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Decisions of the Nineteenth Century Tasmanian Superior Courts

Stephen v. Bent (No. 2) [1838]

libel - Stephen, Alfred

Supreme Court of Van Diemen's Land

Pedder C.J., 14 September 1838

Source: True Colonist, 21 September 1838[1]

Mr. Stewart opened the pleadings. The declaration consisted of five counts, in which the libels, were set forth, being the revival of Mr. Stephen's misunderstanding with Dr. Crowther, since which, twelve years and upwards have passed away -- the fabricated letters as having passed between Mr. Stephen, Mr. R. L. Murray and the Rev. Mr. Bedford, -- the doggerel ballad purporting to be addressed by Mr. Stephen to Mr. Jackson (of the Launceston Advertiser) an attack upon Mr. Stephen, in respect of his conduct as vice president in the chair, at the first meeting of the Mechanics' Institution, and various others, both upon his public and private life.

Mr. Stephen commenced his address to the Jury by referring to the proceedings of yesterday. Referring to the warmth of his address to the Jury he explained the difference of the two cases in the one, he represented a near relative, then absent from the land, in the present he appeared before them to claim their protection against a series of attacks upon himself, the continuance and malignity of which he believed to be without parallel. He asked them not for vindictive damages, he asked only for such as should shew the defendant that he could not with impunity continue to harass, annoy, and wound the feelings of himself and his family by his weekly attacks. If they had been only occasionally put forth, he should have considered the proper course to be to treat them with contempt; but when they appeared not only every week, but when every number of the defendants paper was filled with them, he was compelled in self-defence to ask of a jury to put them down for the future, by giving him such reparation for the past, as they should consider the injuries he had sustained fairly entitled him to. It was not necessary that a libel should contain direct charges of dishonour and dishonesty to cruelly wound the feelings, because those charges can be met, and if they are unfounded can be made to appear so, there are other means of [???] quite as severe, by holding up a man to the ridicule and contempt of his fellow man. This he admitted he felt acutely. He was sensitively alive to such attacks, particularly when made as were these in every number of the defendants paper. He was the father of a large family growing up to their estate, and he could not but feel very severely the effect upon their minds; to see him held up weekly as the best of the writers for whose malicious attacks upon him Mr. Bent to-day appeared to answer. This could not but be considered by every calm and thinking man to be a serious injury. However men in their mass may effect to despise it yet he thought he might venture to assert they felt it nonetheless acutely. If said Mr. Stephen, 'I had injured Mr. Bent although that fact would be the answer to this action, yet feeling conscious that I had so done, I should never have thought of bringing it; but I solemnly assure you, that up to this moment I never did so in any way whatever, except it may have been in the discharge of my official duty, from which I assured you I heartily rejoice at being relieved, its functions being placed in so much more able hands.' Mr. Stephen then proceeded to the libels which he went from the declaration count by count, explaining the effect of the attacks made upon him in wounding his feelings and annoying both himself and all connected with him. He read from Mr. Bent's Horn Boy, the advertisement in which Mr. Bent announced his newspaper as being 'Bent's sauce, which creates such a devouring appetite that the demand for it must increase so long as it is dished up in its present savoury state.' Mr. Stephen commented upon this with much severity. He appealed to the Jury whether it was possible for him to allow himself to be held up weekly to the public contumely with Mr. Bent's 'savoury sauce'. He observed with much force and effect, upon the malignity of ripping up an unfortunate affair since which now upwards of twelve years had passed by, and which could have been now revived with the sole object of wounding his feelings. Was that to be endured? would any Jury hesitate in punishing such exquisite malice, against which it was obvious nothing remained for him but either to sit down in the quiet durance of such serious injuries or to endeavour to rescue himself from the grievous annoyance by the course he had adopted, appeal to a Jury at whose hands he felt convinced he should receive that justice to which the treatment he had received so fully entitled him.

The publication of the newspapers containing the various libels being admitted, they were put in and taken as read.

Mr. Hone. -- I have read the article in Bent's News, of the 31st March, it refers to Mr. Stephen, the plaintiff; it conveys the imputation that Mr. Stephen brought an action for the purpose of filling his pockets. The words 'legal ingenuity' mean that Mr. Stephen had made the utmost of his legal ability to swell out the costs to an extreme amount; an over-reaching anxiety for money; I recollect the case Stephen v. Crowther; it is 13 years ago.

Cross-examined by the Attorney General. -- Taking the whole of the article together, I consider it to infer that Mr. Stephen sought to get all the costs he was legally entitled to; during my residence here I have witnessed a vast difference between the costs as made out by some practitioners and others; some struggling for the utmost sixpence, others more liberally disposed.

Mr. Allport. -- I think the passage as to costs charges the plaintiff with charging exorbitantly, and with mercenary motives; I think the article imputes to the plaintiff that he has occasioned [???]arrels and dissertions[???]; looking at the whole of [???] I think it is intended to hold him up to ridicule; as wanting modesty and good sense at the mechanics' meeting and I consider that it is intended to assert that he was deprived of his office of Attorney General instead of having resigned it.

Cross-examined by the Attorney General. -- I believe that it is attributed to Mr. Stephen the [???]nging actions for the mere purpose of getting [???]; I think it refers to one instance of a system; I consider that an Attorney who habitually takes out bills of costs, swelling them out to the utmost possible amount for the purpose of putting money into his pocket, is a rascal.

Mr. R. L. Murray. -- I consider the letter signed [???]S. to mean the signature of the plaintiff; I consider the words 'my dear Bedford,' to apply to the Rev. Mr. Bedford; I consider the letters R. L. M. to mean my signature and the words 'my dear Stephen,' to mean that the supposed letter[???] is addressed to the plaintiff; I did not write this letter; I hope I am not capable of any thing [???] contemptible, the letter purported to be addressed to Mr. Bedford infers that Mr. Bedford had advised the plaintiff to resign the office of Attorney General in order to [???] the government; I cannot discover that includes that Mr. Stephen did resign for that purpose; taking that passage in conjunction with the preceding one in which the plaintiff is made to state[???] that he has resigned, certainly if he did consider Mr. Bedford's advice, and that advice [???]g been given with the object of embarrassing the government he acted upon it, the minor is [???]ed in the major, and Mr. Stephen is charged as having resigned to embarrass the government; [???] purports to be addressed by the plaintiff, Mr. Jackson, of the Launceston Advertiser.

Cross-examined by the Attorney General. -- [???] was a correspondence in the newspapers [???] Clapperton; there was a letter from Mr. Stephen to His Excellency the Lieutenant Governor; I do not know from Mr. Stephen that he gave it to Mr. Robertson to publish; I have no means of knowing who write in the True Colonist; they are kept perfectly secret as far as I know; I did not publish Mr. Stephen's letter; His Excellency answered it in my newspaper - no -- I did not answer it -- I replied to it; I did state in my newspaper that Mr. Stephen's resignation of his office was a false movement; I thought so at the time; I think so still.

The Rev. W. Bedford. -- I have read the letters this, commenting, 'Mr Dear Bedford;' is intended to be understood as having been addressed to me. I consider that if a man does any act at the advice of another, that advice being given with a particular object, he adopts the object for which the advice is given to him; I consider this to apply to Mr. Stephen's resignation; I did not receive any such letter.

This was the plaintiff's case.

The Attorney General. -- I appear before you, gentlemen, as counsel for the defendant. The plaintiff, in his opening address, has told you that the utmost extent of the injury which the articles which he calls libels has inflicted upon him, is to vex, harass, and annoy him, and that if any one of these articles had appeared alone he would not have noticed it; but that it is the accumulation of the whole which induces him to call upon you for damages. To be sure he does not ask of you that they should be heavy; on the contrary, he only calls upon you for such as will be adequate for the injury he has sustained. I congratulate my friend sincerely upon the great change which his temperament has undergone since yesterday -- then he was all violence in gesture and in language, to-day he is all meekness and forbearance; and well has he adopted the change, for certainly in the same degree is the difference between the two cases. Yesterday a young gentleman, absent from the country, employed in an honorable station in another, was attacked. I am now free to confess in a very unjustifiable manner; the Jury gave large damages, but the occasion called for it. How different is the present? I will read to you, gentleman, by and bye these articles, which my friend is pleased to call libellous; I confess my extreme astonishment at this. If any man can ever attain years of discretion it might be expected that my friend has reached that period of his life, but certainly it would seem that he has not, for a more ridiculous action was never brought into a Court of Justice. Well indeed may he tell you of his extreme sensitiveness, and extreme indeed must it be for him to believe for one moment, that such articles as those before you could injure him in the manner he complains of. I cannot be believe that my friend has been recently reading a work with which no doubt, gentlemen, you are well acquainted, I mean the celebrated Letters of Junius. His feelings are wounded, he says, by Mr. Bent having published in his newspaper a single interrogatory as to what he meant when placed, as Vice-President of the Mechanics' Institution, in the chair of that highly respectable Association, he expressed himself gratified by the honor conferred upon him, 'particularly after recent circumstances.' Mr. Robertson, under whose powerful protection my friend now is, although very different indeed was the case some time ago, as appears by Mr. Robertson himself, copied by Mr. Bent in one of the articles, called libels, having stated this in the ColonistMr. Bent ventured to ask of my friend what he meant by 'the recent circumstances.' Was it the Clapperton correspondence or his resignation of office, or what else was it he thus alluded to? Mr. Bent asks this because he does not consider the Mechanics Institution exactly the fitting place for political discussion, and this my friend is pleased to call a libel, and that his feelings are wounded thereby (Mr. McDowell here quoted the well known passage in Junius, in which Sir W. Draper states that the peace of the most virtuous man in existence might be disturbed by interrogatories. To which Junius replies that to ask of a most virtuous man whether he had committed theft or murder, might discompose the gravity of his muscles, but would little affect the tranquillity of his conscience.) Most sincerely do I assert, continued the Attorney-General, that my friend's conscience could not be affected by any interrogatories that could be put to him, much less such as one as that which Mr. Bent has ventured, and sensitive indeed must he be to permit it to disturb his tranquillity, well convinced as I am that no one other person in this colony views it in the same light. (Mr. McDowell then went to the bill of costs), what is the utmost extent of the charge in this case? It may be that Mr. Stephen was not very liberal, but it cannot by possibility be strained into any thing like dishonor. Mr. Allport is pleased to state in his evidence that an attorney who extracts the last farthing he is entitled to, is a rascal. I confess I do not understand this doctrine. The Courts have fenced in the charges of attornies with great care, for, their bills are subjected to taxation, and not one farthing more than is justly due can be obtained by them under any circumstances, but for an attorney who asks for all that is his due to be therefore a rascal is beyond my understanding. I assert, gentlemen, and I am sure you will agree with me, that there is not one word in this which in the slightest degree reflects upon Mr. Stephen as a man of honor, or in the leats impeaches his integrity. If he had been charged with swelling the costs beyond their legal limits, that indeed would have been quite a different thing. How much more discreet then would it have been for him to despise, rather than reseal this, free as it is I assert, from the slightest imputation upon his honor or his character [???] I now come to the letters. Mr. Bedford thinks that if a person [???] for a particular object, he who adopts [???] adopts the object. I do not agree with this, Mr. Murray did not carry his opinion quite as far, at least in respect to the passage itself. But even if my friend had resigned his office [???] expressly to embarrass the government, [???] consider it an imputation upon his honor or his character. It is no imputation upon [???] man to resign office, in order to embarrass the government. When the present minister resigned office, and the Duke of Wellington and Sir Robert Peel succeeded, it was no imputation upon their honor that they had so resigned in order to embarrass their successors by shewing that they were unable to conduct the government, which as they were found to be, the present administration were soon again restored to it. Mr. Murray rejects with indignation the idea that he could write such a letter as that which is attributed to him. I admit that it is a very bad limitation of that gentleman's style, yet there are some passages in it which partake a little thereof, but no one every supposed that he wrote it. Mr. Murray tells you that the thought Mr. Stephen's resignation a false movement, and he still thinks so, the meaning of which is that he acted rashly and inconsiderately, and is this a libel upon Mr. Stephen's character -- is this calculated to either would his feelings or excite his sensibility? I now come to the song, and surely never was any thing more unworthy of Mr. Stephen than that he should think it possible that he could be injured by this. If indeed, like my friend Mr. Stewart, who is with Mr. Stephen in this case, he had only just arrived, then indeed he might perhaps have felt wounded, but for Mr. Stephen, who after thirteen years of the most extensive practice the colony could give, has attained the highest eminence at the bar, whose professional attainments require not my eulogy, for him to think it possible that he could be injured by such a piece of worthless doggerel: (The Attorney General read the ballad in so ludicrous a manner that the whole Court, His Honor the Chief Justice, and even Mr. Stephen himself laughed aloud.) I think, gentlemen, I need not trouble you farther upon this part of the case. I now come to the fourth libel. The only passage in this which I have heard complained of is that in which Mr. Stephen is charged with excessive modesty. It is certainly extremely offensive to any member of our profession to be charged with this but I think I may venture to assert, that no man ever succeeded at the bar as Mr. Stephen has done -- ever attained that high eminence in which he is justly placed -- who was afflicted with such a complaint. Then as to the last libel, the whole offence in which is the passage, 'thank GOD Mr. Stephen is no longer Attorney General.' I confess I do not see in what this is libellous. Mr. Stephen in freeing himself from the labours of the office now so unworthily borne by me, has encreased in health, in tranquillity, and in pecuniary advantage. He quitted the office of his own choice, and I confess I cannot discover what that it is libellous in any man, whatever may be his taste, to express his gratification at what is Mr. Stephen's own choice. These then, gentlemen, are the whole of the libels of which Mr. Stephen complains, and requires compensation at your hands in damages. Now, while I again fully and unequivocally admit, that in such a case as that of yesterday not only damages but large damages were justly given, I cannot believe it possible that you will find in the articles before you any thing in which a man of Mr. Stephen's acknowledged excellent understanding should have permitted himself to have been annoyed. That they could have injured him is so entirely out of the question, that it is unnecessary to trouble you with one word thereon. I am satisfied you will see this case in the same point of view, and well satisfied that you will do it strict justice, I leave it with perfect confidence in your hands.

[We repeat what we stated at the commencement, that limited as is our space we could only give an outline of the addresses of the Counsel, but that in order to prevent the possibility of being charged with unfairness to Mr. Bent, we should devote the most of our space to his Counsel the Attorney-General; we have done so, and thereby have not done justice to the calm, temperate, but clear, convincing, and truly able address of Mr. Stephen, either have we been enabled to report Mr. McDowell as fully as we could wish. We have given however its chief points, and the learned Attorney General himself, will, we are convinced, bear us but as to its accuracy, limited as is its extent.]

His Honor the Chief Justice charged the Jury at considerable length, with clearness, perspicuity, and impartiality. We can only give an outline of His Honor's address. He commenced by explaining the nature of the action. He expressed the difficulty of placing before the Jury in any reasonable time, and in a perfectly clear view, the precise tenor and effect of pleadings which spread over sixteen sheets of paper. So also as to the nature of the law applicable thereto. 'Notwithstanding,' said his Honor, 'the boasted perfection of the Law of England nothing is so uncertain as that in relation to libel. We find daily contradictory decisions, as Juries see the subject before them in different lights. It is however my duty to draw your attention to one point which you are not to lose sight of throughout the whole case. It is not whether the misconduct which the plaintiff by his inuendoes charges the defendant with intending to insert of him is really so [???] but whether the exact [???] that the plaintiff himself puts upon the defendant's word is what you consider them to bear. The plaintiff [???] character to the various passages he complains of, it will be for you to decide whether that character is the correct one, because the defendant is here to-day to meet the construction alone which the plaintiff charges him with intending. His Honor thus went through the whole of the case commenting upon each of the alleged libels as he proceeded with clearness and impartiality. In reference to what had fallen from the Attorney-General as to public men resigning office with a view of embarrassing the government, His Honor considered such a course any thing but what the Attorney General had characterised it, and that if the Jury were of opinion that the intention of the article was so to charge Mr. Stephen it was libellous in the extreme. So also others of the articles complained of, one of which in particular His Honor reprobated in very strong terms. He concluded a very able, clear, and impartial charge, with repeating to the Jury, that they were to decide whether the inuendoes had been made out to their satisfaction. If they were of that opinion, and if they thought that the articles complained of were calculated to hold up the plaintiff to ridicule and contempt, they were no doubt highly libellous. The whole case was in their hands, and they would decide upon it as they should determine, giving it that careful consideration which it required.

The Jury retired for a short time and on their return delivered a verdict for the plaintiff upon all the counts in the declaration. Damages -- One Hundred Pounds.

Editorial commentary

Source: True Colonist, 21 September 1838[2]

On Wednesday the sitting of the Supreme Court, for the trial of civil causes closed. The trials on this occasions were more numerous and occupied more time than usual, some of them were of considerable interest, particularly those against Mr. Bent (the nominal defendant) for libels, two of these we reported last week, the third, as the suit of Mr. Alfred Stephen will be found in another part of this number, as reported in the Review, from which we have copied it; these cases acquire additional importance from the disclosure to which they have led, of Mr. Roderic O'Connor being the author of the heartless, malicious and vulgar abuse heaped upon Mr. Alfred Stephen and his absent brother, in the law and scurrilous publication most appropriately designated Bent's News; although there is some satisfaction in the reflection that the man who could devote his time and his pen to the gratification of the malicious and vindictive feelings evinced in those writings, has been made to suffer a pecuniary penalty (for we understand he has indemnified Mr. Bent) for his offence against society, as well as against the individuals whom he assailed in such a case and cowardly manner, it is much to be regretted that the instrument of his malice should have escaped with impunity, for Mr. Bent's ignorance cannot be admitted as an excuse for the vile scurrility and slanderous malignity which for    many weeks were weekly poured forth in the paper which bears his name, and which disgraced the press of the colony; for it is too well known that in landing his columns to Mr. O'Connor, Mr. Bent was gratifying his own, frequently acknowledged vindictive feelings against the parties whom Mr. O'Connor made use of his paper to annoy! These feelings of vindictive hatred having arisen from Mr. Stephen having, in the discharge of his duty, prosecuted Mr. Bent for libels upon Colonel Arthur, for which Mr. Bent was, we admit, severely punished, certainly not by Mr. Stephen, but by the law, which he daringly and foolishly set at defiance. We will not deny that Mr. Bent was persecuted by Colonel Arthur in a manner which must for ever reflect disgrace upon his character and his government, for that persecution was carried to an extent, as far beyond every principle of law and justice, as the conduct that provoked it was inconsistent with common sense and the principles of popular rights which Mr. Bent fancied he was advocating. Mr. Bent; incapable of drawing a distinction between the ministerial officer of the law and the chief executive authority under which that officer acted, took it into his head that Mr. Stephen was his persecutor. And when, under the influence of those very principles which Mr. Bent, although utterly incapable of comprehending, flattered himself that he was punished for upholding. Mr. Stephen separated himself from Colonel Arthur's government, (carried on in the name of Sir John Franklin), Mr. Bent readily lent himself as the miserable tool of Mr. O'Connor's personal malice, and the hatred of the Arthur faction, to vilify and annoy Mr. Stephen and all his connections, and all who publicly avowed their approval of his honest and spirited conduct. We say we regret Mr. Bent's escape from punishment, because we have the very best proof that he is alike insensible of the offence he has committed, and of the mercy shown to him on account of his family by Mr. Murray, one of the plaintiffs against him; for in the two last numbers of his paper, we find a repetition of the expression of the same vindictive feeling against both Mr. Stephen and Mr. Murray, evinced in his remarks on the trials, another proof that Mr. Bent has not been punished as the ends of justice demand, and his own amendment requires, we find in the fact, that after the proprietor of this journal (against whom Mr. Bent had published libels immeasurably worse than all those for which he has been nominally punished) had, at the solicitation of friends who felt for Mr. Bent's family, and at the earnest request of Mr. Bent's own solicitor (who anticipated the severity of the punishment that the law must award to the offence complained of,) consented to accept of a public apology and payment of the trifling costs already incurred in those cases. Mr. Bent having gained time through the negotiation of his solicitor to evade the trial of those cases of the last Criminal and Civil Sessions, has not made the slightest acknowledgment of his offence but emboldened by his recent escape, was at defiance the punishment of the law, which he compels the injured party to invoke upon him.

The tracing to Mr. O'Connor of the libels for which Mr. Bent has been already prosecuted, affords to the colonists, and to the British government, if they will regard it, an additional proof of what we have so repeatedly asserted, since the commencement of our editorial labours, concerning the system pursued by the Arthur administration and its agents, as the authors and instigators of the slanders and calumnies against individuals in newspapers, professedly opposed to them (that is the Arthur party) but really under their control, by which the peace of society was disturbed, and the feelings of individuals harassed and lacerated; while at the same time it afforded them an opportunity of representing the press of this colony as being in the most licentious and degraded state, and furnished them with arguments, to show the necessity of placing it under restrictions to prevent the independent journals from commenting freely on the public acts of the government and its officers. It will not soon be forgotten in this colony, that theColonial Times, in the hands of that party, and under the special control of Mr. O'Connor, was a public scourge, and a terror in almost every domestic circle in the colony. Mr. Stephen (who in consequence of his fearless performance of his duty in the 'Fereday and O'Connor' case) had become the object of Mr. O'Connor's hatred and persecution was perpetually assailed with most virulent slanders and dastardly insults through the columns of that journal, both when in office and out of office, and even during his absence from the colony. To be related to Mr. Stephen, to be on friendly terms with him, or even to be connected with him in business, appeared quite sufficient to have drawn down upon any man the malignant abuse of theColonial Times. The last Review gives the proprietor of this journal the credit of having effectually put down this pest to society, by annihilating, at one blow, the insolent and contemptible 'Swartzback'. For this service to the public, we had previously received the thanks and congratulation of many of the most respectable and influential members of the community. On the Colonial Times passing into other hands, the influence of Mr. O'Connor was, with the spirit of 'Swartzback', banished from its columns, and filthy scurrility and personal abuse ceased, for a time, to pollute and degrade the news paper press of the colony. But the authors of this atrocious system had recourse to Bent's News, in which they found a ready vehicle for their Billingsgate abuse of all who were in any way opposed to them. Soon after Bent's News exhibited this feature, we were informed by some of the most experienced judges in such matters, that Mr. O'Connor was implicated in the revival of the system which had been for a time put down, with his influence over the Colonial Times, and we were strongly urged to retaliate upon him individually, for the offences against individuals and society committed by this miserable paper, but we refrained from doing so because we could not believe that Mr. O'Connor's propensity, strong, as it appeared from his connection with theColonial Times, could have led him so far to degrade himself, although we had the best evidence that his coadjutor, Mr. Rowlands, was the ruling spirit of the incendiary print. But Mr. O'Connor's connection with it, as far as the libels on the Messrs. Stephen and Mr. Murray, is now placed beyond a doubt, and although Mr. O'Connor may escape legal punishment, can he hope to escape the consequences of public opinion, which must be perfectly unanimous on the subject, particularly as regards the heartless, dastardly libel on Mr. George Stephen, against whom we cannot conceive that even Mr. O'Connor, could imagine a cause of offence, except his being the brother of Mr. Alfred Stephen. The attempt to injure the character, and destroy the prospects of his young gentleman, who had left the colony, and was seeking to earn an honorable livelihood in a distant country, exhibits a state of mental feeling which we pity any man for possessing. The heart of every man, possessing a particle of generous feeling, must revolt with disgust, from contemplating the state of mind which would lead even the basest of mankind to adopt such means for the gratification of pure and unprovoked malice, for it is impossible that [???] could contemplate any other object than the destruction of the future prospect of this gentleman, a purpose worthy only of a fiend, for even if the worst, that the libels insinuated against Mr. George Stephen had been true as it was proved to be false, and if his character had been justly tarnished here as it was not. Was that a reason to pursue him with vindictive malice to another country, where he was cast amongst strangers, and called to the performance of a high and responsible duty, where an imputation of his character would expose him to the most ruinous consequences; and all this without provocation on his part, or offence committed against his persecutor. There is something so hateful in this act; and in our mind so disgraceful, that we would rather be convicted of ten libels on the government, or any public functionary for acts done in his official capacity, than we would subject ourselves to be justly charged with such conduct to any man, even to Mr. O'Connor; and we think that no damages could have been sufficient punishment for it. As for the libel on Mr. Alfred Stephen, although marked with sufficient malice, justly to subject the author to severe punishment, yet we always considered it as so ridiculously contemptible and absurd, that we thought it quite beneath his notice and we think that he would not have condescended to prosecute for it, had it not been for the purpose of cutting a stop to the vituperation and annoyance, with which not only himself, but every one in any way connected with him were assailed. In this case we think the Jury gave sufficient damages. The manner in which Mr. Murray suffered Mr. Bent and his instigators to escape, clearly shows that in appealing to the law, he only sought protection and prevention of the injury and not the punishment of the offender, or pecuniary compensation for himself. Indeed we know that a very slight expression of contrition on the part of Mr. Bent, and assurance that the offence would not be repeated, would a short time before the trial have satisfied Mr. Murray. But of this the infatuated obstinacy of Mr. Bent would not allow him to avail himself, knowing we suppose that other persons must bear the costs.

Mr. O'Connor and his emissaries will no doubt retaliate upon us, and tell us, that this journal, has been repeatedly prosecuted for libel, but we defy them to shew an instance wherein we wilfully, or maliciously, or, for the gratification of public feelings assailed any private individual, or even any public functionary in his private capacity. We undertook the control of a public journal at a time when the whole public press of the colony was prostrate and prostituted to the purposes of a government, that had trampled, upon the rights and privileges of individuals and the community -- that had set at defiance public opinion and the control of the law, and sought and accomplished the destruction of any individual who dared even to express an opinion disapproving of its measures. In such a state of affairs, the duty which we undertook was a fearful one, and required to be fearlessly performed -- so we endeavoured to perform it, and our readers will bear testimony that we proceeded in the discharge of that duty without exhibiting any fear of the dangerous consequences which we had to encounter, for exposing the misdeeds of men in authority, and others, whose public situation gave them an opportunity of oppressing and plundering men who were unable to defend themselves. For exposing the conduct of such persons, we were prosecuted, and persecuted by the hand of power -- we were convicted, and punished for libel; but though almost totally ruined, we were not silenced, and amidst all our sufferings, with hardly any support, and but little sympathy from the community who reaped, and acknowledged the benefit of our labour and sufferings, we had at least the satisfaction to know, that our humble efforts made the oppressors tremble, and imposed a greater restraint on their acts than the fear of the law, or regard to public opinion expressed in a form that did not carry its voice beyond the limits of the colony. But while we were thus suffering the Colonial Times, the organ of the faction to which we were opposed, was permitted to revel with impunity in all manner of slander and provoking abuse, not only of individuals, but even of the head of the government, which used it as an engine of mischief, and also of every government officer in any way obnoxious to the agent employed to control this disgraceful instrument. That agent we have all along stated to be Mr. Roderic O'Connor, who has pursued the same system in Bent's News under the mask of anonymous writing, as he has done in the Courier under his own signature, in his correspondence with Mr. Moore. But, with respect to Bent's News, Mr. O'Connor is not the only one of Colonel Arthur's party who was suspected on the cleared circumstantial evidence to be steeply implicated in its atrocities. It can be proved that the 'proof of the most atrocious articles that appeared in this [???] print were brought to Capt. Forester at the Police office, and we may infer (as must every man who is initiated into the mysteries of the press,) corrected and approved by him some days before publication. We have not heard Captain Montagu charged with writing, or with directly sanctioning, any of the writings in Bent's News, but there are many circumstances which leave not a shadow of doubt that this paper did enjoy to every great extent, the patronage of the Colonial Secretary; and that, so far this functionary was implicated with his relative the C. P. Magistrate, and their long-established agent, Mr. O'Connor, in all the offences committed byBent's News. We are in possession of many circumstances that fully prove this influence; but there are reasons affecting other parties, which would render the disclosure of those circumstances, at this moment, impolitic. But we may remind our readers of the manner in which Mr. John Stephen was insulted by the Colonial Secretary. The keeper of the Colonial Records, when he, Mr. Stephen, sought from those records, in the usual form, the information, which he was by law entitled to demand, necessary to enable him to institute legal proceedings against the author or publisher of the libels against him in Bent's News. Neither will it soon be forgotten, that when Mr. Stephen complained to the head of the government of the insults which he received from the Colonial Secretary, while in the exercise of his rights as a subject of the government, in the Secretary's Office, he neither received redress nor satisfaction.

No man suspects Sir John of being at all implicated in these matters; but it is generally believes that any man complaining against His Excellency to the Colonial Secretary would at least be more civilly treated, if he did not receive some satisfaction. Nobody blames Sir John, though most people pity him.

We cannot conclude his article without replying to a most unfounded insinuations made by the Attorney General in his address to the Jury -- viz, that the publication of Mr. Stephens' letter to the Governor, in Clapperton's case, in the True Colonist, was the act of Mr. Stephen.

We remained in Court, at the request of Mr. Stewart, the solicitor for the prosecution, although not under subpoena, during the greater part of the trial, and were never put of hearing, had we been called at the Court-house door to, relate to the Jury the facts concerning the publication of that letter, which are simply these. When we heard of the Clapperton case, we waited on Mr. Stephen, and on public grounds, for we considered the case one of important public interest, we requested to be favoured with the perusal of the letter, this he declined, assigning our connection with the press as a reason for his refusal, adding, that he might hereafter be compelled to publish the whole correspondence, in which case he promised that we should have it. Some time afterwards we met a gentleman who told us that he had seen the letter, (the name of this gentleman, who is entirely unconnected with Mr. Stephen, is very much at Mr. McDowell's service if he wishes it,) we requested a perusal of it, he told us that he had left it at the house of a mutual friend, where we might obtain it, by using his name. Having read it, we took the liberty of publishing it, without the knowledge or consent of Mr. Stephen or any one else, entirely on our own responsibility.


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 S. Petrow, 'The Life and Death of the Hobart Town Mechanics' Institute 1827-1871',Tasmanian Historical Research Association Papers and Proceedings, v. 40,  1993, pp. 7-18. See also Launceston Advertiser, 20 September 1838.  And Stephen v. Bent (No. 1), 1838.

[2] This also refers to Stephen v. Bent (No. 1), 1838.

 

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