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Decisions of the Nineteenth Century Tasmanian Superior Courts

Murray v. Bent [1838]

criminal libel

Supreme Court of Van Diemen's Land

14 June 1838

Source: Hobart Town Courier, 15 June 1838[1]

This case was opened by Mr. ALFRED STEPHEN, on the part of the plaintiff. The learned counsel proceeded to explain to the jury the nature of the action, and observed that before the publication of the libel complained of Miss Rowlands died, and that certain rumours which he would allude to as delicately as possible, were afloat, and that the libel was for the purpose of causing it to be believed that his client had propagated the calumny. The libel which he would point out to the jury commenced with the not very complimentary words, "Mendes Pinto was but a type of thee, then liar of the first magnitude," wherein Mr. Rowlands endeavoured not to exculpate himself but to accuse Mr. R. L. Murray of propagating a false and slanderous report. The learned counsel here read several of the most libellous passages. He observed that the law allowed to the defendant, under the general issue, a most ample field for a wide and extended defence, which he doubted not he would avail himself of. In discharging his simple duty to his client, and in stating the circumstances which gave rise to this action, he should endeavour to avoid every thing which could give rise to any unnecesary pain, the object was not so much the punishment of the defendant as the protection of Mr. Murray, who sought by this action to explain how for weeks and weeks past he had been the subject of abuse. In the discharge of his duty he should be compelled to mention one fact which would give him pain, but he must not shrink from his duty, he would clothe it in words as mild as possible. He did not sincerely believe that nine-tenths of all the discord here arose from the continual libels published to gratify private malice, which nothing but the strong arm of the law could put down.

We regret the impossibility of doing justice to the speech of the learned gentleman in consequence of the frequent interruptions which took place upon points of law; it must suffice to say, that after having briefly and delicately alluded to the subject which finally gave rise to the present action, Mr. Stephen proceeded to read extracts from different papers and the libel in question which appeared in Bent's News the 14th April.

The only witnesses called were Mr. A. C. Low and Mr. Gilbert Robertson, whose examination closed the case for the prosecution.

The ATTORNEY GENERAL then addressed the jury in behalf of the defendant. He began by stating that he felt it in his duty to make such observations to them as might induce them to mitigate their verdict, if not to give one in favour of the defendant. He observed that in this case his learned friend had confounded Mr. Bent with Mr. Rowlands, for sure he was that the jury would be of opinion that the action brought for the libel complaint of, which was inserted as an advertisement, ought not to have been against Mr. Bent, as the mere printer, but against Mr Rowlands, as the writer. He must observe to the jury, that they had not called a single witness to prove that Mr. Murray's character had suffered; he was not aware that that gentleman's character have been affected; it was as pure and spotless and as bright now as it had been for the last ten yeas. He considered that it was a usual course in such cases for gentlemen who came into court for the ostensible purpose of protecting their character, first of all to show that they had a character to lose. He did not mean to say that Mr. Murray was such a man, but he did mean to assert that there were men in the world of this description, who had no character to lose. Men who were in the habit of libelling others, had no right to complain of being libelled. The learned gentleman here remarked upon the article which appeared in Murray's Reviewfrom which he read one or two passages, and asked the jury if there was not in these four columns of Mr. Murray's reply, as much abuse as could well be heaped upon Mr. Rowlands; was it not, said the learned gentleman, tolerable good abuse? But, my friend, Mr. Stephen, takes another ground, in which he takes a personal part; he has told you this day, that he would rather suffer death than be exposed week after week to such base and infamous libellous attacks which he has described as equal to tearing away the flesh from the body with red hot pincers, &c., and that in his opinion if the jury did not mark their abhorrence of such libels by their verdicts, they would inevitably lead on to murder. But he would read them an extract from Junius, an author with whom no doubt his learned friend was well acquainted: "Do you really think, that if I were to ask a most virtuous man whether he ever committed theft or murder, it would disturb his peace of mind? Such a question might perhaps discompose the gravity of his muscles, but I believe it would little affect the tranquillity of his conscience. Examine your own breast, and you will discover that reproaches and injuries have no power to afflict either the man of unblemished integrity, or the abandoned profligate. It is the middle compound character which alone is vulnerable; the man, who without firmness enough to avoid a dishonourably character, has feeling enough to be ashamed of it."

The learned gentleman concluded, by observing that this kind of action was not once to be encouraged; that Mr. Murray himself had grossly libelled Mr. Rowlands, and that even if the jury felt that their verdict must pass for the plaintiff, that the smallest possible coin of the realm would not only be ample, but even usurious as damages.

His Honor summed up briefly, and the Jury retired at about twenty minutes past one. When we went to press at 12 o'clock last night, the Jury had not agreed upon their verdict.

23 July 1838

                                     Source: Hobart Town Courier, 27 July 1838[2]                

The following jury were sworn.

Captain McKay,                                     Captain Lonsdale,

Asst. Surgeon Smith,                               Lieut. McGregor,

D. A. C. G. Carr ,                                   Lieut. Stuart.

Surgeon Pilkington,        

Mr. STEPHEN opened the prosecution. He stated that the defendant in this case, Andrew Bent, was the printer and publisher of a paper called Bent's News. The prosecutor was Robert Lathrop Murray, who complained that the defendant had published a very gross and scandalous libel, reflecting upon him, as would be seen by the information, which he would beg to read. The learned gentleman then read an extract from the article which contained the libel complained of, and went on for a considerable period addressing the Jury. Our reporter not being present when he (Mr. Stephen) commenced speaking, we are unable to give the speech of the learned gentleman.

Mr. Lowe, sworn and examined, by Mr. Stephen, produced an affidavit from the Colonial Secretary's office; witness is the person in whose custody such affidavits are placed; is in the habit of receiving newspapers that are left at the office of the Colonial Secretary; recollects a paper called Bent's News and Tasmanian Threepency Register, having been left at the Colonial Secretary's office; it was about twelve months since a paper under that title was left at the office. Mr. Stephen here put into the hands of the witness Bent's News of the 10th February last, on the margin of which was written the name of A. Bent. Evidence continued -- Could not identify the handwriting; the other man is that of William Cooke, who delivered to witness the paper; it is the duty of witness to receive all the papers left at the office of the Colonial Secretary.

William Cooke, sworn and examined by Mr. Stephen -- Knows the defendant, A. Brent; the defendant resides at No. 62, Elizabeth-street; he occupies, between his business and family, two houses; Mr. Bent has a printing-office, and publishes a paper called Bent's News; does not recollect any other title which it had; witness has delivered copies of Bent's News at the Colonial Secretary's office, by order of the defendant; witness has frequently seen the defendant write. Here Mr. Stephen put into his hand a paper of the 10th February, and on which the name A. Bent was written. Witness said that was the handwriting of the defendant.

In answer to question from Mr. Justice Montagu, the witness stated that he had not seen the defendant write his name on that particular paper.

Surgeon Edward Bedford, sworn and examined by Mr. Stephen -- Knew the deceased Miss Rowlands; she was the daughter of Thomas Wood Rowlands; she died on the 30th or 31st of January last, in this colony, at her father's house in Murray-street; does not recollect the day she was buried; it was early in February that her funeral took place; witness was present at it; heard rumours shortly after her death; heard that Mr. Rowlands intended to bring or had brought an action against Mr. R. L. Murray, for such rumours. The rumours were as to the supposed cause of Miss Rowlands' death; understood that it was an action for oral slander; witness thought that Mr. R. L. Murray was the person alluded to in Bent's News.

His Honor said that if Mr. Bedford retired for a few moments, and read the article complained of attentively, he would then be more fully able to state his reason for saying that Mr. Murray was the person alluded to; and in the interim the counsel for the prosecution could examine another witness.

To this proposition Mr. Stephen consented, and Mr. Bedford retired from the witness box.

William Sorell, Esq. sworn and examined by Mr. Stephen -- Is the Registrar of that Court; is aware of the mode generally adopted is commencing actions; it is by summons. (Here Mr. Stephen handed Mr. Sorell a summons, which he identified as the one served upon Mr. R. L. Murray) by Mr. Rowlands; read the article complained of in Bent's News the day after it was published; the article stated that Mr. Rowlands had severed notice of action upon the originator of the foul report from which statement, and knowing that Mr. Rowlands had commenced an action against Mr. Murray, he (witness) had not the slightest doubt but that it was the prosecutor who was meant in that article; it was generally known, and a matter of general conversation; recollects the term vile calumniator in the article; thinks that refers to Mr. R. L. Murray.

Mr. Sorell was then cross-examined in the part of the defence by the Solicitor-General, but nothing was elicited from him that could in the least affect his former testimony.

Mr. Bedford was then re-examined -- It appeared to him, after reading the article, that some person in particular was pointed at; that person seemed to witness to be the party upon whom the notice of action had been served; he would say that was Mr. R. L. Murray, as it was generally rumoured at the time, that a notice of action had been served upon him by Mr. Rowlands.

Mr. R. L. Murray, sworn and examined -- Is the prosecutor on this decision. Has read the publication in Bent's paper; read it shortly after it came out; believes that it referred to himself; it charged him with being the originator of some false and heinous report, as respected to Mr. Rowlands and the young lady now on more; understood from that article that he had invented and propagated a horrible and heinous report of Mr. Rowlands; recollects receiving a summons.  (Here Mr. Stephen put a summons into the hand of the witness.) Witness could not identify that summons as being the identical one which had been served upon him, but it was a similar one; he immediately sent to his solicitor, Mr. Young; witness believes that the notice of action mentioned in the article which appeared in Bent's News meant the summons with which he had been served; there was no other action pending between him and Mr Rowlands; witness has resided twenty years in the colony, and has come landed property here.

Cross examined by the Solicitor General -- Heard some reports, but none about the supposed death of Miss Rowlands, at the time of her death, and even distinctly never heard any rumours of the kind, until after her funeral; had no reason to suppose that any person had been discovered as the author of the report of the supposed cause of Miss Rowland's death.  

Mr. Hugh Murray examined. -- Read the article which appeared in Bent's News; it is his opinion that it refers to the prosecutor in this case; at the time it appeared there was public talk of an action for slander which was brought by Mr. Rowlands against Mr. R. L. Murray.

Cross-examined by the Solicitor-General -- His reason for supposing Mr. Murray the person alluded to in the article which appeared in Bent's News was the rumour prevalent at that period, about Mr. Murray having the originator of the reports relative to the supposed case of Miss Rowland's death.

The case for the prosecution here closed, and no evidence was produced for the defence.

The Solicitor-General addressed the Jury for the defence. In doing so, he said he was aware of the very great responsibility he took upon himself, and he hoped that his many deficiencies in discharge that duty would not affect the cause of his client. The information in this case was at the instance of Robert Lathrop Murray, against the defendant, Andrew Bent, a newspaper proprietor. The prosecutor was also a newspaper proprietor. The article complained of, as far as censuring the base and calumnious reports then in circulation, not only himself (the Solicitor-General) but every man possessing the smallest particle of feeling, must agree with, and as for the originator of those horrible rumours he could not find words to express his detestation of such a person; and he believed that in anything so, he expressed the feeling of every person to whose ears those vile slanders had come. In thus speaking, he did not mean for a moment to insinuate that Mr. Murray was the author of them; who the author was he knew not. At the period when the article complained of appeared, the most scandalous and horrible rumours were in circulation, and he contended that no man was more likely to hear those rumours than Mr. Murray, from the public situation which he held here.

The defendant was the father of a large family; hearing those vile reports, and naturally incensed against the propagation of such reports, with a degree of philanthropy which did him honour, strongly animadverts upon them; through the medium of the publication under his control, on the 10th of February last, a few days after the lamented young lady, who was the subject of those most horrible rumours, had been laid in the silent tomb. Looking to Mr. Bent as a man and a father, he must say that he thought he did nought that was wrong in attempting to put a stop to the propagation of those dreadful rumours then prevalent here; on the contrary, he thought Mr. Bent should have done much benefit to society had he (Mr. Bent) been able to silence the tongue of slander, at that period so busily employed, and he would say that the article would seem justifiable in the eyes of every well wisher to society, if levelled against the originator of those calumnious and horrible slanders. Every witness for the prosecution stated, that their only grounds for imagining Mr. Murray was the person meant, arose from mention made in the article of "a notice of action," Now, he would ask the gentlemen of the Jury, if it was not probable that Mr. Rowlands in the discharge of his professional duties, may have been carrying on some half-dozen actions at the time, and Mr. Bent hearing such to be the case, states in his paper, as a warning to future slanderers, the hope he entertained of the originator of those villainous reports being brought to condign punishment, and for that alone was he that day arraigned -- for attempting to punish those base and malignant beings, who have contributed so much to sow the seeds of unhappiness in this Island. He was sure the Jury would give the defendant the full benefit of his intention when writing the article complained of. The learned gentleman then sat down.

The learned Judge then charged the Jury, and animadverted strongly upon the libellous productions, which day after day, appeared in the columns of the newspapers of this colony.

The Jury retired for a few minutes, and brought a verdict of Guilty.

Mr. Bent was then remanded until the first day of next session to receive sentence, and on giving bail, himself in £150, and two sureties of £100 each, he was permitted to leave the Court.

The Court then adjourned until that day fortnight.

Montagu J., 23 August 1838

Source: True Colonist, 24 August 1838

The Jury having been sworn, Mr. Stephen addressed the Court to the following effect:--

May it please your Honor -- and Gentlemen of the Jury, I have much satisfaction in announcing to you, that we shall be spared the unpleasant necessity of going into this case. Mr. Ross, the Counsel for the defendant; and myself on the part of Mr. Murray, have consented that no evidence should be called, and that you should acquit the defendant, whose expression of regret for the unfounded imputations he has cast on Mr. Murray his Counsel will state to you. I repeat how sincerely I rejoice that we are spared the unpleasant necessity of going into this case involving as it would have done, circumstances connected with third parties not before the Court, which I am extremely glad is thus avoided.

Mr. Ross. -- May it please your Honor -- and Gentlemen of the Jury. After what has fallen from the Counsel for the prosecution, I have also to express my sincere satisfaction at there being no necessity to proceed in this case. The defendant, through me as his Counsel, expresses his regret that the articles in question ever appeared. He is satisfied, on reflection, that the imputations which they conveyed were unfounded, and he therefore apologies to Mr. Murray for having inadvertently been the means of casting those imputations upon him.

His Honor, Mr. Justice Montagu. -- Gentlemen of the Jury, you have heard what has fallen from the Counsel, respectively for the prosecution and for the defendant. As no evidence is to be called for the prosecution, whatever may be my feeling as respects humanity, I cannot but regret it as respects public justice. The conduct of Mr. Murray in this case is extremely kind and handsome, and but for which, had you, Gentlemen of the Jury, found the defendant guilty, the Court would have felt it its duty to have passed upon the defendant a very severe sentence; for a more atrocious libel never came under my consideration. Mr. Murray however having so handsomely consented to receive the apology offered, I am compelled to direct you to acquit the defendant, which you will therefore do.

The verdict having been recorded, His Honor addressed Mr. Bent to the following effect. Before I discharge you, I feel it my duty to express my hope that you will take warning from what has now taken place, and abstain from rendering the powerful engine you possess the means of personal annoyance to individuals. The libel for which you have been prosecuted, was a most unwarrantable attack upon a gentleman, which you now admit to have been unfounded. It was your duty, as for the possessor of such an engine as that you wield, to have gone to Mr. Murray and to have ascertained from him the truth of the circumstances which you brought forward, instead of which, you applied to him the most offensive expressions, for a worse libel than that on this record I never saw, and for which had the jury found you guilty, I should have felt it my duty to have sentenced you to a heavy fine and lengthened imprisonment. I trust this will be a caution to you never to come before this Court again charged with a similar offence, for depend upon it if you do, and you are found guilty, the Court will visit you with severe punishment. You are now discharged.

The same course is to be adopted in the civil action Murray v. Bent, in which a verdict for the plaintiff, 'Forty Shillings' damages, will be taken by consent.

13 September 1838

Source: True Colonist, 14 September 1838[3]

Mr. Stephen, counsel for the plaintiff, stated that he had much pleasure in making known to His Honor and the gentlemen of the Jury that they would be spared the trouble of going into this case, an arrangement having been made which had been considered satisfactory by both parties.

The Attorney General, Counsel for the defendant spoke as follows:-- May it please your Honor and Gentlemen of the Jury, my learned friend Mr. Stephen has stated to you, that his case has been satisfactorily adjusted. I am instructed by Mr. Bent, to state to you, that after a careful investigation, he is perfectly convinced that the charges he made against Mr. Murray, the plaintiff are entirely without foundation. He therefore expresses his regret and consents that a verdict should pass against him, damages forty shillings, and I have only to add, that the plaintiff in coming to this arrangement has acted very fairly and handsomely.

Verdict recorded for plaintiff -- damages 40 shillings.

Notes

[1] For these two men see C.R. Murray, 'Robert William Felton Lathrop Murray (1777-1850)', ADB, v. 2, pp. 272-4, E.R. Pretyman, 'Andrew Bent (1790-1851)', ADB, v. 1, pp. 86-7, and E.M. Miller, Pressmen and Governors: Australian Editors and Writers in Early Tasmania, Sydney: Sydney University Press, 1973, pp. 83, 197.

[2] See also Hobart Town Courier, 17 August 1838, postponing sentencing.

[3] See also Launceston Advertiser, 20 September 1838.

 

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