Decisions of the Nineteenth Century Tasmanian Superior Courts
Schaw v. Meredith 
libel - ship wreck - juries, judges of law and fact
Supreme Court of Van Diemen's Land
Pedder C.J., 17 July 1833
Source: Tasmanian, 19 July 1833 
This case was tried by a Civil Jury. The Attorney General, Mr. Gellibrand and Mr. Ross appeared for the plaintiff, while the defendant, assisted by his solicitors, Messrs. Cartwright and Allport, conducted his defence in person. Thirty four jurors were summoned, and the following twelve selected to try the case. John Dunn, Banker, Macquarie street, William Goulston, Chandler, Argyle-street, Benjamine Guy, General dealer, Elizabeth-street, George Gatehouse, Brewer, New Town, Thos. Haskell, Victualler, Macquarie-street, James Clarke, Butcher, Elizabeth-street, John Folley, Farmer, Browns Rivers, William Clark, Cooper, Argyle-street, Bernard Hill, Sawyers, and violin player, Wm. Cowley, Brewer, Campbell-street, John Hanson, Carpenter, Collins-street, Edward Howard, General-dealer, Argyle-street.
Mr. Gellibrand opened the pleadings, and minutely stated the counts in the declaration, eight in number, imputing to the defendant, the publication of a false, scandalous, defamatory, cruel, and malicious libel, against the plaintiff, in the Colonist newspaper, of which the defendant was the proprietor; the damages were laid at £1000 and the defendant pleaded the general issue.
Mr. Meredith moved that all the witnesses in the cause should withdraw, with the exception of Mr. Burnett, who accordingly remained.
The Attorney-General. - May it please your Honor - Gentlemen of the Jury. You have heard from my learned friend, Mr. Gellibrand, the nature of this action: it is my duty, however, to explain to you more at large, the circumstances connected with it. In discharging this duty, notwithstanding the able assistance which I shall this day receive from the tact and experience of Mr. Gellibrand, I feel clothed with a deep and serious responsibility; for I have entrusted to me the preservation of the honor and character of a gallant officer, whose whole life, I may say, has been spent in the service of his country. This character, gentlemen, has been most wantonly, most cruelly, and, I must say, most causelessly assailed by the defendant, and it is for you to decide, in reading the libel of which he has been guilty, whether or not any damages, which you might award, would compensate Major Schaw for the deep and irreparable injury which has been inflicted upon him. In the course of my - I, perhaps ought to say limited - experience, I never read a libel more completely calculated to injure character than this; and under what circumstances is it presented to you? One of the most awful calamities which can occur takes place; a ship takes fire at sea, and a crew of wretched sufferers, after undergoing the most melancholy privations, and escaping in open boats, falls in with the ship Lotus, on her passage to this Colony, with male prisoners. Major Schaw is to command of the guard in this ship; and you are led to believe that after the sufferers were taken on board, they were treated with every possible kindness and attention by every one on board, with one solitary exception. That exception, the libel tells you, was Major Schaw. Look at this libel, Gentlemen! Observe its circumstantiality! It does not describe the plaintiff or his imputed actions in general terms; but with particular minuteness, and in most accurate detail; now, I ask you gentlemen, that, having read this libel, what could you think of the man, who could be guilty of such conduct? The shipwreck of the Hibernia is not a common occurrence - it does not terminate with the passing away of the tempest, - to every country in Europe, will go the melancholy loss of the ship Hibernia; and it will come before the world, coupled with that description, which this paper was given. Even were it only circulated here, where Major Schaw has arrived, after a not inglorious life, what injury must it not occasion to his character? But this libel will be known at home - it will be circulated amongst the military community there, and it will remain till removed by your verdict. I am unwilling to anticipate the defence. Mr. Meredith will conduct it himself, with his usual zeal and ability; he will not attempt to justify the course he had taken - he dare not do this - his defence is of a different description - he will tell you he is not the author of the libel. But I must tell you, that authorship was nothing to do with this case; it is quite sufficient, that the libel appeared in the Colonist newspaper of which Mr. Meredith is the registered proprietor. If you think the damages laid in the declaration can be any compensation to Major Schaw, you will give him the benefit of your verdict, which, although it will not travel to Europe with the rapidity of the narrative of the loss of the Hibernia, ye it will eventually reach it. You must teach Mr. Meredith, Gentlemen, that if he is the proprietor of a newspaper, he must answer for the calumnies it may choose to propagate.
John Burnett, Esq., produced an affidavit, purporting to attest that Mr. George Meredith was the proprietor of the Colonist; it was dated 12th April, 1833.
Mr. Peter Sinclair. - Was a passenger on board the Hibernia; sailed from Liverpool for Van Diemen's Land and Sydney, 6th December, 1832; was burn at sea, 5th February, 1833, after the fire, some of the passengers escaped by means of three boats; there were 53 in the long-boat, 17 in the pinnace, and 11 in the gig - in all 81 souls; rigged a jury-mast, hoisted a blanket for a sail, and steered for Pernambuco, in the Brazils; fell in with theLotus, prison-ship, Captain Summerson, Surgeon-Superintendant, Dr. Brock, on the 11th February, bound for Van Diemen's Land; were picked up by her; Captain Summerson commanded her; Major Schaw had the command of the guard; Dr. Brock was the Surgeon-Superintendent; were landed at Rio, and arrived in this Colony by the brig Adelaide. Shortly after witness's arrival, read an article in the Colonist headed, "Loss of theHibernia;" had no difficulty in knowing that this article applied to Major Schaw; it was so plain, that no one could misunderstand it.
By the Judge. - Understood the article to apply to Major Schaw, the plaintiff in this action.
In his cross-examination by Mr. Meredith, the witness stated, that the long-boat was in so leaky a state, as to require the constant aid of eight men to bale her out; no opposition was made to the embarkation of the people on board the Lotus; no person, to his knowledge, was prevented from going on board; witness was the second person who went on board; the captain (Brend), was the first; he (witness) went into the cabin to give the particulars of the occurrence, and was so fully occupied in doing so, that he could not tell how or when the majority of the survivors in the boats were received on board the Lotus. He again stated that, to his knowledge, no opposition was made to the receipt of the other survivors, although he was aware that some delay took place on the occasion; he had conversed frequently with the passengers of the Hibernia on the subject of their escape, but not as regarded their reception on board the Lotus.
Dr. Henry Gordon Brock deposed, that he was surgeon-superintendant of the Lotus, prison-ship, and that he had often been employed in a similar capacity. On the present occasion Major Schaw, the plaintiff in this action, commanded the guard on board the Lotus; it was his duty to command the guard, and to conduct to the general preservation of the ship. Dr. Brock deposed also to the picking up of the survivors of the Hibernia, who were admitted on board the Lotus; and that, in consequence of this occurrence, they were obliged to touch at Rio de Janeiro; that it was impossible to have brought the survivors on to Van Diemen's Land in the Lotus, and they were, therefore, left at Rio. That witness, shortly after his arrival in this Colony, saw a statement in the Colonistrespecting the loss of the Hibernia, and regarding the occurrences which took place on board the Lotus; that he understood Major Schaw, the plaintiff, was the person referred to in that article; and that had he not known Major Schaw, he should, from perusing that article, have formed a very unfavorable opinion of him - in fact, the article would tend very much to degrade him in his, witness's, estimation.
On his cross-examination, Dr. Brock stated, that the duty of the officer of the guard was chiefly confined to the command of the troops on board; but that he was bound, in every instance, to support the captain; that the captain was the proper person to give orders connected with the ship. Messrs. Sinclair and Grace, with captain Brend, were the first persons who came on board; the captain came into witness's cabin, the others remained, on the quarter-deck, or came into the cuddy; thinks that those on the quarter-deck most have been aware of the situation of those who remained in the boats; cannot say by whom those in the boats were prevented from coming on board, but heard it was by the express desire of Captains Summerson and Brend. It would have been highly imprudent to have admitted the people on board, till the convicts had gone below; can unhesitatingly say, that he heard Captain Summerson request Major Schaw not to permit the people to come indiscriminately on board; but did not hear Major Schaw give any order to this effect, as he (witness), was fully occupied in getting the convicts below. The military, he supposed, must have prevented the people from coming on board; the leaky state of the long-boat must have been obvious to persons on the deck of the Lotus; Dr. Favell and Mr. Murray were cabin passengers, and slept in witness's cabin; Mr. Murray was in a sinking state when witness saw him; does not think he could have reached Pernambuco; it was witness's wish he should have come on in the Lotus.
Here a desultory conversation occurred between His Honor and Mr. Meredith, respecting certain points of evidence; - the course Mr. Meredith was pursuing being ruled by the Court to be irregular and irrelevant.
Dr. Brock re-examined by Mr. Gellibrand. - It is the duty of the master to navigate the vessel; the entire management of the convicts, &c., rested in the Surgeon-superintendent, who issues his written instructions; the guard may be called upon to act, whenever the Surgeon-superintendent thinks necessary; it is just the same as on shore, when the military is called out in aid of the civil power - the Surgeon-superintendent representing the latter. Major Schaw had nothing to do with the passengers, after they came on board, except to render them all the assistance he could. Witness took upon himself the responsibility of rationing the survivors, and giving them ship room.
Lieutenant Augustus Blair, of the 21st regiment, deposed, that Major Schaw had command of the guard on board the Lotus, and that he had acted as a Captain of the 21st regiment (The Major's Commission was here read, in which he was described as a Captain in the army and Brevet-Major). In addition to the facts of falling in with the boats of the Hibernia, this witness deposed, that he had read the article in the Colonist, narrating the loss of the Hibernia, and that he understood that portion of it, relating to Major Schaw, to apply to the plaintiff in this action; and that, had he not known him, he should have considered him, from a perusal of that article, a man of a very arbitrary and cruel character.
John Burnett, Esq., was re-called to prove the signature of Lord Melbourne, which was attached to the Commission. He had seen him write frequently, when he was Mr. William Lambe, but had never seen him write "Melbourne;" from the resemblance of the writing, he should think the signature was Lord Melbourne's; could not say whether his lordship was Secretary of State in 1830. On his cross-examination, Mr. Burnett said he had no doubt but that the hand-writing might be imitated, although he had heard that the plainest hands were the most difficult of imitation.
Mr. James Davidson, Assistant-Surgeon of the 21st regiment - Believes the signatures attached to the Commission to be correct. [This witness, having been in the Court during the trial, was objected to by Mr. Meredith - and his evidence was not continued.
Captain Forster. - Is Chief Police Magistrate of Van Diemen's Land: was formerly a Captain in the 85th regiment - the same regiment in which the plaintiff was Captain; Commissions are issued from the Secretary of State's Office, and received through the agent; has frequently seen Lord Melbourne's signature; believes that attached to the Commission to be his Lordships's; Major Schaw has been a captain since 1811; has known him upwards of twenty years. Captain Forster than corroborated the evidence of the other witnesses as to the impressions conveyed by the libel, and its application to the plaintiff; he also observed that he should have considered any officer who had been guilty of the conduct imputed to Major Schaw, unfit to bear a commission as an officer - and, as a man, devoid of all proper feeling of humanity. On his cross-examination he stated, that he knew Lord Melbourne's hand-writing, from having been on the staff of a general office, and in constant correspondence with his Lordship; although he had known Major Schaw so long there was no relationship existing between them.
Mr. Richard Murray, one of the survivors of the Hibernia, deposed to being received on board the Lotus, and corroborated the testimony of the other witnesses as to the material points of the libel. On his cross-examination, he stated that he never remembers to have heard any rumour or report as to Major Schaw's unkind conduct on board the Lotus, previously to the publication of the libel, as he had not been in the habit of associating with the persons who were likely to speak of such things. He had not personally witnessed Major Schaw's conduct, as he was confined all the time to his bed in Dr. Brock's cabin.
Mr. Peter Nicholson identified the signature of Lord Melbourne, and proved that his Lordship was Secretary of State for the Home Department in 1830.
Peter Murdoch, Esq., J. P., stated, that on perusing the article in the Colonist, his mind was filled with abhorrence at the imputed conduct of Major Schaw; but that he thought there must be some mistake; if it was true, he considered it one of the most disgusting statements he had ever seen. On his cross-examination, he said, that, coupling the article of the libel, with a paragraph which appeared in the Colonist of the 9th July, Major Schaw would not suffer in his estimation, as he considers the latter article a complete repeal of the former. On his re-examination by Mr. Gellibrand, Mr. Murdoch admitted, that he believed many persons would see the first article, and not the second, from the interest attached to the narrative of the loss of the Hibernia.
Mr. A. Bent, Treasurer to the Colonist, deposed to the very extensive circulation of that Journal, which is chiefly confined to this Colony; many copies are sent to England, only one to India, to the Proprietor of theBengal Hurkarn. On his cross-examination, Mr. Bent gave the following account of the mode in which the intelligence respecting Major Schaw's conduct was obtained:- "Previously to the publication of the article, I heard the report from a number of the passengers collected opposite, the printing office. I was passing by, and their conversation attracted my attention: they were taken to the back of the house by a person named Balfour, a pensioner; they were, I suppose, treated kindly by Balfour; and sent by him to a person connected with theColonist. I had no means of knowing whether this report was correct or incorrect, as the persons had only been two days in the Colony; I should give such a statement credit, until I heard it contradicted, from hearing so many passengers speaking unanimously; the passengers were making out their grievance, and stating substantially that they had not received the kindest of treatment from Major Schaw."
The Attorney General objected to this line of evidence, as Mr. Meredith, having pleaded the general issue, had no right to justify.
Captain Clark J. P. corroborated the evidence of the other witnesses, as to the application of the libel to Major Schaw, and the impression it was calculated to make on the minds of the public; he further stated, that he considered the article a very stupid thing altogether, and a very improper thing to put into a newspaper.
The Commission was again read, but it did not identify Major Schaw as a Captain in the 21st Regiment, but only as a Captain in the army and a Brevet Major.
Mr. Meredith commenced his defence, by saying that this was the second time he had appeared in that court within one week, he had been selected as the victim of libel prosecutions, and had on the present occasion arrayed against him (a poor settler) two Attorney Generals, (for Mr. Gellibrand was one Attorney General, and it was not his, Mr. Gellibrand's, fault that he was not so now) and the Crown Solicitor, - who, no doubt will be Attorney General too, sometime if he can. But in addressing himself for the first time in his life to a jury of his countrymen, his bosom expanded and his mind became invigorated, for he knew he should have justice done here. He would not say now, as had been recently said, "God forgive the prosecutors in this case - on them be the obloquy;" for the prosecutor in this case could have no ill will towards him, a perfect stranger; but he had been advised - strangely and, he would say, injudiciously advised. As for himself he was totally ignorant, and perfectly unconscious of the article, which has been charged as libellous, and no sooner was he made acquainted with it, than he greatly regretted its insertion, and instantly took such steps as were best calculated in his opinion in repair the injury. He wrote to his solicitors, to he conductor of the paper, and to Major Schaw himself, offering the fullest reparation. He suggested to Major Schaw that a committee of three gentlemen should be formed to act as arbitrators between them. He gave Major Schaw the names of three gentlemen perfectly qualified to settle this matter, and as he did not wish that any secrecy should appear, he would tell the jury, who these gentlemen were - Captain Bell, Mr. Crombie and Mr. Gregson. Why this offer was not accepted, he knew not - but it was not, and he was consequently now on his trial. Mr. Meredith now made some comments upon the declaration, urging upon the jury, the omission in the "inducement" or "averment," of Major Schaw's good character and innocence - "God forbid! Said he" that I should cast any reflections upon Major Schaw's character, except as coupled with the these charges!" He then stated that although he was legally liable, he was morally innocent, and had been selected as a butt to be fired at - not in a straightforward manner, but by a crooked gun, and through indirect channels. He disclaimed any personal interests in theColonist, which had been established for Colonial purposes alone (!) it was true he was considerably in advance, on account of the paper, and if he got that back, with bank interest, it was all he wished for, and more, he was afraid, than he should get. He now adverted to the precautions he had taken to preserve the purity of the Colonist, and stated the same facts, as those already reported in his defence on the last trial; he then, after some remarks on the Attorney General's appearance in this case, in his private and not his official capacity, proceeded to dispute that gentleman's assertion that the attack on Major Schaw was either wanton or causeless. How was it wanton? If the case was as it had been represented, it was a case which would excuse the absence of caution. The poor passengers came to the Colonist Office with their tale of woe and grievance - but they were not kept an hour in the boat! When this statement was put forth, it was so done to give Major Schaw an opportunity of rebutting the charge brought against him. Why was he brought from the country to answer this action? Why did not Major Schaw proceed against the ostensible printer and publisher, or even against the authors of the report, and make them pay in person, if they could not pay in pocket? He had twenty witnesses now waiting to give evidence in justification, but he would not be allowed to justify, and what was he to do? He denied that Major Schaw's character would suffer in distant countries from the article in the Colonist, because subsequent articles would remove bad impression; if the bane went forth, its antidote would speedily follow. He now commented on the evidence of some of the witnesses with considerable plausibility, placing particular stress upon that of Mr. Murdoch and Captain Clark, which went, he said, to disprove the injurious effect of the libel. After again adverting to the reparation he had made to Major Schaw, and the letter he had written to him, he informed the Jury, that he had written to a gentleman at Sydney, to send him a Representative Director for the Colonist, who must possess a good moral character, talents for writing, with pure and independent principles. His salary was to be £200 a year as editor, and one-third of the profits of the paper for his responsibility as proprietor. He again declared that he was not beneficially interest in the paper, "and," he continued, "no man standing upon self-respect, would dare, by saying so, even in the darkest corner of his house - to proclaim himself a convicted liar! The vehement manner in which this somewhat unintelligiblebravura was uttered, startled the audience, who expressed rather audibly their disapprobation of Mr. Meredith's classical style: he, however, immediately apologized, and claimed indulgence for an unavoidable warmth of feeling. He proceeded to tell the Jury, that they were judges of the law as well as the fact, and that His Honor would doubtless favor them with his individual conceptions of the case, but, of course, without any intention of biassing their judgment, and by Mr. Fox's celebrated Act, they, the Jury, were invested with the power of judging the law as well as the fact. He must not adduce precedent - that would not do, as His Honor had told them.
His Honor. - Yes. Mr. Meredith, but I told you also, that the evidence you wished to adduce was not consistent even with that precedent.
But still, he said, the Jury were the judges of the law, and they must get it from such authorities as they could; and he conjured them to look to the principles of equity as well as law, and not punish him who was guiltless of this matter. But after all, he would say, this was no libel, and, if he was on the Jury, he would not find it so! He proceeded to prove this by alleging that the plaintiff, if he really had acted in that way, could not help it; as want of feeling was inherent in some dispositions. This Mr. Meredith illustrated by the example of a boy amusing himself with twirling a cock-chaffer on a pin, run through its body! This Mr. M. averted was not cruelty but nature! He concluded an animated appeal, by telling the Jury, that not only were they judges of the law and the fact, but that they might if they pleased, give a verdict according to their consciences! He instanced the case of Colonel Montgomery and Captain Macnamara, who fought a duel about their dogs; the Colonel was shot, and Captain M was tried for the murder. He pleaded guilty, and the Jury rather than he should be executed, found him NOT GUILTY; after some more observations respecting the reparation he made, and other topics in his address, he implored the Jury to exercise their judgment, and to do unto him as they would that others should do unto them.
The Attorney General with great spirit replied, and ably exposed the sophistry and fallacy of the defendant's address; he urged, also, that the line of deference adopted, in attempting by insinuation, to fasten the charge upon Major Schaw, infinitely aggravated the offence. He left this case, with confidence in the hands of the Jury, whom he had no doubt would give Mr. Meredith that satisfaction upon which he so surely calculated.
His Honor summed up with great pains and accuracy. The first 45 counts in the Declaration could not be maintained, as there was no proof of evidence that Major Schaw was a captain in the 21st regiment. Upon the others the jury would form their opinion and decide accordingly. The Jury retired, and after a considerable discussion, returned a verdict for the Plaintiff. - Damages £50.
Source: Colonist, 23 July 1833 
Before Chief Justice Pedder, and the following Jury:-
Messrs. John Dunn, banker (Foreman); Thomas Clarke, butcher, Elizabeth-street; John Foley, farmer; William Clarke, cooper, Argyle-street; Bernard Hill, sawyer, Goulburn-street; William Cowley, brewer, Campbell-street; John Hanson, carpenter, Collins-street; William Goulston, chandler, Argyle-street; Benjamin Guy, dealer, Elizabeth-street; George Gatehouse, brewer, New-town; Thomas Haskell, licensed victualler, Macquarie-street; Edward Howard, general dealer, Argyle-street.
This was an action for libel, brought by the plaintiff against the defendant, for an article published in The Colonist Newspaper of the 28th May last, under the head of "loss of the Hibernia," and reflecting on the conduct of plaintiff towards the survivors; defendant being at the time the registered proprietor of that Journal.
Mr. Gellibrand opened the pleadings. The declaration contained Nine Counts!!! a few of which he read to the Court, the reading of which occupied a considerable portion of time. The damages were laid at One Thousand Pounds!!!
The Attorney General, in standing the case to the Jury observed, that, although they had heard the nature of this action from Mr. Gellibrand, yet he felt it his duty to offer a few observations. He was clothed with a deep responsibility in having to come into that Court to uphold the character of an honourable and gallant British Officer. The libel which the Jury had heard read by his learned friend, had been written most cruelly, most unjustly and most negligently; the deep, the irreparable injury done to that gallant officer, no amount of damages which they could give was sufficient to compensate. He protested, that in the course of his professional career, he never heard of so gross an attack made on an individual as that made against Major Schaw, the plaintiff in this action (having adverted to the nature of a libel): he asked the Jury what they could think of such a man as the plaintiff, were he guilty of what was there implied. This dreadful calamity did not pass away like one of those maritime accidents which subsided with the tempest that produced it. No, the account of the loss of theHibernia by fire would reach over Europe and America, wherever the English language was spoken, and that libellous article would accompany it; had it travelled no farther than this Colony, where plaintiff had come to pass the evening of his days, the injury would still be incalculable. He, the Attorney General, trusted that defendant with all his good sense, would not attempt to justify that libel, but if he did so, he would have the opportunity of reply; he would again ask the Jury what amount of damages could compensate his client for what appeared in that paper, and although the verdict would not travel to Europe with the same rapidity as the account of the loss of the Hibernia, and the remarks thereon; yet, he trusted that that verdict would have the effect of removing the stigma attempted to be made on the character of his client, and of teaching defendant that he is the proprietor of a Journal, he is accountable for all the calumnies therein.
J. Burnett, Esq., Colonial Secretary, proved to defendant being the proprietor of The Colonist; read the article headed loss of the Hibernia, and further, "that he had the pleasure of being introduced to the plaintiff that morning!"
Mr. Sinclair examined by the Attorney General. - Was a merchant at home, and a passenger in the Hibernia; sailed from Liverpool for Van Diemen's Land and Sydney, on the 6th December, 1832, with passengers; the vessel was burned on the 5th February, 1833, after the fire broke out the passengers launched three boats, namely, the long boat, pinnace, and gig; there were fifty-three passengers in the long boat, and eleven in the gig; they steered for Pernambucco, and fell in with the Lotus, convict ship on the 11th February; Captain Summerson was Captain of the Lotus; plaintiff commanded the troops, and Dr. Brock was the Surgeon Superintendent; they were landed at Rio by the Lotus; and arrived here by the brig Adelaide; had no difficulty in knowing to whom the article in The Colonist alluded; is alluded to the plaintiff.
Cross-examined by Mr. Meredith. - The long boat was in a very bad state when they came alongside theLotus; it took eight men constantly baleing to keep the water out of her; swears positively there was no opposition offered to him in getting on board, nor did he observe it offered to any other person; the whole of the passengers saved from the Hibernia, that were in the two coats; went on board the Lotus, they did not get on board at the same time witness did; he saw some of them come up after, but how many could not say; he went to the cabin when he got on board, but could not saw how many of the passengers he saw on deck, as his attention was taken up answering inquiries; was not aware of any opposition at the time, but would not undertake to swear whether or not there was any; never had any conversation with the steerage passengers of the Hibernia on that head afterwards.
Dr. Brock examined by Mr. Gellibrand. - Came out Surgeon Superintendant from Portsmouth, to Van Diemen's Land, in the ship Lotus, in charge of male convicts; knows Major Schaw, the plaintiff, he came out in charge of the guard; fell in with a strange sail, about 3 o'clock, on the 11th February; witness was then in the cuddy; after a short time the strangers came up with them, which proved to be the long-boat and gig of theHibernia; thinks there were 62 souls in the boats; they were taken on board the Lotus, the Captain and the three cabin passengers first, and the others after; thinks an hour may have elapsed; had to put into Rio in consequence, and having left the wrecked passengers there, the Lotus proceeded on her voyage to this island; read the article in The Colonist, on the loss of the "Hibernia," and was of opinion, that where plaintiff's name was introduced, it alluded to the gentleman then in Court; witness thought that that article would have degraded plaintiff, in his opinion, had he not previously known him.
Cross-examined by Mr. Meredith, - Plaintiff's duty on the passage was confined to the guard; did not think that on such a passage, that plaintiff was allowed to act by his own judgment in every instance; the Captain was the person to give directions to the officer commanding the guard, as to permitting persons coming on board, or leaving the vessel. Messrs. Sinclair and Grace, with the Captain, were the first that came on board the Lotus; the Captain of the Hibernia came into witness's cabin; was of opinion that those that came out of the boats at first, and were on the quarter-deck, could not be in ignorance of the others remaining; believes that those who remained in the boats were prevented from coming on board; there was a barrier that divided the guard from the prisoners; thought it would be highly imprudent to admit the sufferers, until the convicts were gone below; it would have taken half an hour to effect that object; it was about an hour from the time they distinguished the strange sail, until the boats came alongside; "it was witness's impression from the time they hove in sight till they came alongside, that they were shipwrecked persons; there was abundance of time to get the prisoners down below, before the boats came alongside;" heard Captain Summerson request plaintiff not to permit the persons to come on board out of the boats. "The long-boat was in a very leaky state when she came along-side; was of opinion that the persons in the boat could not keep her afloat, until she had reached Pernambuco, had she left the vessel;" any person looking over the ship's side, must perceive that she had got a great quantity of water in her. A Doctor Havell, and a Mr. Murray, came on board, the latter was sin a sinking state, and slept in witness's cabin; did not suppose that he could have lived to reach Pernambuco, had the long-boat reached there; it was witness's wish that he should have come on in the Lotus from Rio; he declined doing so.
Mr. Meredith having here pressed the witness for an answer, as to whether Mr. Murray did not prefer staying at Rio, under an impression that some of those in command were desirous of getting rid of the shipwrecked passengers, Mr. Gellibrand took an objection to the question, professing at the same time, the great reluctance he felt in doing so, to any Gentleman conducting his own case.
The objection was ruled by the Chief Justice, who significantly observed, that half the evidence given in the cross-examination was no evidence, (very many thought otherwise).
Mr. Meredith still argued calmly that he considered he had a right to put the question, for the purpose of shewing the suspicion entertain of an unkindly feeling.
The Chief Justice. - It was all suspicion.
Mr. Meredith contended that there was an unkind feeling manifested, which induced Mr. Murray to remain at Rio, and contended that such was the opinion entertained by the sufferers generally, whilst they remained on board the Lotus; he referred to their situation in the waste.
Chief Justice. - That did not refer to Mr. Murray, but to the females.
Mr. Meredith having put the question again in a different shape, Mr. Gellibrand took an objection, which was ruled.
Mr. Meredith. - Your Honor, is it not competent in me to put the question?
The Chief Justice. - Put what question you like, and if an objection is taken, I will give my opinion.
Mr. Meredith. - Then your Honor, don't you think that I am entitled to put the question; yet another Judge may come after you, who may be of a contrary opinion. Mr. Meredith here cited a decision of Lord Mansfield's, in support of his position.
The Chief Justice. - The questions that you are about to put, have no analogy with the case quoted, and I will not hear any more, Mr. Meredith; I have given my opinion, and by that, will abide.
Mr. Meredith asked, if he could not refer to another authority, in support of the line which he found it necessary to pursue.
The Chief Justice (indignantly). - You should have done so at the time, Sir.
Mr. Meredith. - I have been led into this, as it were blindfold, and I am now compelled to put in the best evidence I can.
The Chief Justice. - Have you done with the arguments you mean to urge? Mr Meredith bowed assent, and His Honor decided that the questions should not be put.
Lieutenant Blair, 21 Fusileers, was examined as to the rank held by plaintiff, in that regiment, as also to his having charge of the guard on board the Lotus, and to the prejudicial tendency of the article on the character of that officer. During the examination of this witness, and subsequently, the Chief Justice laboured under considerable doubt, as to proof of plaintiff being a Captain in the 21st Fusileers, the commission itself he looked on as a piece of parchment.
Mr. Burnett was called to prove the signature of Lord Melville, attached to plaintiff's Brevet commission; the witness had known His Lordship, and often saw his signature as William Lambe; had resided in the same house with him a considerable time; never saw him write Melville; is of opinion that that signature is in his hand-writing; could not say when His Lordship came into office.
Cross-examined by Mr. Meredith. - The plaintiff's hand-writing is the more difficult to imitate on account of its simplicity; witness only gives his belief as to the signature.
Assistant Surgeon Davidson, of the 21st regiment, was called to prove the signature, but to admission of his evidence, defendant took a very proper objection (which was ruled), he having been in Court all day.
Captain Forster examined by the Attorney General. - Was formerly an officer in the 85th regiment, along with Major Schaw, the plaintiff in this action; [*] commissions come through the agents from the Secretary of State; had frequently seen Lord Melville's signature; believes that attached to plaintiff's commission to be his; plaintiff was a Captain in 1813, and two years previous to witness's knowledge of him; he had known him upwards of twenty years; the article, alluding to the loss of the Hibernia, was read to witness; had he not known plaintiff, he should have considered him unfit for the service, and devoid of common feelings of humanity.
Cross-examined by Mr. Meredith. - To the best of witnesses knowledge the signature is Lord Melville's; he could not go further.
Captain Clarke examined by Mr. Gellibrand. - Is a Magistrate, and resides near Bothwell; read the paragraph in The Colonist May 28th; did not think it true, and therefore paid little attention.
Cross-examined by Mr. Meredith. - Did not read the whole of the article; read a part of it; and the impression on his mind was that the atonement offered in a subsequent article was ample.
[The Chief Justice here intimated that the latter expression was not evidence.]
Mr. Richard Murray [+] was next called, who proved to his being a passenger by the Hibernia; was picked up by the Lotus. In his cross-examination, he admitted, though reluctantly, that he had heard such reports, but was not in the habit of conversing much with the persons that made them; he came out as a cabin passenger.
Mr. Thomas Nicholls was then called; who proved the signature of Lord Melville attached to plaintiff's commission.
Mr. Peter Murdoch examined by Mr. Gellibrand. - Was an officer in the army some years, until he sold out; read the article complained of in The Colonist; was introduced to plaintiff on this day; at the time of reading the article alluded to, thought there must have been some mistake; had witness believed what he read on the subject, he should think very ill of the man that had such conduct imputed to him.
Cross-examined by Mr. Meredith. - That passage in the imputed libellous article, which stated that "we give it as we heard; and will not vouch for the truth;" induced him to express his belief to his family, that the report must have originated through some mistake." The apology, which was subsequently offered, witness thought was a sufficient "repealer" to the article complained of; it removed from his mind any unfavorable impression.
Mr. Andrew Bent, examined by the Attorney General. - His evidence went to prove, that The Colonist was printed at his office, and that its circulation was very extensive in the Colony, and that it had a limited circulation at Sydney, Great Britain, and India.
Cross-examined by Mr. Meredith. - Heard a report of the loss of the Hibernia; his attention was first attracted by a number of steerage passengers, collected together in the street, previous to the publication, relating the particulars of the loss of that vessel, and making known their complaints. They were taken to the house of a Veteran Pensioner, named Belford, who treated them kindly; and were then sent to a person connected with the paper, for the purpose of taking their statement. He thought it correct at the time, from the unanimous declaration of so many. It was substantially correct with what was published, that they did not receive kind treatment from plaintiff.
The Attorney General here stated that this was not evidence, because Mr. Sinclair and Mr. Murray would not be allowed to give evidence.
The Chief Justice. - I wish you had objected before, because it is long since the question was asked, what you ought to give in evidence of general rumours; what they could state would be facts, not general rumours; and I will tell you before hand, that I will not receive such evidence.
The case having closed for the plaintiff.
The defendant proceeded to address the Jury in the following words:-
Gentlemen of the Jury,
This is the second time, in the course of one short week, that I have been brought upon the floor of this Court, for libel, and that, in each case, by Government Officers! But how different is the situation in which I am now placed, to what it was on the last occasion? Yes, Gentlemen, my bosom expands, and my mind is invigorated, when I behold before me twelve independent and unbiassed men, as my Judges. With the result of this trial, whatever that may be, I am quite at rest, satisfied that you will come to a calm, deliberate, and conscientious decision. I see arrayed against me a threatening display of professional talent - two Attorney Generals, and the Crown Solicitor, also an Attorney General in expectancy, no doubt. In referring to the ex-Attorney General, let it be understood, I do not mean any thing in the way of reflection; on the contrary, no one of his friends regretted more than myself his removal from an office he filled so efficiently. Gentlemen, I will not quote the words made use of by a certain Magistrate, upon a recent occasion by saying, "God forgive the prosecutor in this case - on him rest all the obliquy!" For the plaintiff, being a stranger in the Colony, he could have no vindictive feeling towards me, personally. In commencing his action, therefore, against me, he must have been acting either under influence or advice from some quarter. If the latter, as far as the plaintiff and his character may be concerned, he has been badly advised; because there was no necessity for him to come to this Court for redress from me, if he felt that he had been injured, as I shall be able to shew to your entire satisfaction. It is well known, that I had no knowledge whatever of the article, complained of as being libellous, at the time of its publication, residing as I do 100 miles distant in the country, with a post and return only once a fortnight! When I did read the article in question, I have no hesitation to say, I much regretted to see it; and, so soon as I received the summons, and found that I was looked to as the responsible party, then I immediately took such steps as appeared best calculated to repair any injury that might have been sustained. I not only wrote to the Conductors of the Journal, and my Solicitors, but I also addressed Major Schaw himself, offering the fullest measure of atonement for any wrong. "The Colonist" might have done him; and to which intent I suggested that a Committee should be appointed of three Gentlemen, of high standing in the Colony, and whatever they should approve of as proper to the occasion, should be immediately carried into effect; and when I read to you a copy of the letter I wrote, I will appeal to you, Gentlemen, whether any man could have done more? But this action has, I doubt not, been brought against me under advice. I am selected as a butt to be fired at on all possible occasions, and I am always ready, to offer my breast as a mark for the real assailants will only shew themselves in a manly straightforward manner; but they fire upon me with crooked guns and with an indirect aim.
I meant not to cast any imputations upon the plaintiff by these observations, or to involve him in the motives which seem to have led to the present action against me.
The defendant then proceeded to comment upon the declaration read by plaintiff's Counsel, observing that the usual (enducement, as it is legally termed) affirmation of good character and innocence of the charge alleged, was wholly omitted, and why was this? But he wishes it to be perfectly understood in making this remark, it was meant to apply only to the statements in which the present action had originated. God forbid that he should say one word, having the least tendency to reflect upon the plaintiff's professional or private character, otherwise. However, with reference to these statements, he would ask, why had not Major Schaw pursued the real transgressors (if such they were) who had first put forth these statements, when they were all on the spot? Instead of permitting the chief of them, as well as the Captains of both ships, to leave the Colony, and then calling upon him for pecuniary compensation! Again, he asked if the "Journal" itself was to be held liable, why not have proceeded against the responsible "Conductor," whose name was in the imprint, and who actually was a party to the publication, and could and would have brought forward those who had made and corroborated, the statements complained of. But it appeared, that he had been selected as a victim on this occasion.
He had taken every precaution within his power to prevent the insertion of any articles in the columns of "The Colonist", of a nature or tendency, either to injure private character, or wound private feelings. The Gentleman, engaged as responsible Conductor, had been connected with the Press in England, and brought with him here the most undoubted private testimonials. Another Gentleman was also engaged in the sole character of Censor or political Guardian of the Journal; the agreement with whom was then on the table before him; but within a month after its date, he received a letter from this latter Gentleman, relinquishing the engagement, as he dare notact! lest the arm of power!! should be again stretched forth against him, to the ruin of himself and large family!!! The opposite Counsel had exerted themselves to the utmost to obtain a verdict, and it was their duty to do so; for that they were that this was a most wanton and causeless attack upon his client, he had stated more than he was warranted in doing. Those connected with the Journal had not sought out the statements published; but the statements had sought them out! The poor shipwrecked sufferers came to the Colonist Office with their complaints, as they had done alongside the Lotus in their misery. But they had not, in this instance, been kept waiting an hour in the boat before being admitted!! Perhaps, indeed, it might be said, that their case had been taken up with too much zeal, and too little caution; but at any rate the motive was humanity, and all the parties being strangers, in taking the weakest side, there could be no personal ill-will towards the plaintiff. Besides, look at one passage in the statement, and it would appear that it was published only as the report of others, and the Journal did not vouch for its truth. Why not then have brought its truth to the test at once, by prosecuting the authors? then all on the spot. If they could not have paid with their purses, let them have answered with their persons, if guilty they were - instead of commencing proceedings against him, who, if legally liable it was known, was morally innocent. He was now placed in a most peculiar situation. When he received the summons to this action, he forwarded it to his Solicitors, to be dealt with according to law being himself ignorant of the whole matter. They again being limited in point of time to plead, and knowing nothing of the truth or falsehood of the statement, could never think of hazarding a plea of justification, of what was stated upon mere REPORT. Hence the plea of the General Issue, which now shut him out from examining witnesses! Whether the original statements were true or not, he could not possibly know; but this he did know, that the same reports were still circulated, and the same statements as to the Main Facts, were still repeated by numerous individuals and passengers of the Hibernia, without reference to what had appeared in "The Colonist". Many of these passengers understanding that he was prosecuted because that Journal had taken up their cause, and who had never been mixed up in what had been originally published, now came forward, voluntarily, with statements of a similar nature - whether true or not, it was not for him to say; but this he did say, that there were at that moment nearly twenty of these witnesses in attendance outside the Court House(!) ready to depose on oath, that the statement was substantially true; and, if the opposite Counsel would consent to receive their evidence, they should be immediately called and put into the box!!! "Let it be understood," said the defendant, "that I make no statement myself, to the prejudice of the plaintiff; I merely repeat what others state to me, and who are ready to be examined, and to swear to what they say. Under these circumstances, therefore, I am entitled to contend that what appeared in "The Colonist," first and last has done the plaintiff more service than injury. The bane and antidote have followed each other so quickly in its columns, as to leave no unfavourable impression behind; whilst, by taking the sting out of its own tail, and offering atonement for its own assumed wrong, it had also cured that inflicted by others, and in a great measure silenced those personal statements, and rumours, which there would have been no other way of meeting and setting at rest."
Mr. Meredith next adverted to the fact that until past five o'clock, the previous evening, he had fully understood that, owing to a defect in the Declaration, the cause could not be brought on before next Term. He had therefore been taken entirely by surprise, having no time to collect, and secure the witness (!), on whom hemost depended. Indeed, several had avoided attending, lest they should injure their own interest, by stating the truth!!! One, the most important of all, expected a government Situations, whilst others expected favors through the influence of Major Schaw himself, and these facts could be proved by affidavits.!!!
Mr. Meredith next proceeded to read the latter part of the address in "The Colonist" of the 9th instant, referring to the explanations which follows it, bearing upon this case and then observed, that Mr. Gellibrand, when conducting the former case against him last week, had complained that no acknowledgment or atonement had been offered. "I will now, Gentlemen," said Mr. Meredith "read you a letter, addressed by me to the plaintiff, and you will then see, whether I have not voluntarily tendered all that could be offered and more than a verdict in this Court can give him, and yet what has been the benefit to me?"
"Great Swan Port, 15th June, 1833."
"Sir. - It is now some little time since I received a summons on an action at your suit, for alleged libellous matter in The Colonist newspaper, to the prejudice of your character. Allow me to premise that, in suffering my name to be temporarily registered as ostensible Proprietor of that Journal, I did so only until a duly qualified Gentleman should offer as Representative Proprietor, and without having the least beneficial interest therein personally. I am further to observe, I had neither knowledge of, or control over what appeared either to the prejudice of yourself, or other individuals, who may also look to me on account of what is published; although I owe it in justice to myself, to say that I neglected no means within my power, before leaving Hobart Town, to protect both myself and others, against the insertion of what ought not to appear in a Public Journal; and if legally liable, I am at least morally innocent of what is complained of; yet, although no participator in the cause of offence, I do not even wish to absolve myself from being instrumental in procuring redress; on the contrary, so long as my name is any way connected with the paper, I shall hold it my duty voluntarily to afford redress to all, whose character or feelings may be unduly trespassed on, so far as in me lays.
"Having entered into these general explanations. I proceed to say, that though domestic circumstances occasioned some little delay in my notice of what appeared, and of which I must disapprove, I did not omit to address my Solicitors Messrs. Cartwright and Allport, as well as the Conductors of the Journal, and which correspondence is perfectly open to the inspection of any friend of yours, and to the former, I gave a "carte blanche" to act on my behalf, as Gentlemen as well as Lawyers, that justice might be rendered you.
"Being still for a time prevented from leaving home, and not sufficiently in possession of circumstances, to judge myself if what is proper to be done, and believing that your object is solely to do justice to your character, and not pecuniary compensation, I will venture to propose that one gentleman be named on either side, say a Military man and Civilian, who, after nominating a third, shall decide upon what is proper to the occasion, and whatever they may suggest and approve of to be inserted in The Colonist,shall obtain immediate publication; and this I am equally bound by, whether you think proper to pursue your action against me or not, as I consider it to be due to my own character, no less than yours, and is in accordance with the principles upon which the Journal was first established.
"I will append the names of three Gentlemen on my part, any one of whom, if they will oblige me by acting (for I have not communicated with them to such effect) may be selected, and as I shall transmit this letter open through my Solicitor, they will feel authorised to see its object carried into effect, in case the proposition meets your views, and I do not see how situated as I am here, I can do more: - I have the honor to be, Sir, your most obedient servant
To Major SCHAW, &c. &. &c
Names of Gentlemen proposed:
John Bell, Esq., New Town; Andrew Crombie, Esq., Hobart Town; T.G. Gregson, Esq., Residown.
N.B. - Having understood that you wished to avail yourself of the known high professional talents of the Attorney General in the matter, and that his having a general retainer from me, interferes, or may do so, with such wish I beg to yield up my claim in your favor, as, if I cannot set myself right in the estimation of the Court and the Public, by my own humble advocacy in such a case, I would refrain from shielding myself under legal ingenuity. G.M.
He afterwards read another letter from the Attorney General, upon the subject of an ex officio Information, for an article published in "The Colonist," (chiefly upon the authority of the Colonial Times) and offering forego prosecuting the proprietor, if the author were given up!!! this truly English practice, he contrasted with that pursued in the present, and recent action against him, who was no party whatever to the offence complained of.
[Mr. Gellibrand rose to prevent the reading of this letter, but failed.]
Mr. Meredith also read an extract from a letter, written to a correspondent at Sydney, for the purpose of engaging a duly qualified Gentleman to fill the situation of Representative Proprietor, and Conductor-in-Chief of the Colonist, upon the terms explained in one of our former numbers; and in which letter the necessary qualifications were expressed to be as follows, viz:- Moral character - education - talents for writing - pure independent principles, and devoted to the good of the "people" at large and their cause, in opposition to all measures of an arbitrary nature, or prejudical tendency. - Defendant then referred to his own connexion, with the Colonist, as being confined to the relation of trustee only, in order to preserve the Journal for the benefit of those for whom it was originally established - "THE PEOPLE," and from which character he had only temporarily deviated, under the imperative force of circumstances! and to which he should again finally return, so soon as deeds now preparing should be ready for execution. He had no beneficial interest whatever in the Paper, and never should have! This was well known, and had been published, and yet there were those in the Court at that very time, who, in defiance of such avowals and knowledge, did not hesitate to proclaim to the world, what they could not utter even to themselves, in the darkest corner of their own homes, without standing self-convicted liars. Mr. Meredith instantly, apologized to the Chief Justice for having permitted such an expression to escape him; yet adding, as he looked very significantly to one of the Counsel, that even stronger language than he had used was not without precedent, and by those too, who had better experience than himself, how to measure those terms within the proper rules of Court.
Having recovered from an excitement, which some sudden recollections seemed to have caused, Mr. Meredith proceeded to observe, that doubtless His Honour would give them the benefit of his individual opinion of the law of libel; but that it rested with themselves entirely to decide upon both law and fact; and, although His Honor was pleased to overrule the precedents which he had brought forward. [Chief Justice, "yes, Mr. Meredith, but you should have observed also that His Honor said that the evidence you wished to adduce was not consistent with the precedents."] "Now Gentlemen," continued defendant, "this shews you what I have to contend with, as well as the little value of precedents, and the uncertainty of law." He then commented on the evidence given by plaintiff's witnesses, particularly the admissions of Mr. Murdoch and Captain Clarke, that the statement alleged to be libellous had done plaintiff no injury after all, because they were only published as the report of others, without their truth being vouched for.
He then went to the construction of the article before the Court, and which he contended was not a libel, properly speaking. He did not mean to defend the way in which the statement had been put forth; but still he must say it did not amount to libel, to charge the plaintiff with having acted as represented, he might have done so partly from a mistaken sense of duty, and a desire to protect his soldiers from inconvenience and loss of comfort, and partly from the impulse of natural disposition! We did not frame ourselves either in our mind or body, and suppose he did not in the least mean to say that it was so - but supposing, that plaintiff had the imperfections of human nature in a greater proportion than others, it would be his misfortune rather than his fault.
Surely they (the Jury) had not to look far around them for instances in abundance of unkindness, hardness of heart, and want of charitable feeling; nay, if he added cruelty also, how often was that passion seen displayed even in childhood, when nature was predominate, and before the mind had been formed to check its impulse. Much, therefore, of what had been imputed might possibly proceed from the constitution of the inward man and not the result of evil intention.
"But," continued defendant, "supposing, for the sake of argument, plaintiff's character had been affected by these statements, "why." again let me ask did he not punish those who had done him the injury? Is my pocket to be picked! And can money restore character? Surely not. In old countries it may be that, riches gild over blemishes in character, and blind the interested. But here, in this new land of our adoption, let character be established upon a sounder foundation - that of moral character - unpurchased. And now, gentlemen, in once more reverting to the law of libel, as it appears that the modern law depends on precedents, which are again subject to the arbitrary and conflicting construction of successive Judges, let us go back to the ancient laws upon this subject, and you will see that our forefathers administered their laws, more according to the principle of equity than we moderns do. (Here defendant quoted the old law from Starkie.) From the passages I have just read, you find that whenever the author was given up (!) the mere publisher or proprietor could not be proceeded against; nay, more, even had he refused to give up the author in the first instance, so soon as he didso, whatever measure of punishment he was then undergoing, ceased upon the instant; and I am happy to see that His Majesty's present Attorney General, by the letter addressed to me, already produced, is about to bring ancient law into modern practice; and, upon this principle, Gentlemen, let me hope, that you also will blend Equity and Law together, and allow conscience to have some influence over your judgments on the present occasion. Even where the law is clearly defined in criminal cases, how often do you see conscience step in to soften down its severity, and prevent its being carried into effect by the return of verdicts contrary to facts, as well as at variance with the law. As one instance, I will refer to the case of Colonel Montgomery and Captain Macnamara, who fought a duel, about a quarrel between their dogs; when the former was killed, and the latter tried for his life. The presiding Judge declared that according to law, if it was proved that the former had been killed by the latter, it was "murder" and Captain Macnamara admitted, that he had killed him. Yet, in the face of his own admission, the Jury brought in a verdict of not Guilty! So palpable was the case, that the Newspapers of the day jocosely observed, that the Captain was bound as a man of honor, to call each of the Jury out for giving him the lie.
But the case before you this day is altogether different. I make no admission; on the contrary, I say it is no libel; and was I one of the Jury, I would not find it a libel. (A laugh.) Your course, Gentlemen, is a very simple one and such as will meet the justice of this case both ways, by returning a special verdict - by giving me the benefit of my innocence by a verdict in my favor, and especially declaring as the reason, that the plaintiff, having already received due reparation and atonement, goes out of Court without a stain upon his character.
Gentlemen, my sin has been, that of endeavouring to establish a "Free Press" in this Colony! And I trust you will not permit me to be made the victim of a cause I have disinterestedly attempted to serve. I have only now, once more, to request you will review the whole circumstances of this case - look at my entire ignorance of what may have been done - consider the motives of these who were parties to the publishing of the article in question - recollect that you alone are the Judges of the law on this occasion - let your conscience go along with your judgment in forming your decision - and then do unto me, as you would that others should do unto you.
Defendant, having concluded a most animated and powerful appeal; throughout the whole of which the greatest stilllness pervaded the Court (except during the interruptions of Mr. Gellibrand.)
The Chief Justice Pedder expressed his opinion, that there was nothing before the Court, which we prove that plaintiff was a Captain in the 21st Fusileers.
The Attorney General replied by a metaphorical speech; - the language of which was more eloquent than convincing and as we thought some thing more than inapplicable, inasmuch as "patriotism", which he treated with sarcastic (we had almost said insulting) irony, could have little to do with plaintiff's conduct towards the passengers of the Hibernia. He concluded by expressing his confidence, that the Jury would be of opinion, that plaintiff was entitled to every item of damages laid in the declaration; and he hoped that their verdict would be received by plaintiff, with the same good feeling that it would be received by defendant.
The Chief Justice summed up at considerable length, going through the declaration for the purpose of pointing out the inuendos. He desired the Jury, when they retired, so look at it themselves, and see what impression it was calculated to excite. With respect to the evidence (which defendant sought to set up in his cross-examination of Mr. Bent.) it could not be received, as it would be carrying matters too far. If defendant brought witnesses to justify, he should be compelled to reject such evidence; yet, in endeavouring to establish such evidence, defendant was not to be considered in a worse point of view by the Jury. The absence of the defendant when the libel was written, made no difference whatever in point of "law". It was no answer to this action to say, that what they published they had published by report; and he thought that he should not discharge his duty did he not express his feelings on the subject. If the defendant had intended to give up the author, he should have done so in time; but if the plaintiff wished to accept this offer, it was a different matter. - The Jury were the Judges of the whole case, and it would be for them to say what feeling that article was calculated to excite. At the same time that his functions were not so absolutely taken away but that he might make some observations on the subject, and in doing so, he thought it to be their duty to say that the article complained of was a libel and next to what amount of damages they considered plaintiff entitled.
The Jury retired, as did also the Chief Justice; and, in about two hours, he returned into Court, and desired the Sheriff to enquire whether or not the Jury were likely to agree to their verdict, and if there were any point on which they wanted his assistance, he was ready to give it to them. The Sheriff, with the whole of the Jury, entered the Court; and having taken their station in the Jury Box, and all present were most eagerly listening to what should be said, the foreman stated, that the only difference of opinion amongst them was, whether they might return a special verdict. Before the foreman could well speak the Chief Justice, commenced asecond charge, at the close of which he observed, certainly they might do so if they wished it, but (and to the utter amaze of every body) that they were bound to conclude that the writing was intended to do that which it was calculated to effect, and which there could be only the opinion.
The Jury retired a second time, and on coming into Court about half-past ten, delivered a verdict for plaintiff - damages FIFTY POUNDS!!!
The trial lasted from eleven in the morning until half-past ten at night, and the Court was crowded throughout. How the business was carried on in the different public departments we cannot conjecture, as the officialswere in Court all day, and retired, we opine, somewhat disappointed.
 See also Colonial Times, 23 July 1833. For Schaw see J.C. Smith, 'Charles Schaw (1785-1874)',Australian Dictionary of Biography, vol. 2, p. 421.
 This report is included despited its interested tone, because it is the fullest one. See also Hobart Town Courier, 19 July 1833.
[*] We cannot certainly be deemed impertinent if we enquire of Major Schaw or Captain Forster, was that the 85th regiment; of which Colonel Cuyler was the commanding officer some 18 or 20 years back, and the fate of whose officers made so much noise at home and abroad; the Colonel having had the convenient expedient offered to some, of seeling out four or five cashiered, and the remainder distributed through the different corps in the service, according to His Majesty's pleasure. [Footnote in newspaper.]
[+] This Gentleman was formerly pay-master of the 48th Regiment. [Footnote in newspaper.]