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Decisions of the Nineteenth Century Tasmanian Superior Courts

O'Connor v. Meredith [1833]

libel - convict services - Oyster Bay

Supreme Court of Van Diemen's Land

Pedder C.J., 10 July 1833

Source: Tasmanian, 12 July 1833 [1]

Messrs. Gellibrand and Ross appeared for the plaintiff, and the defendant, with the assistance of Messrs. Cartwright and Allport, conducted his own cause.

Mr. Ross stated the case, which was an action for libel, consisting of seven counts, and founded upon an article which appeared in the Colonist newspaper of the 14th of May, headed "Private and Confidential." Plea - the general issue.

Mr. Gellibrand, in an animated speech, commenced by observing that the plaintiff, Mr. Roderick O'Connor, was a gentleman well known to most persons in the Colony, a magistrate, and holding the appointment of Inspector of Roads and Bridges. The defendant, Mr. Meredith, was equally well known and possessed large property at Oyster Bay. The present action was for a libel, which was published in a paper of which the defendant was the proprietor. His case was contained in as narrow a compass as possible for Mr. Meredith admitted that he was the proprietor of the paper, and that it was printed and published by him. The only question was - did the article complained of apply to the plaintiff - or did it not? And if it did, whether it was, or was not, libellous? This was the question; and it was a question of considerable importance - not only as it affected the plaintiff, or the defendant himself; but the public at large. In so small a community as our's, the Liberty of the Press was an inestimable blessing, and fraught with innumerable advantages; but such writing as this is not liberty, but licentiousness. It attacks the private history of individuals, insults their morals, outrages the usages of society, and becomes a curse, instead of a blessing. Mr. Gellibrand then proceeded to the more immediate matter of the libel. Mr. O'Connor, he said, some years ago, was one of the Commissioners for valuing lands; and, afterwards was appointed Inspector of Roads and Bridges. One part of his official duty, while acting in the former capacity, consisted in surveying land, and in forwarding his report to the Government. This was mentioned, as a portion of the libel has reference to his vocation in this capacity, and another portion applied to him in his character of Inspector of Roads and Bridges. In this capacity, he commenced, and completed the improvements at the New Wharf. This property had belonged to the Rev. Mr. Knopwood, from whom it was purchased, at a public sale, by Mr. Henry Jennings, and twelve months afterwards, from Mr. Jennings, by His Excellency, the Lieutenant Governor. Improvements, it is true, had been made in that neigbourhood, and they had enhanced the value of all the contiguous property, belonging to several private individuals "I mention this, gentlemen," said Mr. Gellibrand, "to show at once and distinctly, the libellous nature of a part of this article." In the course of a heated discussion (he continued) and in he warmth of argument expressions might be used, which, on cool reflection, night be disproved of. - The law always made allowance for an indiscretion of this sort; but it was widely different in writing and publishing an assertion. This implied a deliberate exercise of the mind, and could not be viewed in the same extenuating light. Had, however, these obnoxious observations been written in the course of a prolonged and animated discussion, upon some alleged public wrongs, or abuses - even then, a due allowance would be made; but they were not so written; they came before the public in a naked, isolated form, perfectly unconnected with any question of private, or public grievance - Nay. More - they came as a "private and confidential" communication to the Proprietor or Editor, of a Public Journal - the very words PRIVATE AND CONFIDENTIAL, were emblazoned in large letters, for the purpose it is presumed, of attracting general attention.

[Mr. Gellibrand, here read the libel - commenting with great feeling and ability on the several passages, as he proceeded. In the course of his observations, on quoting a corse and repulsive passage, relating to the acquaintance of the plaintiff with Mr. Murray; Mr. Gellibrand impulsively, gave vent to a fine and manly burst of indignant feeling. "I do not, (he said) envy the heart of that man - be he whosoever he may - who could deliberately, and in cold blood, write such an article as this! If a man be unfortunate enough to be subjected to a trial, such as is here implied - that, God knows, is a punishment of no trivial kind! But is such a person to be thus publicly goaded, taunted, irritated and insuited? Little credit, indeed, is due to the man, who published these remarks, and still less to the man who wrote them] Having commented on the libel, Mr. Gellibrand thus proceeded - Is this fair, honest, legitimate and candid discussion? Can Society exist in any thing like peace and concord, if such writings were tolerated? No! all social feeling will be destroyed - all concord annihilated. What - Are the characters, foibles, private transactions of individuals to be thus held up to general obloquy - and heinous crimes to be imputed, without punishment, to public officers! No, gentlemen, the public, are not to be so cajoled - so insulted. The Press, if fairly and honestly conducted, is invaluable, but I say candidly, and I say fearlessly, that we had better be without any Press at all, than tolerate licentious attacks, such as this - unwarranted - uncalled for - unjustifiable! Every good man must contemplate these assassin-like attacks, upon individuals, with an indignant feeling of actual abhorrence.

And as to the defence, which is to be set up - what is it? Mr. Meredith may say, he resides at Swan Port, and that, therefore, he was not on the spot to see this obnoxious article. If Mr. Meredith can show that he did not see it - if he can show that he even expressed any compunction for allowing the article to be published - it might be something; but he can do no such thing. Nay, up to this moment he has neither publicly nor privately expressed any regret or detestation for having his paper defiled in this gross manner. On the contrary, in an article published in the Colonist on the 25th of June, this obnoxious article is adopted and confirmed. In that article, a system of intimidation of the worst description is used towards the witnesses and all concerned in this case. "Another attempt," says the article alluded to, "is now being made, and by the same parties to deal a blow at the Press, for an article in the Colonist of the 14th May, which one of the worthies has claimed as applicable to himself." How this man, who, it is well known, has been the author of most of the stiletto attacks upon private individuals, which have seek after week appeared in the Colonial Times and its twin brother, theTasmanian, [*] can exhibit himself before the public, as a prosecutor in a case, and call upon persons to give anidentity to an ideal picture, to which a personal application can only be given by means of perjury, and to his own disgrace, we cannot, for the soul of us, conjecture. "He has dared," continued Mr. Gellibrand, "in commenting upon this article - in reference to this very trial and to the witnesses, to stigmatize as guilty ofperjury, those gentlemen, who should be compelled to give evidence to the Court on this trial. Is this, gentlemen, the liberty of the subject? Is this free discussion? Is this the enviable state of society which we enjoy in this Colony, and which we are called upon to tolerate; Better - far better - that we had no Press at all, thansuch a press as this!"

Mr. Gellibrand proceeded - and went on to say, that he considered the publication of the article on the 25th of June, as tending to render the libel ten times worse than it would have been. The defendant, by this article, made himself morally, as well as legally, liable for the libel; for, instead of making reparation for what might have been an incautious insertion, he aggravates the case by an additional offence. What damages ought to compensate the plaintiff for this foul libel? There it stands - holding up the individual to universal contempt and obloquy. Where is the man, who would be so assailed, whose hear had been so lacerated, - who would be compensated by pecuniary damages - for such abominable treatment? The plaintiff has brought an action for damages - the defendant cannot justify - he dare not attempt to do so. But what does he do? He pleads the general issue, and says he did not write the article!

On Mr. Burnett being sworn, Mr. Meredith moved that all witnesses, excepting the one under examination, should withdraw; and the Court accordingly ordered their withdrawal.

J. Burnett, Esq., examined by Mr. Ross. - Is acquainted with Mr. O'Connor; knows that he was four years ago, one of the Commissioners for Valuing Land, in which capacity he passed his reports through witness's office to the Lieutenant Governor. As Inspector of Roads, and Bridges, he has many convicts under his charge and superintendence. Has no hesitation in stating that he believes the article in the Colonist of May 14th, headed, "Private and Confidential," to apply to Mr. O'Connor; there can be no doubt on any man's mind, that it means to impute to Mr. O'Connor, that he employed convict labor for his patron's - that is, Colonel Arthur's - private benefit. Convicts are placed under Mr. O'Connor's charge for employment in the public works throughout the Colony; understands the imputation (as regards the employment of the convicts) to imply conduct highly improper and dishonorable; understands, also, that the writer of the article intended to imply, that Mr. O'Connor was hated by all good men.

Cross-examined by Mr. Meredith. - Have no reason to believe that the plaintiff came to this Colony as an arrant adventurer. When I arrived here, I found him in an official situation. I do not think the term "arrant adventurer" can apply to him; but believed it was intended so to apply; knows nothing of plaintiff's morality - nor of his being a spy; has noticed articles in the papers, relating to a spy, but should not think they applied to any one but Mr. O'Connor; has no knowledge of Mr. O'Connor having acted as Land Agent to a great personage, or being in his confidence; do not think that villain is stamped on his countenance; has no knowledge of the writer's intentions, except from his impression on reading the article; the convict labourers throughout the Colony, are under Mr. O'Connor's charge, and the overseers, &c., apply the labor as directed by Mr. O'Connor; understands that the Governor ahs property at Cottage Green.

Re-examined by Mr. Ross. - From various writings in the Colonists, combined with the article itself, has no hesitation in believing that it referred to Mr. O'Connor - and is still of the same opinion.

Dr. Adam Turnbull, examined by Mr. Gellibrand - Has been eight years in the Colony, and is acquainted with Mr. O'Connor and Mr. Meredith; understood Mr. Meredith to be a rich man, possessing a large track of country. Has no doubt that the article in the Colonist, is intended to apply to Mr. O'Connor. By the words "Great personage" - understands that the Lieutenant Governor is meant; considers Mr. O'Connor to be accused of malversation of office, by employing convict labourers, entrusted to him for public purposes, for the private advantage of his Patron, Colonel Arthur; understands that the expression "loathed and hated, by all good men," means, that his character is of the worst possible description; a very bad man - taking the whole article as it stands, has not the slightest doubt, but that it applies to Mr. O'Connor.

Cross-examined by Mr. Meredith - Knows Mr. O'Connor; never heard he was an errant adventurer; thinks there are many persons to whom this phraze might be better applied; knows several individuals, richer than Mr. O'Connor, but he is generally considered, one of the wealthiest men in the Colony; has no reason to doubt his moral character; had this assertion stood alone, would not have supposed that it alluded to Mr. O'Connor; has no reason to believe, that he was ever a spy; has seen in the Papers, a reference to a "Proclaimed Spy," and had that passage stood alone, should have thought it applied to that individual; did not know or believe, that Mr. O'Connor ever acted as Land Agent to the Governor, nor that he was a principal adviser of his Excellency. He (witness) acted as Clerk of the Councils, which was necessarily a confidential situation. Is not liked or "loathed" - Is, upon the average, a good looking man, and has no sinister expression of countenance. From the effect of the whole article, considers it to apply to Mr. O'Connor.

Dr. Ross examined by Mr. Ross - Is acquainted with the plaintiff and defendant; considers the article in the Colonist, headed "Private and Confidential," to apply to three persons. - Colonel Arthur, Mr. O'Connor, and Mr. Murray. The following passages point to Mr. O'Connor: - "The Governor being under the thumb of an errant adventurer - more acres - large landed proprietor - more money. Is he a moral man? A spy and reporter?" Never had a doubt at all about the application of the article to Mr. O'Connor. Thinks Mr. Meredith rather a rich man, and has known him ever since he came into the Colony.

Cross-examined by Mr. Meredith. - Is generally intimate with Mr. O'Connor; has no reason to think that he is in the particular confidence of the Lieutenant Governor.

[Here Mr. Meredith persisted in putting his questions so hypothetically, and, as he termed it, abstractedly, that the worthy Doctor was fairly puzzled. Mr. Meredith, at length, appealed to the Doctor's good sense and just feeling, as to whether he was not entitled to a direction answer? "Yes," said Dr. Ross, "and you shall have it; but if you put puzzling questions, you must expect puzzling answers."]

Does not think Mr. O'Connor has ever been an errant adventurer, nor an immoral man, nor a spy. Taking the passages singly, I should not, perhaps, have thought any of them to apply to Mr. O'Connor. Has seen references in the Colonial papers to a "Proclaimed Spy," but should not think this passage applied to Reynolds, the spy, because he never believed there was such a person in the Colony. Had he been here, he might have thought so. - Knows Mr. Murray.

His Honor objected to the introduction of Mr. Murray into the case at all, as had nothing to do with it.

Does not think Mr O'Connor generally disliked: has as good a countenance as the common run of men - has no indications of villainy in his countenance. Has not suffered in his estimation since the publication of the libel.

Re-examined by Mr. Gellibrand. - No person has asked his opinion of the case.

By Mr. Meredith. - Had received a written communication from Mr. Gellibrand, directing his attention to certain points in the case.

Mr. Thomas Young, examined by Mr. Gellibrand., - Has been eight or nine years in the Colony - knows Mr. O'Connor and Mr. Meredith - believes Mr. Meredith to be a rich man - believes the article in the Colonistapplies to His Excellency and Mr. O'Connor. Considers that Mr. O'Connor is charged in that article with corruptly and improperly employing convict labourers under his charge to improve the private property of the Lieutenant Governor. Understands by the expression "Hated by all good men," is meant to characterize Mr. O'Connor as a bad man, to be avoided by every man of any reputation. Has no doubt at all as to the application of the article, and is certain of it, as if Mr. O'Connor's name had been added to it. Believes the article inserted in the Colonist of the 24th of June, to allude to the article for which the present action is brought, and that Mr. O'Connor is the individual therein referred to.

Cross-examined by Mr. Meredith - Knows Mr. O'Connor rather intimately; has no reason to believe that His Excellency Governor Arthur is under the thumb of Mr. O'Connor; nor that the plaintiff is an arrant adventurer. Believes that the majority of Colonists came out as adventurers in some way; believes that Mr. O'Connor has acted as a land-agent to the Governor, but does not know that he is an adviser of His Excellency; had formerly strong prejudices against Mr. O'Connor, but has none now; does not believe that he is generally disliked; he looked upon the libel, as a piece of vile slander, which had no effect whatever upon his mind, but that of exciting absolute disgust, in consequence of having seen it in the Colonist, a newspaper which he had given up upon seeing such articles in it.

Re-examined by Mr. Gellibrand. - If he had not known Mr. O'Connor, his mind would not have been impressed with any unfavorable notions by anonymous slander.

By Mr. Meredith. - If persons who were in habit of reading the Colonist, had seen the libel, they must have applied it to Mr. O'Connor?

Mr. C. B. Lyons, examined by Mr. Ross. - The examination in chief of this witness, went merely to corroborate the testimony of the individuals previously examined. On his cross-examination by Mr. Meredith, he said, he was not sure, that it would not apply the term of "arrant adventurer" to Mr. O'Connor, as appearing in the columns of the Colonist. Believes there are in this Colony, as in all other countries, men of no capital, as well as of no character; knows nothing about Mr. O'Connor's character; knows nothing about Mr. O'Connor's character for morality; seeing the passage in the Colonist reletive to the spy, would not apply them to Reynolds; the words themselves could mean nothing; thinks Mr. O'Connor has purchased land for the Lieutenant Governor, but not in the character of a hired agent; think Mr. O'Connor an adviser of His Excellency, but not a principal one.

Mr. J .J. Holland proved, that in May last, an overseer of the name of Hunt, belonging to the Hulk Chain Gang, at the New Wharf, was under Mr. O'Connor's control; that an enquiry took place at the Police Office; before Captain Forster and Mr. O'Connor, on a charge made by Constable Peel against Hunt, for employing convicts in his own advantage.

This closed the case for the prosecution.

Mr. Meredith in his defence, pursued a course extremely excursive and capricious. He commenced, by stating that the motives, which induced him to become connected as he was, with the Press of this Colony, were good and justifiable. It was unfair, to pass by the ostensible person, whose name was attached to the Paper, and who was therefore, the proper man for punishment, and fix upon him, who lived at so great a distance; but, it was said, because he was a rich man. - a "good mark," as it was termed in this country, and, therefore, had the selection fallen upon him. Mr. Gellibrand, had himself been connected with the Press, both as Editor and Proprietor, and had been privy to the insertion of political articles; he surely had shown the public, what the Press ought to do, and what it ought not to do; but none of us, can at all times act as we ought. Mr. Gellibrand had plenty of witnesses, to prove the real author of this alleged libel, and he ought to have brought them forward. The fact is, the article in question - and Mr. Meredith, stated it to show, that it could not apply to Mr. O'Connor, was the production of an after dinner joke; the contribution of several individuals, and made up of statements the most contradictory and absurd; it was, in short, a sort of general experimental cap, thrown out, in a moment of conviviality, to fit any person, who might please to wear it! Reparation had been spoken of; how could he, Mr. Meredith, make reparation for an injury that had never been inflicted? This would be at once an admission, that the article was intended for Mr. O'Connor, which he firmly denied. As to the article in a subsequent Colonist, which Mr. Gellibrand had characterized as an intimidation to the witnesses, and as intended to impugn the judgment of the Assessors - it was no such thing; it was a mere disclaimer - expressed it may be, in strong terms, but still a disclaimer. It could have no influence with the Assessors, as they are bound by their oath, to form their verdict, from the evidence, and not from their own judgment - He Mr. Meredith, had never wittingly wronged any person. Any individual, who conceived himself injured at his hands, would do him more real kindness, by telling him of it, than by withholding it; for then he could make his peace with all men, and retire into the bosom of his family. The best thing the Court could do for all parties, would be to give him, the defendant, a Verdict: by so doing, they would give back Mr. O'Connor his character, which would effectually be identified with this description, if a Verdict were given for him. He, Mr. Meredith, was ready to give up the names of the real authors of the article; but he urged very vehemently, the necessity of his own acquittal, as, if he did not have it, the plaintiff would go out of that Court, like a second Cain, with an audible brand upon his brow. He had been charged with not having taken sufficient precaution, as regarded the management of the Colonist. He had used every precaution in his power; and the original Editor only left it, because he would not submit to a censorship, which the Proprietors intended to establish. Nay, articles had been actually rejected by the Colonist, which were afterwards inserted in the Colonial Times. The care which had been taken in the appointment of Editors, had been very great; after Mr. Horne's secession from his temporary duties, a negotiation was pending with Mr. Emmett, who, however withdrew from the appointment, in consequence of certain circumstances, to which it was now unnecessary to allude; but, although Mr. Emmett did not accept of the Editorship, he consented to act as Censor, which, however, he also relinquished. A, Mr Gellard, was then selected; he had brought testimonials highly favourable from England, amongst which was a letter from Dr. Birkbeck, President of the Mechanics Institution in London; in short, every effort had been made to render the Paper, what it's original prospectus, professed it should be; some desultory and declamatory observations now followed, in which Mr. Meredith compared himself to a hunted hare; and the lawyers to the hounds; he then, astonished his auditors, by venting vehement ejaculations, touching Usury; and concluded his address, by imploring the Assessors not to take from him, the little store he had saved for his twelve children, and give it to a person who had none.

His Honor, summed up with his usual attentive perspicuity, and after commenting very forcibly upon the defendant's admission, relative to the convivial origin of the libel, which, he said, filled him with horror - he withdrew with the Assessors; in about half an hour, they returned into Court, and gave a Verdict for the plaintiff; damages - £200. His Honor stated, that there were two passages of the article, which they did not include in the libel; that which imputed to the plaintiff, his having ad as a Land Agent to the Lieutenant-Governor, and that of his writing for the Colonial Times.

Source: Colonist, 16 July 1833 [2]

Before Chief Justice Pedder, Charles Swanston, and Charles McLachlan, Esqr., Assessors.

Blatspiel v McNelly

This was a case of considerable importance with a full report of which we are furnished, but are compelled to defer its publication, till our next, in consequence of the more important libel case.

Libel Case

O'Connor v Meredith

This was an action of trespass on the case brought by the plaintiff against the defendant for defamation of character; the substance of which will be best explained, by laying the declaration itself and the first count of the indictment before our readers. The whole of the counts would be rather startling and voluminous, there being no fewer than eight!!! And all a repetition of what we now present with the exception of some legal quirks.

Mr. Hugh Ross, Crown Solicitor, opened the pleadings, and went through the numerous counts with great care and perspicuity, bestowing any thing short of brevity on this rigmarole; of which the following may be taken as a sample.

Van Diemen's Land (to wit), Roderick O'Connor, the plaintiff in this suit by Joseph Tice Gellibrand, his Attorney. Complains of George Meredith, defendant in this suit, of a plea of trespass on the case: for that, whereas, before and at this time of printing and publishing by the said defendant, of the false, scandalous, malicious, and defamatory libels, in the first, second, third, and fourth counts hereinafter mentioned, George Arthur, Esq., was Lieutenant Governor of Van Diemen's Land, and the said plaintiff was Inspector of Roads and Bridges, in Van Diemen's Land aforesaid. And whereas the said plaintiff as such Inspector of Roads and Bridges, had before and at the time of printing and publishing, certain convicts under his orders and directions, to be employed by him as such Inspector as aforesaid. Yet the said defendant, well knowing the premises and intending to injure the said plaintiff in his good name, fame and credit, and to bring him into public scandal, infamy, and disgrace, with and amongst all his neighbours and other good and worthy subjects of Van Diemen's Land, and to cause it to be suspected and believed that he, the said plaintiff, had acted dishonorably and disgracefully as well in his said office of Inspector as aforesaid as otherwise, and also intending to vex, harrass and oppress the said plaintiff heretofore (to wit,) on the fourteenth day of May, one thousand eight hundred and thirty-three, at Hobart Town aforesaid, in Van Diemen's Land aforesaid, falsely and maliciously did print and publish, and cause and procure to be printed and published in a certain paper entitled The Colonist, and Van Diemen's Land Commercial and Agricultural Advertiser, of and concerning the said plaintiff, and of and concerning his conduct as such Inspector as aforesaid, a certain false, scandalous, malicious, and defamatory libel, of and concerning the said plaintiff, and of and concerning his conduct as such inspector as aforesaid, to the tenor and effect following, that is to say: - "Private and Confidential." - It is generally believed that a certain great personage (meaning the said George Arthur), is under the thumb of a certain arrant adventurer (meaning the said plaintiff), who has got more acres and amassed more money, than any man of his standing in the Colony. Who is this man? Is he (meaning the said plaintiff) a moral man? Ask the settlers in the district where his acres lie. Did he (meaning the said plaintiff) act as a spry and reporter? The Public can answer this. Is he (meaning the said plaintiff) land agent and principal adviser to a certain great personable (meaning the said George Arthur?) "Mum, is a secret." Has he (meaning the said plaintiff) employed the convict labour to improve his patron's property, (meaning that the said plaintiff had employed convicts placed under his charge, as such Inspector, to improve certain property, of and belonging to the said George Arthur?) Answer this yourself, gentle reader. Does he (meaning the said plaintiff) write for the mock opposition paper? Yes. Is he (meaning the said plaintiff) the friend and intimate of old Scape Gallows? Yes, the Bosom friend. Is he (meaning the said plaintiff) a good looking fellow? No. Villain is stamped in his countenance. Does the great personage (meaning the said George Arthur) know all his good qualities? No. Nobody ever heard that he (meaning the said plaintiff) had any. Have you any more questions to ask? None at present. You may go - but come back next week.

"Does he (meaning the said plaintiff) employ men, rationed on the King's Stores, for his own private purpose? There is an enquiry going forward about that." - Plea the general issue.

Mr. Gellibrand in a lengthy speech, throughout which he displayed considerable animation, addressed the Court and Assessors on behalf of the plaintiff. He said that Mr. Roderick O'Connor was universally known throughout the Colony as a Magistrate, and Inspector of Roads and Bridges. The defendant, Mr. Meredith, was possessed of large property at Oyster Bay. The present action was brought for a libel, published in the Colonist Newspaper, of which the defendant was Proprietor (and which the candour of Mr. Meredith avowed.) The question for the Assessors was, whether the article complained of applied, or did not apply to the plaintiff; and, if the latter, was it libellous? The question was of considerable importance, not only as affecting the plaintiff or defendant, but the public generally. Our community was small, and in such, the Liberty of the Press was an inestimable blessing. After a burst of indignation about the licentiousness of the Press, &c. Mr. Gellibrand went on to state the various avocations held on a former occasion, as well as at present, by his client Mr. Roderick O'Connor, in order to render the libellous article complained of applicable. He then adverted to a subject which might have been well spared, by introducing what was once the property of the venerable and reverend Mr. Knopwood, and known as "Cottage Green;" and mixing up Mr. O'Connor with the transaction, that property being now in the possession of Colonel Arthur. This transaction be, Mr. Gellibrand introduced, he said for the purpose of shewing the libellous nature of a portion of the article complained of. He then drew a distinction, in point of law, between words spoken in the warmth of discussion, and those committed to print, eulogising the humanity of the legislature in drawing this distinction, and making such a charitable allowance for human frailty. After a few heated observations on public abuses, public wrongs, &c. Mr. Gellibrand proceeded to read the libel, commenting on the different passages as he proceeded with considerable pathos. On arriving at that portion of the article which alluded to "old Scape Gallows', the learned Gentleman paused; and on resuming his observation he said, that he did not envy the man, whoever he may be, who wrote that portion of the article. There was little credit due to the man who published it, and still less to the man who wrote it. Could that be fair legitimate discussion? Could sociality exist in the community, if such writings were tolerated? Certainly not. Social feeling would be destroyed and concord annihilated. Mr. Gellibrand next proceeded to anticipate the line of defence, which would be set up by Mr. Meredith, and most unfairly put in a "Colonist" of June 25, the leading article of which he said, was a confirmation of the obnoxious libel. [**] He stated his conviction that the latter article was written for the avowed purpose of intimating the witnesses for the prosecution, as well as the Assessors, and branding them as perjurers should they discharge their duty in favor of Mr. O'Connor. For his part he did not see what amount of money could compensate his client for the injury he sustained in his character, "and the laceration inflicted on his heart." (it was fortunate it was not on his breech;) and concluded by stating that the defendant pleaded the general issue.

J. Burnett, Esq., examined by Mr. Ross. - Is Colonial Secretary; is acquainted with Mr. O'Connor these four years back; he was once a Commissioner for the valuation of land; his reports passed through the hands of witness; he received them from Mr. O'Connor and the other Commissioners; Mr. O'Connor is now the Inspector of Roads and Bridges; there are a great many convicts placed under his charge; witness had no hesitation in stating his belief, that the article in The Colonist of 14th May (which paper he then held in his hand), headed "private and confidential", referred to Mr. O'Connor, the Inspector of Roads and Bridges; thinks that part which asks, "has he employed the convict labour to improve his patron's property;" witness thought there could be no doubt on any man's mind, that it imputed to Mr. O'Connor, his having done so; witness should imagine that "patron" meant Colonel George Arthur, the Lieutenant Governor of Van Diemen's Land; the convicts placed under the charge of Mr. O'Connor were so placed for the purpose of promoting the Public Works; witness should conceive that what was imputed to Mr. O'Connor, to be highly improper, and dishonorable - by the query, "is hegenerally[sic] disliked?" Yes, loathed by all good men; witness thought the writer meant to imply that such was the fact.

Cross-examined by Mr. Meredith. - Have no reason to believe that Mr. O'Connor came to the Colony in the character of an adventurer; he had been in the Colony previous to the arrival of witness; did not think he was an arrant adventurer, nor did he think that passage could apply to him; knows nothing improper of Mr. O'Connor, and that part alluding to moral character could not apply to him; never heard that Mr. O'Connor was universally detested; had never seen articles in the Colonial papers relative to a "spy;" must say that the word spy in the "Colonist," was meant to apply to Mr. O'Connor, but witness did not think it could; had no knowledge of Mr. O'Connor acting as land agent to Colonel Arthur, nor did he believe from the many opportunities he had of knowing, that he was Colonel Arthur's confidential adviser; had no reason to believe that Mr. O'Connor was disliked. Mr. O'Connor was (in witness's opinion) a remarkable good looking man; he had nothing in his countenance that indicated villain; does not know the authors of the article; had no knowledge of their intentions; that portion of convict labour under Mr. O'Connor extended all over the Colony. [Mr Meredith - I did not before think that he had been gifted with ubiquity]; did not think that Mr. O'Connor would give directions to have convict labor misapplied; did not know before this morning that Cottage Green had been the property of Colonel Arthur. From various articles which witness had seen in the Colonial papers, together with what he had heard; he did believe, and still believes, that that article was intended to apply to Mr. O'Connor.

Dr. Turnbull, examined by Mr. Gellibrand. - Have resided in the Colony for eight years; knows Mr. O'Connor and Mr. Meredith; understands Mr. Meredith has a large tract of country, down at Great Swan Port [here the witness read the article before alluded to]; have no doubt on the subject, Mr. O'Connor is the person there alluded to; "certain great personage," meant the Lieut. Governor, the allusion to convict labor, meant that he had been guilty of malversation, in employing convict labor to promote the private advantage of his patron - patron meant Colonel Arthur; loathed &c., meant that he, Mr. O'Connor's character was of the worst possible description; have not the slightest doubt that the person intended to be implicated by that article was the plaintiff.

Cross-examined by Mr. Meredith - Knows Mr. O'Connor personally; had many opportunities of seeing him; have no reason to believe that he is an arrant adventurer; there are many persons to whom the phrase would better apply; there are several individuals in the Colony more wealthy than Mr. O'Connor; it was witnesses impression that Mr. O'Connor was one of the largest landholders in the Colony; had no reason to doubt hismoral character; had no reason to believe that he was ever considered a spy in the Colony; have seen a reference in the Colonial papers to Reynolds the Spy. [The witness here, after great hesitation and being closely pressed for an answer, considered the allusion applied more to Reynolds than Mr. O'Connor]; did not believe that Mr. O'Connor ever acted as land agent to Colonel Arthur, nor did he consider that Mr. O'Connor was Colonel Arthur's confidential adviser; witness is Clerk of the Council; his is a confidential situation; is not aware that Mr. O'Connor was generally disliked, or loathed; taking the passages in the abstract, they could not apply to Mr. O'Connor; he is a good looking man personally; there was nothing in his countenance expressive of villain; from the effect of the whole, witness thinks the article applies to Mr. O'Connor, (Mr. Meredith, "and yet taking them separately they could not apply;" this conclusion then must arise from the old maxim, that "two negatives make an affirmative, and consequently half a dozen negatives can leave no doubt.")

Dr. Ross, Government Printer, examined by Mr. Hugh Ross - Read the article in The Colonist; there were three persons particularly alluded to in that article, Mr. O'Connor, the Governor, and Mr. Murray; the person alluded to as having the Governor under his thumb, and having a large number of acres was Mr. O'Connor; understood Mr. O'Connor to be "arrant adventurer." Spy, Reporter, Land Agent, employing convict labour to improve his patron's property, &c, as well as writer for the mock opposition papers; "old Scape Gallows, meant Mr. Murray!!! Witness knows Mr. Meredith since he came to the Colony; understood him to be a wealthy man.

Cross-examined by Mr. Meredith - Is generally intimate with Mr. O'Connor; had no reason to suspect that His Excellency was under his thumb. [To the ingenious line of cross-examination, pursued by Mr. Meredith, the witness professed a great disinclination to answer.] Does not read The Colonist with that particular attention which would induce him to select the different passages in the article alluded to; if Mr. Meredith asked puzzling questions, he should only get puzzling answers; does not know that Mr. O'Connor was an arrant adventurer; to witness's knowledge Mr. O'Connor is not an immoral man, nor does he think that plaintiff ever acted in the character of a spy; have seen allusions to "Reynold the Spy" in some of the papers; does not think that the man Reynolds was the person alluded to, witness not believing that he was in the Colony.

On a question being put relative to "old Scape Gallows," the Chief Justice was of opinion, that in point of law that allusion did not apply to any particular person, for which intimation Mr. Meredith professed his acknowledgment, as it would save him from painful allusions.

Examination continued. - Does not think that there is an indication of any thing wrong in the countenance of Mr. O'Connor, nor has he suffered in the estimation of witness, through the article in The Colonist.

The Colonial Secretary and Dr Turnbull corroborated the latter statement.

As Dr Ross was about leaving the witness box, Mr. Gellibrand put the following question - Has any personspoken to you personally relative to the evidence you were to give to-day? No.

In order that the bane should not go without its antidote, Mr. Meredith put the following question: - "Have you, Sir, received a written communication directing your attention to the points which were considered by the party most essential in this case?" I have. "From whom did you receive such communication." From Mr. Gellibrand !!! - (a floorer.)

Mr. Thomas Young corroborated the testimony of the above-named witnesses as far as opinion went, and stated that he was naturally rather an intimate acquaintance of Mr. O'Connor's, and that we had all come out, more or less, as adventurers; and that he had given up The Colonist some months back, being apprehensive that what was contained therein may make an inroad on his morality. The witness further stated, that at one time we had very strong prejudices against Mr. O'Connor, but at present they were on the very best terms, and that Mr. Meredith was very rich!

Mr. C. B. Lyons corroborated as far as opinion went, the testimony of the preceding witnesses, and in his cross-examination by Mr. Meredith stated, that he knew nothing of Mr. O'Connor's moral character, though acquainted with him a considerable time; he had nothing to do with that. [Mr. Meredith observed that before heshould give his acquaintance, much less his friendship to any man, he would satisfy himself on that point.] Mr. Lyons was the only witness whose testimony proved, or implied proof of two of the matters suspected; namely, he spoke to the fact of Mr. O'Connor acting as Colonel Arthur's Land Agent, as far as to look at land, for His Excellency to purchase [Mr. Meredith here very significantly remarked, that Mr. O'Connor had once looked athis land, at Swan Port); but he would not speak to Mr. O'Connor's moral character, he said he knew nothing about that.

Mr. John James Holland, examined by Mr. Gellibrand. - Is clerk in the police-office; recollects an investigation going forward in that department, relative to an overseer of the chain gang, named Hunt, in May last, for appropriating convict labour in his personal advantage. The investigation took place before the Chief Police Magistrate and Mr. O'Connor.

This closed the case for the prosecution.

Two Gentlemen were called by Mr. Meredith to prove his disapprobation of the article complained of, and to whose evidence Mr. Gellibrand took an objection, which was ruled by the Court.

Mr. Meredith declined calling any other witnesses; and the plaintiff's case being closed.

Mr. Meredith rose to reply, at first he appeared to struggle with a sudden rush of feeling, which, for a few moments, overpowered the faculty of speech. Whether the late "correspondence" between the Government and himself flashed across his mind, upon seeing before him as Assessors, two out of the three, Members of the Council, the plaintiff being also what is termed a Governor's man, we pretend not to know. However, he soon resumed his self-possession, and proceeded as follows:-

May it please your Honor, and you, Gentlemen Assessors:

I have been dragged up from my residence in the country, by the only power that could have forced me up at this time, that of the law, to become the defendant in this action, although it is well known, and to no one better than to the plaintiff and his Counsel, that I was utterly ignorant of the publication of the article, which the plaintiff assumes to apply individually to him, until I saw it in print, in common with all other readers; and therefore, if legally liable, I am morally innocent. Should it be imputed to me as an act of presumption, that I appear before you, in the character of my own Advocate, instead of employing Counsel, I have a very short and satisfactory answer to give. No Counsel would undertake a cause without instructions or brief; and I could give neither, being myself in complete ignorance. I have been led into this Court, as it were, blindfold, and had to look for a way out again, when my eyes should be opened; and Mr. Gellibrand, very considerately, kept me in the dark as short a time as possible - one of the first questions to his witnesses being, was I a wealthy man: Thus disclosing the real object of the action to be pecuniary damages.

[Mr. Meredith took this opportunity of discharging himself, as well as this Journal, from all intentional injury to private character, or trespass upon individual feeling. His connection with it, in any other relation that that of Trustee, to preserve it for the good of the people, had been only temporary, and was about to ease; still, before he withdrew, he wished it to be understood, that any one, even to the humblest individual in the Colony, had only to make known their complaints to obtain redress; nay he would go further - he had now been an inhabitant in the Colony twelve years; and he hoped that, during that period, he had never injured or wronged any person in it - if he had, it was unknown to himself; and he trusted, that his present avowal might be spread abroad far and wide, as to give him the knowledge that he had even done an injury to any one, and thus afford him the opportunity of redressing it, would be a favor conferred on himself.]

Mr. Meredith then went over the chief points of Mr. Gellibrand's speech, commenting with some severity upon certain parts of it, particularly his production, of and reference to a secondary article, published in The Colonist of the 25th June, which he, Mr. Gellibrand, considered ought to have been an acknowledgment and reparation; whereas it was one of aggravation and intimidation, inferring perjury, not only to the witness, but also to the Assessors, and the Judge himself, in case of a verdict in favor of the plaintiff Mr. Meredith, on the contrary, argued that the article in question was neither more nor less than a disclaimer of the libel alleged to apply to plaintiff, and that Mr. Gellibrand had dealt by it most unfairly, both ways; as, to have tendered acknowledgment, and reparation, would have been to admit, not only the libel, but the application also, and the Journal would have then stood self-convicted. Again, whilst Mr. Gellibrand was accusing him (Mr. Meredith) of impugning the integrity of the Court, he was himself guilty of insulting their understanding, by laying down as the law, that, in case the Assessors thought, or, in their minds, believed it be a libel, and that it applied to his client, they were bound by their oaths to give a verdict in his favor. So far from this being the law or the fact, if, instead of two or three, there were twelve Jurors, and all were unanimous in their own individual belief; nevertheless, if the evidence negatived either the allegations or their application to the plaintiff, they were bound by their oath to pronounce their verdict according to such evidences, shutting out their own construction altogether. Mr. Meredith then went over the evidences given, and which, so far from establishing the application of the alleged libel, negatived it completely. True, their, witnesses had one and all, expressed their belief that it applied to the plaintiff, but their own evidence was in opposition to such belief. He said take Dr. Turnbull's evidence for example; who admitted, that, abstractedly and in death, none of the imputations applied, but still he came to a conclusion, that taking the whole together, they did apply; this conclusion, Mr. Meredith observed, must be upon the assumption that two negatives make an affirmative, and of course, if only two do so, half a dozenmust remove all doubts. Mr. Meredith then said, he would at once bring this sort of conflicting testimony between evidence and belief to the test, by supposing a case by analogy; He would suppose then, that a robbery had been committed upon the highway; he would suppose a coach had been stopped and robbed, a mail coach, (a start made by several present); why he would suppose, a Mail Coach in preference, was, thatbeing under the Post Office; it was a Government concern; and in addition, therefore to the talents of private Counsel, the higher ranks of professional talent would be employed to convict the robber, the Crown Lawyers, &c. Now he would further suppose, (mind Gentlemen, all is matter of supposition and belief, and opinion here today); he would therefore suppose, in order to bring the simile the closer home to the case then before the Court, that Mr. O'Connor, instead of being the plaintiff in this libel, was the highway-man in the supposed Mail Coach robbery; he would suppose further, that the libel itself contained the description of the robber, and under which he had been apprehended upon suspicion; and lastly he would suppose that the same witnesses had been examined to prove identity of person, as was now relied onto prove the application of the allegations set forth in the declaration, or the imputations embraced in the published article; he would put it to the Assessors, whether, upon such evidence, and merely expressed belief, in opposition to their denial of almost each several particular of the resemblance, when all the main points of description were thus disproved, and only a few light shades of likeness remained, would they, could the, upon their oaths, and according to their conscience, find a verdict of guilty, and send the prisoner to his fate, upon mere belief, against evidence? He was sure they could not; and if so, neither could they now give a verdict in his favor.

[This argument, so forcibly urged, appeared conclusive with many, and of itself was expected to have carried conviction to the seat of justice. We cannot follow Mr. Meredith through the whole of his speech, and take in all his various analogies and illustrations.]

In order to relieve the article, charged to be libellous, from all malicious intention, on which the opposite Counsel had laid such stress, he explained his understanding of its origin, viz. That during a convivial party, seated together after dinner, and under the influence of an extra glass of wine, some one proposed an idealcharacter, to see if any one would acknowledge it, or, as it was figuratively expressed at the time, a cap should be manufactured amongst them, and be thrown into the Colonial highway, and see if any one would claim it as his own. Mr. Meredith admitted, it might be considered a foolish kind of joke; but he reminded the Assessors, that Gentlemen not only said, but did foolish things sometimes after dinner; but they had, at least taken the precaution, as they thought, so to make up the cap, and give it such unfit forms and shapes, that whomsoever should try it, would not be able to make it fit, unless indeed the proclaimed Spy, Reynolds, was really in the Colony; in which case, his title ought not to be disputed. Now it appears (said Mr. Meredith) that Mr. O'Connor, seeing this cap in his way, and, having lost one of a similar kind not very long ago, examined it, and, notwithstanding there were so many different brands upon it, estimating its value at not less than £3000, he appropriated it to himself, and, possibly in viewing it afterwards in the glass of Usury, beheld a tail appended to it, worth 25 per cent more - Here Mr. Meredith apostrophised. Alas! Usury! thou bane of this ill-fated land, and scourge of its depressed people - insatiate monster of pray that devours by anticipation the maiden's dower - the widow's jointure and the orphan's portion - though fell despoiler of the substance and patrimony of whole families down even to the new born babe. Spirit of Evil - that hardens the heart - deadens the better feelings of human nature - converts hospitality into parsimony - benevolence into repulsion - and closes the once open hand of charity with a miser's gripe - and what is the result to the individual himself? The rotary becomes a victim to the idol of its worship - inasmuch as he no longer possesses within himself the power of enjoying the wealth thus amassed. Surely, added he, the plaintiff will not attempt to appropriate this cap to himself also. Unhappily for the Colony, there are too many claimants in the market. Would to God, that when there was but one head it would fit. And the owner had resolved, like the Roman of old, who became a self-devoted victim for the salvation of his country, and precipitated himself in the yawning, chasm, he too had plunged into the deepest waters near our coast, cap and all, nor left one vestage of his unholy vacation behind. - Mr. Meredith then proceeded to the close of his speech thus: - If Mr. O'Connor admired himself with this cap on his head in the glass of Usury, he ought to have turned the glass round, and on the other side he would have found the mirror of Public Opinion; and had he viewed himself in that, he must have spurned it from him with detestation. No, Gentlemen, it does not fit him and God forbid that it should be made to fit him. His learned Counsel has tried his ingenuity to make it fit. The witnesses have tried all in their power to drag it on to his head; but still they have not succeeded, and though he may desire to wear it, I trust that you Gentlemen will be your verdict, remove it from him, and prevent his committing an act of moral suicide, or, this cap, like the fabulous poisoned garment, must stick to him until death. I plead not alone for myself in this cause; as a verdict for me in a pecuniary sense, is one also for the plaintiff in a moral sense. I am made the legal author and legal writer of the article in question; I am therefore entitled to speak in the first person, let me then disclaim its application to him, and I trust when I have finished the few additional words I have to say, that his Counsel will rise up and accept this disclaimer on behalf of his Client, as the best, may as the only reparation his character can receive, if he feels it has been affected. Should he not do so, I even I, will become his advocate, I beseech you Gentlemen to re-establish his character by a verdict in my favour. Even should you award him pecuniary compensation, should you take from the father of twelve children to give unto him who has none (at least, seeing that Mr. O'Connor was never married, it would be a libel to say otherwise) what benefit could it be to him? It has been proved that he possesses more wealth than he can use - and even had he children to bequeath his property to - along with the amount of any remuneration you might give him, must descend the stigma attached thereto. Every pound, every shilling you award him, is so much taken away from the full measure of reparation which my disclaimer would otherwise bestow on him; whilst to give him damages, is to send him out of Court, like Cain with a mark never to be effaced.

No witnesses being examined for the defence (although Mr. Horne and Mr. Emmett were both sworn, and many others were supoenaed) the Judge not considering the evidence admissable, the case closed here. After the lapse of sufficient time to prove that their was considerable difference of opinion behind the Judgment Seat, His Honor reappeared, with his "right hand" and left handed Colleague, and pronounced the verdict of £200 for plaintiff but specially exempting from the imputation of being "Land Agent" to the Lieutenant Governor, and writing for the Mock Opposition Paper.

We shall, for the present, leave Mr. O'Connor in silent possession both of the money and the "Cap," until our next number; when we shall have more space and time to offer a few observations upon this trial, its origin, and consequences - not omitting the summing up, so personally complimentary to Captain Swanston, to whom it appeared to be exclusively addressed.


[1] The assessors were Charles Swanston and Charles McLachlan.

See also Hobart Town Courier, 12 July 1833. The Courier concluded as follows:

"The Chief Justice then charged the assessors, going over the whole points of the case in a most careful and lucid manner. He pointed out, that although the passages taken singly might not be understood to apply to the plaintiff, yet as a whole, the article had been sworn distinctly to do so. Several of the imputations he shewed were grossly libellous, especially that one which charged Mr. O'Connor with employing convict labour to his own or any other person's private advantage. He was equally liable for what appeared in the journal whether he resided on the spot of 500,000 miles from it; and although the witnesses had stated that the plaintiff had not fallen in their estimation in consequence of the libel, the slander as put before the public was still the same, as well as the injury it did to the plaintiff in his own person.

"His Honour and the assessors retired for about half an hour, and returned a verdict for the plaintiff, damages 200l., stating at the same time that the passages in which Mr. O'Connor was pointed out as a land agent and writer in the mock opposition paper was not considered by them to be libellous."

For editorial commentary, see Tasmanian, 12 July 1833. For O'Connor see P.R. Eldershaw,'Roderic O'Connor (1784-1860)', Australian Dictionary of Biography, vol. 2, p. 296 and for Meredith see D. Hodgson,'George Meredith (1777-1856)', Australian Dictionary of Biography, vol. 2, pp. 224-6.

[*] We are much obliged to the veracious writer in the Colonist for his gratuitous assumption, as to the consanguinity of the Times and the Tasmanian. We take this opportunity, however, of informing him, that such consanguinity only exists in his own very fertile brain. - Ed. of Tasmanian.

[2] Two reports are provided here, since their emphasis is so different, and the Colonist was so directly interested.

[**] We have heard it repeated in and out of Court, that that article was an utter disclaimer, and many Gentlemen with whom we have conversed on the subject, although they gave Mr. Meredith unlimited credit for the candour with which he met the charge, were absolutely astonished that he permitted Mr. Gellibrand to resort to such an unprofessional subterfuge.

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