James Elder As Litigant

Sydney Gazette and New South Wales Advertiser, 20 April 1827

TO THE EDITOR OF THE SYDNEY GAZETTE.

-Sir,

-An individual here named Elder, a baker, having endeavoured to excite the minds of the people in this neighbourhood against me, on account of having anatomically examined the bodies of several persons who died, and the public Press having been stated as the medium through which such is intended, I deem it a duty incumbent on both myself and the profession to which I have the honour to belong, to state to you the facts of this case, which I am ready to verify on oath, and I consider it the more necessary, because the Public of Great Britain have had their minds feverishly excited by such means, the consequence of which is, that medical students are obliged to go to Paris for dissection and study, and with such cramped measures, the race of Surgeons who are now springing up, will be less competent to decide on the safety of the lives of their fellow creatures.

A woman named Bore, having died some time ago, I received the consent of the people who were surrounding her, to examine her body, which I conceive is the duty of every Surgeon, if he has any regard for the welfare of the living. I did investigate the ravages which the drinking of ardent spirits had produced, and a long tirade was given to Mr. Wentworth, who spoke about it at the Supreme Court.

The woman named Jane Bore, left some property at her demise, which fell into the hands of a Government man, named Hopkins, with whom she had been cohabiting, and among other bills, there was a certain promissory note, drawn by James Elder, in her favour, in payment for a beautiful cottage, where Major Lockyer's family reside. This house was built by Jane Bore's husband, but he having another wife in England, went home to her, and sold this cottage to Mr. Elder, for £60 sterling, payable in 12 months, to Jane Bore, his wife. After her decease, I applied to Mr. Elder to be paid for my trouble, as he had this £60 still in his possession. Elder said that he had given £1 to Mr. Wentworth for advice, and that Mr. W. had told him never to pay a fraction of it. I brought the matter before the Supreme Court, and although Dr. Harris had cautioned the prisoner Hopkins not to part with this note, yet Mr. Elder bought the note for £60 from him, by giving him £20, having commissioned Hugh Taylor to get it for less if he could; this was sworn to before the Bench of Magistrates, who censured Mr. Elder's proceeding. On the trial coming on before the Supreme Court, the Chief Justice took an exception to the clause in the Act of Parliament, as not applicable in this Colony. Since this period, Mr. Elder has been stirring up the people to prevent anatomical investigation, and a woman having died here, under very suspicious circumstances, I examined minutely the body, and contents of the stomach, &c. fearing that poison had been given, having the Coroner's sanction for so doing; yet a petition was presented to the Governor, praying an examination into my conduct, for mangling the body, as was stated. The case which has called forth these remarks is as follows:
-A man named Peter Kinshela (free), a bricklayer, in the employment of Messrs. Lentz and Batman, was placed under my care 9 days ago, labouring under a severe illness, for which he had consulted Dr. Bland some time ago; he was much reduced in appearance, and after calling on me twice, he was unable to walk a short distance to consult me, and I attended him at the house of his employers, Messrs. Lentz and Batman. I visited him 2, 3 and 4 times a day, until yesterday morning when he died. As this man had been under my care in an hospital in Dublin, 7 years ago, and as he had now died from the diseases produced by the drinking of spirituous liquors, to which he had been much addicted, I applied to Messrs. Lentz and Batman, for permission to examine his stomach; they both said they had no objection, and they would consult a friend or two of his. I also applied to the Roman Catholic Clergyman, who told me he had no objection, and I had better use my own discretion; I applied to his friends, who gave permission, and were present when I commenced and finished.

I found on examination, extensive disease of the stomach, liver, and spleen, and the lungs full of sabulous particles, and tuberculated, and, as is generally the case, the body was much emaciated, while the liver and spleen had increased to an enormous size. I made as little-cutting or sewing up as possible, and having shewn to a number of byestanders the effects produced by drunkenness, I endeavoured to impress on their minds the impropriety and punishment of such a sin.

This morning (Wednesday), the Coroner called on me to say, that an Inquest was to be held on Peter Kinshela's body, a rumour having been raised that Messrs. Batman and Lentz had neglected him, and requesting my attendance; at this Inquest, my having opened the body became the subject of high and inflammatory discussion by Mr. Elder, and he having stated that the medicine I gave him caused his death, I called in the evidence of Surgeon Dalhunty, and I demanded a re-examination of the body before Surgeon D.h; he did examine anatomically the body of the deceased, and gave his opinion as follows: -That he perfectly coincided in my opinion, and that the deceased came to his death in consequence of excessive intoxication; that under any circumstances he could not have lived more than a few days, that there was perfect dis-organization of every viscus, and that I had made as little disagreeable marks as it was possible to have done.

The Coroner's Jury having sat some time, a verdict was brought in by the Foreman and nine Jurymen, that the deceased died by the Visitation of God, while three Jurymen, viz. Mr. Elder and two friends of his, would not give any opinion, because the body had been opened before they saw it. -Mr. Elder strongly insisting that a remonstrance should be sent to the Governor to prevent my opening any body.

Now, Mr. Editor, the necessity of morbid investigation is a circumstance of which every enlightened man of the present day coincides, and I sincerely hope that, through the medium of Mr. Elder, no outcry will be raised against the examination of dead bodies, which bodies can be of no other utility but that of affording instruction to the living. The Coroner, Foreman, and nine Jurymen, have expressed themselves highly satisfied with my conduct, as there was not the slightest reason for me to suppose that an Inquest would be necessary, and consequently that I did not act prematurely, and if thought requisite, they are ready to testify to this statement, should it be brought before public view.

Hoping that the minds of the Inhabitants here will not be enflamed and excited against such anatomical investigations, I have the honour to be,

your most obedient Servant, ROBERT MONT. MARTIN, Surgeon.


Sydney Gazette and New South Wales Advertiser, 14 March 1829

Supreme Civil Court

WEDNESDAY, MARCH 11. (Before the Chief Justice.)

Elder v. Lang.

This was an action for libel on the character of the plaintiff, contained in a publication entituled "a Narrative of the Settlement of the Scots Church in N. S. W." of which the defendant was alleged to be the author. The damages were laid at £300. The defendant pleaded the general issue, and also a justification.

Mr. Wentworth addressed the Court at considerable length, and called the following witnesses: -

Mr. Arthur Hill.-I am a printer; I was employed by Dr. Lang to print a pamphlet for him; this is it I am confident; my name is to the imprint. Dr. Lang paid me for printing it, and furnished me with the copy; I know Dr. Lang’s writing; this letter is in his writing; when the work was done it was published in the usual way.

Cross-examined by Mr. Norton.-I have a portion of the original manuscript in my office at present.

Re-examined.-I printed 200 copies.

James Busby, Esq.-The letter now produced was now addressed to me by Dr. Lang, but I cannot say it is in his handwriting; I have no doubt that the Mr. Elder mentioned here, is the plaintiff in this action.

The Chief Justice enquired what connexion there was with the letter shewn to the witness and the subject of the present action.

Mr. Wentworth replied that it was the original of the letter published in the pamphlet, and containing the words that "renegade missionary", Mr. Elder, and was offered as proof that the defendant was the author of that letter.

Cross-examined.-I think I am as much libelled in this publication as the plaintiff, and I think the whole work a vindictive production, and very unbecoming a Minister of the Gospel.

The Chief Justice did not see how this examination bore upon the case.

Mr. Norton stated that he wanted to shew the ill-feeling that existed in the mind of the witness against the defendant.

Examination continued.-I have heard that a letter was writtten by the plaintiff to the defendant when he was leaving the Colony for England in the Midas.

Re-examined.-I do not know, except from hearing it, that such a letter was written; I never saw any letter of the kind.

Mr. James M’Naughton.-This pamphlet is mine, and I purchased it in the shop of Mr Caleb Wilson, in George-street; I marked it at the time as I was requested to do; a gentleman came into my shop one day, and asked me if I had purchased this book for him which he had previously requested me to do - I told him I had, and he then requested me to put my initials on it, in order that I should know it again.

Cross-examined.-This publication consists of several pieces of paper tied together.

Re-examined.-I bought this book of Mr. Caleb Wilson, and I know of no alteration that has taken place in it since.

The examination of Wm. Wemyss, Esq. taken de bene esse, before his departure from the Colony, was here read by the Clerk of the Court; this witness deposed, that, in his opinion, the publication was calculated to injure the plaintiff in the estimation of the London and Edinburgh Missionary Societies, and with the religious world in general.

Mr. George Terry Howe.-I am a printer and was employed in the office of Mr. Hill at the time this work was printed for Dr. Lang; Dr. Lang furnished the manuscript, I know his handwriting; the proof sheets were sent to him, and they came back corrected in his handwriting; I have no doubt that this is a copy of the work printed at Mr. Hill's office for Dr. Lang; when the work was printed off, it went to the binders, and I do not know what became of it afterwards.

The alleged libellous matter was here put in and read -

"The individual in question was Mr James Elder of Parramatta, a brief sketch of whose history may not be uninteresting to the reader.

Mr. Elder, who is a native of Scotland, was originally a Presbyterian Dissenter from the Scottish National Church, and was bred to the useful art of a stone mason. Disliking that laborious occupation, however, and evincing what was considered an evangelical and missionary spirit, he was sent as a missionary by the London Missionary Society to the Island of Otaheite, in the year 1802. Mr. E. resided in Otaheite for several years. In the year 1808, a rebellion broke out among the natives, and their king, the late Pomare II. was obliged to flee to Eimeo, a tributary island in the neighbourhood. The Missionaries having enjoyed Pomare's protection were equally obnoxious to the rebels, and of consequence had to flee along with him. Their place of general rendezvous was the Island of Huaheine, where notwithstanding their being kindly received by the natives, they came to the resolution of abandoning the mission as an impracticable undertaking, and of retiring to New South Wales. To this determination they were influenced in great measure by the arguments of Mr. Elder, who represented on the one hand, that the cause was utterly hopeless, and on the other that they were abandoned by the Directors of their Society, who it must be confessed, had acted towards them with unpardonable and scandalous neglect, having sent them neither intelligence nor supplies for the space of six years. Two of the Missionaries, however, Messrs. Nott and Hayward protested against this resolution, and not only volunteered to remain at the islands, but expressed their determination to do so at all hazards. This Christian heroism was a tacit reproof to those who had determined to quit their post. It was felt as such by the latter, but being the majority, they determined to force the Decius and Curtius of their little band to compliance with their measures. With this view they resolved at the suggestion and advice of Mr. Elder, who was the chief advocate for the abandonment of the Mission and the chief speaker at the Meeting, that Messrs. Nott and Hayward (by remaining at their post of duty when the rest abandoned it) had cut themselves off from the mission altogether and were consequently unentitled to further support from the Society. Messrs. Nott and Hayward remained notwithstanding, and were the honored instruments, along with those of their brethren who returned to the islands, of planting the first Christian Church in Polynesia a few years thereafter. Mr. Elder and his associates retired to New South Wales, from whence the greater number soon returned to the islands. It was not thought advisable however that Mr. E. should return thither, in consequence of the spirit he had already manifested, and the Rev. Samuel Marsden, the Society's agent in the Colony, was expressly requested by the other Missionaries to prevent his return. He therefore settled at Parramatta, where he has since resided as a baker and grocer, having completely divested himself of his Missionary character, and occupying himself in driving his own horse and cart twice a week to Sydney for flour and groceries. On his visit to the Colonial capital, he generally calls at the Commissary's, with whom he ingratiated himself as a collector of intelligence in the village of Parramatta, during the Government of Sir Thomas Brisbane. On the author's first arrival in the Colony, he was introduced by the Commissary to Mr. Elder, who requested him to preach once a week at his house at Parramatta. With this request the author readily complied, and he accordingly went once a week to Parramatta, and preached in Mr. E's house to all that came unto him for twenty-six different times, till Mr. E. growing tired of his visits actually procured their discontinuance. As Mr. E's house was not a suitable place for the residence of a Minister, the author on these occasions, after preaching at Parramatta in the evening, generally rode on in solitude and darkness to his brother's cottage at Liverpool, about nine miles distant. And on discontinuing his clerical visits to Mr. Elder's, with whom he had never had any difference, and towards whom he had uniformly acted with the utmost cordiality, he thanked him for his co- operation and offered to remunerate him for whatever trouble and expense he might have incurred, by allowing him the use of his room as a temporary place of worship.

For what reason then this individual, of whom to say the very least, the author is conscious of having deserved well, subsequently turned both against himself and the Scots Church, whether from the mere wantonness of malice, or from a desire to ingratiate himself still more with the Commissary, it would be difficult to determine. The fact however is certain that for some time previous to the author's embarkation for England, he made himself extremely busy by writing privately to some, and by calling on others of the author's congregation and private friends, for the express purpose of destroying his reputation as a Christian Minister, by filling them with suspicion and distrust respecting his procedure in regard to the settlement of the Scots Church. Nay, he even wrote a letter, to the author to be delivered after the ship had got under weigh, containing the following grave charges, couched in the most intemperate and scurrilous language; viz.

1st That the author was not properly qualified in point of education for the office of a Christian Minister.

2d. That he had not been regularly ordained.

3d. That, on his return to Scotland, he would neither be received nor recognised by any University or by any Presbytery of the Church.

4th. That he had drawn up a constitution for the Scots Church in Sydney repugnant to the standards of the Church of Scotland.

5th. That he was a person of a mercenary disposition, who only studied his own aggrandisement.

That renegade Missionary, Mr. E. of Parramatta, thought to ruin me in the esteem of my friend Dr. Waugh, of London, by writing him per the Midas, a letter of crimination against myself. Dr. W. like an honest man, read me a great part of the letter, and merely said when I told him the truth, "Mr. Lang, expect such opposition from wicked men in the cause you are embarked in; but go straight forward and live it down." So I have resolved to do."

This was the plaintiff's case.

Mr. Norton addressed the Coart [sic] on behalf of the defendant, and contended that the observations on the character of the plaintiff were called forth by those charges which he had made against the defendant in the letter addressed to him when he was leaving the Colony, and also to Dr. Waugh, in London; and that it was necessary that the defendant should show the plaintiff's qualifications to judge of those matters in which he had interfered.

For the defence, Mr. Norton called

Mr. John Eyre.-I was sent out by the London Missionary Society to Otaheite, in the year 1796, at which time, and for eight years after, the plaintiff lived on the Island with me; we left the Island together, in consequence of having not heard from the Society in England for some time, and conceiving ourselves neglected. It was my desire to remain, but on account of being married, before I left, I applied to Mr. Henry, another Missionary, also married, to remain with me; Mr. Elder always expressed a wish to come to this Colony; after his arrival here, he followed his trade of a stone mason; of late years he has kept a retail shop in Parramatta, and is a baker; all the Missionaries who came here returned to the Island, except Mr. Elder and myself; I consider myself attached to the London Missionary Society now, in a limited sense; I cannot say whether Mr. Elder is attached to the ministry now; he was once suspended by our church in Otaheite, and was never taken in again.

Cross-examined. -I was in Otaheite when the rebellion broke out, and when King Pomare took refuge in Eimeo; I think he sent some intimation to the Missionaries that it was not safe to continue in Otaheite, particularly married men; all the Missionaries, married and unmarried, except three, Messrs, Scott, Nott, and Hayward, went at that time to Eimeo; the three married Missionaries, and all the unmarried ones, returned to this Colony, except two; Mr. Elder was summoned to attend the meetings when the suspension was discussed; the cause of suspension was that Mr. Elder bought a hog of one of the natives for some powder, but an altercation ensued, when the native wanted his hog back, and to give Mr. Elder his powder, when he beat him with a stick; Mr. Elder was summoned in order to remonstrate with him, and he replied in a very unchristian spirit.

The Rev. John M'Garvie. -I have seen the pamphlet which is the subject of the present action; in the 95th page I see the words "renegade Missionary, Mr. E.;" I think the term "renegade" is qualified by the term "Missionary;" I do not conceive it implies a moral imputation on the plaintiff's character; the term is applied in many ways; we say a renegade from common sense, a renegade from poetry, a renegade from philosophy, and a political renegade, used in conjunction with another word, it takes its character from that word; the meaning of the word "Missionary," is one that goes abroad to a distant country to evangelize those that are heathens; if such an one was to give up the Missionary character for the purpose of secular pursuits, without necessity, I would call him a renegade; I conceive that the object of the author of this publication was to exculpate himself from charges brought against him by some body, and to shew the obstacles that were thrown in his way, for the purpose of facilitating the establishment of the church, and not to throw obloquy on any individual.

Cross-examined. -Parts of the work were read to me before publication; I suggested a few expressions here and there; I have read it once since; I cannot give any opinion on the character of the writing, as proceeding from a Minister of the Gospel, because, when ever a Minister is attacked publicly, it is difficult for him at all times to restrain his temper; I think it could have been written with much greater bitterness; I think "renegade Missionary" is a term of reproach, but I think the word "renegade" is considerably qualified by its conjunction with the word "Missionary;" a change from bad to better does not justify the term "renegade," in my opinion; it signifies a change from better to worse.

Mr. Andrew Lang. -The defendant left this Colony on the Midas, for England, in 1824, the 18th or 19th of August; I knew the defendant to receive a letter from the plaintiff; the defendant read it in my presence, and after consulting what was to be done with it, my brother, who is now dead, took it up to Parramatta, and returned it to the plaintiff; the letter charged the defendant with not being competent to fulfil the office he came out for, that he was not regularly ordained, and that he came out without being sent for; it also said he he [sic] would not be taken notice of or received by any Presbytery at home; and made a great number of general strictures on his character, as is stated in the publication, couched in very scurrilous language.

Cross-examined. -The letter I allude to was received by the defendant in 1824, and this publication appeared in 1823; the defendant is the publisher of this work; I do not know how many copies he has sent to England, as I have not been in Sydney for some time.

The defendant's case closed here.

Mr. Wentworth replied, and contended that the whole course pursued by the defence, was an aggravation of the libel. In answer to Mr. Norton's line of defence, the learned Counsel contended that Dr. Lang came out here upon his own authority, and not upon any delegation, and though he had a right to write a narrative, and to discuss the character of individuals, so far as the same was connected with his failure, there was a limit which was set down for all the King's subjects in such cases. In this instance, that the right had been grossly exceeded, was plain, even from the evidence of Mr. M'Garvie, a fellow labourer in the same vineyard, who stated that, in the mildest sense of the word, renegade was a term of obloquy, as implying a voluntary dereliction from that which the individual knew to be right; whilst, upon all the evidence, even for the defence, the act to which the term had been applied, namely, the quitting the Mission at Otaheite, was a necessary act, arising out of the state of abandonment in which they were left at the time, by the Parent Society in England.

The Chief Justice. "Gentlemen Assessors." -This is an action for libel, in which the plaintiff, Mr. James Elder, seeks reparation at your hands, against the defendant, the Rev. John Dunmore Lang, Doctor of Divinity, for a certain publication which the plaintiff alleges to be libellous. Gentlemen, the law protects the characters as well as the persons of individuals, and any attack made on characters may be made the subject of proceeding in one of the forms which the law has provided for such enquiries. Any writing which affects the character of an individual, and exposes him to hatred and contempt, or lowers him in the estimation of society, is a libel; and of such a character is this publication alleged to be. On the part of the defendant there has been put in two pleas - first the general issue, or a denial that the matter complained of was published by the defendant, or that it is of a libellous character, and secondly a notice of justification stating that supposing it to be so published, certain matters will be given in evidence to shew that the statements are true, and also that the plaintiff had provoked the defendant, by his own conduct, to the act by which he had complained of. The answers to the charge, are therefore threefold; first that the publication is no libel; secondly, that even if it is so, the allegations are true, and lastly, that the plaintiff was himself the aggressor, and does not come before the Court with clean hands. As Mr. Wentworth observed in his opening, the notice of justication [sic] filed by the defendant, is not regular; inasmuch as it deals in mere general assertions, the rule of law being that where a defendant, in a case of libel, intends to justify, he must place upon record the whole of the specific matters he means to prove, in order that the plaintiff may have an opportunity of coming prepared to meet them. Gentlemen, the plaintiff having thus stated that the formal part of his case, proceeds to prove his allegations; and I thing [sic] it may be fairly assumed, from the evidence before you, that the defendant is the author and publisher of this pamphlet I shall now proceed to read that part of it which is alleged to be of a libellous character, observing as I go on, on what appears to me to be of force and effect with reference to the enquiry before us.

His Honor here read the whole of the matter laid in the declaration, the greater part of which he declared did not appear to him to warrant the interpretation put upon it by the plaintiff's Counsel. With respect to the words "renegade Missionary," continued the learned Judge, upon which the greatest stress appears to be laid, there is evidence before you of what the word renegade means. According to the testimony of the Rev. Mr. M'Garvie, he does not consider it, as used in this publication, to reflect on the private or moral character of the plaintiff, but as a deviation from the character of a Missionary in order to follow secular pursuits. Mr. M'Garvie, however, admits that the phrase has an offensive relation, and that there is a little of gall in it. Gentlemen, I am inclined to agree with the interpretation, put upon this phrase by Mr. M'Garvie, and think it rather a harsh term to apply to a missionary, I think it is offensive, and that there was a want of good taste to use it in this publication; and it is to be lamented that the defendant in this case, a gentleman for whom I entertain a very great respect, and I whom I am sorry to see here on such an occasion as the present, had not followed the confidential and friendly advice of Dr. Waugh, and lived down any attacks upon himself. Gentlemen, the line of defence set up by the Counsel for the defendant, is that the observations complained of were provoked by a letter that was previously written by the plaintiff, concerning the defendant, to Dr. Waugh; and, if it had been proved that such a letter was actually written, though it would have been no justification, still I would have held that the plaintiff was not entitled to that measure of redress to which he might otherwise lay claim, when the injury of which he complains originated with himself. Gentlemen, with respect to the first part of the publication, I certainly should feel a difficulty in putting it to you as libellous; but, in the use of the word "renegade," I do think that the writer has passed the bounds of fair discussion, and used language of a slanderous character. There is evidence, however, that this word may be innocent, and it is for you to say whether, in this instance, you think so. If you are of opinion that it is not, then you will take into consideration the evidence of provocation which has been adduced, and which, though not amounting to full proof, shews something like aggression on the part of the plaintiff.

The Assessors found a verdict for the plaintiff, damages One Farthing.