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Decisions of the Nineteenth Century Tasmanian Superior Courts

R. v. Bent (No. 1) [1825]

libel, criminal - Arthur, Governor, libel of - arrest of judgment

Supreme Court of Van Diemen's Land

Pedder C.J., 1 July 1825

Source: Hobart Town Gazette, 9 July 1825

The Attorney General presented two Informations against Mr. Andrew Bent, for the publication of certain libels upon the Government, in the late Government Newspaper.  The Learned Gentleman said, that he presented them thus early in order that the defendant might be arraigned, and plead without delay, and thus have more time for the preparation of his defence.

Pedder C.J., 26 July 1825

Source: Hobart Town Gazette, [1] 29 July 1825 [2]

The King (on the Ex Officio Prosecution of the Attorney-General) v. Mr. Andrew Bent, for a Libel.

The Solicitor-General (A. Stephen, Esq.) opened the pleadings, stating, that this was an Information, filed ex officio by His Majesty' Attorney-General, against Mr. Andrew Bent, [3] the Proprietor, Printer, and Publisher of the Hobart Town Gazette, for a Libel upon His Honor Lieutenant Governor Arthur.  The Information consisted of five counts: the first was for composing, printing, and publishing a false, scandalous, and malicious Libel of and concerning Lieutenant Governor Arthur, published in the Hobart Town Gazette of the 8th of October, 1824, as follows:

[The Hobart Town Gazette, and Van Diemen's Land Advertiser. - Equally pussilanimous, equally reprehensive, are the assumptions of a false claim, and the abandonment of a just one!  With decision, therefore, we have chosen to resist what was jurisprudentially esteemedias a most ``unwarranted invasion" of our right to the sole Proprietorship of this Gazette; and, thanks most profoundly permanent to that hallowed spirit of British Justice, which animates Sir Thomas Brisbane, our resistance has been consecrated by a per[f]ect triumph.  We knew, yes! well we knew, by confident, serene, and cloudless anticipation, that our legally indefeasible title would be confirmed and held intangible at Head Quarters.  We were sure that the dignified Representative of England's all-liberal and crudite Sovereign, (may God for ever bless him!) would scorn to sully his name or his nation by illegally scathing the literary edifice composed and cemented by a Patriot's industry.  We said, in the fervour of our exultation, -- Surely His Excellency is a Christian, a Man of Honour, and a Gentleman, Surely he is a Partizan of his Country's Law, surely he is Amicus humani generis, and an advocate of bliss-diffusing Liberty.  Surely he will not bereave us of an instrument which we created for the public weal, and never have brandished as a public scourge.  Surely he is just and firm, and therefore we must be secureunder the venerated and invulnerable wing of his protection.  All this we thought - all this we said; and the result of Mr. Thomas's embassy demonstrates that our best preconceptions of that great and good man, the Commander in Chief, were fully merited.

At present, however, we shall only add the following explanatory paragraph, which, having appeared in the Sydney Gazette, by express and supreme Colonial Authority, will ``speak volumes" to the prejudiced, and invest our tremulous adherents with a pleasing confidence, thateven yet the sling of an outraged ``weak one," when brandished against the Gideonite of tyranny, must be Laus deo, irresistible:--

[The Art of Typogra[p]hy, when well employed, is in our estimation so mighty and benignant, that all, who would oppose its judicious operations, must surely be, as we are bold to call them - foes, rank foes, of every talent which adorns, and of every virtue that enables mankind!  Our inducement to offer the above remark, has been furnished by certain occurrences, of recent date and high importance, in relation to ``The Hobart Town Gazette," for which little Struggler in the cause of the Community who patronize it, we have often denoted our esteem; and, to which, in a great degree, we attribute the improvement of their prospects.  It appears, as we are credibly informed, that Mr. Andrew Bent, Government Printer at Hobart Town, instituted theHobart Town Gazette at his own expense, and has ever since so conducted it - feeling it to be, as of course it is, both by law and in equity, his own personal property! - It further appears that some efforts were rumoured as in progress to bereave him of the same; and, in consequence, he very properly despatched his newly appointed Editor, on a respectful embassy to Head Quarters, with such documents as could clearly establish his said Proprietorship.  And lastly, it appears, as with feelings of pride and satisfaction we inform the Public, that His Excellency was pleased to consider Mr. Bent's claim to publish his said Paper, on his own account, completely indisputable, ``It was true," as the liberal and enlightened Representative of our Gracious Monarch said, `Lieutenant Governor Arthur might chuse another vehicle for the dissemination of Official Orders, &c.'--But that the Journal itself was private property had been alledged on oaths the most sacred! and we are therefore justified in stating that, on oath alone, can it, if ever it can, fairly be brought within the pale of question.]

The second count was for printing and publishing the above article, with some variations in the inuendoes.  The third count was for composing, printing, and publishing another false, scandalous, and malicious Libel of and concerning Lieutenant Governor Arthur, published in theHobart Town Gazette of the 11th Feb. 1825, as follows:--

[In this most incongruous world, men, like merchandize, are frequently judged by what are denominated specimens; and though we willingly acknowledge that when these specimens are fairly selected and not afterwards tricked up for a sinister object, they may enable the Public to arrive at a correct opinion on the whole, which, as a part, they nominally represent - yet, we must be allowed to say, that far too often they are not in reality what they are described to be.  Now conduct like this we detest!  Insulated accusations we despise!  If public measures were ineligible, ours is the spirit which would dare to paint their consequences; and if public men were inimical rather than pacific to those over whom they were placed in the awfully responsible situation of authority, -- ours is the pen which imbued with the indelible bitterness of British indignation at oppressors, would trace their misdeeds, execrate their names, and invoke Heaven to avenge their violation of our rights.  But never will we forget that our God, our Country's Religion, and our Laws unit[e]dly command us to defend with all our powers, the Representative of our King! - And as in consequence of certain observations which have been made throughout the Colony, since the Admiral Cockburn's arrival, we are induced to believe that the character of our present Lieutenant Governor will be most favourably illustrated, and rescued from possiblemis-representation, by our affording publicity to a report of an extremely interesting trial, which took place in England subsequent to His Honor's embarkation for these shores, we this day insert it among our British News.  It will show that rumours are not to be relied on! - it will prove that His Royal Highness the Commander in Chief, inferentially approved of Lieutenant Governor Arthur's late conduct! - it will tend to instruct Officers second in command, how to deport themselves, if they wish to escape, as Colonel Bradley did not, in the first place, extra-martial incarceration; and in the second, expulsion from the army!] [4]

The fourth count for printing and publishing only.  The fifth count was for printing and publishing a part of the same article, with the inuendoes varied.

To this the Defendant pleaded - Not Guilty; upon which issue was joined.

J. T. Gellibrand, Esq. His Majestry's Attorney-General, then rose addressed the Court in a long and most able speech, which we lament that our limits will not permit us to give in detail.  It was to the following effect:--

``I appear before your Honor, and you Gentlemen of the Jury, in support of an Information, which I have felt it my duty to exhibit against Mr. Andrew Bent, the Printer and Publisher of theHobart Town Gazette. - I think that the whole charge which my Learned Friend, the Solicitor-General, has read to your from the Information, may be comprised in a very few words.  That the Lieutenant Governor of this colony has been accused of serious acts of tyranny and oppression, during the time he has administered the Government.  I am well aware that Englishmen are accustomed to view with jealousy and suspicion all Informations filed ex officio.  But I shall shew, that the motives by which I am induced to bring the Defendant before you on this occasion, prove me to be rather a friend than an enemy to the real Liberty of the Press.  The great advantages which this glorious privilege confers upon all those who possess it, are universally acknowledged.  To it we owe all the Liberties which we enjoy under the happy Constitution of England, the extension of Religion, of Philosophy, of the Sciences, and the preservation of our Liberties.  This privilege has been accurately defined by numerous Authors of the greatest eminence.  I shall quote to you a passage from a book of recognized authority, I mean Holt upon Libel.  [Here the Learned Gentleman read a long quotation from that work, which it is unnecessary to insert, as it merely went to state, that every man has a right to publish his sentiments upon public men and public measures, so long as such do not exceed the fair bounds of political discussion.]  The charge, which is made by the Defendant in the Hobart Town Gazette against the Lieutenant Governor, imputes to him a very particular act of tyranny.  In order bring this properly before you, I must explain to you some few previously existing circumstances: -- Some 7 or 8 years ago, Mr. Bent, the Defendant, was employed as Assistant to Mr. Cooke, the then Printer of the Hobart Town Gazette: he was allowed Government printers; he had a Government press; he was furnished with Government type; and he had a salary of £30 per annum.  This Newspaper, from the then state of the Colony, had of course a very limited circulation, but it encreased as the Colony encreased in population, until it reached its present extent, from 4 to 500 per week; which, with sums paid for advertisements, produced an income from 1 to £2000 per annum.  During the Administration of the late Lieutenant Governor Sorell, it was his pleasure to appoint a Gentleman to act as Editor, a Mr. Emmett.  This person always wrote the articles called the Leaders, and generally attended to the duties of the Paper. Upon the arrival of Lieutenant Governor Arthur, Mr. Bent considered that he had a favourable opportunity to obtain the Independence of the Newspaper.  He therefore dismissed Mr. Emmett, and appointed a very learned Gentleman, Mr. Evan Henry Thomas, to succeed him.  You may naturally suppose that Lieutenant Governor Arthur, considering the Newspaper to be the property of Government, was not disposed to suffer this interference on the part of the Defendant.  I had omitted to mention, that Lieutenant Governor Sorell considering that Mr. Bent received all the emoluments of the Paper, thought it proper that he should purchase the types, which Mr. Bent did accordingly.  Soon after Lieutenant Governor Arthur's arrival, a dispute arose, relative to the right of property in this Newspaper, which the Lieutenant Governor claimed to be in the Government.  This claim Mr. Bent resisted, and in order to establish his right in the best way he could, he dispatched his great Plenipotentiary, Mr. Thomas, on an Embassy to Sydney, to submit his claim to His Excellency the Governor in Chief.  The Ambassador proceeded there accordingly, and laid before His Excellency a number of affidavits and other documents.  Sir Thomas Brisbane, who knew nothing more of the affair, than what was submitted to him, decided in favour of Mr. Bent, stating that if Lieutenant Governor Arthur did not like the manner in which the Newspaper was conducted, he could establish a new one.  Mr. Thomas therefore came back, big with glory!  And the first thing he does is to celebrate his victory by writing in the Newspaper the article now complained of against the Lieutenant Governor.  Let us see what are the accusations he makes against him.  He expresses the warmest gratitude towards Sir Thomas Brisbane, I am not at all disposed to find fault with this; he had a right to do so: he adds that Sir Thomas is a Gentleman and a Christian!  Who questions it? but is it not apparent that these praises of Sir Thomas Brisbane are introduced merely to place him in contrast with Lieutenant Governor Arthur.  Does he not in fact say - I am praising one, at the expence of the other, and how does he sum up the whole?  By the offensive passage which my Learned Friend, the Solicitor-General, has submitted to you, which I shall now again read for your observation.  [The Learned Gentleman here read the article which we have before inserted.]  Now, Gentlemen, it is hardly necessary for me to say, that in the construction of these words, you are to understand them, in the sense and meaning which the Defendant intended they should convey.  What is the obvious meaning of the words, ``the Gideonite of tyranny;" and who do you understand to be the person referred to.  I shall, I suppose, be told that Gideon was a soldier, -- that he was a good man, -- and that he was not a tyrant!  But I contend that the very converse of this is meant.  We also know that the Lieutenant Governor is a soldier, and that he is also a christian.  Let us imagine a case in illustration of this.  We all know that the late Mr. Fox was a great advocate for the Liberty of the subject.  Let us suppose that a Foxite had been in the present administration, and that an Editor had written an article in which he had spoken of the Foxite of tyranny.  Now it may be said that no such thing as a Foxite of tyranny can be, because all Foxites are lovers of liberty; but would the individual alluded to be the less clearly pointed out.  It is obvious then that it was intended to describe Lieutenant Governor Arthur as a tyrant.  And a tyrant he would have been, if he had thought proper to have on that occasion sent to the Barracks, and ordered a body of soldiers to have taken away the Defendant and his press!  Then I admit he would have been a tyrant.  But how does he act?  He does not even then put a stop to this Paper; he allows it to continue.  Now looking at the Lieutenant Governor's conduct on this occasion, he shews the very opposite to any thing like a tyrannical disposition.  But who is the individual who is thus accused of tyranny.  The Representative of his Sovereign, from whom must emanate here all power and authority.  I say, Gentlemen, that to accuse an officer of his high rank with tyranny and oppression, is a gross and wicked Libel.  I am desirous of reading a case here, which of all those which I could find in the books, is the most liberal, and carries the right of public discussion farther than any other: this is the case of the King v. Lambert and Perry, the Editors of the Morning Chronicle, for a Libel, 2d Campbell, 398.  [This quotation was the charge of Lord Ellenborough, who stated to the Jury, that every man had a right freely to discuss public men and public measures; but if in so doing, the fair and proper limits of political discussion were exceeded, then the so doing became libellous.]  Thus, Gentlemen, you see, that public men are in a certain degree public property; but in proportion as in discussing them, the fair and just boundaries of examination are exceeded, then the Liberty of the Press, instead of being a blessing, becomes a curse, and a pest to society!  Is the article before you any thing like free and fair discussion! Is not the parallel drawn between the Governor in Chief and the Lieutenant Governor, a most outrageous attack upon His Honor.  [The Learned Gentleman here repeated his former observations as to the meaning and intent of the article, which he again stated the Jury were to decide upon, according to the obvious interpretation which it bore.]

``I now, Gentlemen, shall proceed to the second Libel, in which it is stated, that Lieut. Governor Arthur has ever exhibited a tyrannical disposition since his return from Honduras.  In fairness to the Defendant, I shall read the whole article.  I do this, because, as he has not the advantage of professional assistance, I am disposed to shew  him every fairness.  I understand it is his intention to put in a long written defence; the nature of which, of course, I cannot anticipate.  [The Learned Attorney-General here read the article, which we have before inserted.]  Gentlemen, I should wish to put to you one question:  From what motive can you believe, that Mr. Bent published the report of this trial, with preliminary observations such as these? can you imagine for one moment, that the real meaning of the Defendant was to give a vindication of Colonel Arthur?  Is not it rather his palpable intention to impute to him the most tyrannical conduct, on the occasion mentioned? to give forth to the world, that this Gentleman, Colonel Bradley, had been extra-martially incarcerated, and expelled from the Army, through the acts of Colonel Arthur. - The article which I have before commented upon, accused the Lieutenant Governor of acts of tyranny, against the outraged weak one; and now again he accuses him of bringing upon Colonel Bradley extra-martial incarceration, and expulsion from the Army.  If he had meant to have drawn the attention of the public fairly to this trial, why introduce it with all these comments?  If his attention had been to do this fairly, he would not have made use of the offensive epithets which he inserts. - What therefore can be the motives for the intention of these articles, but to bring the Lieut. Governor into hatred and contempt?  I might perhaps add, that there is an intention to create a coolness between His Honor and the Officers of this Garrison.  But this subject it would not be perhaps proper that I should go into."

After the Attorney-General had impressed his observations upon the Court at great length, and with the utmost force and ability, he concluded by stating, that he should proceed to establish the case he had laid before them by the proper evidence, and he had no doubt the Jury would do justice to the feelings of His Honor, outraged as they were on this occasion.

The Solicitor-General put in admissions of the Defendant, that he was the Proprietor, Printer, and Publisher of the Hobart Town Gazette, and had been so from its establishment, and other admissions of minor importance.

Mr. Evan Henry Thomas. - (Examined by the Solicitor-General.)  -  I became Editor of theHobart Town Gazette in June, 1824.  I have heard the Defendant speak of his property in that Paper, almost daily from that time until my departure for Sydney.  He claimed the Proprietorship in a very decided tone.  He stated, that he made that claim to the Lieut. Governor.  I was appointed Editor by Mr. Bent.  He stated he had a right to do so. - He said the Lieut. Governor resisted his claim to the Proprietorship of the Gazette.  I think I have heard him say, that he considered the Proprietorship of the Gazette to be in him, and that he had a right to appoint an Editor.  I was instructed by Mr. Bent to convey certain documents, in support of his title to the Proprietorship of the Hobart Town Gazette, to Sir Thomas Brisbane, at Sydney.  I went there accordingly, and submitted them to His Excellency.  The person named in the article as having so done, alludes to me.  Sir Thomas took two days to consider of my application; and he then decided in favour of the claims of Mr. Bent, to the full Proprietorship of the Hobart Town Gazette.  I only shewed him the documents which Mr. Bent furnished me with.

Major Lord. - I was Major of the 2d West India Regiment.  I was stationed at Honduras from 1816 to 1821.  Honduras is a Dependency of Jamaica.  Colonel Bradley superseded me in the command.  Colonel Arthur was Commander in Chief .  There arose a question between the then Major Bradley, and the then Major Arthur, as to the right of command, in consequence of Major Arthur being placed on half-pay.  The result was, Major Bradley was placed in arrest.  He was dismissed from the service some months after his promotion to the rank of Lieutenant Colonel.  I quitted Honduras in July, 1821.  I was at the trial in Guildhall, London, in last year, brought by Colonel Bradley against Colonel Arthur.  It was for the trespass and false imprisonment, arising out of the circumstance of his long arrest.  I mean the period under which he was in arrest after he attempted to wrest the command from the Commandant. - I was present when the action was tried.  Mr. Brougham, for the Plaintiff, described the action as for assault and false imprisonment.  The Plaintiff expected liberal damages would be given him.  I have not read the article in the Hobart Town Gazette, of the month of October.  I have read that of February last.  Colonel Arthur there referred to, and the Lieutenant Governor, are one and the same person.  Colonel Bradley was in arrest eleven months.  The result of the trial at Guildhall was 50 or £100 - some trifling sum.  I had ununderstood that Colonel Bradley was dismissed the service for writing an offensive letter to Sir Herbert Taylor, Military Secretary to the Duke of York, arising out of the arrest at Honduras.

Captain Cotton. - I was in the Colony in October last.  I have lately read the article in theHobart Town Gazette  of the 8th of Oct. - I understand the meaning of the words ``the Gideonite of tyranny," to apply to the Lieut. Governor.

This was the case for the Prosecution.

The Defendant put in the following written defence:--

``May it please Your Honor, and you Gentlemen of the Jury,

``In defending my self upon the present occasion, I have decided upon adopting a course, which, under the peculiar circumstances, in which I am placed, I find perhaps the only one left open to me.  I shall therefore occupy but little of your time.  It is known to your Honor, and to you Gentlemen, that I am the Printer and Proprietor of the Hobart Town Gazette.  I am a plain man, accustomed from my infancy to the active duties of my business; and to those duties I have generally confined myself in the conduct of my Newspaper.  The Literary part of it I have always left to others. - The articles now before you, charged as Libels, were printed and published by me, and nothing more: they were not written by me.  In this Colony, the Law of Libel, (which even in England is so extremely complicated), is but little understood. - I believed that by employing a person who was considered competent to perform the literary duties of my business, I could confide safely in his discretion that nothing should be inserted out of the fair and legitimate limits of political discussion; and I felt additionally secure, because I had ever believed, and had indeed known, that in England the giving up the Author of any objectionable matter, is generally sufficient to hear the mere Printer harmless; and with this impression upon my mind, I never inserted any single article, the Author of which I could not at once give up.  I beg leave now to submit to your Honor, and to you Gentlemen, that so soon as I received information that the present prosecution was in contemplation, I addressed a respectful letter to the Attorney-General, in which I expressly stated my willingness and desire to give up the Authors of the objectionable matter.  It is with serious regret I have to add, that this offer was rejected.  It is unnecessary to explain to you Honor, and to you Gentlemen, the motives by which I have been induced not to avail myself of professional assistance on the present occasion: principally it has been, because I am perfectly satisfied that whatever construction the Law Officers of the Government may think proper to put upon the articles before you, that they will nevertheless receive a fair and liberal interpretration from the Court; and the best assistance within my reach could obtain no more.  I never had the remotest intention of printing a Libel; and I earnestly entreat of you to believe me, that if I had imagined that any part of the subject matter which has occasioned the present Information, could bear even such a construction, I never would have suffered it to go forth from my press - I shall not trouble your Honor, nor you Gentlemen, with any further remarks, I shall not attempt to enter into a vindication of the matter charged as libellous, because I disclaim any participation in its production, beyond the mere mechanical part of the operation of printing.  I have offered to give up the Authors.  I should only prejudice them by any feeble attempts on my part to vindicate what I am bound to believe they could do.  - Feeling, as I must, that they never would have consciously written Libels, when they could not but have known, that the so doing would have subjected them to prosecution, I have earnestly to entreat therefore that your Honor and you Gentlemen of the Jury, will afford me your favourable consideration, under the peculiar circumstances in which I am placed, and I therefore confidently leave myself in your hands."

A. F. Kemp, Esq. - I have read the article of the 8th Oct. I do not understand to whom the expression, the Gideonite of tyranny, applies.  I think the whole artricle is absolute nonsense; I cannot understand it to mean any thing.  If it said Caligula of tyranny, I should know what it meant.  I have no property in the Hobart Town Gazette.

G. Meredith, Esq. - I have read the article of the 8th of October.  Until my attention was called to it by these proceedings, I did not understand that it applied to the Lieutenant Governor.  I now consider that it does apply to him.

T. G. Gregson, Esq. J. P. - I have read the article of the 8th October, On reading it now with attention, I consider that it applies to the Lieutenant Governor.

This was the Defendant's case.

The Attorney-General rose to reply.  I consider that it would be an insult to you, Gentlemen of the Jury, if I said one word more on the subject of the present Libels, which I have now brought under your consideration.  That they apply to the Lieutenant Governor is proved by the Defendant's own witnesses.  I shall only say, that if the Lieutenant Governor is to be called a tyrant with impunity, there is an end of our liberties.

The Chief Justice Pedder charged the Jury at considerable length; but our limits will only permit us to insert the leading features, although we have an accurate report of the whole trial.  After the Learned Judge had recapitulated the nature of the Information, the various counts it contained, and their various applications, and after some preliminary observations, His Honor stated, that he should probably have gone much more fully into the case, but that it had been so ably treated by the Attorney-General, that he considered it wholly unnecessary.  If a person fairly and temperately discusses public measures, he is entitled by the Law so to do.  But if under cover of this, he imputes wicked, or malicious, or tyrannical motives, to an officer of such high rank as His Honor the Lieutenant Governor, it becomes a Libel.  I really fear that I am weakening the streng[t]h of the arguments so ably laid before you by the Attorney-General; I shall only therefore say, that I most fully and entirely acquiesce in them; and I shall merely therefere endeavour to recall them to your recollection.  [His Honor here read to the Jury the articles charged in the Information as Libels.]  Now, Gentlemen, it is for you to judge whether these articles do apply to the Lieutenant Governor.  On looking at them carefully, you will put on them the plain interpretation which the English language bears, without straining them, either one way or the other.  You have had the evidence of Captain Cotton and other Gentlemen, to shew to whom they apply - the real question is to whom do they apply.  You can only ascertain this by the evidence of persons brought before you for that purpose, and this you have had, and thencefrom you must come to your judgment.  In regard to the second Libel, as far as regards the Law of the case, it is quite clear that if you believe that this article was published with the intent to make it appear that Colonel Arthur had acted in a tyrannical and oppressive manner, without straining the words in one sense or another, If you really do believe that the expressions themselves were meant to shew the conduct of Lieutenant Governor Arthur in this view, as a specimen of what was to be expected from him in his Government here, you must certainly find the Defendant guilty.  You have heard the observations of the Attorney-General, as to where libellous matter is attempted to be hidden under cover of praise, and therefore you are to judge from the way in which it is introduced, whether it was the purpose of the Defendant to hold out the Lieutenant Governor to public obloquy; because it is a monstrous idea that a Court should not understand what all the rest of the world out of Court fully comprehend.  If the words are put ironically, the effect is the same.  You must not suffer your minds to be blinded by the mere manner in which words are put in grammatical order.  With these remarks I shall leave the case in your hands.

The Jury found the Defendant Guilty, without specifying on what counts of the Information they returned their Verdict.

Pedder C.J., 6 and 14 December 1825

Source: Colonial Times, 16 December 1825

The Attorney-General prayed the judgment of the Court upon Mr. Bent, upon the first prosecution for Libel; a full report of which will be found in this Journal of the 29th August. [5]

Mr. Solicitor Ross moved an arrest of judgment, upon the grounds, that, nothwithstanding there had been no evidence whatever produced of composing, the Jury had returned a verdict generally - Guilty of composing, printing, and publishing - a verdict, as Mr. Ross contended, contrary to the evidence, and which could not be supported.

Mr. Stephen stated, that he would be prepared to furnish affidavits, upon which to submit a motion to the Court, that the entry of the verdict by the Clerk of the Court should be amended, by altering it from a general verdict of guilty, to a more particular one of guilty of printing and publishing.  The further consideration of Mr. Ross's motion was deferred accordingly until Friday, when the Attorney-General moved that the verdict should be amended as above stated.  He moved this upon two affidavits; the first of Mr. Stephen, in which it was sworn, that Mr. Stephen was Counsel and Solicitor in the prosecution before the Court; that on the trial, His Honor the Chief Justice had charged the Jury, that there was no evidence of composing, and that their verdict must be accordingly; that he had applied to every one of the Gentlemen of the Jury, for information as to what verdict they meant to deliver, but that each of the Gentlemen had refused to give him any information whatever on the subject.  The second affidavit was that of Mr. James Ross, (one of the conductors of the Government Gazette), who swore, that he attended to report the proceedings on the trial of this information; that Mr. Murray or Mr. Bent then took the objection now made, and that His Honor the Chief Justice charged the Jury, as stated in Mr. Stephen's affidavit.  Upon these affidavits the Attorney-General applied for a Rule to shew cause why the entry of the verdict should not be amended accordingly.

His Honor the Chief Justice observed, that he should not ask the Attorney-General to state how he expected to succeed in his application upon the present affidavits.  His Honor animadverted on the delay of the defendant in moving to arrest this judgment six months after it had passed, notwithstanding the objection now taken had been made on the trial, and in the report thereof published by the defendant himself. - Rule granted.

Wednesday, December 14.

Mr. Solicitor Ross proceeded to shew cause against the Rule obtained as above.  He stated, in reference to the delay which had occurred in making the application to set aside the verdict, that, in a conversation with Mr. Stephen, that Gentleman had expressly stated, that Mr. Bent would not be brought up for judgment.  But that at all events the charge of delay applied equally to the Crown Officers, who, as it appeared by their own affidavits, were perfectly aware of the objection that would be taken by the defendant, and yet now after a lapse of nearly six months came with a motion to amend.  Mr. Ross commented upon the affidavits of Mr. Stephen and Dr. Ross, and when remarking upon Mr. Stephen's application to the Jury, His Honor the Chief Justice Pedder referred him to the case of Woodfall, in which a Juror had made an affidavit, and in which case the principle was admitted, that Jurors could do so upon matter of fact, although not upon matter of explanation or intention.  Mr. Ross continued to argue, that upon the very affidavits of the Crown Officers, it was clearly shewn that although there was no evidence whatever of composing, yet a general verdict had been delivered, of guilty of composing, printing, and publishing.  It was the duty of the Crown Officers to have remedied any error which might have been made; the more so as Mr. Stephen swears, that he was present during the whole of the trial, and after so long a lapse of time as six months they come with their present motion.  Mr. Ross here submitted to the Court several cases, which he contended shewed that the present application could not be supported.  The affidavits of Mr. Stephen and Dr. Ross go only to the points which are distinctly admitted; that is to say, that there was no evidence to warrant a general verdict, and yet that such was recorded.  They did not attempt to swear, that the verdict of the Jury was a different one, and that it had been improperly taken down.  This Mr. Ross contended was the whole compass of the case; that the verdict was contrary to the evidence, and could not be supported.  Mr. Ross argued at considerable length, and adduced many authorities in support of his position, and concluded by expressing his hope that the Court would decide that no grounds whatever had been shewn for the application.

The Attorney-General replied. - He stated, that the only point was as to whether the verdict was properly recorded.  If it was not, he conceived it would not be contended that the Court had not the power to amend.  It was quite clear that the Jury never had the question of composing left to them; they had returned their verdict upon all which had been left for their consideration; and it must be understood that they intended to find the defendant guilty of printing and publishing alone, and that of course the only error was in the minuting the verdict.

The Chief Justice. - Would not your argument go the length, that in no case a verdict could be given against evidence?

The Attorney-General. - I submit there is no evidence at all, not only not proved, but also not attempted to be proved.  It is impossible to suppose, that they could take into their consideration any fact as to which no evidence whatever was even offered.

The Chief Justice. - But suppose a Jury was to return a verdict of guilty even where there was no evidence, and that after being sent back, they were still so obstinate as to persist in doing so?

The Attorney-General. - Then I submit it must be received, but in this case nothing of the sort is before the Court.  It is sworn by Mr. Stephen, that your Honor expressly drew the attention of the Jury to the fact of there being no evidence of composing.  But why did not the defendant see that the verdict was correctly recorded.  It was as much his fault as that of the Crown Officers that it was not done.  The material point certainly is, what was the charge to the Jury, and what was their verdict upon it.  I see nothing whatever to shew that they did not in fact return a verdict of guilty of printing and publishing, as directed in the charge; and I submit that I have shewn sufficient ground to induce your Honor to permit the minute to be corrected, and that instead of a general verdict of guilty, it may be recorded guilty of printing and publishing only.

The Chief Justice. - It appears to me that the whole difficulty in this case is upon what species of evidence to rely, in order to ascertain what was the verdict of the Jury.  The doubt I entertain is, as to what the Jury really meant.  [His Honor here drew a comparison between the verdict in this case and that of one given in a case of burglary, where that crime was not proved but the larceny was, and a general verdict of guilty delivered; and also in a case of murder, where it is open to the Jury to return a verdict of manslaughter, if they consider the greater crime not proved.]  The question is, what is the defendant legally found guilty of, and what evidence is there to shew this.  If the broad principle urged by the Attorney-General was admitted, we should never hear of applications to set aside verdict at all, because nothing more would be necessary, than to correct the verdict according to the circumstances after it was given.  I cannot make up my mind that it would be safe to rely upon such evidence as is contained in the affidavits before me, to decide upon what was the intention of the Jury, and I have no precedent shewn me of any alteration ever having been made in the entry of a verdict upon such evidence as this.  Suppose the Clerk of the Court had thought proper to exercise his own intellect, and to have entered the verdict upon such counts as the evidence went to, and that a motion had been made by the Crown Officers to alter that verdict to the terms delivered by the Jury, of generally guilty upon the whole, could such a motion have been made? and if so, how would it have been met?  It would have been then said, the Jury had in fact only those points before them, and therefore they only could have intended to have delivered their verdict accordingly.  In the case of Woodfall, which I before mentioned, who was tried upon an Information for printing and publishing a Libel in thePublic Advertiser, the introductory parts were in the usual form, charging malice and evil intention.  The Jury found him guilty of printing and publishing only.  A motion was made upon this verdict in arrest of judgment, that such was virtually an acquittal.  This was met was a motion to omit the word, only, as being surplusage.  An affidavit of one of the Jurymen was tendered, who swore that he intended to acquit the defendant of malice.  Lord Mansfield, of whom it will never be said, that he was inattentive to the interests of the Crown, was so little satisfied, where a doubt even so trifling a one as this existed, that he thought proper to send the case back to another Jury; where there was any possible doubt even such as this appears to have been, yet Lord Mansfield chose to give the defendant the benefit of it.  In the present case, as there is no evidence before the Court to satisfy my mind upon the doubt which I cannot but consider to exist, I shall adopt the same principle. - The present Rule must therefore be refused.

Mr. Stephen instantly gave notice to the defendant of his intention to proceed to a new trial, and even mentioned this day for the same.  We make no comment.

Notes

[1] There were two newspapers called the Hobart Town Gazette at this time (see EM Miller,Pressmen and Governors: Australian Editors and Writers in Early Tasmania, Sydney University Press, Sydney, 1975, at 177).  This one became the Colonial Times later in 1825.

[2] See also Hobart Town Gazette, 30 July 1825.

For an editorial on this verdict, see Hobart Town Gazette, 29 July 1825. (This refers to theHobart Town Gazette that later became the Colonial Times.)

[3] For Bent see E.R. Pretyman, `Andrew Bent (1790-1851)', Australian Dictionary of Biography, vol. 1, pp. 86-7; J. Woodberry, Andrew Bent and the Freedom of the Press in Van Diemen's Land, Hobart: Fullers Bookshop, 1972; C.I. Clark, The Supreme Court of Tasmania: Its First Century, Hobart: University of Tasmania Law Press, 1995, pp. 46-51.

[4] For the Bradley case, see A.G.L. Shaw, Sir George Arthur, Bart 1784-1854, Carlton: Melbourne University Press, 1980, pp. 45-8, 58-9.

[5] This must refer to the Hobart Town Gazette that later became the Colonial Times, dated 29 July 1825, not 29 August.

Published by the Division of Law, Macquarie University and the School of History and Classics, University of Tasmania