upon Mr Patersou, who was a mos. respectable man, and on "whose behalf he had accepted the challenge. He could not bear to hear respectable men spoken of in that manner, and especially by new comers, and it made him burn with, indignation when he had heard it said not only by persons just arrived from Melbourne, but in Melbourne itself, that there were no persons in New Zealand worthy of being characterise^ as politicians. There w;-re more able politicians in the Province of Otago than were to be found on the other side, and it was in defence of those persons, who though, perhaps not able to express themselves so fluently as Mr Vogel, were yet men of sounder views, that he published the manual which was the subject of that action. He had therefore chosen the weapon of irony, and the use of it was legitimate. He did not deny that, under the title of Jeshurun he meant to include Mr Vogel. although only in the sense of his being one of. a class, for the term was not so applicable to an individual as to the whole Jewish nation. Neither did he deny that he considered a Jewhad no right whatever to legislate for Christians. There was nothing in common between them, and he believed that a Jew would rejoice in nothing so much as to inflict injury upon a Christian. It was true he had characterised them as worse than infidels, and he did so because they denied the legitimacy of Christ's birth. TJiafc was insulting him, and every Christian man in hi& tsnderest point—that of his religion. And opinions, rendered them far worse than Mahometans, foeMahomet acknowledged Christ to be a great prophet, though not so great as himself. But a Jew not believing even that, had no right whatever to any consideration at the haiyls of Christians, and was utterly unfit to legislate for' them. He had endeavored, at all times, to bring these points prominently forward, and so like Aristides, and Falnicus of old, he had suflered. He had been placed in that tiresome place, the gaol, with common felons. He had been fed on bread and water, and treated so> 1 badly that his health had suffered, and not even would anyone come forward to be his bail, though ! only a paltry forty pounds on the part of two persons was required. He wished he had been rich, for then that prosecution would not have been begun. True he might, if lie would, have submitted to an ignominious proposal have been set at liberty. It had been proposed to Mm, while he was in gaol, that if he would consent to say no more against Mr Vogel and agree tbjlt Bhould he do so he might be brought up for judgment in consequen.ee, he should be liberated .i-ii his own recognisance of eighty pounds. /But he scorned the proposition. It never should be said of him that, having taken up a position on mature deliberation, he had. through pax of consequences, retracted* No ; he would rather remain,--and rot in that stinking place, the companion of feloias^nd of the outcasts of society, than'swerve from wli&k&g^coiisidered the strict line of his duty. He knew hehad wssolcett' strongly, but it was for the purpose of leading men to take a right course that he had done so, &&£ he had been entrappel by an informer, \shosevoeatiou lie considered of all characters, tb.» most, contemptible. But he felt no fear of consequences for he was to bs tried by an impartial ju*y, and hfe left his case in their hand*. The prisoner spoke in his'defence; one hour and forty minutes. In the course of bis. address the jury wished to suggest that he should; not detain them by duelling upon points not bearing upon the charge His Honor agreed with, the jury that it was unreasonable on his pa,rt, but as. they were the judges in the present case of the law, v as well a* the fact, he thought they were bound to hear the defence The prisoner having concluded his address.* His H,onor said, gentlemen of the iury, I shall »v> as short m my remarks as I possibly can, consistently with my duty. L think this is the firstefse of libel,.- which has been tried in this Court and thereiore., may be of importance for the future A very wale definition of "libel" is laid dawn in law It is stated to be a publication which tends to blacken the reputation of a man, and exposa him to public hatred, contempt, and ridicule. Looking at this publication, prima fade, it has a tendency to bring the object of it into ridicule. That is the purport of it: and, therefore, no man of common sense would arrive at any other conclusion than that it falls within the definition. And I cannot, consent to the reasoning of th^s defendant, that because a man is thoroughly upright a malicious publication directed against him can do him no, harm. At that rate a throughly upright man could not be libelled. But that is not the case, and if a publication has a ter.v , dency to that end, it would be a libel, although %cI intention, of .^he libeller was defeated through t he- excellent reputation of the person against whom & wag; directed.; You know the old maxim, "Throw mvi at. any person and some of it will stick," and.that is true of the best roan, and is so generally acknowledged that it was adopted as the maxima a certain religious order in times past,. " Such beine the case, prima facie. tbjT publication £ libellous. But on the other hand, tbere were necessarily very s*rge exceptions, to those general rules-fa^ criticism of the conduct and capacity of piibjic men is warranted, fci f ac fc were it otherwise with our constitution and form oi governms^, we should labour under serious disadS^ Tlievf^ ion for thQ J>iy. therefore, is whether the publication transcends the limits of fail > and reasonable criticism. Ithink you.may fairly also I consider the occasion of this publication. It was an

vLvll, ?! ? uch occasicns the capacities of the various, candidates are open t. criticism;- and seaing how wi ie the franchise is in a British dependency! ■ jDpeajs to the electors hw be considered justifiable. teitaHilyappealß-io.the-.reasortare allowable, and I should also say to the feelings o» tlioss are made with a public intent and not with private malice, nor to the injury of the perscn against whom the censure is auecteo. for the purpose of but purely and honestly giuung; the electoia in their choice. A pretty wide siope, therefore, ought to be allowed on such ■ occasions. .If the writer had confined himself to the question of the eligibility of a Jew to-represent a British community, the House of Lordsbad argued-that point, .and-I thijiicvery fortunately:the question >wascarried on the Liberal side.. i am glai that House gave way, and I did not in the .least degree sympathise with the opposition,/but Ido si-.y'that ie is open to any political . , writers or r.ny person whatevir to adopt, the. line of argument which the late lamented .'Dr Arnold used to tike —who held that a Jew was not eligible to hold office in the Senate of ;i Christian country. If that liberal-winded-man could argue thus, it surely is open to any other: man to do so too. But it will be for you to consider wheth/T the .writer, of this pap^rhas not gone very fir boyivnil f sir argument, and even fair appeal to the feelings. No man has aright to impute conduct to another which would be a disgrace to any one in private life, unless, in this Court,..he ia prepared-to prove tiie trulh of what he alleges, and if he is pre.pnred to, do that, to ; prove also, that the publication of it is for the public benefit/ In that casehewnul; be entitled : to acquittal. In the documents before the Court, there are many^passages which are very . etroiig;in style. The'writer is a master of his pen, and in..many, places iw" ha? gone far beyond what a man of more sober judgment' would/have allowed hirnssif ,to c;f>. There are expressions which he has not defended and which it is for you to consider, whether jsven-the.liberfcy of an election should permit. I should be^sorry -to: i;be thought not ~. : to rvalue that Civil ..and ; : religious iliberty.: which ,has : been won ; ;wilh;::so:.r much .'toil and blood,) but I do not think: it; protects liberty- to allow, such expressions as are used here:in political publications. Par from it.. As Jiberty has progressedifeeare-no longer, fiejee onslaughts on the characters of public Mien; j^tnd^it -is well it is so. The British press is distinguisJii d by its calm dispassionate tone in public -t affairs, and it "should be for us to take care that * public .''.should-; not go to scurrilous excesses; Therefore, as we value our liberties,, we

should he ready to censure a fiernicious excess of the , • press, whether in tho shape of fly-leaves like these or more serious publications, and when juries find writers going- bflyond fair appeals to reason or even feelings, i there should be a,certain censure pas«ed upon the offenders. In this case I hope the jury will look ' •wider than the present action. They have to consider what the effect of their decision may be on the general style and temper of political controversy, for there is,no court but that of ..public opinion to keep public writers in (.their v places. , There seems to me to be;a great deal„of outrageous bigotry in this publiqatipiV rj Ijljdo not., consider that, libellous. If a writer is a bigot "in some points, let it come «ut. His works do^not looktlie better for it, but who that is acquainted with the^ history of Europe will deny that to tlie.Jews a 9 a race we owe inestimable obligations ?; > And .even in modem' times, we owe a great deal to them. ■ Some of the most eminent names in the .Qhristian Church have immediate, descendants from the Jew?,- for instance. Neander, the greatest historical.critic of/mndem -.times. «Neander, also, was a Jew.). jFromi,that race sprang also thosp. celebrated musicians Rossini, Meyerbeer, and I believe Mrn<JMs?ohn, ,So that a xnan takes acontracted view when.b.e^ lo&ksitoc'Hoandsditch.*far a model Jew, There' are low Jews as well as low Christians. Then the prisoner.says, " Myjiberty ,is at stake, I have been confined among tfelons." '~ That is not the way in wbi-hjou ; should., 1 ook at 'the circumstances. It is for you tp,,perform-your functions and iay whether the is a fair .ejection placaid—it not, it is a libel., i, If, you "think,} it is, so leave it me to apportionr,the 'punishment for this petty offence., : , J,t isj absurd for a man to stand up and vindicate a publication like this, as if he was a great, patriot, I regret that nobody could find bail for him. I do not wonder at his grief, but his grief is not for the p/oscicutor.to.con&ia'er, s.I admit, he had a right to comp am of his friends.,' He does seem to me to be a subject of jcompapsjon ,in that respect, and I am afraid his ,services in-,favor of civil.and religious liberty have,not been appreciated, as two men could not be found;to,.come forward at L4oeach even, i have not beeu addressing to you anything like an nrgunieiit that thJ3 is a libel. I, wish to leave it to your consciences to say whether ib is or not. Do so .without regard, to cousequsnees, as that is your sole duly. I,have said j notv.all that appears to me "necessary on tliis matter, and I will dismiss you to consider your verdict. The) jury retired for about twenty minutes, and on reent ling the Cburt they returned aveidict of Not Guilty, There was a second indictment against the prisoner for addressing n libellous letter,' sigced "An Old Settler,'' to the electors of Waikousiti. The Crown Prosecutor declined to proceed with, the cas\ The jury were agaia sworn pro forma, and a verdict bemg returned of Not Guilty, the prisoner was dischargee. JBis Honor then informed the jury that it was his pleasing duty to release them from further attendance, nnd remarked that in accordance with the memorial presented to his Honor the Superintendent he wns happy-to say a sum had been placed on the Jistimates for the purpose of gi/ing some compensation for loss of tinip. He cordially agreed with the measure, especially as serving on a jury bore hardly upon many poor men who could not afford the sacrifice. _ it was only right that as they were called to perform a public duty, the public should to some extent reimburse them. The Court adjourned sine die.