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Decisions of the Nineteenth Century Tasmanian Superior Courts

R. v. Bent [1826]

criminal libel - Lieutenant Governor Arthur, libel of - press, monopoly of - press, whether official or not - arrest of judgment - law reporting - reception of English law, libel

Supreme Court of Van Diemen's Land

Pedder C.J., 15 April 1826

Source: Colonial Times, 21 April 1826 [1]

This was an Information, filed ex-officio by the Attorney-General against Mr. Andrew Bent, for libel.  This was the second trial, the former one having been vitiated in consequence of irregularity in receiving the verdict.  Mr. Stephen, the Solicitor-General and Crown Solicitor, opened the pleadings.  The Information consisted of several counts; the first three of which were as to an article inserted in this Journal on the 8th of October, 1824, respecting Colonel Arthur, and Mr. Bent, as to the Proprietorship of this Journal, then called the Hobart Town Gazette; the other counts were as to an article inserted on the 5th of February following, respecting the trial of Colonel Bradley and Colonel Arthur at Honduras.

The acting Attorney-General Hone addressed the Court nearly as follows: -- I do entreat most earnestly, that neither this case, nor any other, as affecting the defendant, which may have been brought before this Court, may remain in your recollection.  If, Gentlemen, the conduct of the defendant, in the management of his Paper, had been such as to induce the Government to believe that he felt regret for what he had done, I have reason to conclude that I should not have appeared before you this day.  But the conduct of his Paper has been such that Mr. Bent's sentiments have appeared unaltered up to the late period during which he continued to be the printer and Publisher.  In reference to the first libel, you will have seen that Mr. Bent had claimed to be entitled to the Proprietorship of the Hobart Town Gazette; and that he had stated that claim to the Lieutenant Governor, who, for reasons which he gave the defendant, claimed the Paper to be the property of the Government.  With this decision, Mr. Bent felt dissatisfied, and, in consequence, dispatched Mr. Evan Henry Thomas to Sydney, for the purpose of stating his case to the Governor, Sir Thomas Brisbane, and obtaining his decision thereon.  Mr. Thomas did so proceed; and the decision of the Governor-in-Chief was in favour of Mr. Bent, who considered his claim to the Proprietorship to be thereby established.  On Mr. Thomas's return, this circumstance was announced to the Public, in the article which forms the subject-matter of the first counts of this Information.  [Mr. Hone here read the article of the 8th of October, and which is so fully in the recollection of our Readers, we do not think it necessary to repeat it.]  Now, Gentlemen, it is by no means necessary that any individual libelled should be expressly named.  It is quite enough if the reference is understood.  [Mr. Hone here again read the article, commenting upon it as he proceeded.]  There are many persons here holding high offices, who are desirous of doing their duty with honour and f[i]delity, accuracy and justice; but if such are to be attacked whenever it may be considered by the writer of a Newspaper that their conduct does not suit his ideas, what must be the result?  I will read you, Gentlemen, an extract from a very high authority upon this subject.  [Mr. Hone here read several cases of libel, from different authorities.]  Gentlemen, if we permit our intellects to be so heated, and our passions so excited, as to cause us to put forth violent attacks such as these before you, I say we become worse than useless members of society.  For our intellects cannot be applied to a more base use than that of maligning a high Public Officer, and bringing him into disrepute.  Now, Gentlemen, be assured, that, if I could have persuaded myself, that the defendant had no intention to bring Lieutenant Governor Arthur into contempt, I should not be the man to speak thus warmly about it.  But, Gentlemen, you will perhaps say, that the Lieutenant Governor held a remedy in his own hands; that this Newspaper, being published by authority, and bearing the official notification of the Secretary, that the Lieutenant Governor could have controuled it.  Unfortunately, such was not the case.  If it had, can it be supposed, that Lieutenant Governor Arthur would have suffered such articles as these to have been inserted.  But he had no means of preventing it.  The Press, the only one then in the island, was Mr. Bent's.  The type also; over these the Lieutenant Governor had no controul.  There was no other vehicle in the island, in which to insert the Government Notices and Orders.  If he had had any controul whatever over this Paper, of course he would not have suffered such articles as these to have gone forth.  The Press is an all-powerful engine.  It is one of the greatest blessings to man, when applied to useful purposes.  What a comfort it would be if a Paper could be produced, which would be satisfactory to ourselves and families.  But if we are to be inundated, week after week, with personal attacks, with nothing but what deserves execration from all good men, what a wretched situation are we in, so long as such a state of things continue.  I do not mean to say, that a Newspaper may not discuss fairly, public men and public measures, but then it must be temperately and with respect.  I do not mean fulsome adulation.  I would not have a man unman himself - I would not have a man fail to speak what he thinks of public men and public measures.  But let him do so, recollecting that they are flesh and blood as well as himself.  Although it may be possible that he may differ in opinion, let him do so moderately and temperately.  [Mr. Hone here read the second article, which he commented upon at considerable length.]  Gentlemen, I shall trouble you with little more.  You must perceive that the effects of these writings are calculated to do the greatest injury.  When the first man in the land is thus spoken of, is it not apparent that the object is to bring him into contempt, and divide him from the people, who will have deep cause to regret that they are so divided.  I have not the slightest enmity towards Mr. Bent - I have no personal feeling.  But I stand here to support the Government, and by so doing, the people; for language such as that before us, is obviously calculated to detach the people from the Government. - Gentlemen, you must recollect, that there are a great number of our fellow flesh and blood sent here as prisoners.  What must not be the natural consequences, when this description of people are told that the Governor is as he is here described to be.  But how much more must free people feel this, to whom the prisoners look for example and protection.  If these are to be levelled, how much the hands of the Government be weakened; which has the good of all in view, and will do its utmost to protect those of the bond who are placed under its controul.  Gentlemen, I have only now to say to you, that, if you believe the articles before you, are written with the construction put upon them in the Information, it will be your bounden duty to find the defendant guilty.  If, on the other hand, you entertain the smallest doubt, I pray you to let the defendant have the benefit of it.

Mr. E. H. Thomas. - I reside in Hobart Town.  I have known Mr. Bent since 1822.  I was the Editor of the Hobart Town Gazette in June, 1824.  I was appointed by Mr. Bent.  I continued so until the establishment of the Government Gazette.  I was so in October, 1824, also in February, 1825.  Mr. Bent was Printer and Publisher.  Mr. Bent claimed to be Proprietor during the time I was Editor. I penned nearly all the articles for that Paper.  The articles I wrote were uniformly by his direction, and by his controul.  I was subservient to him.  He uniformly exercised the privllegs of rejecting or altering any article I wrote.  There was during part of the time another Paper.  There was none in October, 1824.  In February, 1825, the Tasmanian was printed at Launceston.  I should know the Papers printed by Mr. Bent if I saw them.  They were printed weekly.  I always saw them while they were being printed.  I never knew Mr. Bent to omit assisting in the printing for any week as compositor.  I should know the sort of type he had.  I could identify any of the Papers published while I was Editor.  I could do so by the Coat of Arms, also by some little ornaments and peculiarities.  I swear positively that this Paper (October 8 1824, produced), was printed by Mr. Bent, and in his office. [Imprint read.]  Witness then repeated the same statements as to the Paper of Friday, February 11, 1825.]  I know that the impression amounted to many hundreds, but how many I do not know, nor how many were sold.  The Paper before me is addressed to a Mr. Gill; it is in the hand-writing of Mr. Bent.  I have had much conversation with him as to these two Papers.  I went to Sydney a few weeks after I was appointed Editor, at the instance of Mr. Bent.  The object was to obtain from Sir Thomas Brisbane a confirmation of what Mr. Bent deemed to be his title to the Hobart Town Gazette, and which title, as Mr. Bent represented to me, had been opposed by Lieutenant Governor Arthur.  I saw Sir Thomas Brisbane; I submitted to him a Power of Attorney from Mr. Bent, authorising me to represent him, and several affidavits and documents upholding Mr. Bent's title to the Paper; on perusal of which, Sir Thomas expressed himself decidedly in favour of Mr. Bent's claim.  On my return, early in October, I communicated the result of my journey to Mr. Bent.  He claimed to be entitled solely as Proprietor of the Hobart Town Gazette.

Cross-examined. - I commenced my Editorial duties about June, 1824; not many weeks after I had so commenced, I went up to Sydney in the Phoenix.  I received a salary for assisting in the Editorship of the Paper.  I was not sole Editor.  The duties of an Editor are to digest the matter.  It is the duty of an Editor to write the leading articles.  The commercial part of the Paper I left to the mechanics.  Original Communications fall to the duty of the Editor to receive.  All the other part of the Paper, except the commercial, ought to be under the controul of the Editor.  I went to Sydney in July and returned in October.  I continued to assist, not as Editor, but in the Editorship of the Paper, up to the establishment of the Government Gazette.  I have seen Mr. Bent write several leading articles which were inserted in the Gazette.  [Mr. Thomas pointed out two articles which were as to robberies.]  I saw the article of the 8th of October before it was published.  I assisted to correct the press, I believe I did.  The manuscript is in my hand-writing; the manuscript produced is i[t].  There are some scores; they are from Mr. Bent to the compositor to put the words in italics.  I swear they were done by Mr. Bent.  The mark under [laus] Deo was put by me; Amicus humani generis also by me.  Mr. Bent never would publish any Latin words, unless he understood, or said he understood, them.  I never did say Mr. Bent found fault with me for writing so much about politics.  I have heard Mr. Meredith and others describe what I have written as jargon and nonsense.  I never was told that a person ought to carry a dictionary in his pocket when he read my articles.  Mr. Bent is not an illiterate man.  He can read, write, and criticise the articles published in England.  I was merely a vehicle for putting his ideas into language.  The style devolved on me.  The words, Gideonite of tyranny, were in the manuscript; the word Gideonite is a compound word.  Mr. Bent did not compound it.  We sat over this article three or four hours, and after much alteration it was settled as it now stands.  I did not conceive that any portion of it was libellous; I gave no caution to Mr. Bent, because I considered none such requisite.  Mr. Bent heard that it was considered libellous, and he wrote an ameliorating article next week.  I wrote it, subject to Mr. Bent's direction and perusal.  I never was connected with a printing establishment before or since, nor with a Newspaper.  I never saw any metal Coats of Arms until at Mr. Bent's.  It is impossible for me to describe the nice touches by which I can ascertain the contour of the lion, or the delineations of the unicorn; but there is as much difference between the finest work of a Rubens, and the miserable rubbish of a da[u]ber[y].  Lead is more ductile than brass, and I can swear positively to that ornament, from an injury it has received.  I left Mr. Bent in July, 1825.  I will not answer, whether I did not write a long article against the persons who assumed the title of the Hobart Town Gazette for the Government.  I have written a political article, which Mr. Bent refused insertion; I cannot say when; he occasionally objected to particular parts which he wished to alter, but sometimes when articles have been printed, I have not known my own offspring. - Once or twice he refused to insert an entire article.  I believe he had taken a professional opinion upon it, and it was considered dangerous.  It was first put in type exactly as I wrote it; I was astonished that the proof was not sent to me.  I went to the office, and I found it so altered, that I was electrified.  I cannot say any more, because it is driving me to a pinacle, from which I must leap into a gulph of danger, if I reply.  I found the proof so altered, that it was like a subject in a dissecting room.  When I found this, and that the article had been so mangled without consulting me, I became so indignant, that I left the office.  I then resigned the Editorship.  [A paper was put into Mr. Thomas's hand, and he was asked whether it was the proof of the article of which he had spoken - Mr. Thomas refused to answer.  He was then asked, is not that a proof?  He refused to answer.  He was then asked, in whose hand-writing are the marks in the margin?  He refused to answer.]  I inserted an advertisement in the paper published by Messrs. Ross and Howe, when I quitted the Editorship of Mr. Bent's Paper.  I recollect I therein disclaimed having sanctioned an article which had appeared in Mr. Bent's preceding Paper.  I resigned all Editorial responsibility, and there my labours ceased.  My advertisement appeared on Saturday, as to Mr. Bent's Paper the day before.

Re-examined. - There were several proofs.  Mr. Bent did not espouse some of my ideas.  I do not entertain the slightest doubt that the Paper produced is one of them published by Mr. Bent.  [The paper charged to be libels were then read.]

Mr. G. Robertson. - I had some conversation with Mr. Bent.  He said an Opposition Paper was calculated to do good, so long as it was respectful.  But I said, that the Paper was now so conducted, that I thought it soon would be put down.  I said, I thought the expression, ``Gideonite of tyranny," was a most offensive expression as applied to the Lieutenant Governor.  He said, he had been ill used by the Lieutenant Governor, who had attempted to wrest the property of Paper from him.

T. G. Gregson, Esq. - I am a Magistrate I have heard the article of the 8th of October read.  I must repeat what I before said, that having had my attention drawn to the subject, I consider it applies to Lieutenant Governor Arthur.  I have had my attention drawn to it by this investigation.  I do not remember to have marked the article particularly.  I was not in the habit of reading Mr. E. H. Thomas's articles with attention.  I took the Paper in.  My attention was directed to it in consequence of Mr. Bent's former trial; I then read it in the witness box.  I observed the peculiar style of Mr. E. H. Thomas.  I did not consider it to bear that applicability until my attention was drawn to it; but if I had read it with attention, I should have understood to whom it alluded.  The style is such, that I should have attributed it to the brainless drivellings of a poetical imagination.  I have no hesitation to say, that a person of ordinary education could not understand it from beginning to end.

G. Meredith, Esq. - I have heard the article of the 8th of October read.  I understand it to apply to Lieutenant Governor Arthur.  I think I read it about a month or six weeks after it was published.  It made no impression upon my mind, except that of a person complaining of a Governor in a most unintelligible manner.  I mean reading it cursorarily.  I considered it a jumble of nonsense from beginning to end.  I am certain that an ordinary man could not understand one syllable of the article.  If Mr. Bent had taken a dictionary and cut out the hard words, it would have saved all the trouble.  I conceive the article is altogether unintelligible; but the expression ``Gideonite of tyranny," would be intelligible to any man who could read and reason.

T. D. Lord, Esq. - I am a Magistrate, and Commandant of Maria Island.  I was at Honduras; I knew Colonel Arthur there for five years and upwards.  I knew Colonel Bradley.  Colonel Arthur was Superintendant and Commandant of the troops at that Settlement.  Colonel Bradley commanded a detachment of the 2nd West India Regiment.  Colonel Arthur was superior Officer.  Colonel Arthur had authority over Colonel Bradley.  A question arose about the command of the Garrison.  It terminated in Colonel Bradley being put in arrest by Colonel Arthur.  Colonel Bradley was removed from the service, and left Honduras two or three months before I did.  He was removed in consequence of a letter he wrote to the Duke of York.  I was present when a cause was tried in England between Colonel Bradley and Colonel Arthur.  I think it was in July 1824.  It was for trespass and false imprisonment.  It was about the affair at Honduras.  Colonel Bradley obtained £100 damages.  I have read the article in the Hobart Town Gazette.  The report of the trial is accurate; I was present.  Mr. Brougham was Counsel for Colonel Bradley.  I considered the article generally to apply to Colonel Arthur.

Cross-examined. - I read the Editorial article as to the circumstances at Honduras.  It was a matter of doubt, whether Colonel Arthur was right or Colonel Bradley was right; it stood over for some months.  The leading parts of the case were truly detailed in the report of the trial in the Hobart Town Gazette. 

Mr. Attorney-General Hone then put in a letter from Mr. Bent to Mr. Stephen, admitting that he had been the printer and publisher of the Hobart Town Gazette since its establishment.

Mr. Gellibrand admitted the hand-writing, but objected to its reception; upon the ground that it was a letter written to Mr. Stephen upon the former occasion.  That Mr. Stephen had made a fresh application to Mr. Ross (Mr. Bent's Solicitor), for a renewal of these admissions, but which Mr. Ross had expressly refused.  That, in consequence of which, all the printers at the office had been subpoenad to prove the publishing, and that now an admission was put in, not made in reference to the trial, and which, if now received, might be held to be evidence against Mr. Bent for ever.

The Court over-ruled the objection.

Mr. Attorney-General Hone. - This is the case for the Crown.

Mr. Solicitor Ross took an objection to the 3d count of the Information; but as the Jury acquitted the defendant thereupon, we do not consider it necessary to report it.  It was however over-ruled by the Chief Justice.

Mr. Gellibrand then rose and addressed the Jury, in a speech of upwards of two hours continuance.  It was perhaps as forcible and impressive as ever was delivered in a Court of Justice.  We lament our limits prevent our giving but a mere outline of it.  Mr. Gellibrand spoke to the following effect: - I rise, said the Learned Gentleman, under considerable difficulties.  I need not say, that in ordinary cases, it is a most arduous task to defend an individual charged with publishing a libel against the Supreme Authority.  In this case, however, I labour under others of a very embarrassing nature, having been before concerned in this case.  But Mr. Bent has thought proper to call upon me for my professional assistance, and it becomes my duty to render him every assistance within the compass of my humble ability.  I trust, I shall do so fearlessly and honestly.  He is charged, Gentlemen, with writing two libels - one, so long back as October, 1824; the other in the February following.  The subject of the one is quite unconnected with that of the other, and I have earnestly to request that you will keep the considerations of them quite distinct in your minds.  I confess, it is with the utmost astonishment, I have heard from the Counsel for the prosecution, that my unfortunate client is brought here to day, not so much in reference to the subject matter immediately before you, as in respect of subsequent conduct, which it appears has been viewed with displeasure.  But very especially, I am astonished to hear it openly avowed, that the prosecution has been held over his head in terrorem!  That it is not for the writings now before you that he is now prosecuted, but for others which are not before you, and as to which, therefore you can form no judgment.  Gentlemen, up to a very short time previous to the publication of the first article, the Hobart Town Gazette was subjected to the censorship of the Government; and Mr. Emmett, a very respectable Gentleman, was the Government Editor.  Mr. Bent, however, considered that the copy-right being his property, the right of appointment to the Editorship was vested in him.  He made an application to the Lieutenant Governor, claiming this right.  It was rejected.  Mr. Bent considered himself aggrieved, and it is in evidence before you, that under these circumstances it was, that he was induced to dispatch that most wonderful Gentleman, Mr. Evan Henry Thomas, to Sydney, as his Plenipotentiary, to submit his case to the consideration of the Governor-in-Chief.  It was, indeed, a great misfortune to my client, that he fell into the hands of this Mr. Thomas.  You must, however, have perceived by his evidence, that Mr. Bent is altogether unable to conduct a Paper, and of course he looked about him for a person who might be qualified for so arduous an undertaking.  I rejoice that Mr. Thomas has been brought before you; because, you can judge tolerably clearly as to him, and as to his evidence.  This person, however, was the Plenipotentiary dispatched by Mr. Bent to represent him with Sir Thomas Brisbane, and to solicit redress for what he considered an attempt to dispossess him of his just rights.  He went; and I have no doubt he displayed to Sir Thomas Brisbane all that astonishing eloquence, of which we have had so extraordinary a specimen.  Mr. Thomas, however, having been furnished with documents which supported his invincible powers, succeeded in his embassy, and returned here flushed with victory.  What is his first proceeding after his arrival?  He sits down, and composes the inexplicable article before you.  He composed it, I say, because he tells you himself that he did so, although I did not put such a question to him.  But he adds, it was under the direction of Mr. Bent.  Now, Gentlemen, I contend that if I give any individual a particular subject to enter upon, that if the language and the expressions in which that subject is put forth are his, if the manner in which that subject is altogether treated is his, that I am not the author of it.  [The Learned Gentleman argued this part at considerable length, and with the greatest ability, but as the Attorney-General Hone gave up that part of the Information, it is unnecessary to report it.]  Gentlemen, this is not a Colony where Mr. Bent could in a moment put away Mr. Thomas, and find a fit and proper person to replace him; that he would have done so, had such been possible, there can be no doubt.  But is it not evident from Mr. Thomas's own evidence, that Mr. Bent had not a will of his own.  He had a weekly task, and that one of a most arduous nature to perform.  He was unequal to it himself.  He knew not where to find an individual who could undertake it.  For what are the facts before you in evidence?  Why, Mr. Bent is dissatisfied with Mr. Thomas's writings.  He consults his legal adviser on a particular article.  He is told that it is libellous.  He pauses as to publishing it.  And what follows?  Why, the very moment that Mr. Bent presumes to take the liberty of thinking for himself, Mr. Thomas flies off.  He says, you have dared to interfere with my beautiful productions!  You have spoiled an article which took me a whole night to bring forth, and you may go, and bed --!  Now, Gentlemen, let us look at the first article in the Information.  [Mr. Gellibrand read it to the Jury, remarking upon particular passages, in a manner which excited the greatest amusement, and discomposed the gravity of the Court.]  Now, Gentlemen, you have heard this article read, and you have seen the crudite author of it Mr. Thomas; you can judge therefore a little about him  You can imagine him returning from his embassy to Sydney, crowned with laurels.  His first step is of course to show to the world what a great and powerful man he was - what high company he had been in - and what astonishing effect his all-powerful eloquence had produced.  You can imagine how Mr. Bent looked when this article was printed.  You can imagine the wonder which it must have excited in his mind!  He must have been absolutely thunderstruck with astonishment and admiration!  If you could have seen him at that moment, you would have witnessed him precisely in that attitude of wonder and awe in which Abel Drugger, in the drama, witnesses the tricks and performances of the Alchymist!  You would have heard him exclaiming in the words of Dominie Sampson, prodigious!  But, Gentlemen, do you suppose that Mr. Bent understood one word of this astonishing performance?  Do you suppose that he comprehended one syllable of it?  It is quite out of the question.  Mr. Thomas told him that this would excite the admiration of the whole Island; he believed him and the article went forth. - Now, Mr. Bent is a plain homely man.  He was told that the triumphant article before you, couched in the inexplicable language which you have heard, was offensive.  He desires Mr. Thomas, in his plain way, to put a plaister upon the wound.  Now, Gentlemen, the Attorney-General considered this as spoken ironically, but it was not so - it was meant sincerely.  He told Mr. Thomas to write an explanation.  Mr. Thomas does so.  I will read it to you.  [Mr. Gellibrand here read the of the 15th October, which convulsed the whole Court with laughter.]  Now Gentlemen, I would ask you, whether when Mr. Bent read that, he was not again thunderstruck, that he was not again full of admiration.  Here was a plaister, he thought, which would cure any wound.  But look at the effect.  Instead of doing what Mr. Bent wished, to publish an apology for any thing which could be considered offensive, this article, according to the idea of a witness (Mr. Gilbert Robertson) made matters worse.  Now, Gentlemen, look at the fact.  Mr. Bent publishes in October, an article which he was told was offensive; he publishes in October, an article which he was told was offensive; he publishes what he considers a plaister.  Months elapse, and no notice is taken of it.  He considers, therefore, that he is in perfect security; nor is it until near a year afterwards, that he awakes to a sense of his situation, by finding that large roll of parchment put upon this table.  Now, Gentlemen, I have to entreat of you to forget any feelings you may have other than as private individuals.  I am sure you will do in this as you do in every other case, cautiously remove from your minds every feeling connected with yourselves as Military men.  And this, I say, in reference to what fell from the Attorney-General, as to the endeavours of Mr. Bent to excite differences between the Lieutenant Governor and the Military.  I lament to have heard this, because, I will shew you that such could not possibly have been the case.  Gentlemen, it appears that on the arrival of the Admiral Cockburn, rumours were in circulation as to the trial between Colonel Bradley and the Lieutenant Governor, of an unfavourable description.  Now, can you believe that it could have been the intention of Mr. Bent to have vilified Colonel Arthur, when he inserts the very trial in which the facts appear.  It is well known, that in this Colony, as in all others, persons generally judge by results.  If rumours had gone abroad that Colonel Bradley had received a verdict of £100 against Colonel Arthur, people might have supposed, if they had not known the facts, that the reports alluded to the oppressive treatment experienced by Colonel Bradley were facts.  And what does Mr. Bent do?  Why, he publishes the trial itself, in which it appears there is not a shadow of pretence for so charging Colonel Arthur.  Now, Gentlemen, I beg leave to state, under the direction of His Honor, that if an illiterate man like Mr. Bent publishes what he does not understand, and which he did not believe to be a libel, that he could not be justly, or wilfully and intentionally publishing a libel.  [Mr. Gellibrand referred to the cases of Woodfall and the Dean of St. Asaph.]  Now, Gentlemen, as to the second Information.  Here are a number of truisms first introduced, and then Mr. Thomas comes to the matter in the high [f]lown language which you heard from him in the box.  [Mr. Gellibrand here read the second article of the 11th February, and commented on it as he proceeded with great force and effect, in order to shew that the intention was not to calumniate Colonel Arthur.]  Now, Gentlemen, how is it possible to distort the publication of the trial into an intention to vilify Colonel Arthur, I am at a loss to understand.  Does not Mr. Bent shew the animus with which the article was intended by him to have been written - which was to shew, that although a verdict had gone against Colonel Arthur, yet that it was [u]pon a mere point of law, and that his character was altogether free from reproach on that subject.  I humbly submit, that before you can find Mr. Bent guilty of printing and publishing, you must be satisfied that he does so maliciously.  Gentlemen, when I see the spirit avowed with which this prosecution is conducted against the defendant, I am convinced you will be surprised to find that he wrote to Mr. Stephen, offering to give up the author of every one of the articles for which he was prosecuted.  And yet, instead of accepting this, we find Mr. Thomas, the author, brought here as a witness, or, to use his own expression, puts Mr. Bent upon a pinnacle to plunge him into the gulph of danger!  Meaning of course the dungeon to which Mr. Bent had been sent, instead of Mr. Thomas.  Gentlemen, is there nothing of malice evident in this?  It is evident that his object is not very friendly to Mr. Bent.  Gentlemen, I asked Mr. Thomas whether he did not correct a proof of an article.  I put it into his hands.  He swore positively he did not.  I did not want him to speak of this with any reference to libel, but to impeach his credit.  Gentlemen, at the present moment the defendant is immured in the gaol, for having trusted to the pen of Mr. Thomas.  As regards the first Information, I must say, that it is a matter of peculiar cruelty to Mr. Bent, to let this Information hang so long over his head.  You know, Gentlemen, that I cannot explain farther; but this I will say, that if the defendant had been prosecuted for the libel at the time it was produced, that he would have been most cautious in his future conduct, and would have instantly dismissed Mr. Thomas.  But here you are in April 1826, trying Mr. Bent, charged with having printed and published an article in October 1824.  I say unequivocally, and I trust you will think so too, that at the time these papers were published, Mr. Bent had not the smallest intention of vilifying His Excellency the Lieutenant Governor. Mr. Bent was driven, as a matter of necessity, to employ one who has appeared against him as a witness, for that very poison which he himself prepared.  Gentlemen, if you should be of opinion that the articles are libellous, and that your are not allowed to look, quo animo, these articles were published, that you will, if you should consider that he has unhappily published these Papers, that you will recommend him to the mercy of the Court.  One very material observation is very important, whether the defendant printed and published these two Papers.  I submit there is no evidence whatever of it.  I am quite satisfied when you come to look at the Papers, that Mr. Thomas's evidence, as to the Unicorn, is not such as to be relied on.

The Chief Justice. - I wish to ask the Counsel for the Crown, whether they consider there is any evidence of composing, or causing it to be composed.

Mr. Attorney-General Hone. - I consider Mr. Thomas's evidence goes to prove that Mr. Bent caused the articles to be composed by him.

The Chief Justice. - I do not find upon my notes, any direct evidence that Mr. Bent instructed him to write these articles.

Mr. Attorney-General Hone. - I have no wish to press that fact against Mr. Bent.

Mr. Gellibrand then declined to call evidence.

Mr. Attorney-General Hone. - Gentlemen of the Jury.  The first point which I shall touch upon in my reply, is that part of the defendant's Counsel's address, in which he expressed his surprise that the defendant is now prosecuted after such a long delay, and with a wife and several small children.  Hateful, indeed, would be the Government which would have recourse to such a measure.  So far from it, that the Government is most mindful of that circumstance, and had the defendant been equally mindful of it, he would have been differently situated.  The conduct of the defendant, in continuing to print and publish a paper ---

Mr. Gellibrand. - I beg to ask your Honor if this is a proper course of reply.

Mr. Attorney-General Hone. - I shall then not continue it.  I shall now go to the point.  I have heard from the Counsel for the defendant, that he has much to complain of, being now charged with writing two libels, the first in October 1824, the second in February 1825, and with their remaining so long unnoticed.  It might have been in the power of one of the Gentlemen to have stated why such took place.  A variety of circumstances have occurred in this Colony to distract the attention of the Government.  I cannot state all the circumstances which have occurred, but they have been the principal means of keeping the Government from presenting this case to your notice.  It would be unjust to some of the first persons in this land if I was to say more.  This case was tried however in July last, and the defendant was found guilty --

Mr. Gellibrand. - Is this fair, in reply?

The Chief Justice. - Why, the Attorney-General, I presume, means it only in explanation of the delay.

Mr. Attorney-General Hone. - I only mean it in that way.  I pledge my honour that it has been presented to you at the first possible opportunity, and if a proper line of conduct had taken place, I should have been the very man to have submitted to the Lieutenant Governor the consideration, whether the present prosecution should go on.  Gentlemen, it was said that the defendant was obliged to retain this very extraordinary man, Mr. Thomas.  Was not there a very short mode of getting rid of him?  Mr. Thomas, be off, your writings are only getting me into difficulties every week.  How is that to be got over?  I may be answered, had he done so, then Mr. Bent's paper must have fallen to the ground!  What if it had?  What would not have Mr. Bent have escaped, if he had turned off this Mr. Thomas, and his paper had become extinct?  He would not have been exposed to his present sufferings, and I should have been spared the mortification I feel in conducting this case, and which I must ever feel in conducting such.  Gentlemen, if Mr. Bent continues to proceed in a course, which, if it is not prevented, I mean by proper and lawful means, must be productive of ruin to all - high and low - rich and poor, he must be the sufferer.  Gentlemen, the Counsel for the defendant, with the greatest talent, which I shall always be happy to hear, because, little did I expect to find such in this Colony, stated that no intention could have existed to excite dissention between the Governor and the Military.  Gentlemen, the line of defence is such as I have endeavoured to adopt when I sat on the other side of the table, for every Advocate does the best he can for his client.  [Mr. Hone here read the article again, in order to shew that its intention was to impugn Colonel Arthur.]  Mr. Bent must have had quite understanding enough to have judged of the papers when he went to his friend to take opinions of them, in order to moderate them, finding them too hot.  Gentlemen, it seems Mr. Bent was formerly the Government Printer, and as such, was the mere machine of Government.  But when he ceased to be such, he looks for a man who could write spiritedly, with as much force as possible, and as little feeling as may be.  Gentlemen, it is asked where the papers come from.  Mr. Thomas swears they were part of the impressions published on the days mentioned.  In my opening address, I read to you certain cases of a similar nature.  I shall now advert to others.  I will ask you, Gentlemen, what would be the result, if there was no punishment for libel.  Governments would be subverted and ruin would ensue.  Private families might be plunged into the utmost distress by foul libel being dispersed against any given individual.  It is most desirable that this should be watched with the utmost care and attention.  Lord Mansfield says, that the licentiousness of the press is Pandora's box.  You will have the goodness to look at these papers, and decide whether they were written with the purpose of putting the Lieutenant Governor's reputation fairly before the Colony.  You will then say, he is not guilty.  But, if the contrary, you think that the intention was to malign the Lieutenant Governor, there is an end of all good Government, and anarchy and confusion must prevail, and in such case, you will find the defendant guilty.

The Chief Justice. - This is an Information against Mr. Bent, charging him with composing, printing, and publishing certain papers charged to be libellous.  The points you will have to attend to are considerably narrowed by the Counsel for the Crown not pressing the composing.  The first point for your consideration is, whether the facts are proved, and secondly, what is the intent. --  This you must collect from the import of the writing.  There have been a great many observations made here which I do not mean to refer to; but one certainly has been insisted upon with the greatest ability and ingenuity by the Counsel for the defendant -- it is the ignorance of the defendant, as to what was the effect of the papers.  It is certainly not necessary to prove express matter uttered in so many words.  If the tendency of the writing be what it is imputed, the writer, and the publisher in the absence of all evidence to the contrary, must be implied to understand such.  [The Chief Justice here referred at great length to several cases as to the criminal intention of a publisher, in which it was invariably held that all publishers are liable for what they make public, even in cases where they do not actually know what were the contents.  His Honor here went through the Information, and stated to the Jury the different counts, and the bearing and tendency of each.]  The evidence in this case, Gentlemen, depends principally upon Mr. Evan Henry Thomas.  [The Chief Justice here went through his evidence, and commented upon it as he proceeded.]  The entire proof rests upon Mr. Thomas's evidence.  [His Honor again referred to the Information.]  Now, Gentlemen, the whole pith and marrow of this article depend principally on the words ``Gideonite of Tyranny."  [His Honor here read the evidence of Mr. Gregson and Mr. Meredith, as to the application of these words.]  Gentlemen, you must read the words with attention, you must not strain them, you must given them a plain and fair construction, not exactly from themselves alone, but from the whole context.  I am certain you will conscientiously pay attention to this point.  If you are satisfied that Mr. Bent is the printer, and as such the publisher, for there is no evidence of publishing here.  With respect to the first libel,  Mr. Thomas says, he was two hours with him before he agreed to it.  If you are satisfied that Mr. Bent did really mean to malign the Lieutenant Governor, I have no hesitation in saying that it is a libel.  If Mr. Bent or any body else is upon a misunderstanding with Government, to accuse the Governor of tyranny, it is a libel.  The other part of the Information relates to a supposed trial; you have heard the averments, and it is for you to say whether they are proved.  Mr. Lord in evidence goes to prove the introductory averments.  [His Honor here read the evidence as to the second article.]  It is of great importance, Gentlemen, for you to be certain that these articles, if they be libellous, are so as regards the Lieutenant Governor in his character as such.  It is, however, your province to decide upon the actual meaning of the words.  His Honor ended in a very long and able address, by requesting them to bestow their utmost attention upon the whole circumstances of the case, and decide thereupon, as he was certain they would do conscientiously.

The Jury retired for about an hour, and on their return the following verdict was recorded - Guiltyupon the 2d count, Not Guilty upon all the other counts of the Information.  This count was for printing and publishing the first article, containing the expression Gideonite of tyranny.

Pedder C.J., 15 May 1826

Source: Colonial Times, 19 May 1826

Mr. Stephen the Solicitor-General, having given notice to Mr. Bent,  that he would be this day brought up to receive judgment upon the verdict returned against him (vide Colonial Times, April 21), Mr. Gellibrand moved the Court in arrest of judgment, upon the ground, that as Mr. Bent had been found guilty of printing and publishing, and that the only evidence of publishing, was that he had printed the article in question, which Chief Justice Pedder had ruled to include publishing, that such was a sufficient ground on which the judgment to be arrested.  Mr. Gellibrand argued this point at considerable length, and with his usual ability, and produced a number of authorities in support thereof. Mr. Hone and Mr. Stephen referred to the evidence of Mr. Evan Henry Thomas, (and we were gratified to observe that they read from the report inserted in this Journal), and contended, that his evidence went to the publishing.  His Honor the Chief Justice, however, seemed to consider that Mr. Thomas's evidence was only general; that it did not extend to the particular Newspaper produced at the trial.  And he considered Mr. Gellibrand's objection to have so much weight, that he deferred delivering his judgment until next Monday, when Mr. Bent is to be again brought up to the receive the same.

Pedder C.J., 22 May 1826

Source: Colonial Times, 26 May 1826 [2]

This day, Mr. Bent was brought up to receive judgement as mentioned in our last.

Mr. Gellibrand, as Counsel for the Defendant, addressed the Court at considerable length.  The Learned Gentleman produced a number of authorities in support of his argument, that printingand publishing were in law separate arts; and that the latter was by no means a necessary consequence of the former.

The Chief Justice Pedder interrupted Mr. Gellibrand, by referring to a particular case, which, with certain others which His Honor mentioned, had convinced him of the accuracy of his charge to the Jury; that printing and publishing were inseparable.

Mr. Gellibrand then stated, that as His Honor's mind appeared to be made up on the subject, it was unnecessary for him further to occupy the time of the Court.

Mr. Attorney General Hone addressed the Court shortly, in support of the conviction.

The Chief Justice. - I am very glad that this objection has been raised, because we shall see what ground there is for it.  The objection is two-fold.  First, to my direction to the Jury, and secondly, generally that there was not sufficient evidence to go the Jury.  It is said that the Statute which applies to this subject in England, does not extend here; and that at Common Law there was no evidence of publication.  I shall first consider the first objection.  That the fact of publishing is comprised in printing; that this is now considered to be decided Law, is fully established by a case, not of old, but of very recent date.  It is a modern case, so late as the year 1771, and is detailed in length in the 2d Blackstone.  It was not a Nisi Prius decision, but was solemnly argued before a Court of Error, composed of the Judges of the two Courts of Common Pleas and Exchequer.  It is the case, Elphinstone v. Baldwin, for a Libel.  The Jury found a general verdict.  The points were, that unless publication was charged, that the Count would not stand; and that upon a general verdict, if any Count is bad, the whole verdict is vitiated.  The Court agreed in principle with both those objections.  But what was the decision?  Why that printing was in fact publishing.  And the Lord Chief Justice De Grey stated, emphatically, that the very act of printing must include publication.  So much for the objection, that I mis-directed the Jury.  With respect to the general objection, that there was not evidence to go to the Jury, I feel satisfied, referring to the cases before me, that the facts were over-proved - not once, nor twice, but thrice.  [His Honor commented upon the cases adduced by Mr. Gellibrand, that of the King v. White, (for a libel on Government by the Indepdentent Whig) he considered to be perfectly parallel with the present case.]  Mr. E. H. Thomas, who was the principal evidence, abundantly proved, that Mr. Bent was Printer and Publisher; that the Paper produced, was printed and published by him, making out a perfect prima facie case, whereby the onus was thrown upon Mr. Bent to disprove his evidence.  There is another case which fully bears me out in the decision I have come to; that of Pearse, for a libel upon the Duke of Athol.  In that case, there was no proof whatever, that the Paper produced, was published by the Printer.  But Lord Kenyon, who was a Judge, universally known to be extremely tenacious of the rights of the Press, held, that it was not necessary to prove that the identical Paper produced, was published by the Defendant.  His Honor continued at considerable length to explain the grounds upon which he felt that he had properly directed the Jury, and finally decided that the verdict must stand.

Mr. Solicitor Ross then put in an affidavit of Mr. Bent, in mitigation of punishment, to the effect, that the article upon which he had been found guilty was wholly written by Mr. E. H. Thomas; that upon understanding his writings were objectionable, he had dismissed him from the situation of Editor; that he had a wife and five children dependant upon him for support; and that he had written to Mr. Stephen, offering to give up the author of the article, so soon as he understood a prosecution was intended.

The Chief Justice. - Mr. Andrew Bent, you are brought up here to receive the judgmens [sic] of the Court, for a libel; of the printing and publishing, which you have been found guilty.  You state, in your affidavit, that it was wholly written by Mr. Thomas, and that you offered to give up the author.  But I cannot forget that Mr. Thomas swore, that you perfectly understood the meaning and purport of these libels, and that they were written by him at your request.  It is you also who received the profits arising from their publication.  Whatever description you may chuse to give of yourself, that you are an unlettered man, it is quite impossible but that you must have fully comprehended the meaning of the libel.  Mr. Thomas also stated, that when you ascertained that you were in danger, that you instructed him to write an ameliorating one.  But I am sorry to find that no such article has been produced.  Nor, is there one word in your affidavit, that such was published.  I cannot forget another circumstance, that the very libels for which you are now suffering imprisonment, were published by you since your publication of that now before me.  What circumstances then of mitigation are there, except that you have a wife and five children.  This circumstance, I shall take into consideration.  I must say, that whatever may be the opinion of the world, as to the other articles, for the publication of which you are now imprisoned, I do think that this is a gross libel; for if every person who may consider that he has claims on the Government, in a country like this, where the Chief Authorities must in most cases come into immediate contact with all applicants, and because any one is rejected, that he is to accuse the Government of tyranny.  Such conduct is not to be endured.  The circumstance of your having a wife and five children, I shall take into consideration, as also that you are now suffering imprisonment, and that you will have to pay a considerable fine.  The judgment of the Court, then, is, that you do be imprisoned in the Gaol of Hobart Town for three months, commencing when your present imprisonment shall expire, and that you do pay a further fine to the Crown of £100; and that you do be imprisoned until such fine be paid.  I shall not call upon you to enter into further sureties, as you are already required to find such for your future good behaviour; and I hope that this will prevent your Newspaper continuing to be the tool of a faction!

Source: Colonial Times, 12 January 1827

Glorious uncertainty of the Law.

Our readers are aware, that upon the last trial of Mr. Bent, for libel, the only proof of printing and publishing was the production of a Newspaper, without shewing where it was printed or published, or from whom it came; but the case was assisted by Mr. Evan Henry Thomas, as to the delineations in the unicorn's tail.  At the trial, and afterwards in arrest of judgment, it was forcibly urged by the our Counsel (Mr. Gellibrand), that there was not sufficient evidence to go to the Jury of the printing and publishing; and various cases were quoted to shew, that we ought to have been acquitted, but the Chief Justice Pedder ruled otherwise, and in consequence we have suffered six months' incarceration in the Gaol of Hobart Town, and have been compelled to pay a fine of £300 sterling, together with law and other expenses, amounting to nearly £600.  The best of Judges are liable to err; and it is clear to us, that if we had been tried by the Chief Justice of England, instead of the Chief Justice of Van Diemen's Land, that we must have been acquitted.  But ``who shall decide, when doctors disagree."

It appears by the Morning Herald of Dec. 1825, that the Proprietor of the Morning Chroniclewas prosecuted for libel; and the following proof and decision was given:--

``The certificate from the Stamp-office, to show the defendant was the proprietor of the Morning Chronicle, was offered in evidence, -- The defendant admitted the fact.

``Another witness proved that he purchased the number containing the alleged libel.

``The letter was then read by the officiate.  It was that which was cited by plaintiff's Counsel.

``Another number of the Morning Chronicle, dated the 14th of December instant, was offered in evidence.

``Defendant's Counsel objected to the proof of this being defendant's paper, unless a copy was produced from the Stamp-office.  The officer from that office did not bring with him this copy.

``Mr. Sergeant Taddy would not admit it to be defendant's paper unless the usual proof was given.  He before admitted the fact of Mr. Clement's being the proprietor of the Chronicle, but the paper of the 14th might not be his, and it should be proved.

``Mr. Serjeant Vaughan said that a section in the Act of Parliament on this point, admitted a newspaper with the name of the defendant as publisher, proprietor, &c. to be put in evidence.

``The Lord Chief Justice said there was not any difference here between criminal and civil proceedings, and the paper should be proved in the regular way.  Any man owing a grudge to the defendant might publish a libel in a paper, and put the defendant's name to it.  This Paper thus offered was no Evidence."

Now this case is on all fours with ours.  We admitted the Proprietorship of the Paper - the Attorney-General produced a paper which might be ours, but it was not proved, and according to English Law ``the paper thus offered was no evidence."  We expect after this to have our money returned to us, and a compensation for an imprisonment, which we consider to have been illegal.

Notes

[1] The Colonial Times published a long editorial on this case on the same day, 21 April 1826.  See also Hobart Town Gazette, 22 April 1826.  For the previous trials, see R. v. Bent (Nos 1 and 2), 1825. 

[2] See also Hobart Town Gazette, 27 May 1826.  For an editorial on the sentence, see Colonial Times, 26 May 1826.  On the same day, the Colonial Times published a letter from Bent, written in the Hobart gaol on the previous day: he pointed out that he had no knowledge of what he had published and that he had received no land grants in the colony.  He also referred to his two trials in 1825 on the same publication of 8 October 1824, as to which see R. v. Bent (Nos 1 and 2), 1825.  He denied being the tool of a faction.

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