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Decisions of the Nineteenth Century Tasmanian Superior Courts

Stephen v. Bent (No. 1) [1838]

libel - South Australia

Supreme Court of Van Diemen's Land

Pedder C.J., 13 September 1838

Source: True Colonist, 14 September 1838[1]

This day the trial which had caused so much public interest came on. The shortness of time between the verdict and our publication of course prevents us from giving more than an outline of the proceedings; previous to which however, we have to state the following circumstances.

On Tuesday, Mr Bent the defendant being anxious as might naturally be expected, to be secured against whatever damages with consequent costs, might be awarded against him, called upon the friends of the author of the libel to be indemnified. As we hear he required that the sum of £1,000 should be deposited with him for that purpose. This was refused; but £500 was offered to be lodged in the hands of a third person. Mr Bent not considering this sufficient made a proposition to the plaintiff's counsel through the Attorney-General, (his counsel) to give up the manuscript, upon the condition that a Juror should be withdrawn so as to relieve him from further responsibility. Mr. Stephen refused this, but offered to take a verdict for 40 shillings damages, upon the manuscript being handed to him, with the necessary evidence against the author of the article, who it was generally understood to be Mr. R. O'Connor. This offer was rejected by the Attorney-General on the part of Mr Bent, and the trial came on accordingly yesterday morning. It is however believed that Mr Bent was in the mean time fully indemnified by the author, who, be he who he may, could in common honesty do no less.

Mr Horne opened the pleadings, after which Mr Stephen addressed the Jury in a most impressive speech of two hours and a quarter's continuance. It is necessary to state the libels which are inserted in two numbers of Bent's News, were extremely injurious to the plaintiff, attributing to him incapacity and unfitness for the office of Advocate General in South Australia, to which he had been recently appointed, and reflecting upon his character in the most cruel manner in other respects. In the course of his address, Mr Stephen commented in the warmest language upon the baseness of the writer, whom he reproached in very strong terms with cowardice and malignity. He observed with much force upon the wickedness of attacking an absent man, who having left this colony, was seeking honestly and industriously, to obtain his bread in another land. He remarked the meanness of making charges which the writer shrunk from justifying, the only plea ventured to be placed upon the record being the "General Issue." He concluded a very animated address by calling upon the Jury as they wished to preserve the peace and happiness of families and of the colony in general, to put down such poisonous interruptions to the general tranquillity, by giving large damages to which the plaintiff under every consideration was so fully entitled.

Another of Mr Bent's publications now extinct (called the Horn Boy) having contained an announcement from Mr Bent of the intended publication of the libel in question, with the additional invitation for purchasers by stating that "Bent's sauce," meaning, of course, the scurrilous productions with which his paper at that time teemed, would be supplied to his readers, in all its piquancy, it became necessary to prove the publication thereof. This was attended with some difficulty as Mr Bent had set the law at defiance by neglecting to make the necessary affidavit at the Colonial Secretary's office or to deliver there the copies required by the act. The publication however was proved to the satisfaction of His Honor the Chief Justice who sent it to the jury with the libels, as a proof of the animus with which they were written.

Capt. Boyd, the Deputy Surveyor-General, and the Auditor-General Mr Boyes proved the application of the libel to the plaintiff and the injurious tendency of the various passages complained of. Mr Attorney-General McDowell addressed the Jury for the defendant in a very able and skilful manner; he insisted that the articles in question were only fair and legitimate comments upon the merits and qualifications of a public officer, appointed to so high a situation as that which the plaintiff had received, corresponding with that of Attorney-General of this colony. Referring to some passages, in Mr Stephens' speech, in which the learned counsel had applied the words 'cursed and damnable,' to the system of libels prevalent in Bent's News, Mr McDowell quoted in his usual happy strain the well known anathema in Tristram Shanby, which from his manner of reading it convulsed the Court with laughter, in which the Chief Justice heartily joined.

In allusion to the passage in the libel in which the plaintiff was charged with want of arithmetical education, the Attorney-General read a quotation from Orthello, in which Michael Cassio's proficiency in arithmetic was commented on as proved his deficiency in every thing else. His address was extremely clever throughout, and it is due to him to state that whilst he abundantly fulfilled his duty to his client, he did so wholly free from ill nature towards the plaintiff.

His Honor the Chief Justice charged the Jury with 'perspicuity and impartiality'. He drew a distinction between the first and second counts, leaving it to the Jury to decide upon the whole case as they should consider it to deserve. The Jury, after about half an hour's consideration, returned a verdict, -- Damages £25 upon the first count and £100 upon the second.

Notes

[1]              Stephen's prosecutions ended the publication of Bent's News, E.R. Pretyman, 'Andrew Bent (1790-1851), ADB, v. 1, pp. 86-7, M.. Rutledge, 'Alfred Stephen (1802-1894)', ADB, v. 6, pp. 180-87, and E.M. Miller, Pressmen and Governors: Australian Editors and Writers in Early Tasmania, Sydney: Sydney University Press, 1973, pp. 83, 197.  See also Launceston Advertiser, 20 September 1838; and see Stephen v. Bent (No. 2), 1838.

 

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