56 UNSW Law Journal Volume 31(1) ON THE USE OF CLASSICAL ALLUSIONS IN JUDGMENT WRITING ELWYN ELMS* I INTRODUCTION In the first volume of Marcel Proust’s epic Remembrance of Things Past, the narrator mentions a certain M Legrandin, an engineer by profession, who was detained in Paris by the exigencies of his profession and only able to visit his home in Combray on weekends. He was extremely well-read, more literary in fact than many men of letters one of that class of men who, apart from a scientific career in which they may well have proved brilliantly successful, have acquired an entirely different kind of culture, literary or artistic, of which they make no use in the specialised work of their profession, but by which their conversation profits.1 In point of fact, M Legrandin was a snob, a man whose utterances in polite conversation were often irrelevant, out of context and overblown, the sort of chap who would charge up to you in the street asking if you were familiar with this or that line from such and such a writer, knowing full well that you weren’t.2 Although he was blissfully ignorant of the fact, M Legrandin palpably misused the advantage of his literary and artistic background. A broad general reading should not of itself be considered an encumbrance for a man of science, let alone a judicial officer, much of whose day to day endeavour is frequently consumed in the writing of judgments. As with M Legrandin, much will depend upon how this storehouse of personal information is used. Judgments are not delivered in isolation in an ivory tower. An important part of their function is to communicate to various audiences, ranging from the parties and appellate courts to the wider community.3 They will generally follow a predetermined pattern, setting out the facts and the law and the relationship of each to the other followed by a resolution of the problem at hand. To this end they should be relevant and as succinct as possible. Because of the prosaic nature * LLB, Dip Crim (Syd); BA (Hons); PhD (Mac); Retired Magistrate. I would like to take this opportunity to thank the three anonymous independent external reviewers who reviewed this article for their insightful comments and suggestions which assisted in giving this article some much needed direction. I acknowledge their contributions in this fashion as I am unable to do so personally. 1 Marcel Proust, Remembrance of Things Past, Vol 1, Swann’s Way (C K Scott Moncrieff trans, 1922 ed) 88 [trans of: À la Recherche du Temps Perdu]. 2 Ibid 161–81. 3 The point is made by several contributors of judicial persuasion in the NSW Judicial Commission Education Monograph, A Matter of Judgment – Judicial Decision-Making and Judgment Writing (2003). 2008 On the Use of Classical Allusions in Judgment Writing 57 of the subject matters frequently involved, the classical or other literary allusion has become the exception rather than the rule in the judgments we read. So why are they included and how can they help? An allusion has been described as a literary device used to try and bring out or increase communion with one’s audience.4 When appropriately employed, such references assist in explaining and illustrating an issue and thus persuade the reader to the writer’s point of view.5 In this sense, ‘deft use of literature can help the judicial writer to express important ideas in ways better than they could muster unaided. Such literature becomes part of the rhetoric of judicial exposition, explanation and persuasion’.6 A second reason is that, since judgments are frequently directed towards the wider community, and judges themselves are of that community, utilising non-legal literature, including where appropriate classical sources, helps to ensure that the law in its written form remains in touch with literary sources outside the narrowly confined and inbred world of legal precedent and terminology.7 On a more deprecating level, it has been said that judges have long felt the need to resort to rhetorical forms of persuasion because their opinions can be important events in public political debates, and that High Court judges in particular see themselves as ‘brushing up against immortality’, because they deal with such momentous issues.8 Third, a deft use of literary sources beyond strict legal terminology can enhance a judgment so that that it immediately commands the attention of the reader. Thus, a memorable opening can seize the attention of the audience forthwith, set the stage for what follows, and act as a beacon during the currency of the presentation in question. Take, for example, Dickens’ ‘best of times, worst of times’ – no elaboration needed – and also the opening paragraphs of Bleak House, describing the November fog blanketing London, thickest at Lincoln’s Inn Hall where 4 Chaim Perelman and L Olbrechts-Tyteca, The New Rhetoric: A Treatise on Argumentation (John Wilkinson and Purcell Weaver trans, 1969 ed) 177 [trans of: L’Empire Rhétorique :Rhétorique et Argumentation]. 5 On rhetoric used for the purposes of persuasion see Peter Goodrich, Legal Discourse: Studies in Linguistics, Rhetoric and Legal Analysis (1987). On the subject of oratory which is productive of conviction as it applies to all rational beings, and persuasive oratory directed to a particular audience see Perelman and Olbrechts-Tyteca, above n 4, 20, where Kant’s views on the subject are discussed. In 2007, the NSW Bar Association ran a seminar series on rhetoric, notable topics included being ‘The Empty Eloquence of Fools – Plato’s Gorgias and Aristotle’s Rhetoric’, ‘Cicero’s De Oratore and the Philippics’, and ‘Between Virtu and Fortuna: Rhetoric in Machiavelli’s The Prince and Cicero’s On Duties’. 6 Michael Kirby, ‘Literature in Australian Judicial Reasoning’ (2001) 75 Australian Law Journal 602, 606– 7. 7 Michael Meehan, ‘The Good, the Bad and the Ugly: Judicial Literacy and Australian Cultural Cringe’ (1990) 12 Adelaide Law Review 431. 8 Pierre N Leval, ‘Judicial Opinions as Literature’ in Peter Brooks and Paul Gewirtz (eds), Law’s Stories: Narrative and Rhetoric in the Law (1996) 206, 208. See also Sanford Levinson, ‘The Rhetoric of the Judicial Opinion’ in Peter Brooks and Paul Gewirtz (eds), Law’s Stories: Narrative and Rhetoric in the Law (1996) 187, 200, where Levinson opines that academics are less inclined to read the opinions of judges because they do not expect to find within ‘the pages even of the federal reports what would count within the university community as first-rate discussion of serious problems’. 58 UNSW Law Journal Volume 31(1) sits the Lord High Chancellor in his High Court of Chancery. Never can there come fog too thick, never can there come mud and mire too deep, to assort with the groping and floundering condition which this High Court of Chancery, most pestilent of hoary sinners, holds, this day, in the sight of heaven and earth.9 And so the background is set for the long running Chancery suit of Jarndyce v Jarndyce, in which the legal costs ultimately consumed the entire estate and brought ruin on generations of naïve litigants. Some of the more positive examples of classical references in Australian judgment writing are reviewed in Part I below. Any use of literature and the classics in this fashion must be relevant, or as Meehan would have it ‘marginally relevant but of sound aesthetic provenance, lightly inserted but suggesting vast allusive reserves’.10 An intrusive allusion can only serve as a distraction, which defeats its purpose. If the reference is ill-suited to the occasion, or overblown, it may appear that that its real purpose was only to self-congratulate the writer on his or her own erudition (or that they are possessed of a good book of quotations), and if the muse is summoned with undue frequency the whole exercise may descend into the realm of cliché which defeats its object as a technique of enlightenment.11 Some examples where the references used have proved less suited to the occasion in the contexts in which they appear are discussed in Parts IV, V and VI. Finally, it is necessary to bear in mind the audience to whom the judgment and the allusion are directed, for such techniques are only likely to be effective if the audience is reasonably familiar with the sources being used.12 Indeed, it is the audience, often overlooked, which is the critical factor, and any speaker or exponent of the written word must always be aware of the proclivities of the audience he or she is addressing and be prepared to adapt his material accordingly.13 Unless internally explained, a reference or allusion may be so obscure that it passes completely over the collective head of the audience to whom it is directed. However, an allusion may be deliberately obscure for good reason as when one judge wishes to extend an insult to another but to do so in a veiled way so that the message remains hidden from all but the cognoscenti – untranslated Greek or Latin tags are useful in this regard – but in most cases to be effective a good argument requires the audience to understand the allusion and go along with its thrust. An instance of a veiled allusion whose true import was hidden from all but those sufficiently erudite to appreciate its true significance is mentioned in Part III, and by way of apparent paradox, Part III also contains an example of an address to a jury whose members were obviously sufficiently erudite to understand the nature and meaning of the allusions levelled at them. The emphasis in this paper is upon the classical at the expense of other literary sources, and the allusions considered range in scope from the mere ‘apt phrase’ to references of greater substance.14 The paper is concerned primarily with 9 Charles Dickens, Bleak House (first published 1853, Wordsworth ed 1993) 4. 10 Meehan, above n 7, 431. 11 Kirby, above n 6, 613. 12 Goodrich, above n 5, 93–6. 13 Perelman and Olbrechts-Tyteca, above n 4, 23–4, citing Vico. 14 The distinction is made by Meehan, above n 7, 436. 2008 On the Use of Classical Allusions in Judgment Writing 59 allusions as they appear in judgments, and deals with submissions only in passing. The object is to assess in what way the allusion enhanced or detracted from the judgment, and there is no finer place to start than Justice Kirby’s forensic skills in moulding together a curious blend of Australian legal fiction and Roman myth. II USING VIRGIL OR HOMER TO THREAD THE FABRIC OF A JUDGMENT OR SUBMISSION In Grincelis v House,15 the issue was whether a commercial rate of interest should apply to awards of damages for past gratuitous services provided to an injured person or whether the Gogic rate of four per cent should apply. The majority, Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in a joint judgment held that commercial rates should apply. In separate dissenting judgments, Kirby and Callinan JJ opted for the Gogic rate. Essentially, their point was that the rule in Griffiths v Kerkemeyer,16 under which damages for past gratuitous services were assessed on a needs basis and awarded at commercial rates, was artificial enough as it was, though now too deeply entrenched in the law to be disturbed without legislative intervention. No one had submitted that the Court should reverse itself on that issue. In the opinion of the minority, all that could now be done was to try to ameliorate the most inconvenient results of this ‘novel legal doctrine’. If interest on damages for past gratuitous services were also to be assessed at commercial rates, the result would be to pile windfall upon windfall and produce an unjust result so far as the defendant was concerned. Justice Kirby’s dramatic opening laid the foundation for his argument: We have it on the authority of Virgil17 that when an endeavour was made in ancient times to pile Ossa on Pelion and then ‘to roll leafy Olympus on top of Ossa’, the Gods scattered the heaped-up mountains with a thunderbolt. Their divine anger may have been occasioned by irritation with the logic of height being pressed too far. This appeal explores the limits of logical deduction in the legal context of compensation for the unpaid care provided by a family member to a person injured as a result of a legal wrong.18 15 (2000) 201 CLR 321. 16 (1977) 139 CLR 161. 17 Virgil, Georgics, Book 1, line 281. The same myth is also described in Ted Hughes, Tales from Ovid, 24 Passages from the Metamorphoses (1997) 12–3. 18 Grincelis v House (2000) 201 CLR 321, 331. 60 UNSW Law Journal Volume 31(1) It was a theme which he maintained throughout his judgment: In the present case, one would be immediately inclined to follow the logic of basic legal principles if the only criterion were the common law. Having embarked upon a path of anomalies, the logic of the common law would carry the decision-maker forward, however apparently extreme the resulting outcome. Ossa would again be piled on Pelion. Any remedy would be left to a legislative thunderbolt if the consequence were regarded as too artificial to be tolerated. Artificiality abounds …19 and pursued to its logical conclusion: It is not appropriate or just to adopt commercial rates of interest. In my view, they are not the rates which the law requires. To adopt those rates is to fall into the Olympian error of which, long ago, Virgil warned. We should heed his warning.20 It was a splendid opening, relevant, seizing the reader’s attention forthwith, and maintaining it throughout. Justice Kirby’s summoning of the muse added clarity to his argument, gave it dramatic effect, and assisted in driving home the illogicality of an approach which piled one legal fiction on top of another. But the way he went about his task added another dimension to his argument. He opted to employ another fiction as a rhetorical device. He portrayed as a fact (‘[w]e have it on the authority of Virgil …’) something which Western understanding now regards as a myth (the existence of Roman gods and their interventions in human affairs). Rhetorical fiction was piled upon legal fiction, thereby providing added thrust, though in a somewhat subtle way, to his reasoning. Another occasion for the same Justice to vent his judicial spleen arose in Graham Barclay Oysters Pty Ltd v Ryan,21 a case in which the High Court was once again required to consider the principles underpinning the law of negligence, and in particular the circumstances which gave rise to the liability of public authorities whose breaches of duty arose from their alleged failure to properly discharge their statutory powers. Justice Kirby seized the opportunity to rail against the High Court’s consistent failure to enunciate an appropriate methodology in common law actions for negligence where liability was in dispute, but on this occasion the instrument he used to illustrate his point was not Virgil, but Homer – and in the classical Greek no less: ‘One day this Court may express a universal principle to be applied in determining such cases’ his Honour said by way of introduction, but [e]ven if a settled principle cannot be fashioned, it would certainly be desirable for the Court to identify a universal methodology or approach, to guide the countless judges, legal practitioners, litigants, insurance companies and ordinary citizens in resolving contested issues about the existence or absence of a duty of care, the breach of which will give rise to a cause of action enforceable under the common law tort of negligence. Courts such as this should recall the prayer of Ajax: Ζεῦ πάτερ, ὰλλὰ σὺ ῥῦσαι ὑπ ᾿ ἠέρος υἷας᾿Αχαιῶν, ποίησσν δ ᾿ αἴθρην, δὸς δ᾿ ὀφθαλμοῖσιν ἰδέσθαι· ἐν δὲφάει καὶ ὄλεσσον, ἐπεί νύ τοι εὔαδεν οὕτως. 19 Ibid 333. See also 334. 20 Ibid 337. 21 (2002) 211 CLR 540. 2008 On the Use of Classical Allusions in Judgment Writing 61 It is a supplication that must have occurred to many who have considered recent decisions on the subject of the duty of care: ‘[S]ave us from this fog and give us a clear sky, so that we can use our eyes’.22 Ajax’s prayer to Zeus is found in Book XVII of The Iliad when the Achaeans and the Trojans are locked in a fierce battle in the midst of a dense fog following Patroclus’ death at the hands of Hector. Each side is attempting to seize Patroclus’ body which is being dragged back and forth across the battlefield. Ajax (or Telemonian Aias as he is referred to in Rieu’s translation) pleads for the fog to be lifted so that he can send a messenger to tell Achilles of his friend’s death to galvanise the latter into action. The modern day fog to which his Honour alluded arose from repetitive curial attempts post Donoghue v Stevenson23 to refine the generality, indeed the circularity, of Lord Atkin’s ‘neighbour’ principle in order to spell out whether a duty of care was owed and to whom.24 Whilst everyone wanted to retain Lord Atkin’s touchstone for defining the neighbour relationship as a unifying concept, the generality of the sub-concepts involved were often difficult to apply to specific circumstances, obliging courts across the common law world to indulge in repeated attempts to refine the manner of its application. One such attempt in England resulted in the so-called Caparo test,25 involving a three-pronged inquiry to determine whether a legal duty of care existed: the reasonable foreseeability of the prospect of harm to the claimant; whether there was a relationship of ‘proximity’ or ‘neighbourhood’ between the parties; and if so, was it ‘fair, just and reasonable’ for the law to impose a duty of care of a given scope upon the tortfeasor for the claimant’s benefit. But in Sullivan v Moody,26 the High Court rejected the Caparo test as tending to reduce the question of liability to a discretionary judgment based upon what is fair, just and reasonable in a particular case. Foreseeability was no longer considered determinative, and the notion of proximity had also been rejected. However, the High Court has substituted nothing useful in its stead, except a reliance based upon the vague and ill-defined ‘salient features’ of each case,27 and the statement that the law develops incrementally by analogy with categories of case where liability had been established. Justice Kirby found himself obliged to fall in line with Sullivan, even though he was not a member of the court which decided it and regarded its line of reasoning as seriously flawed. He instead opted for an approach which imposed a duty of care ‘when it is reasonable in all the circumstances to do so’, noting that ‘the ‘touchstone’ of reasonableness was fundamental to the way in which other members of the Court imposed a duty 22 Ibid 559. His Honour’s translation is from Homer, The Iliad (EV Rieu trans 1956 ed) 333. His Honour also adds a footnote: ‘[C]f Sorrell v Smith [1925] AC 700, 716 where Lord Dunedin offered the translation: “Reverse our judgment and it please you, but at least say something clear to help in the future”’. 23 [1932] AC 562. 24 Ibid 580. 25 Caparo Industries plc v Dickman [1990] 2 AC 605. 26 (2001) 207 CLR 562 (‘Sullivan’). 27 Perre v Apand Pty Ltd (1999) 198 CLR 180, 253. 62 UNSW Law Journal Volume 31(1) even if they did not explicitly say so:28 ‘So after 70 years the judicial wheel has, it seems, come full circle. In this way only is Ajax’s prayer answered’.29 So, the touchstone of reasonableness was Justice Kirby’s medium to dispense the fog clouding the Court’s reasoning, and thus shed some light on the duty of care issue. It was an approach which harked back 70 years to another generality in preference to legitimising a search for the ‘salient features’ of each case, a ‘methodology’ which failed to lay down any guiding principle whatsoever. If his Honour’s application of the touchstone of reasonableness in these circumstances does indeed represent daylight on the duty of care issue, it is perhaps worth noting that the sentence following Ajax’s supplication to Zeus to disperse the fog, which his Honour did not reproduce, reads ‘[k]ill us in daylight if you must’.30 This does not detract from the fact that the resort to the metaphor of the fog remained a useful tool to illustrate the cloudiness of the Court’s line of reasoning on the duty of care issue, as it did when another learned author was describing the problems besetting the High Court of Chancery in England over a century before. The analogy shed light on the argument’s path and the concluding reference to Ajax provided an emphatic conclusion. III HANDLE WITH CARE! ARCADES AMBO, OR THE INVOCATION OF VIRGIL FOR PURPOSES OTHER THAN HE INTENDED Some years ago, an experienced judicial officer of my acquaintance approached a friend of mine for assistance in deciphering an apparently obscure passage in one of Justice of Appeal Meagher’s judgments. The case in question was Nationwide News Pty Ltd v District Court of New South Wales,31 which considered the powers of an inferior court to make suppression orders. At issue was the significance of section 578 of the Crimes Act 1900 (NSW), as it then stood. During the course of his Honour’s judgment, Meagher JA said: That [section 578] cannot be used to protect the accused seems to have the support of Kirby P and Hunt CJ at CL: Arcades ambo. The former has expressed himself to this effect in John Fairfax and Sons Ltd v District Court of New South Wales (Court of Appeal, 18 August 1988, unreported). The latter has uttered to like effect in a case beguilingly entitled ‘Re Mr C’ (1993) 67 A Crim R 562 at 563.32 His Honour went on to say that the difficulties of upholding such an argument were too great.33 What was the meaning and where lay the significance of that mysterious phrase ‘Arcades ambo’ secreted within the interstices of his Honour’s judgment? My friend, whose classical erudition rendered him admirably suited to field this line of inquiry, resisted the instinct to say to his inquisitor ‘Well, what difference does it make? Just read on’, and was rewarded handsomely for his research. He 28 Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540, 628. 29 Ibid. 30 Homer, The Iliad (EV Rieu trans 1956 ed) 333. 31 (1996) 40 NSWLR 486, 498. 32 Ibid. 33 Ibid. 2008 On the Use of Classical Allusions in Judgment Writing 63 found that the phrase harks back to an idyllic period in imaginary time in Arcadia, a mountainous district in Ancient Greece, proverbial for the simplicity of its people as depicted in Virgil’s Eclogues (or Bucolics). In Eclogue VII, the shepherd Meliboeus described his invitation to listen to the song of his fellow shepherds Thyrsis and Corydon, they being ‘Arcades ambo, Et cantare pares, et respondere parati’,34 thus: Daphnis beneath a rustling ilex-tree Had sat him down; Thyrsis and Corydon Had gathered in the flock, Thyrsis the sheep, And Corydon the she-goats swollen with milk- Both in the flower of age, Arcadians both, Ready to sing, and in like strain reply. … I let my business wait upon their sport. So they began to sing, voice answering voice In strains alternate- for alternate strains The Muses then were minded to recall - First Corydon, then Thyrsis in reply.35 Eighteen hundred years later, Lord Byron used the same phrase, though ironically: ‘“Arcades ambo”, id est – blackguards both’.36 In the fullness of time, Byron’s meaning overtook Virgil’s and the phrase came to be used, often in a pejorative sense, to indicate two persons having similar character or common interests, both sweet innocents or simpletons.37 It seems there was a none too subtle barb for his judicial colleagues in Justice of Appeal Meagher’s judgment, and one made more explicit by the appeal to antiquity! This was not the first time Virgil’s muse had been invoked in a testy piece of litigation. Some 150 years beforehand in a cause celèbre in the early days of the colony, the plaintiff, who was the editor of the Colonist newspaper, sought to recover damages, ‘laid at £1300’ for assault. The defendant was a local merchant who had horsewhipped him in the colony’s main street, George Street, following the plaintiff’s refusal to disclose to him the authorship of a certain article defamatory of the defendant which had been published in the plaintiff’s newspaper, a stance which the plaintiff maintained throughout the currency of the ensuing legal proceedings, which were tried before the Chief Justice and a special jury. At the time, the newspaper was engaged in a purported exposé of the state of disgraceful concubinage, in which many persons were (then) living in Sydney, being seen driving in gigs with their mistresses – some of them married men deserting their houses and families, cohabiting with married women, and with them visiting the Theatre and other places of public resort. In this context, the defendant’s conduct came under the observation of the plaintiff’s newspaper, and he became the subject of an article ironically entitled ‘The Family Man’. So far as the article itself was concerned, it had been written, said the plaintiff’s 34 Virgil, The Eclogues, Eclogue VII, 4. 35 Virgil, The Eclogues, Eclogue VII (37 BC) The Internet Classics Archive <http://classics.mit.edu/Virgil/eclogue.7.vii.html> at 24 March 2008. 36 George Byron, Don Juan, Canto IV (1821) Stanza 93. 37 Eugene Ehrlich, A Dictionary of Latin Tags and Phrases (1987) 48; E Cobham Brewer, Dictionary of Phrase and Fable (1894). 64 UNSW Law Journal Volume 31(1) counsel, to expose and censure the defendant, living as he then was with a certain Mrs Taylor, an actress of the Sydney Theatre, and a married woman, who formerly lived happily with her husband, but from whose society she had been seduced. It was, he said, only a moderate and merited exposure, the defendant being at this time connected with various religious societies. Further, it was a public disgrace that a person who was living in this state should take a prominent part in such societies, and the hypocrisy of such a connection, was a fit topic for the animadversion and censure of the Press. In assessing damages, the jury was asked to bear in mind that the defendant was a wealthy man and to award damages on the basis of ‘a most wanton assault committed under the most aggravated circumstance’.38 But the defendant had instructed the able Mr Therry to appear as his counsel. Confronted with the evidence of Mr Windeyer, the colony’s Second Police Magistrate, an eye-witness to the assault who gave evidence as such, Mr Therry said that it would be an insult to the understanding of the jury to deny that an assault had occurred, but the defendant pleaded provocation, thereby disentitling the plaintiff to damages, or entitling him at best, only to the minimum of damages which the law would allow, (and) if the defendant were called upon to lay down a penny, and demand three farthings change from the plaintiff, the Jury would compensate the plaintiff beyond the extent of his suffering, and punish the defendant beyond the measure of his delinquency.39 The plaintiff’s conduct and provocation – the greatest provocation that one man could receive from another – meant that he had forfeited his entitlement to anything but nominal damages: ‘Before this assault, he had slandered the defendant; since the assault, he had slandered him weekly - and to-day again, he slandered him through the instructions given to his Counsel’.40 Mr Therry then summoned Shakespeare as his muse, with a certain liberty in the adaptation: ‘When you take the life of a man, you take that, which at some time he must have lost; but when you take his good reputation, you take that which might have endured for ever’.41 This plaintiff then having gratified his palate by a series of articles written in a spirit of the bitterest rancour, in poetry or prose, had not right to come before a jury and ask of them to put money in his purse. No! good Iago! No - you must be satisfied with the revenge which you yourself have sought, and with which you were satiated. It was no excuse to say that these slanderous articles were not written by this plaintiff - it might be, or he even supposed they were not - but he refused to give up the name of the real author, and this only could excite pity for one who could submit to the degradation of pandering to the slander of another.42 Having thus compared the plaintiff with the devious Iago, Mr Therry went on to make another comparison, the circumstances of which would have been well 38 Bull v Wilson [1836] NSW SupC 51. 39 Ibid. 40 Ibid. 41 Ibid. The actual words of Iago in Othello were directed to the taking of a man’s purse rather than his life: Act 3, Scene 3. 42 Bull v Wilson [1836] NSWSupC 51. 2008 On the Use of Classical Allusions in Judgment Writing 65 familiar to the members of the Special Jury. A short time before, one John Joseph Stockdale had published the memoirs of Harriette Wilson, one of Regency London’s most famous courtesans, who had had sexual liaisons with many of the most prominent personages of her time. She and Stockdale had written to 100 or so of her former lovers and acquaintances giving them the opportunity to have themselves left out of the text for an annuity of £20 or a lump sum of £200. Many, including King William IV, accepted the offer and so had themselves written out of the text. Others, such as the Duke of Wellington, who is said to have responded with a ‘publish and be damned’ riposte, declined, thereby guaranteeing themselves special mention. The memoirs were published in nine instalments between February and August 1825, and quickly became a best seller and the talk of Regency London. As each instalment was published, Stockdale ensured a continuation of interest in the series by advertising a list of the personalities who were to follow in the next. The memoirs not only provided titillation for the members of the reading public at large. They ‘caused concern at the highest levels of British government’.43 Mr Therry now chose to make a comparison between Stockdale and the present plaintiff: If this action succeeded, it would be considered as the hoisting of the standard of morals so oft inculcated in the Colonist. Standard of morals, indeed! Yes, but such a standard as Stockdale attempted to hoist in England, when he was prosecuted for the publication of the most infamous and obscene book that had ever been published. On the floor of the Court of King’s Bench in England he insulted the Nation, by declaring that the work he had published was more calculated to advance the moral interests of England, than any book that had been published, with the exception of the Holy Volume. And what did the Jury suppose that book was? Why the memoirs of Harriet Wilson - or twenty years of the life of a Harlot - abounding in obscene anecdotes, such as are to be met with in the letter of Mr. Andrew Wylie, and other articles of the Colonist. It was to be hoped some new emigrant ship would bring out the worthy Stockdale as a co-Editor to the Colonist, and with the co-operation of the talents of La belle Harriette, it might continue to furnish for many years to come defamatory portraits after the fashion of ‘Lodge’s Portraits’. Stockdale would be a worthy compeer for this worthy plaintiff – ‘Arcades ambo Et cantare pares, et respondere parati’.44 Following Therry’s address, the jury retired for about 10 minutes and returned a verdict for the plaintiff in the derisory sum of £5.45 But there was a footnote to the affair, one which may be perceived as straying a little from our theme, but which is included nevertheless in the form in which it was published ‘for the sake of completeness’ as they say. The day following the jury’s verdict, the plaintiff chose to publicly express his disappointment in his preferred medium of communication as follows: The case of the Editor of this paper, versus * * * * * , for an aggravated and brutal assault perpetrated in the public street, was tried before His Honor [sic] the Chief Justice, and a Special Jury, yesterday afternoon. The fact, and the aggravated nature 43 Frances Wilson, Harriette Wilson: Courtesan and Blackmailer (2006) Everything2 <http://everything2.com/index.pl?node_id=1787052> at 29 March 2008. See also Frances Wilson, The Courtesan's Revenge: Harriette Wilson, the Woman Who Blackmailed the King (2003). 44 Bull v Wilson [1836] NSW SupC 51. 45 A subsequent appeal by the plaintiff to the Full Court on the grounds of misdirection was unsuccessful.