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Decisions of the Nineteenth Century Tasmanian Superior Courts

R. v. Gregson [1832]

criminal libel - libel, distinguished from slander - convict evidence - legislature, campaign for - Pedder C.J., sensitivity of, when criticised - Governor Arthur, involvement in litigation

Supreme Court of Van Diemen's Land

Pedder C.J., 2-3, 8 November 1832

Source: Tasmanian, 9 November 1832 [1]

THE KING, on the prosecution of RODERIC O'CONNOR,


On the opening of the Court this Morning at ten o'Clock, there were a number of respectable individuals present, who seemed to evince a lively interest in the proceedings of this case of libel. It had its origin in an article published in the Colonist newspaper, of the 27th July, and headed "Inquisition Again," and of which paper the second count charged Mr. Gregson with being the printer and publisher.

Mr. Gellibrand, in a speech which occupied upwards of two hours in the delivery, stated the case to the Jury, of which we can only give an outline. He commenced by reading the first count of the indictment, which charged Mr. Gregson with publishing a false, scandalous, and malicious libel, against the said Roderic O'Connor, &c., and to support which, he read extracts from the publication in question. It was headed with a quotation from Shakspeare:-

"That he should die, were worthy policy;

But yet we want some colour for his death;

'Tis meet, he be condemned by course of law."

"We have often had occasion to admire the system which is pursued in the Colony, when it is thought expedientto get rid of a public officer, particularly if he holds his appointment from home. A secret committee is appointed, and enquiries and investigations set on foot, in the most hidden manner, and in the absence of the person intended to be accused; not for the purpose of investigating existing charges, but to frame ground for charges, "that he may be condemned by course of law." Englishmen, event at the Antipodes, will never forget the horrid deed-be-done transaction; and painful as is the duty, it must be ours to bring this foul business, very fully under consideration."

"We are led to those remarks, by having heard that the services of Colonel Logan and Captain Forster, are again put in requisition, aided on the present occasion by the able co-operation of Mr. Roderic O'Connor! Now, readers, against whom do you think those proceedings are directed? Can you believe that they are directed against a man whom you universally respect? The head of a department, whose performance of his duties, as far as he was permitted to perform them, has given more public satisfaction than any other department in the Island. Can you believe, that Mr. John Lee Archer is the subject, who now occupies the consideration of Colonel Logan, Captain Forster, and Mr. Roderic O'Connor?

"We are informed that Mr. Archer, is not "aware that he is accused of anything, but some indiscreet 'hanger-on' of power has blabbed, and every person about town, except the individual most interested, appears aware that secret enquiries are now making amongst the convict clerks, in the Engineer Department, for the purpose of finding charges against Mr. Archer. It is even stated, but we cannot believe it, that those clerks are bound by anoath never to divulge the questions put to them, nor the answers which they give."

The article goes farther on, and says in reference to Richmond.

"Well acquainted as we are with the known proceedings on that occasion, and the result, we will not be surprised to see our Colonial buildings placed under the same management as forms the subject of so much eulogy in our correspondents letters, on the state of the roads."

The article stated in conclusion -

"We would advise Mr. Simmons to set his house in order, for after Mr. Archer is disposed of, Mr. Mason will be in readiness with his broom to sweep out "the stable." Major Honor's services might have been of great importance on the present occasion - if it be particularly required that the deed be done."

Mr. Gellibrand observed, that as they (the jury) had not tried a libel case since they came to the Colony, he would take the liberty of laying down the law on that subject, as far as he was competent; and of quoting such legal authority as would farther tend to elucidate it. He begged that both for himself and his client it should be distinctly understood that they were advocates for fair discussion, and inimical to any law which would restrict the liberty of the press; that while he and Mr. O'Connor were the stedfast friends of its liberty, they were equally repugnant to its licentiousness. The press when well used was one of the greatest blessings that we enjoyed, but when made the medium of private rancour and malice, it became intolerable. Mr. Gellibrand, here quoted from Starkie on the law of libel, to shew that a man may use his pen and press for the benefit of himself and his family, in the same manner as persons following any other vocation, so long as they did not use that pen and press to the prejudice of others. He here explained the difference of the law in speaking and writing. The law in its mercy has made this allowance for human frailty, that words when spoken cannot be construed into a libel, and yet if these words are committed to paper immediately after and published, that constitutes a libel; in the first instance, allowance is made for the impulse of the moment, and in the second, that allowance is negatived, from the coolness and reflection which may have been acquired in the writing. These were the bread principles of the law of libel, and he would presently give them their applications; he must here state, notwithstanding what may be said to the contrary, that this was not a prosecution; his client had only come forward in his defence. He, Mr. O'Connor was hunted up and down; was prosecuted and persecuted by this paper; yet he (Mr. Gellibrand) was willing to place before the Jury, the most favourable instances on record, of decisions in libel cases, and for which purpose he would quote "the King against the editor and proprietor of theMorning Chronicle," in consequence of the favourable summing of the Judge. He (Mr. Gellibrand) must here again say, that while he deprecated licentiousness, he would submit in zeal to no man as an advocate for free discussion. In the case to which he alluded, the defendants were persecuted for publishing a libel against the King on the 2d October, 1809. He here quoted Lord Ellenborough's favourable expression in summing up; in that case the Jury acquitted defendants; and so here, said Mr. Gellibrand, if you think there is nothing immoral or bad imputed to Mr. O'Connor - but if, on the contrary, it is your opinion that these inuendos are intended to mitigate against the character of my client, then I say you are bound to find the defendant guilty." Having addressed these preliminary observations to the Jury, His Honor would instruct them in their duty. A great deal had been said about the difficulty of understanding the law of libel, but to him it appeared quite clear. If the words used, impute guilty motives, then it becomes libellous, but not otherwise. He contended, that any language used to degrade or lessen a man in society, words not taken by themselves, but what the writer intended to convey, were libellous. Suppose a person writing of a public character, says, he is an honest man, a brave man, an honourable, &c., a man is not to cloak himself under such a mask; the person who publishes is as guilty as he who writes. Mr. Gregson stands charged with printing and publishing, not with writing the article in question; he does not think he wrote it, but imputes his printing and publishing it; imputes that he saw it before it was printed, and might have suppressed it if he wished.

Mr. Gellibrand, here referred to the Act of Council relative to the proprietorship of the Colonist, on which Mr. Gregson intimated a wish that Mr. Robertson, who was sitting in the reporter's box, would leave the Court.

Mr. Gellibrand. - "If Mr. Robertson has been sent out in consequence of any allusions which I have made, I decidedly exclaim against say intention of alluding to him. Mr. Gregson is here alone to answer this matter; theColonist commenced operations on the 6th July, 1832, it was then the first number was published; the four contains the matter which is charged libellous." Mr. Gellibrand, here alluded to the difference of opinion which existed as to the utility of the Lumber-yard, and stated that in consequence of its abolition in New South Wales, Governor Bourke found it very difficult to get his contracts performed. He then read a Government Order, dated 10th July, in which the Lieutenant Governor directs a Committee to make strict inquiry into the work done, &c., at the King's yard. That the members who composed this committee were Colonel Logan, Captain Forster and Roderic O'Connor, Esq. That on the 16th July, another letter was issued from the Colonial Secretary's Office, intimating that a rumour had reached the Lieutenant Governor, that some individuals in the Engineer Department, were concerned in contracts, and directing the committee to inquire into and report on the same. These public officers were directed to assemble and make their report; that report he had, from which it would be seen that they had no ulterior object in view. He would scorn to address a single observation to the Jury, that would not be borne out in evidence; he would be unworthy of the situation he held in society, did he descend to such mean subterfuges. Mr. Gellibrand here read the article of 17th July, headed "Inquisition Again," and commented on it with considerable severity. Had they written a long article on the waste of public expenditure, or showed fairly that a public officer was unqualified for the situation which he filled, and that the public money in such an instance was not usefully applied, no objection could be taken to such a course; but no, that did not suit their purpose; they descend to abuse and licentiousness, and impute improper motives for the base purpose of removing a public officer. If the licentiousness of the press prevail, there is an end to all society. Like an assassin, it stabs you in the dark - it blasts your fair fame - it bunts you through society - and walking into your domestic circle, holds up the father to the indignation of the child.

Mr. Gellibrand then came to the third count, and stated that there were two ways to prosecute a libel; one by information, the other by action; and that, in this case they were in the situation of "the old man and his ass." Had Mr. O'Connor brought his action for damages, then it might be said that he sought pounds, shillings, and pence, as a balm to his wounded feelings; if he had come and said, that he had been put to trouble and expense, it might be considered that he was actuated by pecuniary motives; but his client disclaimed any such intention, all he sought for at the hands of the Jury, was public protection and to stop the licentiousness of that power by which he had been assailed. Mr. O'Connor had no other feeling than to stop that licentiousness. Here were three gentlemen held up to public contempt all over the world wherever that paper might go. "We will," said Mr. Gellibrand, "go any length gentlemen, to shew you that we are not actuated by vindictive feelings in this prosecution. After the libel was published a letter was shewn to defendant, to prove the wounded feeling, and the wrong inflicted upon these gentlemen. What do they do? Why; on the 10th August, to make the matter worse, they publish another article - in a country too where the press has been so long silent."

Here Mr. Gregson submitted to the Court, that the subsequent papers had no relation whatever to the article charged as libellous; that it arose in consequence of Mr. O'Connor's determination to prosecute and was a matter altogether foreign. He had no objection to Mr. Gellibrand reading the whole article, but he considered it unfair, were he permitted to read extracts, for the purpose of making an impression on the minds of the Jury to his disadvantage.

[Mr. Gregson then referred his Honor to a passage in one of the law books, in support of his objection, but it was overruled.]

Mr. Gellibrand stated that he had no objection to Mr. Gregson reading the whole article. He said - "Fourteen days after the publication of the libel, they seek for truth. What do they say? - 'We have seen the report - it is an able one - there is no censure conveyed in it upon Mr. Archer - yet we are not sorry &c.' Now there is no man more sensitive than Mr. Gregson, and how, let me ask, would we have felt under such circumstances? But perhaps it did not suit the dignity of the newspaper to offer an apology to public officers. [Mr. Gellibrand here ridiculed the idea of their expecting a note from Colonel Logan.] 'If they do not call on us, let them put up with the contumely! - they must bow with submission to our editorial chair! They must submit to us - not we to them!We are the public censors! We are the guardians of public liberty.' My client, gentlemen of the Jury, had not the most remote wish to prosecute, had they privately satisfied his injured feelings; but after they had seen the 'able paper,' and every thing had been done to satisfy them of the erroneousness of their statement, not the least shadow of contrition is offered to the gentleman who now seeks redress at your hands. The simple matter for your consideration is, what does this article impute to Mr. O'Connor? You are not to be guided by the opinions of witnesses, but by your own. I have no wish to press the case heavily on the defendant; you can have no interest in it, either on the one side or the other; I therefore leave it in your hands. But I cannot sit down, gentlemen, without again stating to you, unequivocally, that both myself and my client, are the decided friends of legitimate discussion; but are stedfastly opposed to the licentiousness of the press, and that you would not be troubled to try this case to day, had the slightest apology been offered."

J. Burnett, Esq. examined by Mr. Gellibrand. - Is Colonial Secretary; issued the Government Order of 19th July, addressed to Colonel Logan, the Chief Police Magistrate, and Roderic O'Connor, Esq. Mr. Archer is Civil Engineer. Issued the Order of 16th July, signed by witness, and directed to the three first named gentlemen; received the report from these gentlemen in consequence of that Order; marked the report as received on 31st July; the report itself not dated.

Cross-examined by Mr. Gregson. - Mr. Archer has the control of the Lumber-yard; things the head of the Engineer Department best qualified to give instructions; cannot say whether the letter of the 16th was a letter of inquiry; the report was a general one; cannot say who was, or was not examined; should think it highly disrespectful towards him, to examine his convict clerks in his absence.

His Honor objected to this kind of evidence, with respect to prisoner clerks, as it was assuming that they were examined.

Cross-examination continued. - Considered it dangerous to examine convict clerks in any department.

Colonel Logan merely stated the facts, of the orders being received, the board being held and a general report being made out and signed by himself and the two gentlemen with whom he acted.

Captain Forster examined by Mr. Gellibrand. - Was one of the committee included in the order of 10th July; before the inquiry, that letter was laid before the board; things that about three days after the report was made, it was transmitted to the Colonial Secretary; there had been a rough draft made of it; has seen the article in theColonist, of the 27th July; is quite certain the report was drawn up before he saw that article; (read it) understood it to refer to the proceedings of the board; that the imputation refers to Mr. O'Connor, he thought then and now; things that it imputes, first, that he formed one of the board to implicate Mr. Archer in wrong charges; and second, that he had a wished to succeed there. ["That he should die," &c.] The impression on his mind from reading this quotation, and the paragraph that succeeds it, was, that the committee was formed to find out charges against Mr. Archer, preparatory to his removal, and that Mr. O'Connor was to succeed him. ["The clerks are bound," &c,] Understands by that passage, that the committee swore them not to divulge what transpired. ["Our Colonial buildings," &c.] That as the consequences of that visit to Richmond were well known to the public, that witness and Colonel Logan with Mr. O'Connor were placed on this committee, which was likely to get Mr. Archer turned out of his situation through their report. ["We advise Mr. Simmons, &c.] Would understand by this, that Mr. Archer was turned out of his office, and that Mr. Simmons had better take care of himself, or else he would be turned out the same way; things the article was written to make the public believe, that the committee was got up for the purpose of turning Mr. Archer out of his office, and that Mr. O'Connor was to succeed him.

Cross-examined by Mr. Gregson. - Made an affidavit originally is this case; does not go hand-in-hand with Mr O'Connor in this prosecution; he did not choose to do so; did originally intend to retain a gentleman to prosecute, but thinking that this trial would give him an opportunity on his oath of clearing himself from the imputation, he was content; has not made up his mind to abandon it, should this prosecution not succeed; if he is here to answer those questions, considers he has a person retained to prosecute on that article, so far as he is concerned; that person is Mr. Ross; was one of the board by order of the 10th June; shewed Mr. Archer their order; completed the inquiry on that and subsequent days, as far as that order went; is quite sure the report went in before he saw the article in the Colonist; knows no further than by what appeared in memorandum; does not recollect that he presented the last letter, relative to inquiry, to Mr. Archer; the reason was, the former inquiry took place in the King's yard, and the latter in witness's private room at the police-office; certainly a private inquiry; thought there had been a very improper use of paint, as connected with the police-office; found afterwards that there had not; things that many other things gave rise to this inquiry, thought he really does not know what else; he really did not know that that particularly gave rise to the inquiry of the 16th of July; saw Mr. Archer at Government-house a day or two before he got the letter; he told witness that he had sought him out to afford him information about the paint; does not recollect that Mr. Archer offered any explanation at that time; when witness left Mr. Archer, he went to the Private Secretary's, and afterwards to the Governor's, in a day or two after the committee received the letter of July 16th; Mr. Simmons in principal of the King's yard; the head of the department ought to afford the best information; Thompson the clerk painted 3 rooms at the police-office, and the enquiry therefore commenced with him to know how such an immense quantity of paint could be used in painting 3 rooms; had no idea who the persons were, that were contracting with the engineer department; Thompson was not told that what he said would be kept secret, and not revealed; there was no assurance given him to that effect; he was told that any information which he gave, of surreptitious contracts, whereby the interests of the public service could be promoted, should never be injurious to him.

Examination continued. - Thompson brought in a letter to the board, part of which he read, and with which he would have nothing to do; we were there to do what was most likely to promote the interests of the public service - I can answer for myself, and I believe for the other gentlemen, that we were actuated by no other motive; considers most truly, that the article alluding to what took place at Richmond is personal, both to himself and another.

Re-examined by Mr. Gellibrand - Our inquiries had nothing whatever to do with Mr. Archer, personally; he was present at a great part of the inquiry. He was three days at the first, and part of a day at the last, he might have come in at all times when the inquiry was going on.

John Lee Archer, Esq. examined by Mr. Gellibrand. - Is Colonial architect; recollects the inquiry at the King's yard in July; was present; (witness was here handed a Colonist of July 27) acted as one of the board, in his capacity of a public officer; [reads, "to frame grounds," &c,] - he should say that, according to that statement the board was formed to find charges against him; ["it was likely that the public buildings" &c.] - that was his opinion of the article, that he should be "deprived of the charge of the public buildings, and it would be given to Mr. O'Connor; [reads the quotation from Shakespeare and the subsequent paragraph] thinks that he was the person alluded to, and that the writer literally meant what he wrote, and that the quotation applies the same way; would not be condemned according to law, if on unjust charges; has control of the King's yard, Hobart Town.

Cross-examined by Mr. Gregson. - Had official notice; does not remember having notice of July 16, relative to contracts with engineers; heard there was a secret inquiry going on at the police-office relative to his department; Thompson told him so; he is a prisoner, and has been long looking for indulgences; not right to examine prisoner witness in private, whereby the interests of their masters may be affected; considers it was going on previous to the announcement of "Inquisition Again;" thinks the article so headed, an attack on the system; when he heard that the secret inquiry was going on, felt rather uncomfortable; felt a good deal annoyed, but had no just grounds of fear; has a paper written by a prisoner, and head, "Hints to the Board of Enquiry." Mr. O'Connor told witness after the publication of that paper, that the report had gone in; had not then been examined; did not tell Thompson that he was.

Chief Justice. - I really do not know where this will stop, the master is entirely irrelevant.

Cross-examination continued. - Was examined by a committee of that board; about a week after the report was sent in, was desired to call at the police-office to be examined on that subject; was Captain Forster at Government-house, a day or two before July 18; witness told him that he had followed him there, for the purpose of affording any explanation which he may deem necessary, being apprehensive that Captain F. labored under a mistake; he said that he wanted no information, that it was an infamous robbery, and that he had seen it in black and white; witness thought the application alluded to him; it could not allude to any one else.

Re-examined. - Understood there was a private investigation going on previous to the publication; met Mr. Gregson accidentally, and informed him; did not then know what inquiry; immediately after leaving Mr. Gregson, went to police office; went into a room and Captain Forster came to him; don't remember ever seeing the letter of July 16; thinks he saw a letter at police-office when examined about a week after what appeared in that paper; thinks that it is an attack on the system; should not think that such an attack of a personal nature; thinks the odium rests with them who appoint the board; thinks it would be to remove him to make way for Mr. O'Connor; it reflects on the government generally; does not reflect individually.

By the Court. - Thinks the article alludes to the board of the 16th only.

This closed the case for the prosecution.

Mr. Gregson in his defence stated, that he would not trouble the Jury by calling any witnesses, but that he would offer a few observations for their consideration, which he did in nearly the following terms:- "Gentlemen of the Jury, I stand charged with publishing a false scandalous and malicious libel, against Mr. Roderick O'Connor; and in offering the few observations which I intend to make, I will keep as close as possible to Mr. Gellibrand; he has told you gentlemen what the law of libel is, and in support of his opinion has read extracts from Starkie; now gentlemen I will, in support of what I advance, quote from the same book, to shew you that without it can be proved, that a person is actuated by malice in what he writes, it cannot be called libel; (Mr. Gregson here read an extract from Starkie in support of what he advanced,) he then continued - is there a man in this Colony who would for a moment, believe (except those concerned,) that such an iniquitous system, has been followed for some time, as that of examining convict witnesses in the absence, and to the prejudice of their masters? This, gentleman, is the system that has been attacked, and though it has been stated by Mr. Gellibrand, that I am not the author of the article for which this prosecution has been instituted, yet I will not shrink from the consequences; Mr. Robertson was stated on that paper, to be the printer and publisher, yet I have not put him forward; Mr. Robertson was responsible, he was not "a man of straw" as was stated by Mr. Gellibrand; had I, gentlemen, sought out an individual, who was base, cowardly, and malevolent, or had I put forward an individual who had paid but 10s. in the pound, then they may have had an excuse, but I say again, that Mr. Robertson is a responsible individual, and that this prosecution originated in malice, and further, that Mr. O'Connor is recorded in this Court upon a malicious prosecution.

Chief Justice. - I wish Mr. Gregson, that you would confine yourself to the business before the Court. What has that, which has taken place here on a former occasion to do with the present subject?

Mr. Gregson, resumed. "Mr. Gellibrand has told you gentlemen, that he knows the law of libel - that it is plain to him; I will now shew you what the opinion of a high tory is on that law; I will read for you the opinion of Sir Walter Scott." [Here Mr. Gregson, read that caustic remark of the worthy Baronet on the law of libel, which appeared in some of the late London papers.] Mr. G., further contended that the press was the bulwark of the peoples' liberties, and must not be torn down; his opponents knew the object that they had in view, it was to hunt down "the paper of the people," that was what brought Mr. O'Connor forward, the known Editor of theColonial Times, which never contained a lie; nothing else would serve Mr. O'Connor and Mr. J T. Gellibrand, "Now gentlemen, I leave it to you on your oath, if you think that article was likely to produce a breach of the peace; you may be told that there are different opinions, as to what constitutes a libel. God knows I have been reading about it until I am bewildered." [Mr. Gregson here quoted another passage from Starkie,] and continued the "system of examining prisoner witnesses in the absence of their masters, I abominably detest and shall ever deprecate. What did the Attorney-General say in this Court, a few days back about witnesses? Why, that in a given number of hours, he would get plenty of witnesses who for a shilling each, would swear to any thing; I repeat it gentlemen, that they went to a foul source and that the article in question was meant torepudiate that, and nothing else. You have heard the volubility displayed by Mr. Joseph Tice Gellibrand, about the licentiousness of the press, but I am able to prove, that other newspapers contained grosser libels, than that which formed the subject of this proceeding, and yet they were allowed to pass with impunity. You have heard Mr. Archer swear that it was the system, and not the individual whom he considered to be attacked; and here (with considerable emphasis) I declare unhesitatingly and unequivocally, that I had not the most remote intention of attacking Mr. Roderic O'Connor, or either of the other gentlemen personally; it was the system, and the system alone that was attacked." He felt proud that the most enlightened did not understand the law of libel, and that even amongst the Judges, there was the greatest discrepancy on the subject. He here called the attention of the Jury to the evidence of Mr. Archer, who was a witness for the prosecution; he stated "that it was an attack on the system." And observed "that he trembled for the consequence, when he heard that his convict clerk was privately examined;" that Captain Foster, said it was "a dead robbery," and permitted inquiry by secret investigation. He repeated that it was an odious and damnable system, to examine convict clerks in the absence of their masters, and he treated that the present exposé would put an end to it. Mr. Gellibrand had told them, that if one said a man was "a brave man," "an honest man," or "an honorable man," ironically, that was a libel; he must however excuse him (Mr. G.) if he put no faith in such construction, and with respect to Mr. O'Connor's getting the public buildings under his control, he begged leave to state explicitly, that he never dreamt of such a thing. He therefore submitted that what has been charged against him, was not productive of a breach of the peace.

The Chief Justice in summing up, observed that he would not advise the Jury to judge of any words by themselves alone, but to take them in conjunction with what followed; and on reading the inuendos, observed, that - "whatever holds a man up in contempt, as acting in a dishonorable manner, is clearly a matter of libel, if published with that intent. If it is meant, that these gentlemen lent themselves to a base scheme, for the purpose of putting a man out of office, by getting up an enquiry behind his back, I am obliged to tell you my opinion, that it would be libel; it goes very near to be an indictable offence to all those gentlemen, as it looks like a conspiracy to put Mr. Archer out of his office." The Jury would take the whole together for the purpose of illustration, and they were not to be guided by the opinion of any man, but by the whole case itself. His Honor in conclusion, observed, that if the Jury were of opinion, that the mere purpose of the writing was not to implicate Mr. O'Connor, personally, but for the public good, they would acquit the defendant.

The Jury, almost instantly, returned a verdict of - Not Guilty, which was warmly received by Mr. Gregson's friends.

The Court then adjourned.

Saturday, Nov. 3., 1832

The Court opened this morning at ten o'clock. Previous to any business being proceeded on. Mr. Gregson requested to know if His Honor would be pleased to put off the trial until the next week, as in consequence of what had fallen from him (Mr. Gregson) on the previous evening, relative to being deprived of legal assistance, he was induced to hope that the indulgence would be granted; and on the faith of which Mr. Allport was now writing the necessary affidavits.

The Chief Justice stated that he had prolonged the Sessions for the purpose of trying these cases, and however inconvenient it may be to him, he was quite willing to accede to the proposition, if the prosecutor had no objection; but a fresh obstacle that had been previously overlooked now presented itself, which was, that the Jury on the previous day were sworn to try both issues, and His Honor did not therefore see how it could be put off; on hearing which, Mr. Gregson said he would enter on his trial.



The king at the prosecution of Joseph Tice Gellibrand v Thomas George Gregson

The information charged defendant with printing and publishing two false, scandalous, and malicious libels against the plaintiff, in the Colonist newspaper, of the dates of 31st August, and 5th October; there were six counts in the indictment.

Mr. Horne for the prosecution, stated the case to the Jury; he commenced by observing that before he entered more minutely into the subject which brought them together, it may not be unnecessary to give a short historical sketch of the origin of these publications. A meeting was held in this Court in August, for the purpose of addressing His Majesty and both Houses of Parliament, and praying for a domestic legislature. At that meeting, Mr,. Gellibrand and Mr. Gregson took opposite parts; certain letters were subsequently written on that subject; the first of those written by Mr. Gellibrand, appeared in the Colonist newspaper of the 24th August, and in the next number of that paper, namely on the 31st, the libel was written, which formed the grounds of this prosecution. Mr. Horne here stated, that in a criminal prosecution, truth is no justification of libel, and read some passages from law books, in confirmation of that opinion. Libel, he maintained was the greatest pest which could creep into a community; the links of friendship were unbinded, and the peace of society became broken by it; every thing seemed to be wrapped in the question of libel. If the proprietor or editor of a newspaper, throws his feelings of rancour and malignity into his columns against an individual or a government, and spreads them all over the world wherever that paper circulates, what greater injury can be inflicted. This prosecution is not brought forward for the purpose of gagging the press, it is brought to curb its licentiousness; and here he would state unequivocally that his client is the uniform advocate for its liberty. Mr. Horne next referred to the first count of the indictment, wherein mention was made of the public meeting, and that in consequence of certain misrepresentations which got abroad, Mr. Gellibrand published a letter dated 24th August, explanatory of his conduct with respect to the resolutions of that meeting. He next proceeded to state, that Mr. Gregson did falsely, and maliciously publish in the next number of the Colonist, the letter which he would now read, and he did "Mr. Gregson and Mr. Gellibrand." What in the opinion of the Jury he would ask must be the feelings of a man held up to public view in a newspaper in this manner, and that without any justifiable cause? Such statements can only proceed from a malevolent intention, and are adapted to cause a breach of the peace, second count differed in form of indictment, but was to, the same effect; third, the same; the fourth alluded to that part of the letter, which charged Mr. Gellibrand, with "a gross and deliberate violation of truth and integrity." &c.

The fifth count referred to the letter signed, "Hampden." And which was published on the 5th October; and which he (Mr. Horne) contended was written for the base purpose of bringing his client into infamy and disgrace; (reads from Colonist) "Why do you mince matters? Speak boldly and openly, that throughout the Colony," &c. The author has thought fit here, continued Mr. Horne, to invoke the great name of Hampden, in committing a moral assassination. "Colonel Archer can always strike without shewing his hand or his weapon, when it suits him to conceal them. And he can always find an O'Connor and a Gellibrand to deal the blow." He could not pass this abominable inuendo, without remark. The name of "Hampden" here assumed, does not conceal the defendant from that justice which he hoped the Jury would this day shew him; it was a matter of indifference in the eye of the law, whether the publication were anonymous or not; the law on that head was of ancient origin, and had remained nearly the same from the time of Justinian down to the present day, and he maintained that it was a wonton prostitution to bring forward that great name on this occasion; the 6th count was, he said, made out by the libel. Here was a person held up in the character almost of a hired assassin, injured in his good name, and that to no very trifling extent. The present prosecution was instituted in preference to bringing a civil action, that it should not be said that Mr. Gellibrand, being an attorney, was greedy for money, and that he was influenced by pecuniary consideration; he maintained, the letter of the 31st of August to be as complete and atrocious a libel, as ever was published. Mr. H. here read extracts from that letter, and said, the moral influence of the press was, in an allegorical sense, similar to the genial warmth of the sun, which renovated us by its benignant rays; but when once the channels of the press become polluted, for the base and unworthy purpose of gratifying private malice, instead of warming us by its influence, society becomes disorganised; it hunts down and paralyzes its victim; it destroys his pease at home, and his reputation abroad; "and it is to check such unbounded licentiousness, Gentlemen of the Jury, that I call on you this day for your verdict."

Mr. H. next requested the attention of the Jury, while he read Mr. Gellibrand's letter, which having done, he continued, "Now, Gentlemen, is there any thing in that letter to provoke reply? The language is cool, temperate, and unoffence." He would now turn to the letter headed, "Mr. Gregson and Mr. Gellibrand," which he read, observing, as if it was the prerogative of the press to hold any man up to public scorn and laughter, his client was branded with these obnoxious epithets; nor does time seem to make any alteration in the sentiments of the defendant, the rankling malice which still remains in the breast of the man, is carried to the 5th of October. Mr. H. here trusted, that the terms of "a hired advocate," which was invidiously supplied yesterday, would not be repeated to-day; all were paid, whether lawyers, military men, or editors of newspapers. Mr. H. again strongly adverted to the character in which his client was held up, as that of an assassin, base enough, villain enough, "to strike the blow." This paper would perhaps travel over the whole world, and in what view would it hold up Mr. Gellibrand? The production was the overflowing of that rankling malice, which was festering from a former date; and it was at this moment a matter of regret to his client, that the proceedings had gone so far, and which might have been stopped had not the arrangements been broken off by a small matter. He trusted that the verdict or the Jury would be calm and deliberate; and that they would not be deluded by the hackneyed phrase of "gagging the press." The object which his client had in view, was to restrain its licentiousness, and to bring it back to that wholesome state, whereby the interests of society would be promoted, and which the check that he trusted would be put on it by their verdict this day, would firmly establish.

The papers being here handed in, Mr. Gregson admitted that he was the Proprietor and Publisher of theColonist.

Mr. Kemp, examined by Mr. Horne. - Joined with several to sign the requisition to the Sheriff, calling a public meeting; such meeting was called; witness was present, thinks it was held on the 30th August; the object of the meeting was for the purpose of obtaining a Legislative Assembly, for this Colony; remembers an address to the King being voted, and to the two Houses of Parliament; Mr. Gellibrand, moved the address, and witness seconded it; attended at Mr. Gellibrand's office, to make arrangements for that meeting; the addresses were prepared at Mr. Gellibrand's; Mr. Gellibrand and witness, wished to harmonise all parties; Mr. Gellibrand requested witness to abstain from adverting to any public measures at the meeting, which might provoke discussion to the prejudice of the subject; witness and Mr. Gellibrand were two of the promoters of the meeting; the arrangements for a general meeting were made at Mr. Gellibrand's.

By the Court - Thinks Mr. Gellibrand moved the address to the House of Commons, and witness seconded it; the addresses were moved separately.

Mr. Horne referred witness to that part of the letter of 31st August, which appeared in the Colonist; "barefaced abandonment of all principle." To whom does that refer? No doubt it has a meaning to Mr. Gellibrand; of that meaning witness can form no opinion; the words are plain, it is for Mr. H. or the individuals themselves to form an opinion on it; must take the whole; will not take it in a garbled state; "gross and deliberate violation," &c; it alludes to Mr. Gellibrand; alludes to his conduct at the meeting "not credited, where he is not contradicted;" people are best judges of things themselves; shall be glad to answer matter of fact, but not matters of opinion; every person has his own opinion by inference or otherwise; witness can form none.

Cross-examined by Mr. Gregson. - Does not know what called forth the letter just read. [Mr. Gellibrand's letter was here admitted by Mr. Horne and Mr. Gregson having expressed a wish to examine Mr. Gellibrands, Mr. Horne considered, from the feeling that subsisted, it had better be dispensed with] - Knows Mr. S. Bryan; always considered him a man of honor.

Chief Justice - We do not want the character of Mr. Bryan. Suppose Mr. Kemp said that he was the greatest rascal in the Colony, what has the Court to do with that?

By the Court - Cannot remember who proposed the address to the King; it was carried.

Dudley Fereday Esq. being called, and not appearing, and being also called previous to the last witness; Mr. Horne said that he could not be trifled with in this manner.

Chief Justice. - "I hope you will move an attachment against him." But he ultimately appeared and being sworn, his evidence merely extended to the meeting itself, which had been held in August.

The Under-sheriff was next examined by Mr. Horne; he attended the meeting and took minutes of the proceedings; was there the whole time; the address to the Lords was proposed by Mr. Gregson, and seconded by Mr. Banster; the address to His Majesty was moved by Mr. Gellibrand, and seconded by Mr. Kemp, and carried, praying "for a Legislative Assembly;" Mr. Gregson and Mr. Gellibrand, were both there; Mr. Gellibrand appeared to take the lead on that occasion.

Captain Wilson examined by Mr. Horne, who handed witness a Colonist newspaper of 31st of August, and referred him to that passage, "if ever man had cause to complain." We scarcely able to form an opinion on that passage, there are so many opinions; thinks it conveys a degree of censure on Mr. Gellibrand; considers by that, that Mr. Gellibrand deviated from some previous understanding; presumes that it alludes to Mr. Gellibrand; "gross and deliberate violation of truth and integrity"; considers the passage applies to Mr. Gellibrand. The witness here asked, if he was obliged to answer any question put to him, and being answered in the affirmative, said, it is accusing Mr. Gellibrand of being totally false, and not a man of honor; "follow Mr. Gellibrand no further &c." Is simply telling the man, that when he tells the truth, you will not believe him; witness referred to the letter signed Hampden in the paper of 5th October, and to the passage "Colonel Arthur can always strike &c." It is an allusion to Mr. O'Connor and Mr. Gellibrand; this question seems more difficult than any former one; it implies in his mind, that Mr. O'Connor and Mr. Gellibrand would do any thing required of them by Colonel Arthur, but do not think that Colonel Arthur would require them to do any thing dishonorable, am unable to give any further opinion; it will admit of a degree of censure, and also of another construction; to affect a moral character, it would require to be believed, does not think it does them much good or evil either way; it means that Colonel Arthur would not go openly to work, but would go a round about way, and that Mr. O'Connor and Mr. Gellibrand, would fight the battle; such a man in his opinion would be dishonorable; the allusion would cast a stigma on Mr. O'Connor, and Mr. Gellibrand, of being devoid of all principle of honour.

Cross-examined by Mr. Gregson. - Considers the letter of Mr. Gellibrand, August 24, imputes to Mr. Gregson, the stating of that which was false at the public meeting.

Would you call the prosecution of yesterday dealing a blow against this paper?

[This question was objected to by Mr. Horne, but was overruled.]

Considers it would be dealing a blow against the paper.

Have you heard of any information being laid against this paper?

[Mr. Horne objected, but the Chief Justice saw no harm in the question, as the informations were spread all over the table.]

Have heard of an information. Witness's opinion of that passage, "dealing a blow," &c., in the letter signed "Hampden" means putting down the press.

Re-examined by Mr. Horne. - "Shew in that letter where a falsehood is implied to Mr. Gregson, at the public meeting?"

I have myself heard Mr. Gellibrand express himself in those terms.

Mr. Horne requested that he would turn his attention to the subject of his letter only, and carry his ideas no further?

Can see nothing; the general character of the letter would bear that constructions; there is nothing pointed certainly," but from witness's own knowledge would draw that inference. From the letter alone would not form that opinion, not knowing any previous circumstance.

Captain Swanston examined by Mr. Horne, who referred witness to Mr. Gellibrand's letter of August 24. - Thinks that letter carries no imputation against any one; it is a letter written in explanation of a misrepresentation which has gone abroad; does not think it bears such a construction as imputing falsehood to Mr. Gregson; (Colonist of 31st August given up witness.) Being asked his opinion on reading the letter headed Mr. Gregson and Mr. Gellibrand, said it imputes that Mr. Gellibrand is devoid of all principle, and unworthy of all belief; "abandonment of all principle," &c. implies that he is devoid of all principle; "that there has been a gross," &c. points to Mr. Gellibrand as being devoid of all principle;' is calculated to produce a serious injury; witness should avoid having anything to do with such a man; "not to be believed," &c. that he is a common liar; (the letter signed Hampden, of October 5, handed to witness) - does not think that alludes to any particular "blow;" does not think it affects the press more than anything else; "strike the blow," that they are base enough to do any bad act; it will not be in any other meaning; witness would have no intercourse with such characters; Colonel Arthur is Lieutenant Governor.

Cross-examined by Mr. Gregson. - Is Member of Council; saw the remarks in the Colonist on his appointment; never takes the Colonist, but has read some part of them; never read the letter of October 5, till to-day. Mr. Gregson have referred the witness to Mr. Gellibrand's letter, and asked, "why did he offer facts to the public?" In consequence of misrepresentations which had gone abroad. It appears from that letter, that Mr. Gellibrand made Mr. Gregson no pledge at the public meeting; it goes to prove that; - [reads] "how far Mr. Gregson supported his pledge to me, I shall not inquire," - means that you did not support your pledge; knows Mr. Gellibrand to be an able attorney; things that a criminal information filed against the Colonist, would be a blow at the editor, not a blow at the press; knows nothing about the proceedings of yesterday.

This closed the case for the prosecution.

Mr. Gregson, in addressing the Jury stated that he was again placed before them by Mr. Gellibrand, and conformable to a true bill found against him by the Grand Jury of this Colony, in the person of the Attorney General. It was his wish to shew them clearly what provoked the reply contained in his letter of the 31st August, and in doing so he would endeavour to follow Mr. Horne, the leading barrister of Botany Bay, at least this part of it; (Mr. Gregson here referred to what took place at the meeting) and continued, that with respect to the letter signed "Hampden," he knew nothing of, nor was he in any way connected with it, any more than seeing it in print; and that he would prove in evidence, that he was not the editor. Mr. Gellibrand, had descended so low as to collect matter from another paper to sustain his charge against him; what took place at that time in this Court, had gone before the public and they would appreciate it; they had heard Captain Swanston swear that he saw nothing in the letter of Mr. Gellibrand, which implied a falsehood; what can be the impression on the mind of any honest man on perusing that letter? Of this he was convinced that had he not replied to it, every man in the Colony who were in the least acquainted with the circumstance, would suppose that he had stated in the Court-house that which was false. He did not choose to purchase notoriety by associating his name with that of Mr. Gellibrand, is public discussion; and he would consider himself as degraded as certain individuals, who should be nameless at present, did he not reply to that letter; recourse might have been had to other means to bring this business to a termination, but they depended on the law, the safest perhaps, at least personally; he was actuated by no other motives in writing that letter, than to vindicate himself, in the eyes of his fellow-colonists, and he stood here to-day to answer for it; he repeated, that it might have been settled otherwise, but Mr. Gellibrand was wrapt up in legal technicalities. He (Mr. Gregson) knew that he would sooner come here, than seek the satisfaction of a gentleman. Had that letter appears as a gratuitous attack on Mr. Gellibrand then, indeed it may be considered unjustifiable, but such was not the fact, - he had a simple course, and a much more speedy one, had he availed himself of it; but no, that did not answer, he got himself bound over to keep the peace, and why not get him (Mr. Gregson) bound over also? But it is not Tom Gregson they are assailing, it is the Colonist, (holding up the paper). What would twenty-four English gentlemen say to Mr. Gellibrand, in presenting his information on which to ground such a prosecution? He repeated that it had been got up in malice, and that the Counsel for the prosecution had hurried him into it, quite unprepared.

Mr. Horne distinctly disclaimed any such intention, and referred to what took place on the opening of the Court to-day.

Mr. Gregson here explained the peculiar situation in which he was placed, from the shortness of the notice he had received on these indictments, previous to being hurried to his trial. Could he have availed himself of the benefit of Counsel, he would not now be addressing the gentlemen who were to stand between him and the grand Jury of this Colony, and be trusted that they would not lose sight of whom that grand jury was. It had been stated that his letter was likely to produce a breach of the peace; if so, why did not Mr. Gellibrand get him bound over? He had never written, nor caused to be written, any thing to the prejudice of Mr. Gellibrand, previous to this discussion; and yet he has connected himself in a criminal information with Roderic O'Connor, against him (Mr. Gregson). He disclaimed being actuated by malice, and if so the law could not apply to him; in support of which he quoted the case of "the King against Cobbett;" be contended that Mr. Gellibrand was the author of the letter which brought him here this day, and that what he wrote was in vindication of his character, and could not be ascribed to any other motive; he denied being the author of the letter signed "Hampden" a circumstance, which he caused to be explained to Mr. Joseph Tice Gellibrand, but that would not serve his purpose; Mr. Gregson here read a quotation from evidence, and deprecated the mode of testimony pursued by the Counsel for the prosecution; he had displayed considerable ingenuity, more indeed than he (Mr. Gregson) would have given him credit for; his misfortune was, that they had no other counsel, and consequently he was left to defend himself as well as he could; he did not mean to disgust the Jury with the observations or the remarks of that Counsel, but this he would observe, that it was the distraction of the Colonist that was sought, and not his; this was not the first attack on the press of Van Diemen's Land, it had been stopped previous to these proceedings; and had it been any other than a Lawyer that was concerned in this business, it would never have been brought forward; he would not go the length of saying, that this prosecution was illegal, as it may be an offence to the Grand Jury of Van Diemen's Land; but he contended that an article which he did not put forth himself, cannot be construed into malice. He here read a quotation, to shew the extent of language, which must be used to constitute a libel, concluding with, "unless of each signal enormity as is calculated to excite a breach of the peace." Mr. Gellibrand has stated, or his counsel for him, that his motive for not bringing an action, was, that he despised base lucre; he would have got a mighty sum, had he presented his bill before a Jury; "Mr. Horne has told you gentlemen, that we are all paid," he (Mr. Gregson) disavowed having ever received a single shilling out of that paper; he was actuated by the purest motives, in his endeavours to sustain it; and though some persons told you here to day, that they do not read that paper, it would be well, if a little more attention had been paid to it in a certain quarter, on a recent occasion. That paper had not, since its commencement, been made the tool of private malice, nor never should so long as he had any influence over it; in proof of which, he would read a letter addressed by him to the Editor, a few weeks back. Mr. Horne objected to the letter being read.

Mr. Gregson - I only wanted to shew to the Jury, what my principles were, but if there is malice in fact, and malice in law, "I must submit." He assured the Jury, that he had very little time to prepare any thing in shape of a defence; he had been out of bed the last two or three nights, and the last one, he had very little time to do any thing; he had come into Court, to day, totally unprepared, as his affidavits would prove, and he considered situated as he was that a little more courtesy might have been displayed towards him, by the counsel for the prosecution, in his (Mr. Gregson's) cross-examination of witnesses. He would now call a few witnesses, if his Honor permitted, but he confessed that he felt much hurt, and injured in his feelings, by being called to order so often, yet he must certainly be wrong, or the Court would not have interposed; Mr. Gellibrand conducted a press once, and libelled whom he pleased with impunity; and there were other papers which contained gross matter, and were permitted to pass unnoticed; he stood here to day, as the sole proprietor of that paper of which Mr. Gellibrand, was the quitam Attorney. These were circumstances which cast no slight shade on that gentleman, for his tergiversation, and getting acquaintance in a certain quarter, together with his exertions against the public press; the allusion to Colonel Arthur, was in consequence of the stoppage of the press by him; the King gave it liberty, of which he trusted the gentlemen of the Jury would not deprive it; he would now call one or two witnesses, any who may appear, as he had spoken to no person on that subject.

Captain Glover examined by Mr. Gregson, who referred to Mr. Gellibrand's letter of August 24 - Was present at that meeting, and heard what passed; that letter created an impression on witness's mind, that Mr. Gregson had stated that which was not true at the public meeting.

By the Court. - Had such a letter been addressed to him, he should have considered it so, and have treated it accordingly; he should have considered it strange if Mr. Gregson had not notice it; [the letter head, :Mr. Gregson and Mr. Gellibrand," handed to witness by Mr. Gregson, who said the heading was rather ostentatious, for which he had no ambition;] considers that the last sentence had a reference to the whole; refers to the letter signed Hampden; means they would take his (the editor's) property for writing that paper; has no doubt on his mind but the "blow" had a reference to that paper; looks on the allusion to Mr. O'Connor and Mr. Gellibrand, as meaning that they would use their influence to the prejudice of that paper; considers that ex-officios, and bills of indictment, are calculated to destroy the publication altogether; thinks that letter was written under the impression, that Mr. O'Connor and Mr. Gellibrand would do what they could to put down theColonist newspaper.

Cross-examined by Mr. Horne.- Have not read these letters before, within these 48 hours, nor within these 3 weeks. "Gross and deliberate falsehood." &c. if addressed in a private way, might have a tendency to produce a breach of the peace; possibly might bring his action if addressed in a private way; could not swear that it would be a blow against the paper.

Re-examined by Mr. Gregson. - Is now speaking of the correspondence.

The Rev. Mr. Connolly called, who stated that he was quite unprepared to give evidence on the subject, as he had no previous intimation that he should be called upon.

Chief Justice. - "If you are not subpoened, I can not compel you to give evidence." However, at the request of Mr. Gregson, the Reverend Gentleman consented to be examined. - Mr. Gregson referred witness to Mr. Gellibrand's letter of August 24; think it has a tendency to intimate, that Mr. Gregson put forth at the public meeting that which was incorrect; (letter headed Mr. Gregson and Mr. Gellibrand, put in his hand) - thinks that letter refers to what took place at the meeting, and Mr. Gellibrand's movements there; looking on it altogether, it refers to what took place at the meeting; it does not impute a general want of veracity, except in concluding that a person who would do one thing in public, may do the contrary in private.

Have you heard who were the parties concerned in getting up these informations?

Chief Justice to Mr. Gregson. - Really it is painful to me to have to stop these questions, especially when a gentleman is placed in the situation, in which you now are.

Mr. Horne. - It is really too bad to be endeavouring to tear a man's character to pieces in this way.

Mr. Gregson considered that more latitude had been allowed to the counsel for the prosecution, than to himself. He need only just refer to the examination of Captain Swanston.

Chief Justice. - I really cannot allow such observations to be made.

Examination resumed. - It may be designed figuratively as dealing a blow at that paper; reading that last passage, and keeping in mind the suspension act, it may be construed as dealing a blow against the press.

Cross-examined by Mr. Horne. - Was at the meeting; he would take the inference which he drew from Mr. Gellibrand's letter, together with his being present at the meeting; he read that letter with attention, and it struck him with surprise; thought it was the language of a shuffler throughout; would read it as often as Mr. Horne chose; does not think it an explanation; it may be so intended, but he never took as such; does not think the last paragraph of the letter of August 31, a general assertion, for that refers to all his acts; "bare faced abandonment," &c. no doubt it alludes to Mr. Gellibrand at the meeting; refers solely to his public conduct at that meeting; it would not cause witness to commit a breach of the peace; they would be fools that would commit a breach of the peace about it; does not think it calculated to produce such a result. "O'Connor and Gellibrand to strike the blow;" the nature of it was entirely applicable to the Colonist; it turns on that point; should think it a very natural construction, according to the use of his senses; reads anonymous publications with very little attention; sometimes omits them altogether; looks upon it as a figurative expression altogether. "An O'Connor and Gellibrand;" remove the article, and put Mr. O'Connor and Mr. Gellibrand, and he would then say that they were the individuals alluded to, not otherwise. The passage alludes to the Governor of a Colony, who may be ill-disposed, and could find persons of a certain description to answer his purpose. It alludes figuratively to such persons as a Mr. O'Connor or a Mr. Gellibrand; it may or may not be these gentlemen; it may be witness or Mr. Horne.

Mr. Horne. - I must have a direct answer to my question, else I will keep you here until morning.

Mr. Connolly. - If you keep me here until doomsday you will get no other answer from me, than what my conscience dictates.

Mr. Gregson craved the protection of the Court, for the Reverend Gentleman, in consequence of the mode of examination pursued by the Counsel for the prosecution.

Mr. Horne disavowed any intention of being harsh with Mr. Connolly, he was only discharging his duty.

Examination continued. - A Mr O'Connor is a general expression, not an individual one; must take it according to the paragraph there, and cannot say whether Mr. Gellibrand is, or is not the person alluded to.

Mr. Robertson, examined by Mr Gregson. - Is editor of the Colonist newspaper; is acquainted with Mr. Gellibrand; considers that it was in consequence of a friendly feeling towards witness, that he was not prosecuted; is not certain whether Mr. Gellibrand saw the letter signed "Hampden," before it was printed, but he saw it before it was published; he made use of some expression in a laughing way, intimating that we were at him again.

By the Court. - The paper was printed when witness took it to Mr. Gellibrand.

Chief Justice. - The paper was published to all intents and purposes, when the witness had it in his hand.

By Mr. Gregson. - Mr. Gellibrand did not say at first it was a libel; he is standing Counsel for the Colonist; it was a finished copy he took to Mr. Gellibrand; there might have been fifty struck off at the time; would not have published it, had Mr. Gellibrand said it was a libel.

Cross-examined by Mr. Horne. - Suspected there was something wrong, and stopped the sale of the papers; possibly some may have been sold before his return from Mr. Gellibrand, but it was not likely.

This closed the defence.

Mr. Horne in reply, said that notwithstanding what had been brought forward by the defendant, he should only trouble the Jury with one or two observations, at this advanced hour. They had heard what had been stated by Captain Swanston, a person who was suffering under the last of the Colonist at this moment; he could not proceed without directing their attention also to the evidence given by Mr. Connolly, but upon which, he should abstain from making any observation. The only real defence attempted to be set up, was the letter of Mr. Gellibrand of 24th August, which was tortured in no very measured manner, for the purpose of shewing that the defendant's letter of the 31st, containing the most unmeasured language such as "abandonment of all principle, not to be credited, where he would not be contradicted," was the consequence of it; this took place on the 31st August, and yet after a lapse of five or six weeks, this angry feeling, which ought to have subsided during that time, breaks out with the same malignant spirit on 5th October. It was true, that the press was the safeguard of the public liberty; but when once it began to give vent to private malice, and be made the medium of individual rancour, it loses its moral influence; if breeds anarchy and confusion, and not only holds a man up to public obloquy, but he had this, (holding up the paper) to read in the bosom of his family. He made himself confident, that the verdict of the Jury to day, would not be a blow to its interest, but a curb to its licentiousness, and by that verdict, the interests of society, and the liberty of the public press, would thus be placed on a surer basis.

The Chief Justice charged the Jury at considerable length, in which he told them that they were not bound to adopt any one's opinion, neither that of himself or any one else. He also observed that both he and they had a duty to perform, and from which they could not depart without an utter abandonment of their oaths. The Jury were entirely to act at their own judgment, and though he would tell them his opinions, yet they were not bound to abide by it. On reading that passage, in the letter signed Hampden, "Colonel Arthur can always strike, &c." His Honor told the Jury, that if in their opinion, the Colonel Arthur, meant the Lieutenant Governor of this Colony, and the O'Connor and the Gellibrand there alluded to, were the gentlemen whom they all knew, and if he be the Governor intended to rule arbitrarily, and that O'Connor and Gellibrand would be tools in his hands; if this was the meaning, he must tell them, that a gross libel never was published.

When the Jury were about to retire, Mr. Gregson begged to remind His Honor that he had not told the Jury, that Mr. Gellibrand was the standing Counsel for the Colonist, and had seen the latter article, charged as libellous, before its publication.

The Chief Justice told them that as to his being the standing Counsel, he did not know that it was of any consequence.

The Jury retired, and after being out nearly two hours, returned a verdict of - Guilty on the 5th count.

The Chief Justice then enquired of Mr. Gregson, if he had any thing to move in arrest of judgment, to which he replied in the affirmative, and stated, that he wished to have the assistance of counsel from Sydney. This request, the Court answered, could not be granted, and he was finally ordered to be brought up for judgment on Thursday; being held to bail, himself in £200, and Mr. Meredith and Capt. Glover in £100 each.

A great deal of anxiety prevailed, as to the result of this important trial; and though there were not many persons present in the morning, yet after 12 o'clock, they commenced flocking in; and when the trial terminated, which was not until 9 o'clock at night, the Court was as much crowded as ever we have seen it on any former occasion.

Thursday, Nov. 8

On the opening of the Court this day, the Chief Justice enquired of Mr. Gregson if he had any thing to offer in mitigation of punishment? When Mr. Gregson addressed the Court at considerable length, and put in three affidavits, one of his own, one of Mr. Crombie's, and one of Mr. Robertson's, to prove that he labored under a conviction to the latest moment, that this prosecution would not have been brought forward in consequence of arrangements which were making for an adjustment. The judgment of the Court was ultimately deferred until Saturday, on the grounds of alleged misdirection by the Judge, and it not being proved in evidence that Mr. Gellibrand was the Joseph Tice Gellibrand named in the information. His Honor could not allow it to be adjourned to any more remote day, as he said, he had a number of engagements, and would have to attend the Council on Monday.



[1] See also Hobart Town Courier, 9 November 1832; Colonist, 16 November 1832; Independent (Launceston), 17 November 1832. In July 1832 Gregson, a fierce opponent of Governor Arthur, began The Colonist newspaper as 'The Journal of the People', F.C. Green, 'Thomas George Gregson (1798-1874', Australian Dictionary of Biography, vol. 1, p. 475. The fine of £80 was paid by public subscription.

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