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Decisions of the Nineteenth Century Tasmanian Superior Courts

Butler v. Bent [1830]

jury trial - libel - attorney, defamation action brought by - imprisonment for debt

Supreme Court of Van Diemen's Land
Pedder C.J., 12 January 1830
Source: Tasmanian and Austral-Asiatic Review, 15 January 1830 [1]

This morning the Court sat at 9 o'clock. Mr. Gellibrand moved, in the case of Butler v. Bent for libel, that it be tried by Jury, or that the trial be put off to the next term. Mr. Solicitor General Stephen opposed the motion with great ability, on several grounds. The Chief Justice considered that under the new Act where it was competent to the Court to depart from the usual order of trial by Assessors, upon the application of either of the suitors for a Jury, that there was no case which so much seemed to require compliance with such an application, as that of an action for libel between two private persons; inasmuch as by a particular Act of Parliament, Juries possessed powers in such cases, which they had in no others. His Honor stated in reference to the new Act, that it was of course not for him to state there, what would take place in the Legislative Council, but this he felt it proper to say, as Judge of the Court, that if he consented to the alternative of Mr. Gellibrand's application, namely, that if trial by Jury could not be now had, that the trial be postponed, such postponement would only be until the next term, because, he was well convinced that the Government would feel it imperative to lay before the Council, during its present sitting, the regulations for Juries, prescribed by the Act of Parliament.
The Solicitor-General observed that he regretted to perceive that the Court was about to adopt an entire new system. He came prepared to reply to the grounds stated in the affidavit, upon which it was moved to put off the trial. But he did not come prepared to have the onus cast upon him of, upon a mere naked motion that it be put off, shewing why it should not. It was for the other side to shew why it should, and when such was done, he had no doubt he should be able to reply to whatever was offered in support thereof.
The Chief Justice again referred to the Act of Parliament of which he had before spoken, in which Juries in libel cases are judges both of law and fact; and he considered the operation of that Act to be such as would induce him, in all libel cases between private persons, to consider them proper to be tried by Juries.
The Solicitor General (with great animation) - "I submit that such is not sufficient in this case, to take it out of the usual course. I am perfectly aware of the full extent and bearing of Mr. Fox's Act, to which your Honor has alluded; but great as has been the celebrity of that Act, I have high authority for stating, that it effected no important change in the former Law. The only difference is that before, it was imperative to the Judges, to direct the Jury whether the matter charged to be libel was so, now it is optional. I have high authority for stating, that if a Judge did direct to any case, and the Jury found contrary to such direction, that a rule for new trial would be granted.
The Chief Justice. - "You will recollect, Mr. Solicitor, that before Mr. Fox's Act, all which Judges did, was to leave to the Juries the fact of printing or publishing. We will tell you, they said, of what description is the matter charged to be libel. That is our province; you will find the simple fact of publication; we will do the rest. This is what was formerly said; but by Mr. Fox's Act, Juries have now the full right of judging both of law and fact, I mean that they are to decide upon the whole case."
The Solicitor General. - "I admit, that such is the case, but it does not affect my argument in any way whatever. I came here prepared to shew one thing, and now I am required to shew another."
The Chief Justice. - "If you require time, that is another thing."
A long conversation ensued between the Chief Justice, the Solicitor General, and Mr. Gellibrand, in the course of which, it appeared that the copy of the affidavit on which the motion was founded, was only served upon the Solicitor General at half past Ten on the proceeding night, and the Court was moved by Mr. Gellibrand thereupon, the next morning at 9 o'clock; obviously permitting no time for the Solicitor General to prepare himself for the argument required from him, much less to prepare affidavits in support of it. Under these circumstances, the Chief Justice directed, that in each of the three cases, Butler v. Bent, Rose v. Bent, Kennedy v. Bent, Mr. Stephen should have until to-morrow morning to shew cause why, upon payment of costs, the trials should not be postponed to next term. Mr. Gellibrand refused to accept the postponement upon those terms, in the cases of Ross, and of Kennedy v. Bent, but acceded to them in that of Butler. His reasons for this latter acquiescence, are obvious to all who have read over the article upon which that action is brought. The Court then proceeded to the trial,
. . .
This morning Mr. Stephen shewed cause against Mr. Gellibrand's motion to put off the Trials against Mr. Bent for libel. We forbear from reporting the arguments he adduced, powerful and convincing as they were, because, by giving them publicity, we might probably cause a prejudice to exist which might be unfavourable to Mr. Bent upon his trials. Mr. Gellibrand replied to Mr. Stephen; and the result was, that the Chief Justice ordered that his Trials should be put off until the next term upon payment of all costs except those of the application. Thus then, of the three actions, Mr. Butler's and Mr. Ross' stand over for Juries, and Mr. Kennedy's is to be tried by Assessors.
 


Pedder C.J., 13 January 1830
Source: Tasmanian and Austral-Asiatic Review, 15 January 1830 [2]

This morning Mr. Stephen shewed cause against Mr. Gellibrand's motion to put off the Trials against Mr. Bent for libel. We forbear from reporting the arguments he adduced, powerful and convincing as they were, because, by giving them publicity, we might probably cause a prejudice to exist which might be unfavourable to Mr. Bent upon his trials. Mr. Gellibrand replied to Mr. Stephen; and the result was, that the Chief Justice ordered that his Trials should be put off until the next term upon payment of all costs except those of the application. Thus then, of the three actions, Mr. Butler's and Mr. Ross' stand over for Juries, and Mr. Kennedy's is to be tried by Assessors.

Pedder C.J., 10 May 1830
Source: Tasmanian and Austral-Asiatic Review, 14 May 1830 [3]

FIRST TRIAL BY JURY.

SUPREME COURT, -- May 10.


This day the first Trial by Jury was held here under the new law. The following is a full and faithful report of the proceedings. We shall endeavour to furnish our readers with similar reports up to one hour before our time of publication, and we trust our exertions in this important particular will meet the wishes of our friends:


BUTLER V. BENT.


The Sheriff retur[n]ed the Pannel of the Jury summoned. It contained the names of Forty-eight persons. They were as follows:--
S. Adey, G. Langford,
F. Barnes, W. Lewis,
J. Bell, D. Lord,
W. Bunster, W. Mawle,
W. Cook, R. L. Murray,
J. T. Collicott, R. Mather,
S. Coombes, J. C. Macdougall,
A. Crombie, W. M. Orr,
H. Chapman, J. C. Pinket,
J. Dunn, J. Petchey,
J. P. Deane, J. Robertson,
J. Dean J. Ross,
P. Dudgeon, G. F. Read,
J. Eddington, G. Stokell,
B. Guy, W. T. Stocker,
J. Hackett, J. Swan,
J. Hiddlestone, M. Steel,
H. Hopkins, W. Stallard,
A. F. Kemp, S. Turnley,
J. Kelly, T. Whitaker,
T. Lucas, S. Wise,
T. Y. Lowes, W. Watchorn,
R. Lewis, J. Walker,
J. Lester, W. Wilson,

It was originally intended that cards of the names of the above being put into a box and drawn, the first twelve which came out should compose the Jury. But it was finally arranged between the Solicitor General STEPHEN, counsel for plaintiff, and Mr. GELLIBRAND for defendant, that twenty-four names should be drawn, from which each should strike six, and the remaining twelve should be the Jury. - The following gentlemen were the twelve so drawn, and were sworn accordingly:--
Dr. Ross, ---Foreman,
Messrs Mawle, Messrs Watchorn,
Bunster, W. Lewis,
Guy, Hopkins,
Mather, Wilson
Wise, Stokell,
Walker,

The Solicitor General then proceeded to state the case for the Plaintiff, in a speech of great [mod]eration and fairness. He stated what were the nature of the three libels complained of. That they were inserted in theColonial Times, of which the Defendant, Mr. Bent, was the proprietor, printer, and publisher; and were as follows:--
"When I entered the man of law, or rather, as it struck me, the man of compounds, was standing by the table, as if waiting to receive me; and immediately returned the bow with which I saluted him. He was dressed a la dishabille; inasmuch as he wore a grey bever dressing-gown, slippers down at heel - a yellowish, half-dirty, night-shirt; his neckcloth tied loosely, and he did not appear to have shaved that morning. In person and stature, there was nothing prepossessing - rather under the middle height than otherwise, his bulk corresponding therewithal; he had a shrewd cunning look about the eye, which had rather a tendency to create repulsion on the part of strangers, than to invite familiarity. Still there was a constrained politeness in his manner, a servi[l]ity in his mode of replying to me, which argued that he could be all things to all men; and which warned me, that I was not to be misled by superficial speciousness. One thing struck me as very remarkable, in his countenance; all the lines of which were uncommonly sharp and picked; that, whenever he attempted to smile, or to utter words which might lead to the suspicion that his heart sympathized for a moment, with other's sorrows, two sorts of furrows were e[xh]ibited, one on each side of his mouth; reminding me to the very life; of the two supporters of the Arbuthnot Arms. Such nearly was the person to whom I now introduced myself,-- After I had expressed all I had to say, my object having been to try to gain time for the man, but, if I failed, to settle the debt in the best way I was able, by the purchase of one of his horses, the Lawyer replyed to me, "I can do nothing for him, Sir; he must go to gaol, or pay the money; I only know my duty to my client." "Surely, Sir, your client cannot suffer by allowing the poor fellow a little more time for the payment of the debt - you would never think of separating a man from his wife and children, by so cruel a process as imprisonment, when no possible good can arise from it." "I know nothing of wives and children, Sir - my duty to my client is all I have to think about. People have no business to have wives and children, if they cannot pay their debts. I have but one rule, Sir - I always say in reply to the question, what is be done with so and so, -- Let him go gaol, and I say so now."
Finding that the iron features I had been contemplating, were but the index of the heart, that like bits of ore upon the surface, they did but disclose the nature of the mine underneath, I determined to waste no more time in talking, but requested to have the particulars of the man's debt, intending to agree with him the price of one of his horses, and thus enable him to discharge it. It was with astonishment I discovered, that, although the sum originally due, was under fifteen pounds, it had now been swollen, by law expences, to £29. 17s. 6d.!"
The 2nd and 3rd Libels were the detail of the visit of Dr. Crowther to the Plaintiff, which will be found in the evidence, and an abusive article, Headed from Loo Choo.
Mr. Stephen then commented upon the above publication with much force and [effect], although with, as we have said, great moderation. It was said by Mr. Gellibrand, in the course of his speech for the defence, that the Solicitor General evidently reserved himself for his reply, and such appeared to be the fact, as will be seen in the course of the proceedings. Mr. Stephen confined his opening speech to a mere history of the case, and as that will be fully seen in the course of the evidence, of Mr. Gellibrand's defence, and Mr. Stephen's reply, we consider it unnecessary to repeat it in detail, particularly as the most material points were repeated in the subsequent addresses, with the exception of one passage in the learned gentleman's speech, in which he very ably vindicated the fairness and impartiality, of the system of Trial by Assessors. In the course of his remarks upon an article in the Colonial Times, produced immediately preceeding the day fixed for the trial in the last term, which Mr. Stephen designated a most insidious attempt to excite a prejudice in the case, upon the old and hacknied subject, Trial by Jury, he continued, "No man venerates that noble institution more than I do. No man is more aware of its advantages, or more sincerely admires and respects it. But what is the real essence of that invaluable privilege of Englishmen. It consists, not so much in the number of the Jury, as in the form of the proceeding; the having the whole case fully, fairly, and openly investigated. The Counsel on both sides, exerting their utmost powers for their respective clients with the most perfect freedom and independence. The witnesses fully, openly, and publicly, examined and cross-examined, so as to afford every possible means for the eliciting the truth, and the whole subj[e]ct to the superintendence and control and decision of the Judge upon the Law. Thus forming altogether as complete and as perfect a system of judicial administration, as the mind of man can bring into operation. But, although, as I have said, I value this, as much and as highly as any man be he whom he may, yet, I never will admit, that justice is not equally afforded in a Colony such as this, by two Assessors, the whole other circumstances of trial, being precisely the same." Mr. Stephen urged this point at some length, with much animation and effect. After an address of about an hour's continuance, he proceeded to the evidence.
Mr. Gellibrand admitted that Mr. Butler was an attorney; and that Mr. Bent was proprietor, printer, and publisher of the Colonial Times, and that all the newspapers produced were published by him.
Mr. Stephen, then put in the Colonial Times of the different dates contain[i]ng the articles charged as libel, and the advertisements for the republication of the Hermit.
Mr. Meredith. - This is the Colonial Times of the 21st August. I have read the passages charged as libel[l]ous, I read them shortly after they were published, I had no doubt but that they referred to Mr. Butler the plaintiff, I consider the article in the paper in my hand a very gross attack both upon the professional and the moral character of the plaintiff, I consider it to reflect upon him as a man and a christiian and on his professional character. The effect of the article would be in my mind, to those who did not know Mr. Butler, very much to lower him in their estimation until he had cleared up his character by the only course open to him. I consider the meaning of this charge to be, that for the purpose of gain he would sacrifice all the better feelings of the man. I consider the description of Mr. Butler's office to be as accurately described as if it had been given by an auctioneer. I consider the description given to be sufficiently accurate to identify Mr. Butler. The paper of the 2nd October I saw the following day. I consider the plaintiff Mr. Butler to be indicated by the article there charged to b e libellous, the allusion is so pointed it is impossible to mistake it. Whenever I have met Mr. Butler I have found him act like a gentleman and a man of honour; but the description in the paper is a complete misrepresentation of him, yet such as to leave no doubt upon my mind that he is referred to. In the paper of the 9th October the article there charged to be libellous I consider unquestionably to refer to the plaintiff; had I seen this alone I should not apply it to Mr. Butler, but connected with the former article I consider it to apply to him as a pettifogger who would take delight in inflicting the utmost severities of the law.
Mr. Crombie, -- This gentleman's evidence was so entirely similar to that given by Mr. Meredith, that it is only necessary to state that it confirmed it in every particular.
Mr. Mulgrave, -- I read the letters signed Simon Stukely [4] at Launceston, they formed a very particular subject of conversation, I was convinced that the articles charged to be libellous, referred to Mr. Butler. I considered Mr. Butler's character to be attacked by having it imputed to him that in his profession as a lawyer he acted with greater rigor than was necessary, from a motive to wish to oppress, The matter in the paper of the 2nd October appears connected with the former one. Mr. Mulgrave's evidence then corroborated that of the preceding witness in every particular.
Cross-examined by Mr. Gellibrand, -- I consider the references to the yellowish night shirt, and the description of Mr. Butler's dress to be exaggeration. I saw nothing in it particularly repulsive.
Mr. Westbrook, -- I have seen the articles charged to be libellous, they formed at the time matter of general conversation. Mr. Westbrook's evidence was then fully confirmatory of the preceeding. Mr. Butler at the time the articles were published was and had been extremely ill, I attended him as his medical man, the description of the morning gown, slippers, &c., is such as to obviously refer to Mr. Butler, I consider the person named "Mr.Cockatrice" to mean Mr. Butler. In another article headed "Loo Choo," I consider the reference there made to venimous reptiles to refer to Mr. Butler, connecting it with other articles.
The Chief Justice, -- I really do not think although Mr. Gellibrand has not objected to it, that we are quite regular in admitting this evidence. It does not appear to me Mr. Solicitor General that you can give evidence of the opinion of a witness as to matter which upon the face of it, does not appear to be in itself connected with that charged to be libellous. (The Chief Justice then read a case by which it appeared that His Honor's objections had been so decided in the K. B. in England). Mr. Stephen argued at some length in support of the cause he had adopted. Mr. Gellibrand replied, and it was decided that the papers which had been produced as auxiliaries to the matter charged as libellous should go to the jury to be by them considered with the whole case.
Cross-examined, -- I consider the description of the office and the dress of the plaintiff to be very accurate, and the libel to impute to the plaintiff a want of feeling, that he is a hard hearted man in his conduct as an attorney.
Mr. Solicitor General called for a letter from Mr. Pitcairn giving notice of the present action which Mr. Gellibrand produced and read. Mr. Stephen then read Mr. Bent's reply in which he stated that he was not aware he had ever published any thing libellous of Mr. Butler, and requested to know what was the particular matter complained of, that he might shape his course accordingly.
Mr. Pitcairn, -- I read the Colonial Times of the 8th January. I was attorney for Mr. Butler in this act on, I consider the terms "waspish gentlemen" allude to the three plaintiffs in actions then depending, Mr. Kennedy, Mr. Ross, and the present plaintiff.
This was the case for plaintiff.
Mr. GELLIBRAND then addressed the Jury nearly as follows, except as to certain passages in the learned Gentleman's speech which, from their peculiar strength, we forbear to report:--
Gentlemen of the Jury, -- I need not tell you that in the present case I rise with much more than the usual anxiety felt by any Counsel in the performance of his duty. You can readily understand how extremely painful it must be for me to appear as Counsel this day, in a case in which I find myself under the necessity of saying much, which I can with truth assert, is as unpleasant for me to be compelled to utter as it can be for the Plaintiff to hear. But I am placed in the stead of my client. I appear for him, and I hope that, however unpleasant and painful my duty may be, I shall not be deficient in the just and proper performance of it. Much has been said of the independence of the British bar. Independent as it certainly is in some respects, it is any thing but such in others. So little am I independent, that however I may wish to refuse, however I may find myself placed, disagreeably placed, thereby, I have not the power to refuse the brief of any man, be he who he may, who may chuse to place it in my hands. I am bound to fulfil the instructions I receive, to devote my best exertions to the consideration of them, and to carry them into effect with all the powers I possess to the best of my humble ability. So it is in the present case. I have known the Plaintiff for 17 or 18 years; of course as well in England as in this Colony. I now find myself most unwillingly compelled to the performance of a most unpleasant duty, and however I may, as I unfeignedly do, lament it, yet I trust I shall not shrink from it, nor, if that duty requires it, from exposing - if exposing it deserves - any part of the Plaintiff's professional conduct which may this day be brought under consideration, from any motives of private friendship, however much, I say again, I may and must lament the necessity for my so doing. I stand here, Gentlemen, to justify my client as I am instructed, and I shall do so fearlessly and independently, without reference to any thing but what I conscientiously believe to be my duty.
Now Gentlemen, let us look at the case before you. My Client, the Proprietor of a public Newspaper, considered it of advantage to the general interest of the community to publish in his journal a series of essays purporting to proceed from one Simon Stukely. Who was the author I know not. My Client considered the object of them to be good, to advance morality and to correct evil, to shew the rise and progress of the Colony, to mark evil doers, and by the force of example shame them from their misdeeds. Let us see, Gentlemen, how these principles have been acted upon in the present case. Every Member of this Court is a public character, and every public character is public property. If the public conduct, then, of all public persons - for I speak without reference to any particular class - is not open to the animadversion of the public press here, better would it be for us to go to Swan River, (a loud laugh at the peculiarity of the learned Gentleman's reference, the land of promise being evidently uppermost in his thoughts,) or any where else where there may be a chance of something like security to public liberty. The writer, then, of these essays - this Hermit - considered it proper to bring before the public certain parts of the Plaintiff's professional public conduct, which he considered - and which, I have no hesitation in saying, I fully agree with him - are highly injurious to the public interests. But let it be carefully observed that he is not attacked in his private life. No. The scene is laid in this Court. The domestic circle is neither invaded nor are any of the relations of private life invaded. His conduct as an Attorney of this Court is alone attacked. If the facts which I am instructed to state will be this day proved before you, are so proved, I say, Gentlemen, every syllable which my Client has published will be found to be fully justified. Allow me to draw a picture. Figure to yourselves that greatest of all pests, a low pettifogging practitioner of the law. Can you imagine a greater evil than a man who in the practise of his profession preys upon the very vitals of the poor? I say, without hesitation, that such an one - if such an one there is - is the greatest evil which can exist in any country. I say, in the presence of his Honor the Chief Justice, to whom I have already submitted the same opinion, that the systems of practise and of costs which have so long existed here, have given rise to cases of oppression greater than were ever witnessed from the same cause in any parts of the world. Can any thing, Gentlemen, be more abominable than that for a petty debt of twelve pounds a man is to pay seventeen pounds costs and to be besides confined in gaol for five months? If a man, practising the profession of the law, can be found who, in an infant Colony like this, struggling under difficulties of every description, can commit the abominable oppression of adding seventeen pounds costs to twelve pounds debt, the necessary consequence must be that ruin must follow to all those who are exposed, either from misfortune or necessity, to such monstrous exactions. But if, in addition to this, Attorneys who shall oppress, shall add illegality to oppression, -- if, with the British Act of Parliament staring them full in the face, that no man shall be arrested for a less sum than twenty pounds, griping attorneys shall, setting it at defiance, incarcerate miserable debtors for less sums; is not the man who will expose such oppression entitled to the public gratitude? I say, Gentlemen, that it is a monstrous addition to the evil to add illegality to oppression by the violation of an express Act of Parliament; and if there is an Attorney of this Court who does not know that in so proceeding he is acting in violation of the law, he should be ashamed to shew his face in this Court. If then, the Plaintiff did arrest an unfortunate man for twelve, of, I believe, it is made up - how, you will see by and bye - to sixteen pounds, ought he to come here and ask damages from you for having such conduct exposed? Gentlemen, the system of arrest, of depriving a man of his liberty, has been the means of working more dreadful injustice than can be imagined or described. A poor se[t]t[l]er owes a small debt. The Attorney of the Creditor persuades him to issue a writ. The Bailiff pr[o]ceeds to take his prisoner for some twelve or fifteen pounds. You must find bail or go to gaol, says he. I cannot do the former, says the settler, -- you know, Gentlemen, well the difficulty of finding bail in the interior - and if I do the latter I am ruined. My agricultural operations will be at a stand; my cattle will go a-s[t]ray; my family will be in distress; my ruin will be the consequence. What is the result? He gives judgment for the whole sum demanded, or he pays the money, of two evils chusing the least, and frequently where the sum so obtained has been double what was really owing, to say nothing of the costs, which again more than double the whole. In the present case the facts are as follows, as I am instructed I shall prove to you fully in evidence: -- A Mr. WILSON is indebted to a Mr. SEFTON in the sum of 6l. SEFTON purchases from another man a note of WILSON'S for 10l., and, employing the Plaintiff as his Attorney, causes WILSON to be arrested for the whole sum, and this in the teeth of the Act of Parliament by which arrests are expressly forbidden under 20l. WILSON had a horse and cart which he offered SEFTON as security for the debt if he would liberate him. SEFTON says he will consult his Attorney. This rigorous dispenser of the law says you may take the horse and cart for your debt, but the man shall not be discharged till my costs are paid. [Here Mr. GELLIBRAND expressed himself in terms which we forbear to repeat, particularly as our readers will perceive when they come to the evidence, that much which he was instructed to state he should be able to prove, he failed altogether in so doing.] Now, Gentlemen, if these facts are proved, then I say, had not the Defendant a right to expose them, and, in doing so, has he not rendered an essential service to the public. In the administration of the Criminal Law it is an admitted principle proceeding upon the celebrated doctrine of Lord MANSFIELD, that the greater the truth the greater the libel. It is so held in criminal prosecutions because such publications tend to a breach of the peace. But in civil cases, such as the present, a Defendant, may, if he can, justify every word he has stated; and if he does he is entitled to a verdict. Gentlemen, the Solicitor-General in the course of his opening address to you, made a little slip. The cleverest men, we see, make these mistakes sometimes. He told you that he knew every particular of the horse-dealer's case, which he presumed I should bring before you. Indeed! Then there is another case something like that which I have stated to you. I have, however, no instructions about it, and but for the Solicitor-General's slip, I should have known of it. Mr. MULGRAVE also in his evidence alluded to some particular case. I did not consider myself entitled to examine him upon it. But the Solicitor-General could have done so if he had chosen - But he was too clever for that - He was too prudent - He was silent - He let it pass quietly by. I now come to the next alleged libel. Gentlemen, the facts of this are very short. The Plaintiff brought an action against Dr. CROWTHER, who because he could not help it, went to his office to pay the debt and costs. Now the Plaintiff had taken into his head that the Doctor was Simon Strukely, the Hermit. He got into a violent rage, and ordered him out of his house. [We forbear to report the manner in which Mr. GELLIBRAND described the interview between the Plaintiff and Dr. CROWTHER.] This curious interview got wind, and being dressed up by Simon Stukely, here it is, and you are this day required to give the Plaintiff damages for the publication of facts, which, I am instructed, are related exactly as I shall be able to shew to you they occurred. If the Plaintiff did treat Dr. CROWTHER in the rude manner described, and that such conduct is made public, surely he has only himself to complain of. On the contrary, if this interview is all a dream of Mr. BENT's, and no such occurrence took place, then Gentlemen, I cannot but say, give a verdict which shall awaken him.
I now come to the third charge, the iron heartedness, and the delight of the Plaintiff in human carcases. I ask you whether, if I prove to you, as I am instructed I shall do, the facts I have related to you of WILSON's case, I ask you whether the Plaintiff did not exercise the rigor of his profession to the very utmost extent? [Here again Mr. GELLIBRAND's zeal for his client carried him away into a strain of argument which we forbear to report.]
But, says the Solicitor-General, the facts in WILSON's case are not accurately set forth in the plea; he was arrested for 16l., not for 12l. Will the Solicitor-General attempt to avail himself of so miserable a quibble? I will shew you, under his Honor's correction, that it is such, -- that the sum being named in a Scilicet, its amount is immaterial. But, for the sake of argument, let us suppose that you find all the pleas fail, what damages can you, in your consciences and upon your oaths, award to a Plaintiff whose conduct has been such as I am instructed I shall shew you to have been Mr. BUTLER's. [Here again Mr. GELLIBRAND expressed himself in very unmeasured terms, which we forbear to repeat.]
Gentlemen, you are the first Jury which has ever assembled in this Colony. I need not tell you how much depends upon the first verdict which will proceed from that glorious British institution; and here, Gentlemen, I must address to you a few observations upon what has fallen from the Solicitor-General in respect to Juries. I differ with him altogether in opinion as to all which he has stated in respect to trial by Assessors. I have felt severely the extreme inconvenience arising from finding it my duty to move his Honor the Chief Justice for new tri[als] in cases where - his Honor himself being a part of the Jury - my ground has been that the verdict has been contrary to the evidence or even contrary to law. How extremely disagreeable is the situation of an advocate who has to appeal to the judge and against himself. Gentlemen, if the only advantage which the glorious institution of Trial by Jury brought with it was a relief from a situation so unspeakably disagreeable as is that to which I have alluded, I should consider it as an infinite good.
I now come, Gentlemen, to the subject of the amount of damages, should you consider that from any circumstance you are bound to find your verdict for the Plaintiff. I will shew you what English Juries have done in similar cases. The first which I will bring under your notice is an action brought by a London Book-seller, named TIPPER against a Mr. MANNERS, the Editor of the well known publication, the Satiriat, a very naughty work, in which I believe there a[r]e some in Court who have fallen under its lash. The Plaintiff had published a series of little books for children, which the Defendant attacked in his publication, and the Plaintiff along with them, upon the ground that these children's books were of immoral tendency. One of the juvenile poems was thus parodied. [We are not quite sure whether we quote Mr. GELLIBRAND's verification accurately but it was nearly as follows,]

There was a little maid,
And she was afraid
That somebody should get to her;
She bound up her head
And she went to her bed
And she fasten'd her door with a ske[wer].

For this parody, and for the accompanying remarks, the Plaintiff TIPPER brought his action, and the Jury, under the direction of the Lord Chief Justice, gave a verdict for one shilling damages. Another similar action was Sir JOHN CARR against the same Defendant, for injuring the sale of his book entitled the Stranger in Ireland, by publishing a ridiculous parody upon it with a large frontispiece, in which Sir JOHN CARR was represented bending under three large books, with a little pocket handkerchief bundle in his hand, labelled my wardrobe. The verdict, Gentlemen, here was exactly similar to the former, one shilling damages. [Mr. GELLIBRAND here drew a comparison between Sir JOHN CARR's case and the Plaintiff's and we are again unable to report the strong language which he adopted.] Perhaps, Gentlemen, it may be said that Lawyers are more sensitive as respects their character than other people. I will read you a case so late as December last, only five months ago. And here, Gentlemen, permit me to say, that much as I, for myself, disapprove and condemn this personal system of attack, much as I freely admit I detest this system of private annoyance, yet it is my duty to state that if the facts I have stated are proved, as I am instructed they will be, the very lest denomination of coin will be the utmost extent of damages to which the Plaintiff can be entitled, supposing that you find it necessary to give your verdict in his favor. The case to which I last referred is that of an English Attorney, who brought an action for slander for having been called a perjured villain, a swindler, and a black-legged Lawyer. Yet, for all these hard names, he got but one shilling damages. My Client has not called Mr. BUTLER any thing of this sort. He has only alluded to his public professional conduct, and what greater damages can you give him? The next case -
The Solicitor-General. - What, another? Then it is time for me to interfere. I have let Mr. GELLIBRAND go on really to save time, rather than enter upon an argument to stop him. But, as his Newspaper report cases seem to be interminable. I really must state that the reading such is highly irregular.
The Chief Justice. - I thought so from the first. But, as you made no objection, Mr. Solicitor, I did not consider it necessary to interfere. It is quite clear, to say nothing else of these cases, that it is quite impossible from such reports to understand any part of the circumstances under which the verdicts were given. It is quite out of the question.
Mr. Gellibrand. - I have only one more case, which as it relates to a Barrister, and is a very short one -
Mr. Solicitor-General. - Oh! If it is a short one, pray read it, rather than waste time in arguing about it.
Mr. Gellibrand. - The action was brought by a Mr. PRICE, a Barrister of the Middle Temple, against a Newspaper Proprietor, for a police report in which Mr. PRICE had been brought before the Magistrates, having been apprehended in the street for insulting some females, and had given a fictitious name. Yet, although the report placed Mr. PRICE by no means in a favourable point of view, the Jury gave a verdict for one shilling. Mr. PRICE, dissatisfied with this, brought an action against another Newspaper for copying the report, and the verdict was for the Defendant.
I shall now Gentlemen, trouble you no longer. It is possible that my pleas may perhaps fall a little short of the proof which may be given by the witnesses, or that there may be a trifling variation in the circumstances. But, although in that case, your verdict may be against my client, yet I do confidently trust, that you will consider the smallest damages sufficient. The Solicitor General was very short and concise in his opening. I apprehend he has reserved himself for his reply, and I expect to hear him invoking you in the most energetic terms, urging you to give heavy damages. I do not wish to shrink from the fullest consideration of the case. I admit that the Defendant has impugned the Plaintiff's character, and I am to show you he was justified in doing so. If I should fail, the Plaintiff will, of course, be entitled to your verdict. If on the other hand, Mr. Bent has stated no more than what he is enabled to prove to be fact, I have a right to ask from you, that your verdict be in his favor.
Mr. Gellibrand spoke without intermission for two hours and forty minutes. We have omitted much of what fell from him. But it will be apparent that he exerted his very utmost zeal and ability for his client.
Mr. Gellibrand put in the affidavit of debt, and the writ under which Mr. Wilson had been arrested. It was for £16 13s. 9d.
The Solicitor-General admitted that upon that writ Wilson had been kept in gaol five months.
Mr. Rowlands. - I know Wilson. I waited upon Mr. Butler to speak to him as to his confinement at the suit of Sefton. I was requested by Wilson to endeavour to make terms with Mr. Butler. I proposed a warrant of attorney. I proposed to him that the Defendant should give him a chaise. Mr. Butler said, he had offered him something before, but he could not accept it. It was while Wilson was in gaol.
Cross-examined. - I know Wilson. One Mary Ann Turvey gave me instructions. She is commonly called Mrs. Wilson. I don't know where the chaise is now. She carries on a flourishing business in the pork line. Wilson lives there, but her name is over the door. I know that the practise of the Judge Advocate's Court, and the old Supreme Court, have been acted upon up to this hour. I had occasion to consult the members of the profession, and we all agreed that we could act upon those rules, & that we could arrest for debt above Ten Pounds. Mr. Butler offered to take a bill with another name for his costs, and a warrant of attorney for the debt. And he added, that Sefton had told him that whatever arrangement Mr. Butler made as to his costs, he (Sefton) would be no party to it.
Re-examined. - Mr. Butler offered to take Wilson's own warrant of attorney for the debt, and a bill with another name for the costs. It was on the 18th Oct. 1829. I never saw any extract of Mr. Peel's Act relative to arrest, published in the newspapers. I first heard of it in October. I never heard of it until Sefton and Wilson's affair. I had arrested a person myself under Twenty Pounds, and I thought I was entitled to do so.
Mr. Bisdee. - Wilson was brought to my custody on the 8th April, 1829, at the suit of Sefton, upon a writ of capias. Discharged on the 6th of January, 1830, and detained by Ca. Sa, charged in execution for £30 4s. 7d. Debt £12 10s Costs £17 14s. 7d.
Charles Sefton
 - I am a baker. I know Wilson. He owes me about 6l. I became possessed of a bill drawn by parker for 10l. about a week before Wilson was arrested. It was over-due. I gave Parker 10l. for it. I went to Parker, Mary Ann Turvey said Wilson was going on in a drunken and disorderly manner, and begged of me to do it. I went to Mr. Butler and had him arrested. Mr. Wells told me one morning, that Wilson would give me a horse and cart as security for my debt, to let him out. I told Mr. Wells I could do nothing without consulting Mr. Butler. I took a note of the proposal to Mr. Butler from Mr. Wilson. Mr. Butler read it in my presence. Mr. Butler asked me if I had a stable. I said no. I said, if I have him, I cannot keep him nor work him. I told him, that whatever he agreed to, I would. I did not want to keep him in gaol, so long as I got securi[t]y for my money. I told Mr. Butler I had no convenience for a horse and cart, and it would be better to be done some other way. I did not go back to Wells and tell him that I would not agree to those terms, and I kept the man in gaol. Wilson owed me six pounds, and I could not get payment of that. Mrs. Turvey told me, I should never get paid unless I arrested Wilson. I asked her for the money as she had sold one of her horses while he was in gaol, but she gave me nothing.
Cross-examined. - Mary Ann Turvey lives with Wilson. The shop is in her name. I should not have arrested Wilson, but for her advice, as she said to keep him from something worse.
Thomas Wilson - I was arrested in April, 1829, at the suit of the last witness. After I was in gaol, I sent to Mary Ann Turvey to consent to sell the horse. I spoke to Mr. Wells I have him authority to act for me. I authorized him to propose that the man who had the horse and cart should pay the rent to him. It was Mrs Turvey's horse and cart. But if he had consented to take it, it would have been made over to him.
Cross-examined. - I did not see the letter which Mr. Wells wrote. The offer I authorized him to make, was that if they money was not paid in three months, they should be sold. Sefton was not to have possession of them for three months out of the man's possession. The man boarded in my house, and the horse and cart were kept in Mrs. Turvey's warm stable. In point of fact, she lives with me and goes by my name. Of the 24s. per week, sixteen shillings were for the horse and cart. Myrs. Turvey they say, put me in gaol.
Mary Ann Turvey. - I know Thomas Wilson. I recollect his being arrested and put in gaol. I know Sefton. I went to Mr. Butler's office. Wilson had been in gaol 3 or 4 weeks. I was willing to have given one horse and a cart to have procured his liberation. It told one of the clerks that I wanted to see Mr. Butler about Mr. Wilson's business. Mr. Butler was not at home. I saw Mr. Butler better than a month afterwards, and asked him if he would take security on any thing I had, a house in Melville street, a horse and cart, and a chaise. He said nothing but money would do. I saw Sefton himself. I asked him if he would take the chaise, and he gave me a very abrupt answer, and said he would have nothing but money.
Cross-examined. - I did not get Wilson put in gaol. I recollect his being arrested. I cannot tell how long afterwards it was, that I saw Mr. Butler. I think it was better than three months. I do not think it was more. I am sure the horse died after I saw Mr. Butler. I saw Mr. Butler twice. Once since this action was brought. When I offered the horse and cart, they were under hire to a man. I had repeatedly had the same answer from Sefton, that nothing but money would do.
Re-examined. - I have lived with Wilson 12 years, and I have four children.
A letter was read from Mr. T. Wells to Mr. Sefton, proposing to give a horse and cart as security. Mr. Stephen objected to it as inadmissible evidence.
Mr. Gellibrand stated, that the objection was a technical one. The Chief Justice ruled, that the letter was inadmissible. But Mr. Stephen waved his objection, rather than it should be supposed he would make a technical objection. The letter was read. It was from Mr. Wells to Sefton, and contained an offer to give the horse and cart as security for the debt.
Mr. Sarell. - I was employed for Mr. Crowther in a case where Mr. Butler was employed against him. I accompanied Mr. Crowther to Mr. Butler to settle it. I have read the newspaper in which the interview is alluded to. The following is what occurred in Mr. Butler's office. I stated to Mr. Butler, that we came to settle the action. Dr. Crowther expostulated with Mr. Butler on the payment of costs. He asked him to forego them. Mr. Butler peremptorily refused. He then said to Dr. Crowther, you are the hermit - get out of my house, you only came her to insult me. Dr. Crowther said, I am not the hermit, upon the word and honor of a gentleman. Mr. Butler then said you are no gentleman, and I will not take your word. Mr. Butler was very much agitated and enraged before he began, in consequence, I suppose, of the Dr. wishing him to forego the costs. Mr. Butler stroked his chin, and asked him if there was any iron in his face. Mr. Butler began about the hermit. I went merely to pay the costs. Mr. Butler repeatedly ordered Mr. Crowther to leave the house, but he refused to do so until he had paid the money. Mr. Butler told him he should not get into debt if he could not pay. Dr. Crowther said, what am I to do; it is for the education of my children, I must educate them. Mr. Butler said, people should not have wives and children, if they could not pay their debts. From what I remember of the newspaper, it was almost verbatim, indeed actually so, of what passed. Some essays had been published in theColonial Times, called the hermit.
Cross-examined. - The account in the newspaper contains the principal part of what passed. I never saw a manuscript of this article. I do not know by whom the account of it was sent to the newspaper. Before the hermit conversation, there was a dispute about the enormity of Mr. Butler's charges. I had had an account some days before, with an offer to tax it. I saw no charges in it which were irregular. Mr. Crowther did allude to Mr. Butler's wife in the manner stated in the newspaper.
Dr. Crowther. - Mr. Butler brought an action against me at the suit of McAllaston. I went with Mr. Sarell to Mr. Butler's to pay the debt and costs, somewhere about the time when the cognovit I had given became due. As far as my memory serves, the following is what passed. On entering Mr. Butler's office with Mr. Sarell, we were met by Mr. Butler and his clerk. I stated we came to pay the debt and costs, and I added, I hoped that in consideration of the apparent inconsistency of his letter to me, in which he stated, that he had only the interest of his client at heart, and that payment in ten days would suit, and that nevertheless a summons had issued on the same day, I hoped that as I confided in his letter, that he would not put me to the expence of the costs; and I told him that the charges were inconsistent with the principles of honor and rectitude. I stated this to him in the first instance, provided that he persevered in receiving the costs, after the perusal of the letter which I put into his hands. On referring to his clerk's book, he found the letter, but without a date. Very considerable agitation was manifested by Mr. Butler, on finding that the letter had no date. He said, I am astonished at your coming here - you only come to insult me - get out of my office Sir - get out. That is the way in which he addressed me. I went there with the sole intent of getting him to abate the costs, in consequence of his having issued the summons on the same day as that on which he wrote to me, stating that ten days would do. Mr. Butler became extremely agitated. I requested him to count the notes and give me a receipt. Mr. Howe wrote the receipt, and while he was so doing, Mr. Butler said, you are the hermit Sir. (Dr. Crowther spoke very loudly.) He was choked with rage. I replied upon the honor of a gentleman, I am not the hermit. He replied, you are no gentleman - you a gentleman - I will not believe you Sir. Well, said I, if I really was the hermit, matter far worse would proceed from my lips that is appropriate to you. But, taking it for granted that you are the person alluded to in the hermit, it has done you one good; your appearance is more gentlemanly, as respects your linen. But I have a greater right to be offended than you have, because I am charged with being fond of my glass.. Well, said I, good bye, Mr. Arbuthnot Arms. He came near me, and said, have I any iron in my face! I saw an account in the Colonial Times, purporting to be what passed on the above occasion. It was a true representation of what took place as far as it went. In the course of the conversation, Mr. Butler said, nobody but yourself could have known the state of my wardrobe so truly, as you have visited me so lately. Have you come to spy again, to see what we have go in our rooms?
Cross-examined. - Shortly after the interview, I saw the account in the Colonial Times. I think it was between a fortnight and three weeks. I never saw an account of it in writing before it was printed. I did not furnish an account of it for that purpose, 
knowing that I would be printed; nor did it come by or through me. I do not know when the conversation took place. I do not know how the account got to the newspaper. I should think it was from a fortnight to three weeks after the interview when the account of it was inserted. The day that it appeared in print I read it. But I do not know how it got there. I related what passed to fifty persons likely enough. I gave a written statement of it to nobody; and yet a verba[t]im account as far as appears of what passed, was inserted. (Mr. Butler's letter book produced.) The letter in the page turned down is not the letter I refer to. I do not recollect meeting Mr. Howe or Mr. Harris, and speaking to them in the street on the subject.
Mr. Bisdee, -- On the 9th October, 1829, I had thirteen persons confined for debt, on the debtors side of the gaol and three on the felons side. Six of the thirteen were sent to prison under a writ issued by Mr. Butler; three had detainers against them by Mr. Butler. The warrant is in a great measure a copy of the writ, none of them are confined at Mr. Butler's own suit.
Mr. Glover, -- was called but did not answer. 
This was Defendant's case.
The Solicitor General reminded Mr. Gellibrand that he had not proved the commencement of any action against Mr. Crowther, but I give him the opportunity of doing so if he pleases.
Mr. Gellibrand stated he was aware that the summons and the plaint differed as to the name of the plaintiff, and therefore he was compelled to leave his case where it was.
The Solicitor General Stephen, -- It is with great reluctance that I feel myself compelled to address you at considerable length, but I am of opinion by taking the labour upon my shoulders I shall relive yours. The pleas are a mere dry detail. The first is the general issue, which puts our whole case at issue. I have proved the whole distinctly, that Mr. Butler is an attorney, that the libels were published of and concerning him and his practice. The 2nd plea alledges that Wilson was arrested for £12, whereas it is distinctly proved that he was arrested for £16, [there]fore that plea fails. (Mr. Stephen thus went through the whole of the defendant's pleas and argued that the whole of his allegation had been, not only not proved but distinctly disproved. This being all matter of mere dry legal relation, it is unnecessary to follow him through it. It is sufficient to say that he placed the evidence as applicable to the pleas in a most clear and distinct point of view.) 
Mr. Gellibrand told you that in my reply I should launch out very extensively upon topics I had passed over in my opening lest he should have replied to them. But the speech made by Mr. Gellibrand, though that speech is Mr. Bent's, yet it decidedly is a more coarse libel than is the or[i]gina[l]. Mr. Bent has thought pr[o]per to attempt to prove his pleas and instead of abandoning them as he ought to have done, like a madman to carry the libel as far as by po[s]sibility it could have been made to stretch; to assert that the charges, admitted to be so grave[y]ard heavy, that Mr. Butler is the person there represented t[o] be, that he ought to have been dragged before this court for punishment, that he is unfit for society, that he is a pettifogger deserving of the most severe punishment. Take the pleas and for the argument's sake, suffer them to be all true, and you will not find one single passage in them to justify so virulent an attack as Mr. Bent has caused to be made upon Mr. Butler. What is the case as respects Mr. Crowther! He calls upon Mr. Butler; and granted that all occurred as stated by Mr. Crowther in the absence of all proof that there was any thing to harrass and oppress Mr. Crowther, what if all Mr. Crowther stated was true, that supposing by accident the summons was issued after the letter of which he spoke, but which is not proved, had been written, does that call for the language which Mr. Bent has this day put into the mouth of his counsel. Could even the most atrocious acts call for more outrageous language? I do not wish to repeat the expressions used by Mr. Gellibrand or to recur to the words of the libel, but even suppose that there were several persons confined in gaol, Mr. Butler being employed against them is that a proof that he delights in carcases, that he arrests these people and keeps them there on purpose to gratify his delight at the sufferings of his fellow creatures. But Mr. Gellibrand says Mr. Butler's moral character is not attacked. What is Mr. Gellibrand's idea of morality? Can he mean that any man who can gratify the basest of passions as Mr. Gellibrand has described, can be other than the demon Mr. Gellibrand has described him to be. Is not this an attack upon his morality? if this is not I know not what can be; and I beseech you before you dismiss Mr. Butler with small damages that you will reflect a little upon [the] charges made against him, rashly so made by Mr. Gellibrand. Mr. Bent rests his whole case upon the ingenuity of his counsel, but that ingeniously has failed altogether, and if at all the injury sustained by the original libel has been encreased by it. Every allegation made against Mr. Butler has failed in proof. You cannot have failed to observe the tricks and contrivances which were apparent from the evidence of Mary Ann Turvey. If an execution had issued against him, she would have claimed the property and so in the converse of the case. If they had meant honestly why not propose to place the property directly and unqualifiedly in the possession of Mr. Butler's client. And even if they had done so, a third person perhaps would have come forward and claimed the property; and because Mr. Butler did not fall into the trap thus laid for him he is to be called a cockatrice, a demon, one who delights in carcases, and a man unfit for society, all of which Mr. Gellibrand insisted upon, in that particular part of his case, before a most crowded court for one hour and twenty minutes. In respect to the arrest under Twenty pounds, the facts are very plain. The old practise was that arrest for debt took place for £10, it was then raised to £15, afterwards an act passed, Mr. Weston's not Mr. Peel's act, by which it is raised to 20, and this act not passed until 1827, and I may say that no persons in the Island but the Chief Justice, Mr. Gellibrand and myself received the statutes. But gentlemen, nei[t]her that act nor many hundred others came into operation here until March 1829, when at one feel swoop the English statutes came into operation here. And because Mr. Butler did not ascertain this fact, for five weeks only after this new act had come into operation, is he to be subjected to such epithets as the libels before you, and as have been this day in court applied to him. But even now the rule of court by which writs can issue for ten pounds, is still unannulled; will you blame Mr. Butler for not knowing that the act of 1827, which did not come into operation until 1829, was not in operation within five weeks afterwards. I will now read to you the language used this day in a crowded court, the very detestably abusive language used this day by Mr. Bent through his counsel, and I will ask you whether for any little slip such as this Mr. Butler is to be subjected first to libel such as that in Mr. Bent's newspaper, and by his counsel this day in a crowded court. (Mr. Stephen here repeated Mr. Gellibrand's expressions as to Sefton and Wilson's case and commented upon them as he went on with great animation and address). Mr. Butler, gentlemen, is not a Legislator, he cannot alter the law, why is he to be blamed for acting upon the law as he found it? All which Mr. Gellibrand stated necessarily influence you in the amount [of your verdict.] Mr. Bent said through Mr. Gellibrand, that all the persons he met with complained of Mr. Butler grinding the poor. Not a particle of this has been proved, and therefore for these words Mr. Butler is entitled to a great encrease of compensation. I have only commented, said Mr. Gellibrand, upon Mr. Butler's public conduct, and Mr. Bent is a public benefactor for bringing these enormities forward. How is this language to be justified. It is enough to make one's blood boil to recollect them, as Mr. Gellibrand stated of Mr. Butler in respect to Dr. Crowther's affair. If Mr. Butler is a pettifogger he is entitled to small damages; but if, as I trust you will be of opinion, that Mr. Butler has been most grossly calumniated, you will give him such damages as the abominable attack made upon him may in your sober opinion call for. If the obje[c]t of the defendant had been praiseworthy, he would have stated the bare facts of which he had to complain, without letting himself be the tool of any malignant man behind the scenes, who Mr. Bent chooses to conceal, who for all that appears may abundantly indemnify him. As to the public good which these articles are said by Mr. Gellibrand to produce, he can only have so expressed himself to see how far his ingenuity can mislead you. If it is conducive to the interest of society to have domestic peace interrupted, private affairs dragged forth, and the peace and happiness of private life invaded, then you will give Mr. Bent the benefit of such opinion; but if you think, as I trust you will do, that the basest passions would thus be gratified, and the worst consequences ensue, I trust you will by your verdict read a lesson to the conductors of other newspapers how they attack private character and reputation.
The Chief Justice. - This is an action brought by Mr. Butler an Attorney of this court, against Mr. Bent the proprietor of the Colonial Times. You have been occupied now nine hours and a half in this case, and I shall address you as short as I can. I shall therefore pass over the subject of trial by jury, and with one or two general observations shall proceed to the circumstances of the case. The counsel for the defendant compared the charge made by his client against the plaintiff to a case of criticism upon a literary publication, and that every attorney of this Court was a public man, so as to have his conduct subjected to public animadversion. I do not know where the learned gentlemen found this doctrine, but this I know that no public man whatever is to be subjected to have his conduct brought before the public and his feelings wounded by animadversion and reproach. In respect to the pleas of justification, the true ground upon which you are to go is that laid down by the Solicitor General. The rule is this, -- has the defendant published that which was untrue, and if so, was it of the Plaintiff in his professional character, with a view to bring him into public hatred and contempt? If you find the meaning to be that which is alleged in the declaration, to cause the plaintiff to be looked upon as a man of a cruel and reckless disposition, the intention will be inferred from the facts before you. If the libel complained of does mean that which is alledged, bringing the plaintiff into the public hatred, the malicious intention will follow as a matter of course. The gravamen of the charge in this case is, that the plaintiff was, as an attorney, a man of cruel and unmerciful disposition; the declaration consists of six counts; charging various libels published in different newspapers, not only as respects the plaintiff in his professional character, but also generally. Do then the libels mean what the plaintiff complains they do mean? Do they mean to represent him as a cruel merciless and hard hearted man in his profession as an attorney, and besides to hold him up to ridicule, and if so, did the defendant intend to do so or did the defendant not intend to injure the plaintiff; of that indeed I must honestly confess I see no evidence, and therefore it must be left to appear from the matters themselves. (The Chief Justice then went through the different counts of the declaration, commenting upon them in the most fair, impartial, lucid and perspicuous manner). You gentlemen will say whether the reference to the wife of a gentlemen in such a way as this is uttered, is not to be visited with damages. What have the plaintiff's appearance, his dress, his manner, to do with what the defendant's counsel, giving the utmost latitude to his argument, has urged as to the public professional conduct of the plaintiff. Surely this is holding him up to ridicule, and it will be for you to say what damages such an injury calls for. In respect to the situation in life of the parties and ot[h]er circumstances, the defendant's counsel has admitted all the material facts. (The Chief Justice then went over the evidence and commented upon every part of it with the utmost precision, accuracy and impartiality.) Now, gentlemen, notwithstanding Mr. Meredith and the other gentlemen have applied the alledged libels to the plaintiff, yet you are not bound by their opinions. You will take the whole into your own consideration, and judge for yourselves as to their application and intention. In respect to the pleas of justification, if you find a verdict for the defendant upon them, or any of them, if you find for the plaintiff upon the several issues and give him One hundred thousand pounds damages, the defendant will come on the first day of next term, and say to the court, it is true that such a verdict was given, but I have had a verdict of justification upon all or certain of my pleas, and not one shilling therefore of your verdict can go into the plaintiff's pocket. You will look then at each of the pleas, if the material facts of these are proved, you will find for the defendants upon them. If they are not, you will find for the plaintiff.
I have endeavoured to explain to you what are the real questions in this case. If I have failed in so doing, I should despair, at this hour of the night, of more fully informing you. If, however, there is any point upon which you wish explanation from me, I shall be happy to afford it to you.
The Jury retired at ten minutes past Eleven. At Twelve they returned, and the Foreman, Dr. Ross, delivered the following verdict. - We find for the Plaintiff upon the first and fourth Count, Damages THIRTY Pounds. We find for him also upon the second and fifth Counts. Damages, TWENTY Pounds. And upon the third Count, Damages, TWENTY Pounds. We have found upon these Counts separately, according to the directions of the Chief Justice, as the first and fourth, the second and fifth, and the third, are for separate libels. We find that the Defendant has justified the fourth Plea, as far as respects the conversation which took place at Mr. Butler's office. On all the other Pleas, the general issue included, we find for the Plaintiff."
After this verdict was delivered, a conversation took place between the Chief Justice, the Solicitor General, and Mr. Gellibrand, as to what would be the legal construction of the finding, as to the fourth Plea. The result of which was, that the Jury again retired to re-consider their finding. They soon returned, finding generally for the Defendant upon the fourth Plea, and for the Plaintiff upon all the others. Total Damages, EIGHTY Pounds. But the legal effect of finding that the Defendant has justified one of his Pleas, will be, that the judgment cannot be now concluded. It will have to be argued whether the Plea upon which the judgment is for the Defendant, is good in Law. These special pleadings are awful absurdities.

Notes

[1] The Tasmanian and Austral-Asiatic Review, 22 January 1830 was proud of its full reports of decisions in the week this case was heard, but noted some small errors due to the low tone of voice of some of those in court. In the argument for postponement of the trials in Butler v. Bent and Ross v. Bent, the newspaper noted that it omitted to state "that the Solicitor General in his observations as to the change of the law of Libel effected by Mr. Fox's Act, stated to the Court, that in that Act its operation was expressly limited to cases by criminalproceedings; in no part of it does it refer to CIVIL ACTIONS".
See also Colonial Times, 15 January 1830 (report and editorial). The Colonial Times claimed that Mr Gellibrand argued in "a very eloquent and impassioned manner," while the Solicitor General (Stephen) "indulged in a tirade of strictures" upon the Colonial Times and talked of Magna Carta and trial by jury as if they were of no account. On jury trial, see also Hobart Town Gazette, 27 March 1830. 
AOT SC 139/1, p. 68, gives the parties as Gamaliel Butler and Andrew Bent. Butler was a lawyer and businessman see JND Harrison, "Camaliel Butler (1783-1852)", ADB, v. 1, pp. 190-91. Bent was involved in a number of libel actions, see J Woodberry, Andrew Bent and the Freedom of the Press, Fullers Bookshop, Hobart, 1972.
[2] See also Colonial Times, 15 January 1830, noting that Pedder C.J. had said that "neither the Government nor the Council had a choice respecting the Jury question, as the Act of Parliament gave them no discretion, and that a Bill must immediately be passed".
[3] See also Colonial Times, 14 May 1830. See also Ross v. BentTasmanian and Austral-Asiatic Review, 14 May 1830; Colonial Times, 14 May 1830 (trial postponed due to absence of defence witness, who had left the colony).
[4] Simon Stukeley was the pseudonym used by Henry Savery, who wrote the first volume of Australian essays entitled The Hermit of Van Diemen's Land, see C Hadgraft, 'Henry Savery (1791-1842)', ADB, v. 2, pp. 419-20.

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