IT will be remembered that during the last term the Rev. C. F. Brigstock was convicted, in the Supreme Court, of having libelled Mr. C. O'Brien, by publishing a letter in the He- rald, accusing him of hunting on Sundays. As Mr. Brigstock did not attempt to prove his assertions, but simply pleaded the general
issue, the Bishop of Australia directed that a commission should be issued to enquire whether Mr. Brigstock was guilty of having published a false and malicious libel, knowing
it to be so.
The Commissioners met on Monday, and examined the evidence, but it appearing that Mr. O'Brien had been misinformed as to the day on which the enquiry was to be held, the Bishop quashed the proceedings, and directed they should be commenced a-new.
On the opening of the enquiry on Wednesday, the Rev. R. ALLWOOD, the Commissary of the Diocese said, before this Court is constituted, I wish to make a few observations, with a view to clear away any idle and unfounded rumours which may have arisen respecting our meeting to- day. Upon the finding of the verdict of the Court of Law in the case O'Brien v. Brigstock, the Bench immediately communicated with Mr. O'Brien's legal adviser to ascertain whether Mr. O'Brien would prefer any charge against Mr. Brigstock. This Mr. O'Brien declined to do, stating that he was satisfied with the verdict of the law. A commission of inquiry, as to the grounds of the scandal al- leged against Mr. Brigstock, was then issued by the Bishop, to be held on the 12th April. Notice of the inquiry, and of the time and
place when and where it was to be held, was,
as an act of courtesy, sent to Mr. O'Brien, in order that by himself or by his agent he might, if he pleased, attend and watch the proceed- ings. On Mr. Brigstock's arrival in Sydney, he found that one of his witnesses would be compelled to leave town on the evening of Monday, the 11th. Under these circum- stances he prayed the Bishop to allow the inquiry to take place on that day. To this the Bishop acceded, and the Commissioners met and went into the evidence offered to them. It was not till yesterday at midday that they were informed that Mr. O'Brien s legal advisor had received no regular in- timation of the change of day. As soon as this was known to the Bishop, he, with the advice of the Commissioners, immediately decided that the proceedings of the day be- fore should be null and void, and that the commission should meet as to day, and that a formal notice should be sent to Mr. O'Brien's
legal adviser. I have felt it right to make these remarks, because (although Mr. O'Brien has nothing directly to do with this in- quiry, and has had notice of our meeting merely as an act of courtesy) I am anxious at once to put it out of the power of any honest man to hazard an insinuation that the Com-
missioners have been actuated by any indirect or covert motives to change the day first ap- pointed for this meeting.
The Commission, which was issued by the Bishop of Australia, pursuant to the terms of the Church Discipline Act, was then read, and Mr. Norton, the Registrar of the Diocese, administered the oath to the Rev. R. Allwood B. A., and Mr. Allwood, to the Rev. W. IS. Clarke, M. A., Rev. G. E. Turner, Rev. H. H. Boban, M. A., and the Rev. H. Forrest, truly to try, and report to the Bishop, the case
The Rev. C.F. Brigstock was accompanied
by Mr. Michie, as counsel, and Mr Steel, as
attorney. Mr O'Brien was also present, with the Attorney-General and Mr. Foster, as counsel, and Mr. Want, as attorney.
The Commissary then addressed the Com-
missioners as follows --
My Reverend Brethren,-In compliance with the requisition of our respected Diocesan, and in accordance with the provisions of the Act for better enforcing Church Discipline, we are this day met together, as members of a com- mission specially issued by the Lord Bishop, to make inquiry as to the grounds of the
scandal alleged against one of our brother Presbyters. The course of defence adopted by the defendant in the case of O'Brien versus Brigstock, and the result at which the Jury arrived, under the charge of the Chief Justice, have left a very strong impression; I may say a very strong presumption, that our brother has been guilty of having knowingly written, and caused to be published, a false and mali-
This in any Christian man would be a grave and serious offence, but in a Christian mi- nister in a clergyman of the Church of En- gland, an offence most grave and serious ; solemnly pledged as he is by his ordination vows to maintain, and set forward as much as lieth in him quietness and peace, and love among all Christian people, to take heed that neither he himself offend, nor be occasion that others offend, and to be in his life and conversation an example and pattern to the flock of Christ.
Accordingly, our Chief Pastor, ever mindful of the duties of the high and most responsible
office to which he has been called in the
Church of God, and knowing that, as in the suf- fering of one member the whole body suffers, so by the indiscretion or misconduct of one, the whole is scandalized,-has felt it to be his duty to institute this commission of inquiry, swayed doubtless on the one hand by a deep sense of the obligation that is upon him, that the Church, of which he is overseer, should receive no detriment through the ab- sence of the exercise of wholesome discipline, when needed : and, on the other, by the ear- nest hope that our brother may make this the opportunity of clearing himself of the scan- dal that is against him. And as it has be- come the duty of our Diocesan to institute this inquiry, so does it become us, (his Pres- byters), upon whom he has laid this solemn charge, to aid him with our counsels to the best of our ability ; to bring to the investi- gation minds free alike from prejudice and partiality ; to consider the evidence which may be brought before us this day patiently and dispassionately - neither influenced, on the one hand, by the very strong censure which was passed upon our brother from the highest seat of justice in this land, nor moved, on the other, by any apprehension of incon- venience to ourselves and danger to the Church from the result of this inquiry, but ta bear in mind, that her true interests and stability can be promoted only by the pro- motion of Truth - the everlasting foundation upon which she is built. Gentlemen, on this most trying, most painful occasion, I will not detain you by offering any observa- tions, but such as I believe to be absolutely necessary to assist us in the inquiry, I will therefore proceed at once to read to you those rules which have been adopted by the Bishop, in accordance with the Ecclesias- tical Laws of England, for the guidance of his Clergy in matters of this nature. The Rev. Commissary then read at some length the rules and course of proceeding pursued in
There is one other point on which I think it necessary to offer a very few observations, with the hope of being able to remove any misconception which may have arisen as to the object of this commission, and the nature of this inquiry, which we are instructed to make. The case, it may be said, has already been decided, a verdict has been pronounced, and the opening of the question again may present the unhappy result of the report of a Church Commission in direct collision with the verdict of a court of law. This would be much to be deplored, but I am bold to say, that no such collision can take place if we adhere strictly, as we are bound to do, to the inquiry for which this commission was issued. The law, it is true, has spoken. A verdict has been given, which has left a very strong presumption of moral guilt against our brother, No witnesses were called for the defence - no plea put in, in justi- fication ; had this been done, the question, which we are now met to consider, would have come before the court of law, and this com- mission would probably not have been re- quired.
With the plaintiff in the above case we have nothing to do; we are not his judges ; whether or not he was guilty of the act charged against him, is not for our decision. It is with our brother's conduct only that we have to deal ; and even here our inquiry is limited by very clear and well-defined bounds. The indiscretion, the great imprudence, the moral offence, whatever may be its nature, of writing and publishing anonymously, a charge tending to the injury of a neighbour's reputation, is not the question before us. The point of inquiry to which we have to direct our atten- tion is simply this - what evidence can our brother lay before us to show that when he made the accusation, he had every reason to believe that it was true?
I hope, gentlemen, I have made myself sufficiently clear. We are not, I repeat, here as judges of our brother's conduct, but com- missioners instructed to make inquiry as to the truth or falsehood of the scandal alleged against him, and to report the result of our enquiries to our diocesan. There is a very strong presumption that he has written and caused to be published a false and malicious libel, knowing at the time that it was false. We call upon him to offer such evidence before us as may clear him of this most grave and serious charge.
The witnesses were then examined by Mr. MICHIE on behalf of Mr. Brigstock, and by permission of the Court, by the ATTORNEY-
GENERAL and by Mr. FOSTER, on behalf of
Hamilton Hume, Esq., being duly sworn, states, I reside at Yass; I was therein the early part of 1841 ; I know the Rev. Mr. Brigstock, and Mr. Cornelius O'Brien; I live within a quarter of a mile of Mr. O'Brien's resi- dence; I have had opportunities of noticing what, occurred on his premises ; I have ob- served the Yass subscription hounds out on Sabbath-days on two occasions. On the first occasion, a quarter of an hour before the hounds went out, a man posted through my premises, with a drag, from Mr. O'Brien's
side of the river; he was trailing something on the ground; I took it to be a drag ; a quar- ter of an hour afterwards, I saw the hounds follow in the same direction ; this was at the latter end of March. Mr. O'Brien has the hounds in his charge ; they are on his pre- mises; the dogs came from Mr. O'Brien's premises in the direction of the shearing-shed; the hounds were in full cry ; it was the noise of them which attracted my attention ; it was between breakfast and dinner hour ; between eight a.m., and two p.m. ; I believe it was between eleven and twelve a.m.-The second occasion was in April about three p.m. ; might have been later; could not be earlier; the bounds were in cry on Mr. O'Brien's property near to my own ; the noise
attracted my attention ; the hounds were returning home ; they were running through the fence into Mr. O'Brien's ground ; the land on both sides of the fence is Mr. O'Brien's. The hounds were in full cry as if following game. I did not see who was out with them. I did not see any one ; the hounds were running in full cry as if in a hunt. I did not see a drag on the second occasion, nor have I seen the hounds out on a Sunday on other occasions. I was not near enough to the spot to swear who it was took out the drag on the first occasion. Mr. O'Brien was at
home on both occasions; in his gardens, oppo- site my house. I saw him. Mr. O'Brien must have seen and heard the hounds on the second occasion ; he was within 100 yards of the place. I saw Mr. O'Brien on the second
occasion. On the first occasion I saw the hounds in the morning; I saw Mr. O'Brien before 2, p.m., on the same day. On the second occasion other persons were with Mr. O'Brien on his premises. I was once a sub- scriber to the hounds, but not then. I know that the hounds were kept at Mr. O'Brien's. The kennel was then within 50 or 60 yards from his house. I have heard from Dr. Allen that Mr. O Brien borrowed a horse from him
(Dr. Allen) for the purpose of a hunt on a
Sabbath-day. I heard this last Thursday week ; the circumstance took place months back; Dr. Allen stated that Lieutenant
Christie and others were at Mr. O'Brien's. Dr. Allen said the horse was expressly bor- rowed for hunting; he himself was also in- vited to hunt on the occasion; but declined. The horse was afterwards returned, not hav- ing been required. The occasions referred to were before the letter appeared in the Herald signed "A Lover of Justice and Consistency." I read the letter in question, and believed its contents to be in a great measure true. I believe that the letter had the effect of pre- venting the hounds going out since.
Cross-examined : I have an unfriendly feeling towards Mr. O'Brien. I never saw Mr. O'Brien following the hounds on a Sun- day ; I never heard Mr. O'Brien hallooing in chorus with the hounds with his assigned ser- vant on a Sunday : I never told Mr. Brig- stock that I had seen Mr. O'Brien with the hounds on a Sunday ; I never furnished Mr. Brigstock with information of the facts which are alleged in the letter in the Herald. On the second occasion, when I saw the hounds I saw no person with them ; on the first oc- casion, I saw a person I believe to be the keeper; I think Mr. O'Brien must have known that the hounds were taken out. I was not a subscriber to the hounds at the time
in question ; I do not know that Mr. O'Brien ever forbade the hounds going out on a Sun- day, or that he gave permission for so doing.
I do not believe that the hounds could have been taken out without Mr. O'Brien's know-
ledge, and unless I were deaf or blind I could have seen and heard them at a similar dis- tance ; I was not at church on the first occa- sion, on the second occasion I believe I had been at Church. I did not give any informa- tion upon the subject to Mr. Brigstock, until after the letter appeared in the Herald. Mr. Brigstock stated to me, long before the trial, that he had been to Mr. O'Brien's to remon strate against his hunting or allowing his
hounds to hunt on the Sabbath day. This was in April : he told me this on the same day that he had called on Mr. O'Brien ; I cannot recollect seeing the hounds out after the remonstrance referred to.
John Watson, Esq., being duly sworn, states : I reside at Yass : was there in April or May, 1841. I know Mr. Brigstock and Mr C. O'Brien, but I am not personally acquainted with the latter. I have frequently seen the hounds, under Mr. C. O'Brien's care, out on the Sabbath-day ; they generally were running on a scent, and crying as if hunting: generally
in the afternoon. I have seen them some- times at other hours. They were running close by Mr. O'Brien's house ; within sight of it. I was generally at leisure in the afternoon. I have seen Mr. O'Brien's men with the hounds on these occasions. Once I saw Mr. O'Brien's government man ; he was running with the drag. There were one or two persons generally ; not on horseback ; there might have been more. The hounds were in full
cry. I have repeatedly heard the horn, the same as on other days. I could observe the hounds distinctly between Mr. O'Brien's and my house ; my house is a quarter of a mile from Mr. O'Brien's ; on an eminence. Mr. O'Brien was at Yass on these occa- sions generally ; I have seen him about his premises before and after I have seen the hounds on the Sundays ; I do not believe that Mr. O'Brien could have been ignorant of the hounds going out ; they were kept at the back of his house. I have read the letter in the Herald, signed "A Lover of Justice and Consistency," and from my general know- ledge of the circumstances, I believe the leading points contained in the letter to be true. I do not say that I saw Mr. O'Brien
with the hounds; I think the party writing
the letter could not have believed he was writing what was false ; the impression on my
I mind, when I read the letter was, that it was
generally true. I have seen the hounds out a score of times on different Sabbaths from
1840 to April, 1841, such is my impression ; I have not seen the hounds since the letter
appeared ; I left Yass at the end of May.
Cross-examined: The hounds might have been out when I did not see them ; I will not swear positively that I have seen more than one person with the hounds at one time. The man whom I saw with the drag was Mr. C. O'Brien's servant. I swear he was Mr. O'Brien's. I recognised him as I passed him ; I had seen the man before. I never heard Mr. O'Brien hallooing in chorus with his assigned servant on a Sunday. I think it a less crime or offence, morally, for a master to allow a servant to hunt on a Sunday than to do so himself. I never stated I had seen Mr. O'Brien, with his servants, hunting
on a Sunday. I cannot say exactly where the
horn was blown on the occasions mentioned ; it was in the direction of Mr. O'Brien's resi- dence. I have seen the man running with the horn after the dogs, but cannot swear this was on a Sunday. I consider the master of a convict, allowing a servant to do what he would not do himself, is a minor offence.
George M'Donald, Esq., J.P., being duly sworn, states, I am in the commission of the peace ; I reside at Yass ; I was there in 1840 and 1841. I then knew Mr. Brigstock inti- mately, but was not on terms of intimacy with Mr. O'Brien. I have repeatedly seen the Yass subscription hounds out on the Sabbath-day, before and after Mr. Brigstock
told me that he had remonstrated with Mr. O'Brien upon the impropriety of the act. This was before the appearance of the letter in the Herald, signed " A Lover of Justice and Consistency." I have seen the hounds, from my verandah, out in the morning be- fore church time and in the afternoon, in the afternoon probably about three o'clock. One day I saw the hounds in a body running through Mr. O'Brien's fence; I have only seen one man with them; I do not know him. I read the letter in the Herald, signed, "A Lover of Justice and Consistency." I had the impression at the time I read it that the writer had stated the truth, judging from my own knowledge and the remarks of others. I have heard persons, with whom I associate at Yass, comment upon the hounds being out on a Sunday. The man was sometimes running after the dogs. One day the dogs, I think, must have been upon a scent, but I did not see anything before them, The day they went before Mr. Henry O'Brien's house they ran as if on a scent; the man was not on horseback. I thought it a profanation of the Sabbath, and Mr. Brigstock must have thought so too. I
believe the hounds at the time were under Mr. O'Brien's care.
Cross-examined : I never saw Mr. O'Brien himself with the hounds, nor heard him halloo in chorus with his assigned servant, with the dogs. The hounds might have been out for training or exercise. I think even that a profanation of the Lord's Day. Mr. O'Brien has grossly insulted me. I am not upon speaking terms with Mr. O'Brien, but I have no animosity towards him, nor any malicious feeling, but take very good care to steer clear
The following depositions were then read : Samuel Agnew Ritchie, being duly sworn, deposeth : I am a settler, residing about five miles from Yass. I remember on one Sunday, about the end of the year 1838, seeing the Yass hounds, then under Mr. C. O'Brien's charge, leave his house, accompanied by a man who, I suppose, was the huntsman ; they went towards Yass Plains. I do not remem- ber actually seeing them out except on this occasion, although I have frequently, on
other Sabbath-days, heard the huntsman's horn at a distance, and can further positively swear that the fact of the said hounds being so frequently taken out on the sabbath was long the subject of frequent remark from many persons, and of severe comments from
(Signed) S. A. Ritchie. Sworn before me, at Yass,
this 31st day of March, 1842, (Signed) J. R, Hardy, J.P.
At Yass, this thirtieth day of March, one thousand eight hundred and forty-two, ap- peared before me, John Richard Hardy, Esq., one of the Commissioners of the Supreme Court of New South Wales, John Williams, servant to James Ellis, Esq., surgeon, Yass, and deposeth as follows :
About a fortnight before the last Yass races,
which I believe were in October or November last, I saw the Yass pack of hounds, which I know to be under the charge of Mr. Cornelius O Brien, out on Sabbath, hunting, on a drag: I know it was a drag. because I saw a man
running with it, and Mr M'Kiver, Mr. O'Brien's huntsman told me so. I saw it, and it was a dog's skin wet with turpentine. I was invited by M'Kiver some days previous to join them at Mr. O'Brien's on the above hunting excursion on tho succeeding Sabbath. M'Kiver told me they were to run the drag across before Capt. M'Donald's house round the Plains by the township, and by Mrs. Hanley's station, a mile on the other side of Yass. Mr. O'Brien's house, from whence
the hounds started, is about three miles from Yass ; I joined them at Yass, and followed them for about nine miles and a half, but they went further; M'Kiver was mounted on a cream-coloured horse of Mr. O'Brien's, and there were several other persons on
horseback with them.
(Signed) John Williams. Sworn before me at Yass,
this thirteenth March, 1842.
J. R. Hardy, J. P.
At Yass, this thirteenth day of March, one
thousand eight hundred and forty-two, ap- peared before me, John Richard Hardy, Esq., one of the Commissioners of the Supreme Court of New South Wales, James Hurleigh Sharp, of Addalong Creek, and deposeth as
follows : --
I am a settler at Addalong Creek, Tumat River, and one of the trustees of the Protestant Church at Yass. I was re-
siding at Cooma, Yass Plains, the residence of Hamilton Hume, Esq., in the months of February, March, and April, 1841, and while there, I saw, on two or three separate occa- sions, on the Sabbath, the Yass pack of hounds which were then, and are now, under the charge of Mr. Cornelius O'Brien, out running, on one occasion, about three o'clock in the after- noon, in full cry, in pursuit of some thing, whether a dog, or what, I cannot say. I
should say, from the noise they made, and the situation in which they were, that it could not have been done unknown to Mr. O'Brien, or whoever was in charge of the place. I believe he was at home. I am aware that it is a matter of common notoriety in the neighbour-
hood of Yass, that the above-mentioned hounds were very frequently out on the
(Signed) J. H. Sharp. Sworn before me, at Yass,
this 30th March, 1842. .
(Signed) J. lt. Hardy, J. P.
James Ellis, Esq., being duly sworn, states: I am a surgeon, practising at Yass ; was for- merly in Her Majesty's Navy ; I was living at Yass in the year 1841. I know Mr. Cor- nelius O'Brien and the Rev. Mr. Brigstock. I was once intimate with Mr. O'Brien. I re- member having on one occasion seen the Yass subscription hounds out on the Sabbath-day, but I cannot swear that Mr. O'Brien was with them. Mr. O'Brien calls them his hounds; they are under his care. I cannot state the precise date when I saw the hounds out on a Sunday, but it was previous to the publication of a letter signed "A Lover of Justice and Consistency," which appeared in the Herald newspaper (between January and May, 1841), it was early in the year, I cannot name the party who had the hounds out, nor the precise time, but it was either before or after church. My acquaintance with Mr. O'Brien had not terminated at the time I re- fer to. We have subsequently been on un- friendly terms ; I am aware that Mr. O'Brien's magisterial conduct is not approved of by the respectable settlers at Yass. The dogs were running and making a noise; they went past the back of my house, I saw two or three persons following; there might have been more. I made the remark that Mr. O'Brien might as well have kept the hounds at home on that day; I reside two miles from Mr.
O'Brien's residence. Sworn before me.
(Signed) R. Allwood.
When the evidence was concluded, the Attorney-General applied for leave to ad- dress the Commissioners on the evidence, which, after some conversation as to the authority of the Court, was agreed to.
The ATTORNEY-GENERAL said, he felt it to be unnecessary to offer any remarks on the publication of an anonymous letter, because he thought the consideration more properly belonged to the reverend gentlemen who were placed in authority on this occasion than to himself, and he had no doubt it would have due weight with them ; but he thought it was important that the commissioners-should not shut out from their minds that the publication was an anonymous letter from the pen of a clergyman, and that the writer said he had given his statements with the most scrupulous fidelity ; bearing that in mind, the commis- sioner's would please to turn to the statements contained in that part of the letter in which the writer spoke of himself, and then he would ask of them, could they lay their hands on their hearts, and say, whether he had writ- ten with that scrupulous fidelity to truth which he asserted he had done. How- ever painful it might be to them to come to the conclusion that a gentleman holding the sacred situation which Mr. Brigstock did, should, in the statements he had made, have borne false witness against his neigh- bour, he felt sure that, if such was the con- viction on the minds of the commissioners, they would not shrink from declaring it in their report. He asked them, was there any think in the evidence which had been adduced to support the statements made in the letter ; and they were to take into consideration that every witness who had been called had an unfriendly feeling towards Mr. O'Brien, and yet not any one of them had supported the statements in the letter. The letter stated that Mr. Brigstock, in common with many others, had seen Mr. O'Brien hallooing in chorus with his dogs, and in company with his assigned servants on a Sunday ; but not one of the witnesses who had been called had ever seen anythink of the kind, they had never once seen Mr. O'Brien present; and notwith- standing the ingenuity which had been dis- played in endeavouring to show that if Mr. O'Brien's servants were out with the hounds without Mr. O'Brien being present, there was as much moral guilt attached to him as if he had been present, he must maintain that there was no proximity in the case ; because, to say nothing of the degradation to the character of a gentleman to be seen so employed on the Sabbath in company with his convict servants,
there was the public scandal, which, as a magistrate, he would give to the whole neigh- bourhood. Throughout the whole transaction an attempt had been made to point out Mr. O'Brien as the actor and principal on these occasions, but from the evidence of the wit- nesses who had been called, it was clear that he had not been seen at all in then; and if Mr. Brigstock had been in possession of all
the facts which had been adduced today they would not have justified him in stating what he had done, for the fact was, that Mr. O'Brien was not with the hounds, yet that was made the gravamen, the sting of the charge, the rest part of the letter was a mere nothing. None of the witnesses had shown that there had been anything approaching to a hunting party ; but it was evident that what had been done was merely for the purpose of exercising the hounds ; and if the huntsmen had used a drag, or piece of meat, to produce a scent, that was only the usual mode of acting; and sup- posing that the hounds were thus exercised on a
Sunday, there was no great impropriety in that. The commissioners would not fail to observe that not more than one man at a time was with the hounds ; and the necessary ex- ercise which was thus given to them might, in the opinion even of a very moral man, be no profanation of the day. The whole thing in fact came to this, that whether or not, there being a little truth in this statement, it might be exagge- rated to such a degree as to make that which was in itself trivial an enormous offence. If Mr. Brigstock was not actuated by an unkind feeling, to say the least of it, he could not
have tortured the circumstance as he had done. He had stated as follows :- 'The only independent magistrate, too (Mr. C O'Brien) who now acts with Mr. Hardy, diverts him- self with taking out the Yass subscription pack of hounds (which are under his charge) on the Sabbath day; and so long as he can get a drag and halloo chorus with the dogs, in company with his assigned servants, he cares little of the outrage he is committing, or the profanation he is guilty of. This I know is a startling accusation to bring against any man, particularly a magistrate, but it is ne- vertheless true, too true : for I have, in com- mon with many others, witnessed it more than once." Now he would ask, had any
thing been shewn to bear out that : It stated first that Mr O'Brien himself took out the hounds; but that all the witnesses positively
denied. It was true some of the witnesses
had said something about a drag, and they
thought because they had a knowledge of it that Mr. O'Brien must also. He was charged with making an outrage on the com- munity by his own personal acts, but nothing of the kind appeared from the evidence; and he must say, that taking the facts as stated in the letter, and the evidence, there was not one fact made out ; and he thought that, taking into view the whole case the Com-
missioners could not come to the conclusions
that Mr. Brigstock was conscious of the truth of what he was writing. If he had gone to Mr. O'Brien, and remonstrated with him in a
proper and becoming manner, Mr O'Brien could not certainly have been offended ; but such conduct as was displayed in the letter was not at all dignified or charitable, for it was plain that Mr. O'Brien had not been guilty of any one of the actions imputed to him ; but, come what may, he would say, let justice be done.
Mr. MICHIE, in reply, said, that although the Attorney-General had delivered a speech, which would have been a very good and ap- propriate one, if the question before the reverend Commissioners had been whether or not Mr. Cornelius O'Brien had or had not taken out the hounds on the Sabbath day. Yet that speech was altogether wide of the mark, when the only matter about which they were assembled to inquire, was, whether the Rev. Mr. Brigstock, in writing the letter which ori- ginated the inquiry, was aware of the falsehood of the same, or whether he had sufficient grounds to believe its contents to be true.
Throughout the Attorney-General animated address, he appeared to be labouring under the error that acquitting Mr. Brigstock from the
imputation of falsehood, Mr. O'Brien must
stand convicted of the charges contained in the letter. This by no means of necessity followed: for Mr. O'Brien might be innocent of having habitually desecrated, the Sabbath; and at the same time Mr. Brigstock might have written the letter in the purest good faith,-part of the matter contained in it, being the results of his own observation, and part made up of information furnished to
him by others. Now, without going further than one answer made by several of the wit- nesses, he Mr. Michie, submitted that that answer, freely uttered by gentlemen of edu- cation and respectable rank in the neighbour- hood of Yass, was by itself amply sufficient to clear away any momentary doubt which might have existed in any mind, in re- ference to Mr. Brigstock's character for honour and veracity. On Mr. Wilson and Captain Macdonald being asked, whe- ther, from their own observations of what had taken place, on and near Mr O'Brien's premises before the appearance of the letter in May last, they had had the impression in
reading the letter, that the writer must in composing it have been conscious that he was composing a string of falsehoods? Those res-
pectable witnesses unhesitatingly answered, "certainly not;" and the reason they ren- dered for giving that answer, was that from their own observations as to the hounds being frequently out on the Sabbath, on Mr. O Brien's land, they knew the letter in the main to be true. But since the Attorney-General was not satisfied with this short, and to the friends
of Mr. Brigstock satisfactory, settlement of
the matter at issue, and persisted in going more particularly into the evidence, of course
he, Mr. M., could not refuse the invitation to look at the matter a little more in detail.
In doing this, then, how stood the case on the evidence? It was established in each a man-
ner as no longer to be disputed on the other
side, that the Yass hounds, kept under Mr. O'Brien's care had frequently at almost
all hours of the Sabbath, been seen running in a body in full cry, on and near M. O'Brien's land. It was also shewn that on some of these occasions, an assigned servant of Mr. O'Brien's had been seen with the hounds. So far it was manifest the representations of Mr Brigstock had been proved to the letter. But one part, and that it seemed a most im- portant part of the letter, had not been proved, viz.-that Mr. O'Brien had ever himself been seen out with the hounds. This was true: and although it had been shewn by the gen- tlemen they had had before them that day, that Mr. O'Brien had been seen walking about his grounds on the same days on which the hounds had been seen out,--although it had been proved that they had made so much noise, that it was impossible he could have
been ignorant of the fact that they were out, still it was at the same time true, that none of the witnesses had stated that they had actually seen Mr. O'Brien himself out. From this defect in evidence, a great point was attempted to be made, both by the Attor- ney-General and by Mr. Foster. Mr. Brig- stock's words,- " I myself, in common with many others, have seen Mr. O'Brien halloo- ing in chorus with his dogs and his assigned servants on a Sunday,"-- were quoted against Mr. Brigstock ; and the question had been asked by Mr. Foster, and afterwards ingeni- ously treated by the Attorney-General, whether the assertion of Mr. O'Brien's having himself taken out the hounds was proved, by shewing that the hounds had been taken out by other people ? This question, put so in- geniously as it had been, might seem a diffi- cult one to answer, to any one not keeping steadily before his mind what was the object of the present inquiry : which was the con- viction or acquittal of Mr. Brigstock of, or from, the charge of having knowingly written false charges against Mr. O'Brien and not to ascertain the perfect truth or false- hood of every part of the letter. Keeping the object of the inquiry fairly before their at- tention, it would be seen that words which
had so prominently figured in the Attorney- General's speech, would admit of an easy in- terpretation, not in the slightest degree com- promising Mr. Brigstock's character for truth and integrity. Mr. Brigstock himself had seen Mr. O'Brien out with the hounds on the Sabbath; but, unfortunately, being the de- fendant on the present occasion, he could not prove the fact himself. " But some one of the
others," it had been said, " might prove it,"
if Mr. Brigstock could not. Now the reverend Commissioners would bear in mind, that the most conscientious and guarded men - indeed all men were daily and hourly speaking and writing as Mr. Brigstock had done, upon general reputation and hearsay, and in doing so often made statements, which however true in fact, they would find considerable difficulty in proving, if they were sud- denly called upon to do so, in a court of law. " Hearsay " "was, as a general rule, by common law courts excluded ; yet many a just man made statements on hearsay evidence, of the truth of which, from his implicit confidence in the informants, he never entertained a doubt. If, therefore, Mr. Brigstock had himself seen Mr. O'Brien with the hounds, and had moreover heard from the general talk of respectable persons, to which one of the witnesses had adverted, that Mr. O'Brien was in the habit of occasionally taking out the hounds on the Sabbath, this would be quite sufficient to account for the bona fide use of the expression, " I myself, in common with many others, have seen him out with the hounds on the Sabbath-day." Still if called upon for his proofs, (from himself being excludcd, and from inability to find and bring forward witnesses who had also actually seen Mr. O'Brien,) he might fail in proving an assertion, made with the
most conscientious conviction of its truth.
But this would perhaps be called strain- ing after a conclusion, which not being the obvious one, shewed the weakness of Mr. Brigstock's case. Fortunately however for his, Mr. Michie's reverend client, the present court was not bound down and tramelled by the strident rules of evidence, obtaining in courts of common law. " Hearsay," which everybody knew, when coming from friends on whose characters we can rely, con- stitutes a ground of belief, and a guide to action; is frequently as any other kind of evi- dence, might here be called in to assist in vindicating Mr. Brigstock, and in obviating any possible damage his case might suffer in "other men's minds, from what by them might be deemed a forced construction of his words. Dr. Allen had said to Mr. Hamilton Hume, that on one occasion, a long time before the appearance of the letter, Mr. Cor- nelius O'Brien had requested of him, Dr. A., the loan of a horse, for the purpose, of a hunt on the Sabbath. Now this was a part of the general conversation of the district, and of course was an item among the different kinds of evidence satisfying Mr. Brig- stock, with what he himself had ob-
served, that Mr O'Brien was in the habit of hunting on the Sabbath. Looked at in this manner, and regard being had to the circumstance that witnesses could not be compelled in that court to come forward by subpoena, as in a court of common law, those respectable gentlemen who had come forward; having done so entirely from personal respect for Mr. Brigstock. He, Mr, Michie, was con- fident every impartial man would see, that Mr. Brigstock had passed most triumphantly through the inquiry, and that when he stated what he had stated, he had every reason to believe that he was stating the truth. But conceding, for the sake of argument, that there was no moral evidence of Mr. O'Brien him- self having taken out the hounds, in how much better plight was he, if he had allowed his servants to do so. The Attorney-General had questioned the witness, Mr. Watson, upon this point, who agreed with him, that a master when allowing a servant to do what, from re- ligious scruples, he would abstain from himself was not acting so criminally, as if he were in fact, the offender. Mr. Watson, it appeared agreed with the Attorney-General, that the allowing a servant to sin, was not so bad as sinning one's-self, with submission to both, he, Mr, M., although the consideration appeared to be one entirely for the Court, must say, he could see little, if any, moral distinction between the two cases If there was a difference, it seemed to be one making against the master, who could, as it were deliberately carry the selfishness of the life into the world to come, and allow a ser- vant to endanger his salvation, when he would not peril his own. It had been attempted to be shewn that the dogs when out, had been
let out for exercise; but it seemed curious that the exercise should be so faithful a copy of actual service, when the voices, as well as the bodies of the dogs must be exercised, almost all of the witnesses proving that the hounds were running in a body, and in full cry. The Attorney General had most justly said, apparently however forgetful of a por- tion of the evidence, that it would have been more like a generous man, and a Christian minister especially, when one of another communion was about to be complained of - before writing a letter to a paper, to call on the party, and request a discontinuance of the practice disapproved of. From the evidence of Captain Macdonald, it would ap- pear, that this was the very thing Mr. Brig- stock had done ; he having actually called on Captain M., before the appearance of the letter, and stated that he had been remon- strating with Mr. O'Brien upon the subject. And most important was this in assisting them to the conclusion that Mr. Brigstock had written the letter with the most honest intention ; for the Commissioners would bear in mind that Captain Macdonald had stated that subsequent to this remonstrance, and only when by the repetition of the offence, the remonstrance was found to be fruitless, had Mr. Brigstock; determined to appeal to that last resort, the public, through the medium of the Press. This appeal might or might not be considered an error of judgment, or bad taste in Mr. Brigstock, and perhaps it was not utterly free from such an imputation ; but that it was written in any other spirit than a conscientious one, he, Mr. Michie, could not believe. It must be borne in mind, that Mr. Brigstock not merely as the censor morum of his flock, but as a minister of
the Protestant persuasion, entertaining a due sense of devout deportment due from the members of their own communion, on the
Sabbath-day must frequently have had his feelings wounded by such exhibitions as had been described the various witnesses These exhibitions, at the same time, painful as they might be to Mr. Brigstock, were not therefore, disgraceful to Mr. O'Brien, whose creed admitted perhaps of somewhat more
license on the Sabbath than Protestants were wont to indulge ; but, at the same time. Mr. Brigstock, regarded as he must and ought to be, as a Protestant minister could do no other than attempt, in every becoming way, to re- press a practice, which he knew to be an out- rage on the moral sensibility of his flock. Whe- ther the mode adopted for affecting his end, in every respect an unexceptionable one, was
not the question to be tried ; but whether Mr. Brigstock, in writing the letter had any sufficient moral grounds for believing that he
was writing the truth, and upon this question after the evidence they had heard, it was sub- mitted there could not be two opinions.
When Mr. Michie had concluded, the Court was adjourned for a short time, and upon its being re-opened the COMMISSARY said, the Commissioners were of opinion that there was no prima facie case for instituting further proceedings against Mr. Brigstock.
The Commission was then dissolved.
The following is a copy of the report, which the Commissioners made to the Bishop : -- We, the undersigned members of a Com- mission appointed by the Lord Bishop of Aus- tralia, in accordance with the course pointed
out in the act "for the better enforcing Church discipline," for the purpose of making inquiry
into the grounds of scandal alleged against the Rev. Charles Ferdinand Brigstock, clerk, incumbent of Yass, in the county of Murray by the verdict of a Jury in the Supreme Court of New South Wales, in the cause O'Brien v. Brigstock, having duly heard evidence really delivered upon oath, and received depositions atested upon oath before the Police Magistrate of Yass, have found as follows :
That there is proof that the Yass Subscrip- tion Hounds, whilst under the care of Cornelius O'Brien, and kept upon his premises have frequently been seen in full cry, as if in chase, upon the Lord's Day.
That there is proof that Mr. O'Brien's con- vict servants have been seen in one or more of
these occasions, trailing a drag before the hounds. That then is proof a horn has been blown
as usual upon occasions when hounds are actually hunting
That there is proof, that Mr. O'Brien's huntsman, mounted upon a horse belonging to Mr. O'Brien, has taken out the hounds on the Lord's Day. The deponent, John Williams
hunting with them.
That there is proof that the continual oc- currence of these practices was the subject of general complaint at Yass.
That there is proof that Mr. O'Brien was at home on the days mentioned.
That there is evidence that Mr. Brigstock remonstrated with Mr. O'Brien upon the sub-
That there is proof that there was a general impression on the part of the witnesses, that Mr Brigstock's letter was in the main true.
That there is proof that the practice of taking out the hounds on the Lord's Day, though continued after the remonstrance, was not continued after the publication of Mr.
That there is no proof that Mr. O'Brien was seen on any of the above occasions out
with the hounds.
Duly weighing and deliberating on the proofs and evidence thus brought before them, and considering that Mr. Brigstock's evi- dence has not been taken as to the latter fact, which he has asserted he could prove, and viewing his conduct in remonstrating with Mr. O'Brien as the proof of having so
far discharged his duty, and, inasmuch as no reason as been adduced, imputing cause of malice to Mr. Brigstock, regarding also the desecration of the Lord's Day which has been proved before them. The Commissioners
have to report to the Lord Bishop their unani- mous and conscientious opinions.
That there is no prima facie ground for in-
stituting further proceedings against Mr. Brigstock in the Ecclesiastical Court.
That Mr. Brigstock is not guilty of having written and caused to be published a false and malicious libel, knowing at the time of wri- ting and publishing that it was false.
The Commissioners feel it their duty to ex- press their regret, that Mr. Brigstock should have been induced to prefer a charge of so grave and serious a nature in the form of an anonymous correspondence.
Given under our hands and seals, this four-
teenth day of April, in the year of our Lord one thousand eight hundred and
(L. S.) ROBERT ALLWOOD.
HENRY H. BOBART. W. B. CLARKE.
GEORGE E. TURNER.
AUSTRALIAN CLUB.-There will be a meet
ing ol' the members to-day, at one o'clock, for the purpose of balloting for members.
CHAROEOP PERJURY.-Mr. Windeyer, sen., was engaged about foür hours, on Wednesday afternoon, in thc police court, hearing evi- dence against John Henry Leopold Von Goebert, a constable in the Water Police, charged with perjury, by Mr. J. J. Cohen, jeweller, George-street, alleged to hnve bec» committed before that Court, in February
last) wbört the prosecutor was defendant in a cause on the complaint of Goebert, for having obstructed him in the discharge of his duty, by exciting a mob, which rescued a prisoner from the said Goebert. The perjury assigned was, that the prosecutor had struck him (Goebert), and excited thc mob. After thc case had been closed, Mr. Windeyer said, although he could see many tilings in favour of the defendant, as thc case appeurod before him, yet as the prisoner's witnesses hud positively contradicted the evidence given Dy the defendant, he would commit lum for trial, but admit him to hail, himself in £00, and two sureties in £30 each.
TRUSTEES' MEETINGS. - The creditors of the following insolvent estates will meet to re- vise the report of trustees as under, by ap- pointment of the trustees :-George Faughtley Wright, and Thomas Cade Bateley, April 18 ; Henry Brook Wray, John Miller, and Charles Nicholl, at Maitland, May 7 ; Edward Has- lingden, May 9 ; Edward Martin Storey, May 7 : George Haggett, and Joseph Wait, May 6 ; Richard Kirkwood Ewing, May 14 ; Duncan McPhee, April 18 ; John Vcecoe, April 30 ; Charles Dee, and William Spence Brown, April 28.
ERRATUM.-In our digest of the cases tried at the Court of Quarter Sessions, published in the Herald of yesterday, thc name of Mr. J. J. Cohen is mentioned as being " con- ditionally free." For this very annoying blunder we have to make an apology to Mr. Cohen; but he is so extensively known in the colony that the mistake cannot affect him. Had it been a more obscure person, to state that he was only conditionally free, when he arrived in the colony as an immigrant, might have been a serious injury.
Music.-Mr. Nathan has just published a piece of Music called the Eagle Chief, upon which we shall take an early opportunity of making a few critical remarks.
LITERATURE.-We are requested to call the
attention of our readers to the sale of books advertised by Messrs. Moore and Heydon, to take place at their rooms this evening.
OMNIBUS.-Yesterday, an application was made by Timothy Driscoll, for a license to keep an Omnibus plying in Sydney, which
cannot fail to meet with custom while the Quarter Sessions are sitting at the New Court House. The application was granted by Mr.
LANDSALES. - The most important of which (this day by Mr. Stubbs) comprises: 1. A large sheep station, with huts and paddocks enclosed, and ready to enter upon, with im- mense water frontage and run. 2. At Appin, nine well arranged farms, of easy purchase. 3. The Spinning Wheel building ground, near the Wellington Inn, Parramatta Road ; and 4. The remaining portion of the Piperston allotments, only nine will he sold, under most positive directions, and upon liberal terms.
TOWN ALLOTMENTS.-A sale of town allot- ments took place at the Colonial Treasury yesterday. The first series put up was nine allotments at Soldier's Point which were sold as follows: Michael Burn £65, L. Gordon £75, W. Bury £67, W. Bury 70, G. T. Smith £74, G. T. Smith £74, G. T. Smith £76, R. Webb £80, James Greenfield £103; This land sold at the rate of rather more than £2000 an acre. The next series was four allotments at the corner of George-street and Charlotte-place, on which the old Guard House formerly stood, the upset price of which was £20 a foot, they were sold as follows : Anthony Hordern £34, Alexander Douglass £26, John Rickards £20, John Kingdon £23 ; the average price of this piece of land was £21,000 an acre, while the corner lot purchased by Mr. Hordern was at the rate of more than £30,000 an acre. The total amount of the sale was £2700.
ASSAULT.-William Bayley was yesterday committcd to take his trial for an assault ou a person named Maloney.
COMMITTALS.-On Wednesday, Bridget Quig- ley was committed to take her trial for stealing from a dwelling house ; Christopher Clarke was also committed for stealing money from a till ; Daniel McGrath for stealing a jug full of brandy, tho property of a person named Dean, and Helen Daley for stealing a frying- pan, were, also committed for trial.
RAG FAIR THIEVES.-The Rosemary-lane brigade appear of late to have been uncom- monly active in Sydney. Yesterday six of them were committed for different acts of pilfering, as follows :-Charles Smith, a well-known Par- ramatta fence, for stealing a cloth cap, the
property of Mr. Marshall, of Market-street, and remanded on a charge of stealing a pair of boots from another person. Mary Cook, for stealing a pocket handkerchief. James Murphy, for stealing a shirt from a person named Quigly. Mary Casey, for stealing two gold pins from Mr. Lamb, of George-street. Edward Wilson, for stealing a horse-cloth, the property of Mr. Riley, from Jolmstone's livery-stables, and Joseph Cruise, for stealing brandy, thc property of Mr. Cunningham, vintner, King and Castlereagh streets. At the same time, Abraham Sand- well, alias Samuels, was committed for three months to thc House of Correction, being a rogue and vagabond, who had got into the hands of the police on suspicion of stealing.