The Daily Telegraph

Monday, October 26, 1885

The jury in the proceedings against Mr. Joseph Symes spent six hours anxiously considering whether that pleasant gentleman's curious Sunday performances ought to be classed under the head of "amusement" or "instruction," and found themselves after all unable to come to any conclusion. If they could be described as "amusement," Mr. Justice Higinbotham charged the jury, they were illegal; but if they could, by any stretch of charity, be classified as instruction, they must find for the prisoner. There were obvious difficulties in the way of either conclusion. All the facts, indeed, are fatal to the theory of "amusement." The very music, according to the evidence of a witness for the defence, is of so excruciating a character that he had to take refuge from it in the pages of a book. Mr. Justice Higinbotham's own estimate of Mr. Symes's performances makes it impossible to describe them as "amusing Mr. Symes's oratory, his Honour said, "consisted of very gross outrages and insults upon the faith of a large section of his fellow men." It was, no doubt, true that he is evading and breaking the law for the purpose of outraging the feelings—the sacred feelings—of his fellow countrymen. He has insulted the sacred beliefs of a large portion of this community. page break He has assailed the highest officers of the Government without, so far as we know, having the slightest ground for thus slandering them. He has insulted not merely the members of the Legislature, but the Houses of Legislature themselves." His Honour declared he would not pain, would not offend, would not insult the jury" by rehearsing Mr. Symes's rhetoric. The theory of "amusement," therefore, must be dismissed. There are equal difficulties in the way of the theory of "instruction." How can blasphemous revilings be "instructive?" "As an" intellectual performance," his Honour said, Mr. Symes's deliverances "were" beneath contempt; they had "neither, talent, knowledge, norreason, nor sense, nor taste, not a single merit to recommend them;" they were not only outrageously insulting," but recklessly erroneous." The jury toon gave up the attempt to make any literary classification of Mr. Symes's performances, and the case was made to turn on the single point of that gentleman's sincerity. Did he honestly meet his brother members of the Australian Secular Association," asked Mr. Justice Higinbotham, "on that day for the purpose of providing according to his means—his very poor means—instruction to his brother members? If they believed that was his honest object they should acquit him. On the other hand, from all the circumstances which took place at these proceedings, if it was his principal and primary purpose to provide amusement, and thereby make money, he would come within the Statute." Here, again, after six hours' painful meditation, and after listening to a four hours' exposition of bis own merits from Mr. Symes himself, the jury gave up the question of his "sincerity" as an entirely hopeless conundrum.

The result in these proceedings must be a disappointment to everyone, save Mr. Joseph Symes himself. Even that sanguine gentleman could scarcely have hoped that his four hours' tirade against all things in heaven and earth would be followed by a sympathetic verdict from an admiring jury. But as the jury failed to agree, being equally balanced between "guilty" and "not guilty," this is a result which, for a time, at least, saves Mr. Joseph Symes's pocket and person, though not his character. A sensitive person would, no doubt, be made uncomfortable by the reflection that a jury of his countrymen, after hearing all he had to say in his own defence, were unable to acquit him of the charge of having committed a criminal offence. In (he case of Mr. Symes, however, his pert on and pocket are, for the moment, saved, and he will console himself for any injuries to his character by considerations resembling Falstaff" famous reflections on "honour." The failure of the jury to agree, however, is, on public grounds, a calamity, since, unless the blunder is repaired, it practically neutralises the whole Act, and makes possible the appearance every Sunday of fifty Halls of Science and a hundred concert rooms. Mr. Symes was indicted under Act 21 Geo. III., for "keeping a "disorderly house," and it seems impossible to doubt that the Hall of Science meetings are "disorderly" in even the untechnical and popular sense. The audience is "entertained" not merely by jovial musicandfree and easy debates, but by a liturgy, burlesque sacraments, and blasphemous feats, which are more worthy of John Wilkes and the "Hell-fire Club," and Medmenham Abbey, than of the City of Melbourne and the reign of Queen Victoria. The meetings are "disorderly," if only from their shocking personal attacks on the Queen. They outrage public decency and constitute a real peril to the public peace. But that the meetings are "disorderly" in the technical sense, as intended by the Act under which the proceedings were taken, is clear beyond any possibility of doubt. A house used as "a place of page break "entertainment for gain on Sundays," the Act defines as "disorderly." That Mr. Symes kept such a house for such a purpose is not only proved by evidence, but is notorious. Mr. Symes himself, indeed, boasts of the circumstance, and has chosen on this single point to engage in single combat with the whole authority of the law. The law is bad, he declares, and all the judges of the Supreme Court have blundered in their interpretation of it. The Act deserves no better fate than to be broken; and, for himself, it is his boast he has broken it, is breaking it, and intends to break it! And yet the jury found it possible to doubt Mr. Symes's account of his own doings, and were unable to agree whether he had, after all, broken the law or not.

The case cannot, of course, rest at its present stage. To leave things as they are would be to open the doors of a hundred Sunday "entertainments." We hope the law officers of the Crown will, in the public interest, lose no time in taking steps to have the question, whether such extraordinary "entertainments" are legal, authoritatively settled. Everyone must, of course, admire the conspicuous ability and impartiality of Mr. Justice Higinbotham's charge to the jury. But at one point, at least, the doctrine he laid down seems perilous. If Mr. Symes, or any one of his school, only makes his performance dull enough to render it impossible for anyone to describe it as "amusing," then the Act no longer applies! If enormous and impenetrable duluess constitutes a protection, we may be sure that the Symeses will always be safe. But is Mr. Justice Higinbotham's legal doctrine sound?