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Decisions of the Nineteenth Century Tasmanian Superior Courts

Moore v. O'Connor [1839]

libel - tax collection - magistrate, action against - evidence, admissibility - land grants

Supreme Court of Van Diemen's Land

Pedder C.J., 16 and 18 March 1839

Source: Hobart Town Courier, 22 March 1833[1]

Before his Honor, Chief Justice Pedder

Special Jury

           

            This was an action brought by the plaintiff, formerly Collector of Internal Revenue, for Insolvent Court, against the defendant, Mr. Roderic O'Connor, of the Lake River, for alleged libels contained in three letters which appeared in the Hobart Town Courier newspaper, viz. - on the 20th June, the 22nd July, and the 17th August; and there was a further count, charging him with the printing and publishing a letter in the Colonial Times, in August last, which likewise reflected on the character of the plaintiff.

            The declaration contained three counts. The matter charged in the letter of the 29th June, was averred as inducement.

The first count charged in brief, that he had been guilty of falsehood, from the test of the letter, commencing - "that incomparable writer, Addison, has said - that lies which are told out of arrogance, and ostentation, a man should detest in his own defence, because he should not be triumphed over. Lies which are told out of malice, he should expose, both for his own sake, and that of the rest of mankind, because every man should rise against a common enemy. But the officious liar, many have argued, is to be excused, because he does some man good and no man hurt. I have already replied, and now against reply, to the statements of Mr. Joseph Henry Moore, coinciding, as I do, in the abuse sentiments, with that pleasing and instructive writer in the Spectator," &c.

Further, that Mr. Moore was grossly ignorant of his duty as a collector - and that he was even worse than ignorant, from the following passage in Mr. O'Connor's letter:- "A gentleman purchases two lots, described as 1,000 acres, and 460 acres respectively. They were valued at four shillings per acre. Upon a measurement, the two lots were found to contain 3,608 acres!! The public, no doubt, will be anxious to know whether Mr. Collector Moore exercised his paramount authority over the Survey Office, but how will they be astonished, when I inform them, that this fraud was allowed. No visit paid to the Lieutenant-Governor on the occasion, and the gentleman permitted to retain his 2208 acres!

The second count charged the defendant with having printed and published a further libel, insinuating that the plaintiff had come into the possession of the Belvidere allotment by dishonorable means; and the third count charged the defendant with the publications of a letter in the Colonial Times, wherein Mr. Moore was spoken of, as having put forward a mendacious statement of an affair in dispute between them.

Mr. Stephen commenced, by stating that this was an action for libel brought by the plaintiff, a magistrate of this colony, and formerly Collector of Internal Revenue, against the defendant, who was also a magistrate, well known as his client was, to the gentlemen of the jury; and he would add, too, a gentleman of acknowledged wealth, and extensive possessions. It will be my study, proceeded the learned gentleman, in my conduct of this case, to avoid as much as possible the use of expressions calculated in any respect to give offence to the defendant. At the same time, I am conscious that I have a duty to perform towards my client, and I shall discharge it, I trust, with every care, and every desire, to elicit truth, and establish the code of justice. In the progress of a case, and the excitement it occasionally produces, unguarded expressions are apt to escape, which in future reflection may not altogether sanction or approve, and as I admit, that my zeal for the cause in which I am engaged, may sometimes betray me into the use of intemperate or hasty language - for I am free to acknowledge my error - I think it right to add also, that none can more deeply regret the occasion which gives rise to it, or is more anxious or willing to make all possible atonement - not inconsistent with respect for my own character - to the injured feelings of another. It is the more incumbent on me in this instance, not to allow myself to be betrayed into any such excitement, for certain reasons, which it is unnecessary more particularly to specify. The gentlemen in this action were both on terms of intimacy previously to the publication of the letters which appeared in the Courier newspaper, and which contained the alleged libels whereof my client complains, and comes before a jury of his country this day to seek redress. I will now proceed, gentlemen of the Jury, to read you the different allegations contained in the several counts.

(The learned gentleman here proceeded to read several extracts reflecting on the character of Mr. Moore, as a man of veracity, as a public officer, and insinuating that he had obtained possession of the Belvidere allotment by dishonest and dishonourable means.) Mr. Stephen animadverted severally on the different charges, after which, he said, that as far as his client's character was considered, he (Mr. Moore) was satisfied with the result of the controversy, as carried on in the newspapers. There it might, had Mr. O'Connor thought proper to allow it to remain. But, no - he was dissatisfied, and had written to the Lieutenant-Governor, demanding a board of inquiry, which Mr. Moore very properly refused. He said, the court of inquiry you demand shall be a public one - I throw myself on a jury of my countrymen - to them I appeal, and with their award alone shall I be contested. It is thus he comes before you this day demanding a vindication - an open and a public one - of his character, which has been so grossly assailed and culminated. I shall be satisfied with proving to you the existence and nature of the libels of which my client complains - of the justification attempted to be set up, you will also have an opportunity of judging, and I shall have occasion to remark upon it in my future address.

Mr. Stephen then called Mr. Elliston, and Mr. H. Best, the one the proprietor, and the other the manager of the business of the Courier office, but they both failed to prove the publication - the manuscripts of the letters, signed Roderic O'Connor, having been destroyed. Mr. H. Best knew of one letter having been delivered in the handwriting of Mr. O'Connor, but that was a different one from the three letters charged in the declaration to contain the alleged libels. Mr. Best believed that one of the three letters in question was delivered by Mr. O'Connor. Here it was contended by Mr. Stephen, that the evidence of Mr. Best was admissibly as competent to prove the hand writing of the one by comparison with that of the other.

The Attorney-General contended, that such comparison always contemplated the existence of a manuscript, whereas there was none in this case, and that a more dangerous doctrine could not be propounded than that advanced by Mr. Stephen.

The Chief Justice said, he was clearly of opinion, that such evidence was not admissible. If he rightly understood the force of Mr. Stephen's argument, he contended, that by mental comparison a person was enabled to give evidence of the hand-writing of a party. Now, in this case, there was the pretension  as to habits of correspondence existing between the parties, from which any judgment might be inferred as to the authenticity of a manuscript which was not in existence. His Honor said (after investigating several cases on the subject,) that he would receive the evidence, if Mr. Stephen chose to insist upon it, although he should reserve the matter, as his admissibility was against his own conviction.

Mr. Stephen then agreed to abandon the evidence, and called Mr. Clements, clerk in theCourier office, who being formerly in the Commissariat Department, deposed to having seen Mr. O'Connor write, and produce two several letters which had been sent to him whilst in the Commissariat, with the signature of Mr. O'Connor. He had seen the manuscripts of the letters, which were the subject of this action, and had an hesitation in saying they were in the hand-writing of Mr. O'Connor. He was reader to the Courier, and had read over the manuscripts along with Mr. Best.

The publication of the letters having been thus established, Mr. E Bedford examined by Mr. Stephen - Had heard what the Clerk of the Court had just read; was of opinion, that the letter commencing with "that in comparable writer, Addison," imputed to the plaintiff, that he was "an officious liar" witness knew that the plaintiff was Collector of Internal Revenue; thought that the expressions, "gloriously fighting the battles of the government," were meant ironically. Mr. Bedford also proved that several other passages of a libellous character referred to Mr. Moore. Had read the correspondence at the time it appeared in the Courier.

Cross-examined by the Attorney-General - The first letter referred to a former letter of Mr. Moore's (the Courier of the 4th of June was here handed to the witness). The first paragraph, the thought, had reference to a letter which appeared in the supplement in the Courier of the lst June, signed R O'Connor. In looking at the supplement witness was of opinion that Mr. Moore is therein charged with wilful falsehood. Witness was here requested to read the paragraph, attentively, which he did as follows:-

Mr. Burnett has published in his "refutation" a letter from Mr. Moore to himself dated 26th November 1836, in which that gentleman says, that "at the close of the year 1833 or beginning of the year 1834, I spoke to him (Mr. Moore) of the negotiation respecting Mr. Burnett's grant as a matter upon honor and as by no means as being a sale absolute. Of this conversation I have no recollection, and I have never been upon such terms with Mr. Moore as to justify my speaking to him even by the most remote allusion to my private affairs, and it is not very probable that if any conversation every did pass between us on that subject, I could have made such a statement, with all the letters and documents which were then in my possession, and now inserted in this letter; the fact being directly the contrary to Mr. Moore's statement of which they afford incontestable proof.

Re-examined by the Attorney General,

Q. You have now read that paragraph - does it in your opinion contain an imputation of wilful falsehood against the plaintiff?

A. It imputes to the plaintiff that he had made a statement to Mr. Burnett of some communication which had passed between the plaintiff and the defendant, and which for reasons here asserted by Mr. O'Connor, never could have taken place.

Q. And that you consider an imputation of wilful falsehood on the plaintiff?

A. I do.

Letter of the 4th June was here handed to the witness, signed by the plaintiff, and admitted to have been published by him.

Witness perceives in the first paragraph of that letter the words "from want of recollectionprinted in italics; understands those words to mean that Mr. O'Connor could forget what he thought proper.

Q. Do they not also mean that he could invent when it suited this purpose?

A. Yes, I think they do.

Q. And that he had invented, on the occasion referred to in that paragraph?

A. I think the words were intended to convey that meaning.

Q. Look at the last paragraph but one in that letter, commencing - "the period to which may be traced the commencement of that persecution by libel and slander which I meet with from anonymous publications in the newspapers" - to whom in your opinion are those words intended to refer?

A. To Mr. O'Connor and his associates.

Q. Look at the last paragraph in the letter and the words - "And I beg to assure Mr. O'Connor that in noticing even by the most "remote allusion" his observations of me in that letter, I do it exclusively out of regard to persons whose names are associated in that letter, proved in the conviction that my standing for veracity is placed far too high to admit for a moment of the humiliating necessity of having it tried by that equivocal test, the convenient flexibility of Mr. O'Connor's recollection s" - to whom are those expressions meant to apply, and what is the inference you deduce from them?

A. They refer to Mr. O'Connor, and are meant to impute wilful falsehood to him.

Q. Look at the letter dated 26th June, and the passages - "one who sets at defiance all regard for certain of those links which bind civilized society together" - and again further on - "in respect to his sinking state of his veracity" - and further - "is it not unquestionably an additional proof of the convenient flexibility of memory on his part to which he so often resorts" - to whom do those passages refer?

A. To Mr. O'Connor.

Q. Look further on the passage - "but Mr. O'Connor found by the influence of that evil spirits into whose keeping he has unfortunately committed his veracity, has, by an unfortunate reference to his case with Mr. Sheriff Fereday, shown a spirit of malevolence and ingratitude almost without parallel"(the reading of this passage excited some laughter) - who it meant by the evil spirit into whose keeping Mr. O'Connor has committed his veracity? (Great laughter, which was further prolonged by Mr. Stephen saying "I think it must be Mr. Murray," who was sitting beside Mr. O'Connor at the time.)

A. I cannot very well define.

Q. Further on you read the passage - "but the omnipotent God of truth triumphed over the Satanic application of Mr. O'Connor's boast omniscience, and I obtained honourable possession of my allotment, and thus defeated him of the malicious luxury of adding my name to the catalogue of those who may perhaps have fallen victims to his machinations in the acquirement of land" - the Satanic application you consider to have reference to the same respectable source? (Laughter)

A. I do.

Q. Look again, Mr. Bedford, to another sublime passage - "yet I tell you, Mr. Roderic O'Connor I would rather be that landless individual that I am, than be in the possession of your principality, were a grant to be obtained upon the terms and conditions once suggested to me, 'not quite so pointed as to alarm nor yet so vague as to be misunderstood,' (these are not Mr. Moore's own) but which if adopted instead of giving me a permanent homestead would have proved as fatal as the upas tree is reputed to afford the unfortunate shelter under its deadly shade."

A. They refer to Mr. O'Connor, but I do not understand the meaning intended to be conveyed by the allusion.

Mr. Bedford was also questioned as to the meaning and reference of several other paragraphs contained in the letters of Mr. Moore, which he acknowledged reflected on the character of Mr. Roderic O'Connor.

Mr. J.C. Macdougall examined by Mr. Stephen - The letter of the 21st August, in the Colonial Times now produced, was written by Mr. O'Connor. Witness produced the manuscripts which had come to him by post.

Cross-examined by the Attorney-General - Does not believe that the letter was sent to him for insertion in his newspaper - it was addressed to him as proprietor of the Colonial Times, with a request that he should discontinue sending his paper to him for the future, as it was quite enough to be abused without paying for it. This was in reference to Mr. O'Connor's dispute with Mr. Moore. Witness inserted the letter in the newspaper because he thought it insulting to himself. Will swear that he did not think it intended for publication.

The Attorney-General then proceeded to address the jury on the part of the defendant. He said that his learned friend, Mr. Stephen, had in the commencement of his address introduced the plaintiff and the defendant on this record as gentlemen well known to the jury. He had represented the plaintiff as a magistrate, formerly holding the office of Collector of Internal Revenue, and who was a Justice of the Peace for this island. The defendant, he said, was a man of large wealth, who also was a magistrate. He should have told you, gentleman, that the plaintiff is no longer Collector of Internal Revenue, but that having lost that office, I admit, continued the Attorney-General, through no fault whatever on his part, he has been placed in a situation of equal emolument and of far more importance by His Excellency, the Lieutenant-Governor, and on that account, and because he was whilst this very action upon which his character depends so promoted, my client felt - I presume to offer no opinion on the correctness of his feelings - that as far as the government was concerned his case was prejudged - his charges against the plaintiff - determined to have been groundless, and therefore, he deemed it due to his own character to resign the commission of the peace, and he is no longer a magistrate of this island. I make this statement with no desire whatever to reflect upon the appointment of Mr. Moore, I have no such instructions to set upon, and if I had it would be utterly inconsistent with the office. I have the honor to hold were I to obey them. But I make these observations, because I do conceive that they afford a very satisfactory answer to that upon which my learned friend has dwelt so elaborately - I mean the preference by the plaintiff of submitting this case to the consideration of a jury, rather than of a board of officers, to be appointed by the Lieutenant-Governor. I submit to you gentlemen, and I do so without intending you the slightest disrespect - that this is not a case which can satisfactorily be investigated in a court of law, and of all men living - seeing the estimation in which the Lieutenant Governor holds the plaintiff - it ill became him to shrink from inquiry by a board, the appointment of which was to rest with His Excellency. Before such a board the matter sought to be put in issue by Mr. O'Connor might have been fully and fairly investigated, and if Mr. Moore established his accusations against Mr. O'Connor, the latter was unfit to continue in the commission of the peace, and if he did not, Mr. Moore was alike unworthy of holding office, under the government. Why then does Mr. Moore come here? The answer given by my learned friend, Mr. Stephen is, that he is compelled to come here. I there join issue with him. I deny it. I deny that there is anything in the Colonial Secretary's letter transmitting to him a copy of the defendant's - which letter has been put in evidence - I deny that that letter imposes upon him any such necessity. The defendant complains that a foul and false charge of having attempted to defraud the government has been deliberately made against him by the plaintiff - a government officer - and as an act of justice to himself he solicits from the head of the government, that by a board constituted by His Excellency for that purpose, the accusation should be inquired into. And how does the plaintiff act? One would have imagined that this very solicitation of the defendant's was of all else the thing he most desired, and that he would at once have exhibited and expressed his readiness to substantiate his charges. But no such thing. The correspondence - which you will have in evidence - I venture to affirm shows nothing of that ardour of mind, by which his earlier and more zealous compositions were distinguished. On the contrary, - although the excuse is made for him here to-day, that he was quite satisfied with his victory over the defendant, he complains that he has been dragged into a controversy with Mr. O'Connor, and that he had in that controversy been unjustifiably assailed, and that having replied in his own defence, he thought it hard that he should be called upon to establish the truth of his accusations, and you will find, gentlemen, that it is not until escape is impossible, that he informs the government that he has instructed his legal advisors to bring an action against Mr. O'Connor. But how is Mr. O'Connor to establish the falsehood of Mr. Moore's imputations, against his character, in an action brought by Mr. Moore, for what he is pleased to term the libels of Mr. O'Connor? Gentlemen, this they felt on the other side, and accordingly a very modest application was made to Mr. O'Connor to bring an action against Mr. Moore! They felt, on the other side that the course which they had taken must of necessity terminate in defeat, and they thought that they might as well make it mutual. They accordingly applied to the government to ask Mr. O'Connor, also, to bring an action for the libels of which he complained, and this he declined, and I shall give to you his reasons for declining, and I am much mistaken if you do not deem them founded alike in good sense and honourable feeling. Mr. O'Connor knew that if he came here to complain of Mr. Moore's libels, he would receive the same answer which awaits that gentleman to-day - you have appealed to another tribunal, what brings you here? You have entered into a newspaper controversy - you have had recourse to your pen, and if your character has sustained injury, this is not the tribunal to which by our verdict we shall sanction your application now that you have preferred appealing to another. Had you, in the first instance, brought your action, the case would have been different indeed, but it is not to be endured that you should first try one remedy for the restoration of character - by an appeal to public opinion - and afterwards come into a court of justice to take the sense of a jury upon the same subject. Such my client felt must have been your answer to him, and such he feels will be your reply to the complaint of his opponent. Accordingly, character being at stake and controversy at an end, Mr. O'Connor sought an investigation into the truth of those charges preferred against him, by an appeal to a tribunal, which, although it could put no money in the shape of damages into his purse, could yet most effectually vindicate his traduced character. This, however did not suit the plaintiff, and accordingly he has sought your verdict, to make the defendant atone "in monies numbered" for the injuries which, at his hands, he alleges he has sustained. And this gentleman brings me to inquire under what circumstances it is that the plaintiff appears before you to claim a compensation in damages for the libels on his character, which have been read and commented on by my friend Mr. Stephen. And here I apprehend that the first question you will have to ask yourselves - seeing that the very libels, of which the plaintiff complains, not only appear, but are proved by the evidence of Mr. Bedford, to have been in answer to others, and as you have heard them read - I think you will agree with me in thinking - equally offensive letters. I say, the first question you will have to ask yourselves is, with whom this controversy commenced? With whom did this correspondence, discreditable as you may think it to both parties concerned originate. And here I am at issue with the statement of Mr. Stephen, and the evidence of Mr. Bedford. I contend, respectfully, but confidently, before you to-day, that Mr. Moore, by his first of all officiously meddling with matters, for which he had no commission to meddle, drew upon himself the observations made by my client upon the pamphlet of Mr. Burnett, which Mr. Bedford conceives attributes falsehood - deliberate falsehood to Mr. Moore - but which, as I contend, contains no such imputation. Of that paragraph you will judge for yourselves. You will read it as you would outside this court, for it is amongst the advantages of trial by jury - not indeed enumerated by Mr. Stephen - in his approval of Mr. Moore's having sought to vindicate his character before such a tribunal - that you come into that box not as mere authorities to teach lessons, which no man will learn - to read by your decisions lectures on the propriety of preternatural endurance - but you come out from the world with which you are shortly again to mingle with the common sense and common honesty by which you are guided in the affairs of life. And if, as men of the world, you read over the paragraph in Mr. O'Connor's publication in the newspaper of the lst of June, I defy you to attribute to it the meaning it has received from the acute and intelligent Mr. Bedford. I say it, with every possible regard for his high character, in respect to all those qualities, which are calculated to cheer and embellish our nature - that no man, unless he was desperately bent on finding out an insult where no insult was intended, was likely to read the passage in the sense in which Mr. Bedford interprets it. Nothing short of partizanship which I am not justified in ascribing to Mr. Bedford, as it seemed to me before I heard his testimony, could have so distorted the obvious meaning of language. Read it, I entreat you gentlemen, again and again, and tell me if you think that such is its fair meaning. I  do not mean to assert that it is particularly complimentary to the plaintiff. I do not mean that it is couched in terms which were intended to please him -  I do not assert that he addresses his opponent of to-day, in "holiday and lady" terms - but I do not assert that there is nothing therein contained - I do not say to justify - but in the slightest degree to palliate the outrageous attack, which forthwith followed on the character of the defendant for honor and veracity. His own witness, Mr. Bedford, told you, in his cross-examination, when his attention was called, to the plaintiff's letter of the 4th June, which immediately followed the defendant's publication - that the words "from want of recollection," printed in italics in the very first paragraph of that letter meant not only that Mr. O'Connor could forget what he thought proper, but that he could invent what suited his purpose - that he had in fact an active imagination upon matters of fact, and did not permit it to fall into a decline from want of practice. Look, gentlemen, at the concluding paragraph of that letter, and then tell me if you can in language discover terms more insulting than those applied by the plaintiff in this action, in which he refers to the convenient flexibility of the defendant's memory. Proceed, I entreat you, though it is no gratifying employment, through the whole of this correspondence, and then tell me, with what semblance of justice the plaintiff seeks damages at your hands for libels upon his character. It is first of all pretty plainly insinuated that he had attempted to commit a gross fraud upon the government, and then when over and over again defied by the defendant to make good his charge, he shrinks from the attempt, and unable to sustain it endeavours by scuttling every species of vilification on the defendant to escape from the consequences of his exposed absurdity. He insinuates that he had, when on terms of intimacy with the defendant, became the possessor of some dishonest secret, which for the purpose of reminding this gentleman of an imaginary conversation he refers to - alleges that he has private notes which prove the existence of that intimacy and then when the defendant again denies - disclaims the imputation of his friendship - proves by the publication of a note to himself that it was mere imaginary on the part of the plaintiff, in that it was not very probable that a man who was his friend would have charged him seventeen pounds for no very particular service rendered, he then exclaims - Oh! this gentleman having set me the example of publishing my private notes - I am now exonerated from all - to borrow his own phraseology for where can we find anything like it - I am now relieved from "all those links that serve to bind civilized society!" I shall now, out of his own mouth, convict him of falsehood. He has entered the arena - he has ventured to contend with me, and although I deprecate having recourse to weapons of this kind, yet as he has set me the example I shall follow it. Gentlemen, this - I take the liberty of asserting - is new and somewhat dangerous morality. It amounts to this - I am aware that I am violating a principle, but this I must add, I have an example in my opponents conduct to justify me in the course I have adopted. The old moralists, at whose feet I may have been so imperfectly brought up, at lease have taught me that right or wrong are not to rest as the face of authority, but on their own intrinsic worth or baseness, but there is a moralist who deprecates a practice which he announces only to follow. And do these notes, I ask you, gentlemen, prove the position for which Mr. Moore contends. The Attorney General then proceeded to comment on the private notes referred to in Mr. Moore's correspondence, and then proceeded to lay before the jury at great length the grounds upon which, as the defendant contended, he was justified in attributing dishonourable conduct to the plaintiff in this action. He adverted to the evidence, documentary and otherwise, by which he should endeavour to satisfy the jury that nothing could have been done more improper or even dishonourable than his conduct, in this matter, but that even if they were of this not satisfied - he had at least commenced this controversy and continued it in such a spirit as to disentitle him to damages from the jury.

Witness for the Defence

Henry Wilkinson. - In November, 1830, I was employed in the Survey Office as Assistant Surveyor, know plaintiff, recollect having a conversation with Mr. Moore relative to suburban allotments about the time of the expedition against the blacks; have no recollection where conversation took place, believe at Survey Office; Mr. Moore first came to me to ask me to measure an allotment at the top of Macquarie-street which the Surveyor-General had authorised him to be put in possession of before his departure; I put him in possession, it was nearly opposite Mr. Rayner's Mill in Macquarie-street, very small allotment, not above an acre; in a day or so after putting Mr. Moore in possession, saw him again; I informed Moore there was an alleged claim of Rayner to that piece of ground; he said he must go to the Colonial Secretary's Office and inquire into the nature of the claim; he went away and returned and said he anticipated a great deal of trouble in getting possession of that land; that Mr. Bamber had applied for a piece of ground, to which he said he had a prior claim, having made a selection of it sometime previous, and been refused; I explained to Moore that such selection had been made by Bamber, but I thought it a hopeless one, and for which I gave him my reasons; I think I then referred him to the Deputy Surveyor General; the allotment he requested to be put in possession of was the Belvidere allotment; at this time the Surveyor-General was engaged in pursuit of the natives; recollect talking to Captain Boyd in Macquarie-street when Moore came up and requested to have possession given him of that piece, now the Belvidere allotment; made application to Captain Boyd and myself to go out and measure it, Captain Boyd pointed out the impossibility of it being done without authority of Surveyor-General, Moore still pressed for it and wished to have a location order, appointment made for us all to go the next day up to the ground; Mr. Moore, before the appointment, offered to give up all claim to the land if government did not approve of it; the next day we went up, Mr. Moore pointed out the ground and pressed for a measurement of it, I pointed out the several objections which I had done previously to its being located; I explained that I thought the Surveyor-General intended to lay out that part of the town in a particular way, and that the land would embrace a part; another reason was that church and school land was marked on the plan, and I thought it would interfere with that; the next I mentioned Bamber selected, not knowing at the time Moore had applied for the land twelve months before: I knew from Mr. Moore that he had applied for the land and had been refused; I have no doubt that I mentioned that verbal selections were not received, and that no land would be located without authority of Surveyor-General; Deputy Surveyor-General present at this time, I cannot say whether any one else; I was ordered by the Deputy-Surveyor General to continue a line, diving Hobart Town from the suburbs, from the Hobart Town Creek to Sandy Bay Creek, the other portion of that line I had previously done by direction of the Surveyor-General, and this was only a completion of the work, that forms one boundary of the allotment, the other side up to this point and belonging to other parties, being fenced at the time this was done at Moore's request in order to ascertain where this line would strike down; a few days afterwards I saw Moore, he requested me to show him this line, which I did; my attention was next called to it by Moore either commencing or announcing his intention to commence fencing the allotment in; I wrote to Captain Boyd to inform him what had been done; I don't positively know  what afterwards passed on the subject, there was a very long correspondence; I continued the line by Mr. Moore's request and Captain Boyd's directions; I had no power to locate land, never had; Mr. Moore applied to me to furnish him with a sketch, I refused to give it him, having been ordered by the Surveyor-General not to do so in any instance, many parties having obtained and used them as authorities.

By the Judge - This allotment had never been located.

Cross examined - now that Bamber applied for the triangular piece of land to me; I can't tell when it was a little previous to or during Mr. Frankland's absence on the line; the next person that applied for it was, I think, Mr. Moore, and after that a person named Dunkley; he applied in the first instance, to me, and afterwards by a written application to the Surveyor-General; it was customary for parties to apply to me first to know what land was vacant; I gave to Dunkley same reasons as I had given to Moore; I make no doubt but that I told Dunkley of Bamber's and Moore's application; I told Moore that Mr. Bamber had applied for land.

This is my written statement, lst December, 1830.

Q. Were you not the person who told Moore that Bamber had made that selection.

A. Mr. Moore on return from the Colonial Secretary's Office, told me he had discovered that Bamber had made selection, and I have no doubt that I afterwards told him it was the case; Mr. Bamber put in a written application for the land before Moore applied to me; never measured any land to persons before obtaining authority from Surveyor-General; I have never put a person in possession of land or measured land and then reported it to Surveyor-General.

Captain Boyd before going to the land had not given me authority to put Moore in possession of an allotment; he declined it; it was not by the Deputy Surveyor General's orders that I put Moore in possession of allotment near Rayner's; it was by order of Surveyor-General a day or so before the Surveyor-General left town, he rode out with me to the ground, and there authorised me to give possession; upon reading my written statement that which I have just made is in error, I adhere to the written one; it was by order of Deputy Surveyor General, Moore was put in possession of a piece of land; I see nothing extraordinary in Moore's asking to be put in possession of another piece of land by Deputy Surveyor General in absence of Surveyor-General I understood that Captain Boyd had told Mr. Moore, upon his application to be put in possession of Belvidere, that it could not be done without authority of Surveyor-General don't know whether Moore's selection of the Belvidere allotment was prior to Bamber's no recollection of having seen such a thing; notwithstanding the impossibility of the Deputy-Surveyor General measuring land Mr. Moore, Captain Boyd, and myself went up to the Belvidere allotment by appointment, to put Moore in possession; no one to my recollection present at this time; Hackett present once; am sure Captain Boyd was there; recollect Hackett being there one day and with the Deputy Surveyor General; I did not see the sod and twigg given to Mr. Moore on that occasion to my recollection; I heard something said about it on the ground, but I do not know what; on the second occasion, I went up to continue the line I had marked; no one present but myself, and the men; went up a third time to show Mr. Moore the line; the drawing of that line, if you are pleased to call it a measurement, completed the measurement, but I do not consider it a measurement; don't recollect that I told Moore that allotment contained 6½ acres, I might have done so if he had asked it; don't recollect if he did ask it; I think it was in November 1830, that I showed Moore the line, it was previously to Mr. Moore going with Captain Boyd and myself that he offered to relinquish all claim to the land if the government disapproved of it; it was consequent upon that that we went up; I ran the line to shew Moore where the boundary would run; I have no recollection of having seen this letter before 2d December, 1830, Moore to Surveyor-General - Belvidere allotment triangular; front line longer than the others; that is the line I pegged out; the other sides were fenced, nothing remained but for Moore to fence line pegged out in order to surround the allotment.

Re-examined - The length of line from Hobart Town Creek to Sandy Bay Creek about 24 or 25 chains; that portion of it along the Belvidere allotment about 14 chains 20 links; the whole line from creek to creek ran same way; ran by me for the purpose of indicating town from suburbs; don't recollect seeing any other letter from Mr. Moore to the Deputy Surveyor General relative to that allotment; I think I have seen this letter 4th November, 1830, Moore to Captain Boyd before.

Cross examined - The line of 25 chains is the boundary of Belvidere; no other fences have been put up on that line; I am not aware of anything that wold fix the time in my mind of that line being run.

Monday, March 18th

Edward Boyd, Deputy Surveyor General, in November, 1830, since 1829, arrived in colony in that year - Know parties in this action; about beginning saw plaintiff on subject of allotment of land; Surveyor-General absent from Hobart-town then in pursuit of natives; at time of black war guards mounted by civilians; I was one to see guards properly mounted; in the beginning I visited sentry at Treasury; Mr. Wilkinson sentry; Moore came up whilst I was standing with Wilkinson, and asked me to put him in possession of an allotment outside of town, now called Belvidere; I told Moore I did not like to put him in possession of allotment as I was not aware of Surveyor-General's intentions with respect to that piece of ground; he then said if the Surveyor-General or Lieutenant-Governor, I forget which, object to my having the ground, I will give it up again - I said, well on those terms, meet me at one o'clock, and I will go up with you; Moore on guard at Main Guard on that day, as he could not come to me, I went to him, and he got a person to relieve him, and we went to the ground; when we got to the ground, Moore observed, on these occasions in Ireland, there is generally a sod and twig given; having such confidence in Mr. Moore that he would redress his pledge, I gave him a rush that I had in my hand, saying, there is your twig and there is your sod; Wilkinson was not there; walked with Mr. Moore and pointed out which would be the best site for a house; hearing from Mr. Wilkinson that Mr. Moore was fencing in the land, I wrote to him, cautioning him not to go to any expense with the allotment, until he was released from his pledge; this was a few days after I had gone to the land with Moore from the Main Guard; 3rd Nov. went to the ground; received letter from Mr. Moore applying for location order, dated 4th November, received 13th; Surveyor-General returned about 20th November from expedition against blacks; I directed Mr. Wilkinson to run a line between town and suburbs as I conceived that sufficient to mark off allotment; that was done by Wilkinson; quite certain that the statement made by Mr. Moore to me was, that if Surveyor-General or government disapproved of his having land he would give it up; Mr. Wilkinson mentioned at that time at the Treasury that there was a claim to that land by Bamber; it is not possible that Mr. Moore said if Bamber should raise any claim to the land he would give it up if His Excellency decided in his favor, otherwise he would persist in holding possession; I don't think it is possible that the name of Bamber should be mentioned instead of Moore upon this occasion; Mr. Moore may have said that if Lieutenant-Governor decided in Bamber's favor he would give up the land; shortly after this I was called upon to make a report on this case; I did so; that report is more likely to be accurate then any statement I can make now.

This is my report; I think he said absolutely that he would give up the land if Lieutenant-Governor or Surveyor-General did not approve of his retaining possession, as it was that only that made me safe in acting; no authority to put persons in possession of land; that is the reason that I said I should not be safe in acting unless Moore promised to give up possession if surveyor-general or government disapproved of my having land; this land had not been located; the property of the crown; Surveyor-General proper person to give possession of land; only person holding authority; don't know if any portion of allotment fenced in during Surveyor-General's absence.

By Judge - Don't recollect of any land being verbally located; generally by selections; a writing was necessary for Wilkinson to authorise him to put parties in possession; persons applied by written applications which was submitted to Governor for approval, after which applicants were informed of such approval, and ordered to select land and report selection to Surveyor-General; after which the same being approved by Surveyor General, Wilkinson was sent to put party in possession.

Cross-examined - Made report on the lst December, 1830; don't know for what purpose report sent in; Surveyor-General called for it, and I sent it in; knew only about a month since of this letter 2nd Dec. 1830 from Mr. Moore to Surveyor-General; at one o'clock on same day that I met Moore at Treasury walked up to the land; same day had conversation with him thereon; at first of the two conversations Wilkinson present at Treasury; upon its being mentioned at sentry but Wilkinson named Bamber as a prior applicant, then I said as I did not know Surveyor General's arrangements respecting it I did not like to give him possession; at that time no one knew how long the Surveyor-General was likely to be out; and Mr. Frankland did not return until about the 26th Nov; recollect a long order published by Lieutenant-Governor announcing termination of expedition; looking at this order enables me to say I believe Surveyor-General arrived on 26th; did not know until within last month of that letter of 2nd Dec. being written by Mr. Moore to Surveyor-General; Surveyor-General not in habit of communicating such things to me; have since read it; had I known of it I should have considered it a full redemption of Mr. Moore's claim; I was in charge of department during absence of Surveyor-General on the line; I have here the Hobart-town plan; it does not show that any part of the Belvidere allotment would have been appropriated in any other purposes than private selections; crown land open to selections; prior to December I never saw a plan shewing the land where that allotment was [m]arked off for other purposes; there is a plan showing appropriation of land near it; this is the plan I speak of; on the plan amongst the office papers, part of the allotments from the Crescent would have been partly suburban and partly town; that would have been utterly irreconcilable with the regulations on that subject; this red line on the radiated plan is the line dividing Hobart town from the suburbs, and this triangular piece of land adjoining the creek is Belvidere; all the fences represented on this plan were up at the time I went on the ground; pointed out to Mr. Moore the allotment of being wholly within limits of town; the ink lines on the town plan shew a complete street between the front of the allotment and the crescent; plan constructed in 1829 by Seymour; in showing Mr. Moore the site for his house, I referred to its being so situated as to overlook the crescent; I was not on the ground after the time when Hackett was present I was there on 3rd Nov; it must have been a day or two after this that I ordered Wilkinson to draw the line.

Re-examined - I should have considered had I seen Mr. Moore's letter of 2nd Dec. that he had redeemed his pledge; I do not know that this letter was written by Moore at request of Surveyor-general in explanation of the manner in which he obtained possession of the allotment; Have seen letter of late Surveyor-General of 7th December, 1830 to the Colonial Secretary; first saw this letter on Thursday last; saw a copy; the letter of the 2nd December herein referred to is that referred to in Mr. Frankland's letter as reserved for powder magazine, as meaning Belvidere; I believe that meant the piece of land referred to by Wilkinson as that of which he had put Moore in possession near Rayners; I have read decision on case; it was referred to the land board; I was examined; Moore not before board when I was; don't know whether he was there at all; knows that Moore was again put in possession by Surveyor-General; that was the Belvidere allotment; don't recollect when that was; subsequently to reference to Land Board.

Joseph Morgan, is Chief Constable of this island; recollects early part of November 1830, when black war commenced; knows plaintiff, recollects being present with Mr. Moore and some gentlemen connected with Survey Department; I was on guard at the main guard; recollects Moore asking Wilkinson in front of main guard to measure his allotment; Wilkinson replied he could not do it without instructions or directions. Mr. Moore said he would fence it in, that is all I recollect; can't fix the date.

The Attorney General then addressed the Jury to the following effect:- Gentlemen of the Jury, I am happy to inform you, that this singular trial, so important in principle, and so interesting in detail, is at length drawing to a conclusion. After the facts which you have heard detailed in evidence, it will be your duty calmly, and dispassionately, to consider your verdict, and I think that I can venture to congratulate you upon the absence of all difficulty and doubt which characterizes this case, or is at all likely to impede or retard your deliberations. A more plain, a more simple, a more satisfactory case never devolved on a jury to determine. The question for you to consider, is, whether you are satisfied the plaintiff in this action came into the possession of the Belvidere allotment, in the first instance, by dishonest, unworthy, and crooked means. An attempt has been made to preclude me from observing upon the whole merits of the case, but I contend before His Honor, that as I have a right to advert to the letters put into evidence, I have also a right to observe upon them in reference to their hearing upon the whole question. I will first proceed to the letters which have been put in in reply, and in referring to that of the 17th January, you will find that there are certain circumstances connected with this case, which merit your attentive consideration; for if you believe Mr. Moore, either Wilkinson, whose testimony you have heard, must be perjured, or Capt Boyd, who has so long, so ably, and so meritoriously filled the office of Deputy Surveyor-General, must have been most egregiously mistaken. But then there is the decision of the Lieutenant-Governor, that Mr. Moore had acted most improperly in this transaction, and Mr. Moore complains of the imputation, forsooth, because he was not in possession of the evidence against him, and because he was unable to offer any excuse before the Land Board, on whose report the Lieutenant-Governor acted. Hence have we the indignant comments of Mr. Moore and I presume it will be this day made the subject of declamation and remonstrance, that a gentleman like the plaintiff, should have been crushed and annihilated by the united weight of government, and been pitilessly deprived of that, which he had so honorably got possession of, and so manfully struggled to hold fast. He had not even doubts - there was no hesitations about him - but he had "strong recourse to conjecture" - that he could prove by distinct and specific evidence - that the charges against him were "buttoned on wilful misrepresentation." These were his words in a former letter upon this very question, and how has he now redeemed his pledge - not before a secret tribunal - not where Mr. Moore is not allowed to be heard in his own defence, but in an open court of justice, and before a jury of his country, to whom he has solemnly appealed? Has he established his proof fully to your satisfaction; or do you believe Wilkinson? If you doubt his testimony, it cannot be from any great discrepancy in his evidence of Saturday, and his former written statement. Mr. Stephen has exhibited letters and documents which I have learned, for the first time, this day, were in his possession; but he has, in the exercise of that discretion which so much belongs to him, consigned the greater portion to the safe keeping of Mr. Allport's hat. (Laughter.) I do not find that the statements of Wilkinson are materially shaken. Is it because, that at this distance of time, he does not immediately recollect the day on which such an occurrence in the present history took place, or because he gives a somewhat different account from that exhibited in his written statement made so long ago, are you therefore to disbelieve him altogether? Your experience will teach you, that it is impossible two accounts, after such a lapse of time, could exactly correspond in all particulars. Such minute evidence is not always above suspicion. Mr. Moore tells you, he has strong reasons to conjecture, that those persons who have prevailed against him, are guilty of misrepresentation - that the documents on which the decision against him is arrived at are bottomed on wilful misrepresentation. There is a delicacy - a refinement of language about his powers of conjecture, that his other productions - if we except his communications to the Lieutenant Governor - are seldom characterised with, yet, "the spirit of truth," he evokes - a very different one, by the bye, from "the evil spirit" to whom he consigned the veracity of my client, and whom he was henceforward supposed to consult - has prompted him to impugn the justice of the award against him, and by what distinct evidence has he rebutted the charges, and what is there in that evidence to prove these allegations were bottomed on wilful misrepresentation? That statement, therefore, falls to the ground. Is there anything in Captain Boyd's testimony, from which you can draw any such conclusion? On the contrary, contrast the testimony of Captain Boyd, and Mr. Wilkinson, and how are you to impugn their evidence? It can only be done through Mr. Hackett, and he has not been called. That, I admit, is no fault of the plaintiff's for he was as anxious as ourselves, that he should appear. But it does not follow - non requitor, that Mr. Hackett's testimony, if offered, would go to shake that tendered on the part of Captain Boyd, or Mr. Wilkinson, the latter of whom must be perjured, and the other grossly incompetent to discharge the duties of his office. If Captain Boyd, or Mr. Wilkinson, are alluded to, I have a right under the limited powers which I possess, to advert to their testimony, and to see, how far it bears out the assertions of the plaintiff. But I ask whether or not, it becomes him to dispute or impugn their evidence and I confidently appeal to you, if he has at all succeeded in overturning it? What has he offered in explanation, or vindication of the circumstances, attending his gaining possession of the allotment? I do not object to a jury to try this case, but I submit that the investigation attending all the circumstances, could better have been entered upon by a different tribunal. I say it is utterly inconsistent with your province as jurymen, to arrive at a satisfactory conclusion in this case, considering the nature of the difficulties by which it is surrounded. Looking to all the circumstances of the case, it were far better that the question should have been tried elsewhere, than have been brought into a court like this, to be trammelled, and bound by the technicalities of law, a strict adherence to which, as my Lord Bacon remarks, though framed originally for the sake of preserving equity, "frequently eats away the spirit of justice," And I contend, that this was not the proper place for deciding upon his merits, from the necessity of having recourse to documentary evidence, the like of which was never before received in a court of justice. I have allowed a statement to be put in, utterly disconnected with the immediate question, as an answer to the evidence of Mr. Wilkinson. I have done so, because I am anxious, that every facility should be given for the furtherance of the ends of justice, and I did not therefore object to so unusual a departure from the strict  terms of evidence. In this letter Mr. Moore talks of his "painful feelings" on the Lieutenant-Governor's decision, and has recourse to an extraordinary estimate by which to determine their full extent. He feels not the full weight of the decision in his capacity of a gentleman - that would be by far too indifferent a standard by which to measure his grief - but the climax is of a much higher order - he rises by gentle graduations to the very submit whence his hopes are so suddenly, so fatally, cast down from the position in which his acknowledged public services have placed him - the avowal of which by the Lieutenant-Governor, calls down a tributary effusion from his pen, ("with pride and gratitude I own it," says Mr. Moore.) I say that he feels the effects of the decision, not only as a gentleman, but as - an emigrant. At home, gentlemen, his feelings would not have been half so keen under similar circumstances, but here he feels it as one of the severest censures that can fall upon man. In the concluding part of the letter, he says, he will establish "the purity of his intentions," &c., but it was open for him here this day to have established that in evidence, more clearly even than Mr. Moore's own words can make it apparent to your minds. The next letter I refer to is that of the 15th February, 1831, addressed to the Colonial Secretary, Mr. Stephen would have you infer, that among the correspondence existing between the Surveyor-General and Mr. Moore, there is evidence of an angry quarrel having taken place between those two gentlemen, and it is to this that all Mr. Moore's difficulties are to be traced. All who have known the late Surveyor-General - that much lamented and most amiable man - will unite with me in believing, that if any quarrel did exist, it must have resembled the well-known one described in Juvenal, that where you strike I alone am beaten -

"Sirixa est - ubi tu pulsas, ego vapulo tantum"

and that the anger and the violence belonged only to Mr. Moore. But Mr. Stephen still endeavours to impress upon your minds that there had been an angry and prolonged controversy, and that it had become disagreeable to the Lieutenant-Governor, and that in order to get rid of it, he said to Mr. Moore - give up the land and you shall be reinstated in it - only let this quarrel between you and the Surveyor-General be at an end. The plaintiff's excuses are, that want of memory must have led him into such error upon the subject, and that the whole statements that have given rise to this particular doubt, are entitled to that "latitude of construction" which memorial statements ought generally to receive. But what says Mr. Moore? He acknowledges, certainly, and confesses it with pain, that the unequivocal and gentlemanlike bearing exhibited by the Deputy Surveyor-General upon the occasion, rendered it disagreeable to him to arrive at a different conclusion as to the act of possession by which he had obtained the property in question. But I submit the question to you - whether that act of possession has been fully established? Can it be established by the facts detailed to you in the evidence of Captain Boyd going forward, and in the simplicity of his nature, adopting that ready process of obtaining land suggested by Mr. Moore, and fulfilling the necessary obligation? Gentlemen, I am sure you will know how to appreciate that, and estimate at its proper value, the expression of Captain Boyd, even though accompanied with the delivery of a rush, upon which so much stress is laid, namely - "there's your sod, and there's your twig." Why did he not ask for a ticket of location of the exact property in question, which has received the sanction of the Government, and in the general mode adopted in this country? (Mr. Stephen having here betrayed a desire to interrupt the Attorney General, the Chief Justice remarked that he thought the Attorney General had a right to show how far Mr. Wilkinson's evidence bore out his own case.) The Attorney-General proceeded - With respect to the official papers brought to bear upon this trial what further light have they thrown upon the subject as regards the plaintiff's case. I defy them to shew by a single observation, that the act of possession was implied - that it gave Mr. Moore possession of the land (Mr. Stephen said there was.) Nothing, said the learned gentleman, beyond the design passing in Mr. Moore's own mind, which I make no doubt, were venturous enough to indure him to hold that opinion. There is a letter of the 17th January, on which Mr. Frankland calls on Mr. Moore to substantiate certain charges against his (Mr. Frankland's) department. There is a passage in that letter referring to Mr. Moore's assertion - that the possession was absolute - made, in the presence of the Lieutenant-Governor, which clearly proves the contrary, and is opposed to the positive declaration of Mr. Moore, that the giving it up was voluntary, which you endeavour to maintain. There is the answer to that letter (Mr. Stephen said it was in the withdrawn correspondence.) He had no doubt his learned friend had good reason to withdraw it. The letter of Mr. Frankland stated that if any subordinate under him could be proved to have given possession of land that he would recommend his immediate removal from office. There is the memorandum made by Mr. Wilkinson one month after the transaction which is more likely to be right than his evidence before you after such a lapse of time, and became in two or three circumstances upon a cross-examination his testimony was not consistent, or in entire concurrence with his written statement, is he therefore to be looked upon as utterly mistaken in the whole, and is his testimony to be disregarded? And I beg your attention to the statement. Wilkinson states he put Mr. Moore in possession not of this Belvidere allotment, but of the other piece of ground, that having seen Mr. Moore and spoken of the contemplated difficulties from the priority of Rayner's right, he had gone to the Colonial Secretary's office, had seen Mr. Emmett, and fully satisfied himself that Rayner had no claim to the allotment, and upon the same day he put Mr. Moore in possession. You have the statement of Mr. Frankland as to the selection of this piece of ground which was appropriated for a powder Magazine. But it seems a most monstrous discovery, a fatal one as regards the interests of my client - he has no longer a leg to stand on - that the Surveyor-General should have made a mistake about the uses of this piece of ground, and said at the Colonial Secretary's office, that the claim of Rayner being got over, he saw no objection to Mr. Moore obtaining possession. This it is that is to destroy Wilkinsons testimony. It appears according to Wilkinson he had never put any one in possession of land by the direction of the Deputy Surveyor-General and yet it seems he put Mr. Moore in possession of this allotment. I ask you to recollect the whole circumstances of the case with a view to reconcile their apparent inconsistencies. He told you he knew there was a claim on the part of Rayner, that the objections were weighed by the Deputy Surveyor-General, and that in putting Mr. Moore in possession he was only executing a previously expressed intention on the part of the Surveyor-General. If you find, gentlemen, one single statement in the memorandum, and I have been unable to discover any that is not easily reconcileable with Wilkinson's evidence - and I can only say that I have attended with the greatest care, patience, and anxiety to the whole of the case throughout, and I have no recollection of a single instance wherein he swerves much from his original account of the transaction - if gentlemen, you find any such example, that argues more than is consistent with that difference which such a length of time is always sure to occasion, you will give the plaintiff all the advantage he can derive from such a discrepancy. But if not, and that you do not make this grand discovery, how does the case stand? We have asserted that he has been guilty of falsehood, and that he has resorted to dishonourable means to procure the Belvidere allotment, and if you believe Mr. Wilkinson's evidence you must agree with me that our plea in this respect is fully and satisfactorily established. There is a letter of the 24th December, which has been put in evidence, and I beg to call your attention to the contents, and I ask you confidently, how to you reconcile that letter with the testimony of Captain Boyd or Mr. Wilkinson? Assuming that he was put in possession, that the rush and the sod was to arm him with an authority over the allotment, whence nothing short of actual force could reject him; - how do you reconcile this tenacity of his with his statements made before Captain Boyd? That gentleman has told you that the only security he had for the redemption of his pledge to give up the land, - should the Surveyor-General, or the Lieutenant Governor disapprove of his retaining it, was his promise, made at the time, that under such circumstances, he would at once abandon his claim. And in that respect he has been confirmed by Wilkinson only with the exception of Bamber's claim, but at all events he gives you a reason, dependant on the approval of the Surveyor-General, which was the occasion of his giving this qualified possession. Now I would have you attend to the letter of the 24th, for according to that, either Wilkinson or Captain Boyd, or Mr. Moore has told a falsehood.  I say that Mr. Moore has stated that which is not true, unless his statement he borne out by something more than he has offered here this day - some document (Mr. Stephen here interrupting the Attorney General said that he was bound to confine himself to the evidence given in on his part) will then I well put it in a different way - unless I say there is something on the opposite side - some evidence to prove that Captain Boyd and Mr. Wilkinson are mistaken - unless you find some document - I don't tell you to look for it, but peradventure should you discover one, should you haply meet with any commentary reflecting upon this matter, you will then come to the conclusion that Captain Boyd and Mr. Wilkinson are greatly and grievously mistaken, or Mr. Moore must wilfully and deliberately have asserted that which was untrue. I put it in that way, and apprehend that this proceeding is at least unobjectionable. The first letter is of the 26th February, and the location order is attached to it. This is another proof if any were wanting to show that Mr. Moore regarded his possession as of a doubtful character, notwithstanding his expressions of extreme gratitude to Captain Boyd for trying to put him in. How comes it to pass - whence arises it nude derivatur, as Mr. Moore would say, that the gentleman who is so solemnly inducted into the possession of the territory - with all the circumstances attending that old habit already described, who is installed with a rush and solemnized as the proprietor with a clod of earth - who fences in the allotment to which no objection is made under the authority of this custom, which is so much more powerful than a location order - how does it come to pass, I say, that where there is such security against aggression from all sides, Mr. Moore suddenly discovered it wont hold water? And why does he find that this ancient tenure by which he holds, and in consequence of which it is impossible to dislodge him, proves of so little avail on the 26th February? Why did such a sudden "change come o'er the spirit of his dream" that upon that day he appears a humble visitor at the door of the Surveyor-General, rendering up his inalienable right? How can you reconcile it with his known possession upon which so much stress and importance is laid? How do you make it agree with the former language of Mr. Moore in addressing the Lieutenant-Governor, impugning all and every one, and indignantly declaiming against have been sacrificed unheard - of having been the victim of wilful misrepresentation? Yes you find in this resignation of his, there is a vein of irony in which Mr. Moore so much loves to deal, easily to be traced beneath its deprecating tone, and assumed humbleness. With all possible reverence for the attributes of the supreme power, Mr. Moore abandons his claim. "I resign it, says Mr. Moore, of whose disposition to retain you have had already abundant proof - with all that vigour of mind and activity of body which so much distinguish him - with his singular powers of exertion - would have abandoned possession so easily, unless he had discovered that he had obtained it in a manner not altogether regular - that it began to be suspected he had waited purposely for the absence of the Surveyor-General and then appealed to the benevolent nature of Captain Boyd, who with a rush and a clot of earth made him temporary possessor. He began to find that the dexterity was too apparent - that there was too much of what Lord Bacon calls "left handed wisdom" in it - that even with all the documents reserved in the hat, it was not likely to conduce much to his honour. Then and then only gentlemen, did he surrender the possession. I had forgotten in my former address to you, to allude to the third count in the declaration; but it is not very important, and you must be fully satisfied, gentlemen, that the letter upon which the charge was founded imputing "mendacity" to the plaintiff was never intended for publication. You have the testimony of the proprietor of the Colonial Times to this effect. I am aware that I have no right to enter upon the merits of the whole question - that it would ill become me, holding the office that I do, even with instructions to that effect, which I have not, to question the policy or the wisdom which dictated Mr. Moore's appointment, pending this inquiry, and which has inducted my client to resign the commission of the peace, after his offer for a board of inquiry, to be appointed by the Lieutenant-Governor to investigate the whole matter was rejected by Mr. Moore - I have nothing to do with this - only that I beg you to bear in mind, that such an offer was made and that another has been made this day, the fairness of which none can question. I make this statement, because I am sure that whatever decision you arrive at in this case, involving a question of character coupled as it is with such a mass of documentary evidence which ought never to have been brought into a court of justice, as his Honor has already told you, can not be satisfactory to yourselves. The imputations are of a severe character - that Mr. Moore, by means the most unworthy obtained possession of the Belvidere allotment, and that in endeavouring to retain it, he had recourse to the most dishonourable subterfuge. I think the pleas are fully established - I think that we have succeeded in every respect in working out our justification; but it is for you, gentlemen, to consider your verdict without favour or affection; and if you are of opinion that we have proved our case you will find for the defendant; if not, you will return a verdict for the plaintiff.

Mr. Stephen then proceeded to address the jury for the plaintiff. He said, I am happy, that at last, the lamentations of my friend are concluded. He has lamented and deprecated in the most plaintive strains, the extreme hardship of his situation, in being obliged to confine his observations to the evidence given in, and that he should not be allowed to speak to all eternity. He occupied two hours and a half of your time on Saturday, to-day however, he has with more modesty limited himself, but it was partly owing to compulsion to one hour and a quarter. He has indeed the most unabated confidence in his own powers of speech, and if allowed to exercise them at will, we should, I am persuaded gentlemen, never arrive at a conclusion. I listened, on Saturday, to the address of my leaned friend with great pleasure and amusement, not to say instruction. It was amusing, entertaining, and in many parts eloquent, and abounding in that sarcasm which so much distinguished my learned friend's style. But I must say, with reference to the peculiar merits of the case, the modicum of bread was in an extreme inverse ratio to the large proportion of sack in which it was diluted. It was exceedingly learned, no doubt, and full of illustration, but yet my anxiety perhaps to bring this trial, which must have been tedious to you, to a termination, made me rather uneasy under the infliction of so lengthy an harangue, for in addition to the privilege of hearing I should have esteemed it a far greater one to have been permitted to go to sleep. But I was compelled to listen, and I confess I derived much amusement and joined in the general laughter in which all seemed to participate with so much pleasure. All laughed, particularly at the ridicule endeavoured to be cast upon the plaintiff for his exaggerated style, which comes with a bad grace from the other side, considering the country of Mr. O'Connor, of which Mr. Moore has also the fortune to be a native. The plaintiff, gentlemen, abounds in metaphor, and being occasionally broken, and rather unhappy, his style of writing has excited the merriment of my learned friend. The defendant has no right to claim any superiority over him in this respect, for in the correspondence that has passed between them both, Mr. O'Connor has not been sparing of the figures of language, and certainly not of abuse. I do not know to what to attribute this particular desire to shine on the part both of the plaintiff and the defendant, but that they both happen to spring from the Emerald Isle, and thought the inheritants of that country may be less cultivated in the graces of literature, and the style of composition than the more fortunate natives north of the Tweed, with whom my learned friend may perhaps claim some affinity, they are at least superior to them in the flights of imagination. Mr. Moore has introduced the simile of the cuttle fish in this fervid spirit, and has been visited with ridicule in consequence. Why, gentlemen, there are many graver instances on record than the simple elegance expressed by 'the cuttle fish - discharging inky matter from his pen', which are attributed to Mr. Moore's countryman. In the Irish House of Commons Sir Boyle Roche deprecated the idea of any one being in two places at once "barring he was a bird" - (Laughter) Is the cuttle fish worse than my Lord Castlereagh, speaking of "the main features on which the case hinged". And then there is another specimen exhibiting a practical want of charity, almost unequalled and which, if I mistake not, my learned friend has before quoted. It represents an unsuccessful appeal to the feelings - "you shed tears like a crocodile, keeping your hands in your breeches pockets the whole time" (Laughter.) A more unfortunate instance is related of a distinguished Judge upon the bench, in the delivery of a solemn sentence, addressing the prisoner at the bar, in some such words as the following:- "You watched your victim until he turned down a lane, and there you stood behind a tree, waiting for him like a serpent with a blunderbuss under your arm." (Laughter.) It will be perceived from these specimens, that Mr. Moore's figures are cast far into the shade. In order to enable you to arrive at a proper decision in this case. I would have you go into the whole correspondence that passed between those two gentlemen, and see if my client merits being charged with writing in a style worthy only the swaggerer, and the bully. The question has been asked more than once, and indeed I am astonished they should ask it - who commenced this correspondence first? I'll show you the best way of arriving at a conclusion with regard to this point. Which is the letter - for Mr. Moore's refers to something preceding - that has given rise to this question - and out of which Mr. Moore's springs: Does the stream flow to or from its source? Are they speaking of a prior note addressed to Mr. Burnett, which was published far away, and without Mr. Moore having the means of controlling or preventing its publication? And is not Mr. Moore to be allowed to answer the private communication of a friend, without being dragged forth in the public prints, and his fair name and reputation tarnished? Mr. Burnett published the note alluded to without his sanction. Have they, gentlemen, succeeded in tracing it farther back than this, and where was the warrant for the language used by Mr. O'Connor in commenting upon this note? Mr. O'Connor's letter is the commencement of this correspondence, and here you find the observation containing[?] direct imputation on the veracity of this conversation," writes Mr. O'Connor, "I have no recollection" - had he stopped here none could have complained, but he goes on to say -  "it is not probable, he could have made such a statement, as it was directly contrary to the fact, being at variance with the documents he produces. Let any man read this dispassionately, and then determine for himself, whether or not it does not convey the meaning that Mr. Moore had stated that which is not true, nor could be true. You heard the evidence of Mr. Bedford to that effect. I paid no compliments to his intelligence - it is the Attorney-General that has acknowledged that. I submit to you most confidently whether it does not convey a direct imputation of falsehood. Much stress has been laid upon the reply of Mr. Moore, but I shall only allude to such parts as I consider material to the issue of the controversy. Mr. O'Connor is charged with "want of recollection," which does not carry with it any great degree of offence; and Mr. Moore, by bringing the conversation of his mind, which Mr. O'Connor said never could have taken place, meant to refresh his memory by reference to certain particulars that had occurred. I appeal to you if there is any offensive allusion, contained in that paragraph. There is no other way of answering what an opposite party denies, than by reference to past circumstances which may serve to awaken a long dormant memory. A good deal has been charged upon the ironical expression of my client in imputing to the defendant a "convenient flexibility of memory," but is it not what would occur to any of us on our statements, in which we have all the confidence of truth, meeting with a most full, and flat denial? You deny certain principles - you dispute my premises - you say that such a conversation never could have taken place, and I join issue with you upon that head, and, I shall endeavour to refresh your memory which appears to have such a propensity to incline circumstances and facts according to its own peculiar cost. At all events there is nothing in it which calls for the strong replication of Mr. O'Connor - it is mild and moderate language compared with the charges of the defendant. Mr. O'Connor says "Mr. Moore prides himself upon his standing for veracity: but I shall show its worth, and whereas he has asserted it was £400 that I gave for the ground. I now publish to the world that it was £1000" Dies not this carry out the previous insult? - does it not confirm the intention of that fault and fully bear out the construction that it first received? Mr. O'Connor says for your proof if it consists in notes of a private nature, publish them to the world - I set you the example by here inserting one of your own, wherein you complain that you are distressed to pay your baker's bill. The defendant denies that he was ever upon such terms with Mr. Moore as to justify him in speaking of his private affairs to that gentleman, "even by the most remote allusion." But why should Mr. O'Connor fire up at the mention of lot 32? There was no invidious allusion to the mode in which he had gained possession, and I cannot understand why he should construe any thing to Mr. Moore's letter to his prejudice upon that question. Mr. O'Connor evidently feels very sore upon the subject why or wherefore I cannot pretend to determine. A reference is made to it - it is merely introductory to the dispute between them - it is quite an inoffensive allusion, and yet Mr. O'Connor appears grievously annoyed. It is this that rankles in the mind - it is this that prompts him to challenge expressed in his letter - he dares the accusers to come forward - he deplores their insinuations. But where is the accuser, and who is it that has insinuated any thing against him? Goaded by the imaginary wrong, that he had conjured up in his own mind, he turns round upon my client, but makes no incidental allusion or inoffensive reference to a particular circumstance, but intimates that he will enlighten the public some day upon the manner in which Mr. Moore obtained, and retained possession of the Belvidere allotment. The italics are Mr. O'Connor's own, and meant to convey a good deal more than meets the eye. Mr. Moore says we are now at issue upon a matter of fact - I begin to remind you of certain circumstances bearing upon the question - You deny that you were upon any such intimate terms with me as to justify me in alluding to your private circumstances with which you never could have informed me or spoken to me about. What? - have you not written to me on such and such subjects, which I shall bring to your memory now, I have your persuasion to publish any notes in my possession - have you not acknowledged that I kept you out of the hands of the Philistines - meaning I suppose thereby the hands of the Attorney General says, that Mr. Moore must be a very simple hearted man to conceive that when Mr. O'Connor addresses him upon such subjects and in such friendly terms, he is at all intimate - that such letters were no proof of intimacy at all - he ridicules this idea - but that his client had bespoke Mr. Moore's friendship for money's sake alone, and to save him from the temporary inconvenience and interposition of the law. What a soft hearted creature says my learned friend, must Mr. Moore be, to consider that such communication justified the notion of any intimacy existing between the parties. Yet Mr. Moore was fool enough to think they did argue something of the kind, and in the simplicity of his heart published them that the world might judge how much or how little he was mistaken. These notes referred to lot 32, "I have done with Mr. O'Connor" writes Mr. Moore in the concluding part of his letter - "he shall not again provoke me, (and had Mr. O'Connor at all confined himself within any proper limits, he would, no doubt, have kept his word) "mindful that he who contends with sweeps is sure to be besooted" (Laughter.) I admit, proceeded the learned gentleman, that this is not a very elegant comparison, but it is too ridiculous to be offensive. Mr. O'Connor, and every one else who read it, must have laughed at the time. But inelegant and uncomplimentary as it appears to us, it is as lavender-water - as mild as milk to the streams of abuse which he pours down upon the devoted head of my client. The idea of the sweep is only ludicrous and I know not how it can apply to Mr. O'Connor except as a sweeper in of land. The learned gentleman then proceeded to comment on the letter of the 28th July, after which he proceeded - If Mr. O'Connor is to aggrieved at this allusion to lot 32, why has he not brought his action - why is it that Mr. Moore comes into court this day? It is because the defendant has not brought an action - it is because there is no opportunity given to establish any thing in evidence, that the plaintiff comes before you to rebut the serious allegations subsequently made against him. I say that the means are now open to Mr. O'Connor for a successful investigation of the circumstances attending lot 32, about which he seems so particularly distressed. I have proceeded through the correspondence and you will agree with me in thinking that the fatal allusion to lot 32, is the source whence springs all the bitterness of controversy which Mr. O'Connor first began. It is now before you and you can judge for yourselves according to the facts which have been stated, and the testimony adduced whence sprung the commentary of his controversy - whose were the insults and to whom is to be imputed the gravity and the seriousness of the charges made. The whole of the libel contains charges of the grossest kind, and conveyed in the most offensive language, and it is for the injury thus inflicted upon his character, the plaintiff having no other remedy now comes before you, to seek that redress which you may deem commensurate with the wrongs he has received. There is no justification shown or attempted to be shown to the libellous character of the defendant's productions - nothing to prove that he did not originate the injury and the insult, and unless you establish the plaintiff's character at an amount of damages proportionate to those laid and the injury he has sustained in his reputation, you will do him little less than a positive injustice (The Attorney-General having intimated to Mr. Stephen that he might just as well, for the information of the jury, mention the amount laid Mr. Stephen proceeded) - Mr friend, the Attorney-General has said that I might as well mention the amount of damages laid in this action. They are 5000l. gentlemen (An expression of mute amazement was here plainly visible upon the countenance of the gentlemen of the jury.) The damages cannot be small, under any circumstances even independently of the aggravation added by the justification which has been pleaded. And I now approach that, gentlemen, and you shall judge for yourselves what value is to be attached to it, and whether it does not rather inflict an additional injury on the defendant. It is not denied that the allusion to the Belvidere allotment was meant to imply something dishonourable on the part of Mr. Moore - that is in effect conceded, and the construction it has received, is acknowledged to be correct. The defendant says - you are quite right in the inferences you have reduced from the expressions made use of - I mean to contend, and to plead in my defence, that you must have been bereft of one situation and placed in another, you shall, if I succeed, to be also deprived of that, And I do maintain, gentlemen that such it will be in effect, for this attempted justification being made out, I tell Mr. Moore to walk out of this Court, and no longer appear in the open face of day - you are disgraced and ruined - lost to society and its benefits, and that you had better betake yourself to some remote spot where you can conceal your shame, and brood in solitude over your fallen state. But if not, gentlemen - if you should not believe this justification - and I need not tell you that every title should be proved to make out the defendant's case  - what is the reparation you can afford to the wounded honour and character of the plaintiff? What amount of damages can compensate a man for such dreadful wrong? You, gentlemen of the jury, or any man of honour, would never, for any amount of damages, laid down, submit to have his reputation, which is above all price, thus tainted and lied away. The pleas, which are numerous, I cannot pass over with that ridicule and sarcastic wit, with which my learned friend has handled the correspondence. They contain serious charges, and are only to be sustained and met by positive evidence. It has been imputed to me, that I have gone through them with the habitual accuracy of a pleader, but it is my duty to be accurate, particularly when the occasion is of so grave and important a character. It is for you then, gentlemen, to judge how far they appear to you made out. It requires but little ability, to be enable to discover that they fall in many particulars, upon which I am entitled to call for your verdict. With reference to the Surveyor-General, I admit that he was the proper man to apply to in the first instance, for obtaining an allotment of land. But when out of town, an applicant is not surely bound to avail his return - so uncertain, too, as it was in this particular case, and I contend that the Deputy Surveyor-General was the right and the proper officer to whom all parties were entitled to apply. I submit this with great confidence to your judgment, for if the regulations are of so minute a character, in the absence of the Surveyor-General, they are not to be construed to the prejudice of my client. The second allegation sets forth that Mr. Moore applied for this allotment, and was refused, on the ground of its being appropriated to other purposes. There is no such evidence offered by Wilkinson, on which you can come to any such conclusion. He did undoubtedly, give evidence to this extend - not that Mr. Moore applied for this allotment, and was refused, on the ground of its being appropriated to other purposes. There is no such evidence offered by Wilkinson, on which you can come to any such conclusion. He did, undoubtedly, give evidence to this extent - not that Mr. Moore had applied, and been refused, but said that he had done so twelve months before. That rests on the single testimony of Mr. Wilkinson, which is contradicted by Mr. Moore, in the correspondence that subsequently ensued. It is not as the Attorney-General would have you believe, that in minute particulars Wilkinson's evidence differs from his written statement made at the time, but it is diametrically opposed in the most essential matter. (The learned counsel here proceeded to point out the discrepancies between the original statement which Wilkinson had made, and the evidence he had given before the jury) He says that the Surveyor-General had given him authority to put Mr. Moore in possession of the triangular piece of ground, when the direct contrary is expressed in his written statement. It is utterly inconsistent with his evidence, and differs as much as light from darkness. And are you, gentlemen, to cast an imputation of falsehood and dishonour on my client - to fit an endless stigma on his character on the testimony of a man who has upon these material points so flatly contradicted himself. You have his own words in evidence that such is the case and if you find he cannot on the main features bring his recollection to correspond with his written statement, how are you to believe him in the other particulars of detail? It is not evidence upon which you would convict a man of the lowest and most marked character, and is it on such testimony as has been given by Wilkinson you are to find my client, who has hitherto borne an honourable character, guilty of actions which must degrade him for ever in the estimation of the world. I pass on to the 7th allegation, by which it is pretended that Boyd and Wilkinson had given Mr. Moore illegal possession, and that he was compelled to abandon it - that, in fact, he had taken possession against the consent of government? Who and what is the Government? It is an idea of the mind by which we comprehend not one but may individuals. Who is the proper officer in the Survey department in the absence of the Surveyor-General to whom to apply except the Deputy Surveyor General and if Mr. Moore had his consent, how do they succeed in making out their allegation? It is not denied that the possession was a qualified case - I admit it was conditional - I agree that though a possession it was not an absolute one, but it was nevertheless a possession such as failing the performance of the contract on the part of my client. It would be exceedingly difficult to disturb. But the allegation goes to this length - that he falsely asserts and wickedly affirm that his possession was a proper and a legal one. It is not that his possession was wrong - that is not the imputation - you must find this or nothing - that he falsely and wilfully asserted that which he knew to be untrue - not that he acted irregularly, but dishonourably. I contend for the inevitable construction which this must receive at your hands which Mr. Moore put on it, and every one else must see is correct - not that he did it in error, but whether he has disgraced himself forever - whether he is in fact, and to use no metaphorical paraphrase, a convict liar. I will state the facts accurately, and I defy contradiction. I will prove triumphantly that the construction put upon it is the right one, and at which ninety-nine out of every hundred must arrive. After some further comment upon this head the learned gentleman proceeded - I quarrel not with the testimony of Captain Boyd - by that I am prepared and determined to stand or fall. He told you he did not mean it as absolute possession, but Mr. Moore did take it in that sense. The Attorney-General had commented upon Captain Boyd's gentlemanly desire to assist Mr. Moore, but that he (Captain Boyd) was unable to penetrate the deep design of my client - I leave that for your consideration - I am quite satisfied that the evidence of Captain Boyd will assist you in arriving at a just and equitable conclusion.  The memorandum of the Land Board has been spoken of as another proof against my client. But why should you condemn a man in the dark? Mr. Moore had no opportunity of knowing or refuting the charges against him, and by means of which the report was unfavourable to his claim. He was not present before the Board - he wrote a letter, in which he states, "I have given the facts and shall be happy to attend upon the Board to meet my accusers face to face." The Surveyor-General was a member of that Board - it was like an appeal from himself to himself - my client's statements were not taken into consideration and he was condemned unheard and in his absence. How could he know of any reports to his prejudice - of that which never had been communicated to him? I do not complain of the Lieutenant-Governor's decision - it was but natural it should have followed the report of the Land Board, but it is of Wilkinson's evidence that my client justly complains. He hears there was an allotment vacant - he makes application for it, but finds it is applied to other purposes - he gives it up - he hears of this Belvidere allotment and applies for that in the absence of the Surveyor-General. His anxiety in the absence of the Surveyor-General has been remarked upon as if he thought the time was now arrived when he could gain improper possession of that which had been already refused him, as if there was not a most complete answer to that contained in the letter, wherein he says that his landlord had taken proceedings to eject him from the house he then occupied. He was naturally enough anxious to procure a place of residence for himself and family, and this was the motive for his wishing to obtain immediate possession of the ground in question. Why was he to wait for the Surveyor-General when it was exceedingly doubtful when he might return? He goes to Wilkinson, who mentions Bamber's claim to the allotment - he then proceeds to the Deputy Surveyor General's who gives him the possession spoken of. There is some slight discrepancy here between the testimony of Captain Boyd and Mr. Wilkinson, but I have no doubt Captain Board is quite right in his recollection of the matter.  As to the qualified possession, the question for you is, not whether Captain Boyd is accurately right, but whether Mr. Moore is flagrantly wrong. Mr. Moore says I did certainly offer to give it up, that is, if Bamber's claim should be discovered to be better founded than mine. The expression, give it up implies a possession, and that at least Mr. Moore thought he had fairly attained. A good deal of ridicule has been thrown upon the process by which Mr. Moore did obtain possession, namely - by the "sod and twig", but you are not aware, perhaps, that by the ancient law of feofment  such was the custom, and this was called the livery of seisin. What right had Mr. O'Connor to impute dishonour to the mode in which he obtained the Belvidere allotment? But, it appears, that he is quite shocked at the benevolent nature of the Governor placing Mr. Moore in a situation to save himself and family from ruin, and it is, therefore, that we have the astounding fact announced - a fact that I am surprised my learned friend holding so high an office under the crown should have permitted to escape him, for I know not how the government can last after such a fatal piece of intelligence gets abroad - that Mr. O'Connor has in consequence resigned the commission of the peace. The government is accordingly at an end. Mr. Moore must therefore be hunted down to gratify the animosity of the defendant. My learned friend has spoken of the appeal to a board of officers, but Mr. Moore has already had sufficient experience of boards from the decision of the land board, to make him somewhat suspicious of their general constitution. The Attorney-General has told you that this is not a fit place to decide the merits of this case. I submit that it is, and that a jury is the most competent body to determine the issue. There is a charge of falsehood and dishonour raised against the plaintiff. You will decide it eternally - you will for ever set it at rest. A jury is the just and the only satisfactory tribunal in such a cause. You have the honour to stand selected impartially from amongst your fellow citizens - swayed by no ill feelings - for you can entertains none upon such a subject - possessing different minds though all equally tending to arrive at the principles of Justice - you are here with no technicalities - no rules of law to interfere in shutting out the light of truth and your decision, whatever it may be, will have a manifest superiority by the estimation of the country over that of any board however impartially constituted. Your verdict, which can never be subject to imputation, will be refuted under the superintendence of an enlightened and educated judge, and if not satisfactory to both parties must prove so at least to the whole community.

The Chief Justice summed up the evidence with great care, and at considerable length, in the course of which he remarked it as a very curious circumstance, that Captain Boyd had never been asked the very simple question, whether or not he considered it to be legal possession, which he gave to Mr. Moore of the Belvidere allotment. He said, that no doubt Mr. Stephen had accurately defined the nature of feofment, but he (the Chief Justice) had yet to learn that the usage extended to king's land.

The jury deliberated until six o'clock the following morning, having retired about tea, when they returned the following verdict:-

For the plaintiff on the first count, damages 40s. For the plaintiff on the second (that of the justification) count, damages 40s. For the defendant on the third count. We find that Mr. Moore had improper and illegal possession of the Belvidere allotment, but we do not think that he had recourse to dishonourable means to obtain it. We find that he was compelled to give up the allotment. The jury also found that Wilkinson did not measure the line to the manner represented by Mr. Moore.

Source: Tasmanian, 22 March 1833[2]

            The particulars of the trial in the action, MOORE versus O'CONNOR, as reported by the Colonial Times, will be found in another column. There are a few points in connexion with this trial to which we shall take the liberty of adverting.

            In the first place, why was it left to devolve upon MR. MOORE to originate proceedings in the Supreme Court? Why did not Mr. O'CONNOR first appeal to a Jury: Some months since, it is well known, that MR. O'CONNOR addressed the Lieutenant Governor, seeking His Excellency's interference, and we believe, suggesting the propriety of bringing the question at issue between him and Mr. Moore, to the decision of a Board appointed by His Excellency. This request the Lieutenant Governor very wisely, and properly, declined to accede to. One would have expected, under these circumstances, from any man who esteemed the justice of a Board, and the justice of a Jury, corresponding values, that he would have solicited the one, on being refused the other. But, from the present case, it would seem that Jury justice is at discount, and Board justice at premium - at least in Mr. O'Connor's estimation; - for, failing to secure the one, he consented to do without the other; - failing to secure an extraordinary, he never thought of appealing to an ordinary tribunal; failing to secure "justice" from a private, he never sought a public enquiry. Slandered and maligned gentleman, he has shewn a becoming and feminine sensitiveness about character, since he could not consent voluntarily to expose it to public question.

            MR. O'CONNOR in the same communication in which he proposed the reference of his dispute with MR. MOORE to a Board, stated that the correspondence between him and the latter gentleman, obviously shewed, that either one or other of them, was unfit to remain in the commission of the Peace; if what he stated of MR. MOORE was fact, then MR. MOOREought not to be continued; if it were false, then he, MR. O'CONNOR, ought to be struck off the list. With a wise fore-sight, not many days before the trial of the cause before a Jury, MR. O'CONNOR resigned! The reason alleged in the Court by the gentleman's counsel, was, MR. MOORE'S receiving an appointment from the Government. But it is easy setting its proper value upon this excuse. Had the Government not given MR. MOORE a new office - having one in its gift - on the functions of his old one, coming to a close, it had unquestionably been doing him an injustice as a meritorious officer of many years' service; it would have been prejudging the dispute between him and MR. O'CONNOR, thereby violating the trite but darling maximum to Englishmen - that every man is innocent until convicted - and this was we say, - Mr. Attorney General McDowell's logic, to the contrary, notwithstanding. For, it will be perceived from the report, that the classic orator, and tinsel logician named, contends that in order not to have prejudged the case, the Government ought to have allowed a ten years' servant to starve - ought to have suspended his services in any and every capacity, and thus have punished him - until he had got time effectually to route a rash, and malevolent, assailant, of his well-earned reputation! There is, then, no excuse, as is pretended, in MR. MOORE'S receiving a new appointment, for MR. O'CONNOR'S retirement from the magistracy. The prudent gentleman knew that the result of the action would condemn him, and that his own invocation bound the Lieutenant Governor to purge the Commission of the Peace of his name, and he politely relieved His Excellency of the perplexity! There lies the secret of the whole, and it was but provoking notice, to throw a flimsy cover over the fact.

Now, for the trial. Mr. Stephen conducted it for the plaintiff with admirable coolness, self-possession, care, and legal perspicacity. He pledged himself to repudiate the use of weapons not strictly demanded by the case, and he redeemed the pledge, as well as could be expected, more particularly, considering the line of conduct on the part of the opposite counsel. The Jury had a difficult task, which they discharged however, with deliberation, and to satisfaction. The following more minute detail than is given in the report contains the results:-

At a little after two o'clock, A.M., the Jury entered the Court and said that upon the question of damages, nine of them were for 40s. and the remaining three for one farthing. Upon the other points the Jury were unanimous, as follows:-

"On the lst and 2nd counts, for plaintiff generally. On the Special Plea, they found that defendant did not take possession of Bevidere dishonorably - although he did so improperly; and they found that his statements to the Land Board were not wilfully false, but made under a mistaken impression."

On the third count they found generally for the defendant.

The Chief Justice said he could not receive that as a verdict; on account of there being no unanimity as to the damages.

In less than an hour afterwards the Jury returned into Court again, when three-fourths returned a verdict of 40s. on each of the first two counts, and for the defendant generally on the third count.

The Jury, as to the Plea of justification, merely said that they found for the defendant as to the surrender on the 18th of January, 1831.

(This must have been under an impression that, added to the previous finding on that plea, their verdict would have been complete.)

His Honor told the Jury that their verdict was incomplete; and that they must return on the Plea of justification either a general verdict, adding any facts they wished to state in explanation; or aspecial verdict, finding all the facts in issue seriatim.

The Jury then retired a second time. Soon after five o'clock, the Jury returned with the following verdict, concurred in by three-fourths.

On the first and second counts for the plaintiff, damages 40s each; on the third count for the defendant.

On the Plea of justification they found as follows:- "That the plaintiff did not (as stated by Mr. Wilkinson) apply for the allotment. - That he was not refused the same as in the plea mentioned. - That plaintiff took possession of the allotment improperly, and without the consent of the Surveyor General or the Government - but not "dishonourably." - That in his statements to the Land Board he was not guilty of falsehood; but that they were made in error and under a false impression. - That Mr. Wilkinson did not mark off the line in order to enable the plaintiff to complete his possession. - That no legal possession was in fact given either by Captain Boyd or Wilkison. - That the plaintiff having illegal possession of the allotment surrendered such possession and abandoned all legal claim to the same. - That such surrender was a compulsory one. - That the plaintiff afterwards applied to have the allotment located to him, and thereupon the same was located accordingly."

The Jury, upon these facts, submitted to the Court whether their verdict on the said Plea of justification should be entered for the plaintiff, or for the defendant.

To render the preceeding intelligible, it may be necessary to explain that the issues raised in the action were the following.

1st. - To the first count, there was the plea of not guilty only. The issue on this was found for the plaintiff.

2nd. - To the second count, also, there was the plea of not guilty. The issue on this was found for the plaintiff.

3rd. - To the third count, also, not guilty was pleaded. The issue on this was found for defendant.

4th. - To the said 2nd and 3rd counts, there was pleaded a special plea of justification in addition. This plea contained the several allegations, which (some affirmatively, and some negatively,) were decided in the special verdict.

This plea, it will be observed, was expressly pleaded in justification of the two charges, "dishonour" and "falsehood." Now, the Jury distinctly negatived both these allegations. Their verdict is therefore clearly for the plaintiff, on that plea.

It will be perceived, that, on these two points, the most essential for the plaintiff, and on which, indeed, his character wholly depended, the Jury were unanimous.

The verdict on the 3rd count was probably found in favor of the defendant, because of the fact, that the publication complained of in that count, was not on the defendant's part intentional.

We congratulate Mr. Moore on this termination of a long dispute. He has completely vindicated his assailed reputation, and established it on the additional pillar of a Jury's unexceptionable verdict. He has substantiated his claims upon the confidence, and good opinion of the local Government, and effectually silenced his enemies.

This trial has interested the public, and engaged our notice, not because of any personal claims which it possesses - or, at all, as a dispute between individuals. But, an apprehension obtained that MR. MOORE was destined as the victim of a system; and hence the re-action of feeling both on the part of the press and the community in his behalf.

In banco, Pedder C.J. and Montagu J., 14 May 1839

Source: Tasmanian, 24 May 1839

            The object of the motion in this case, which was made by Mr. Horne for the plaintiff, was to settle the verdict, which the jury had returned, for the defendant on the second plea of the declaration, which imputed to the plaintiff falsehood and dishonorable conduct. On this plea a special verdict had been returned, to the effect, that the plaintiff had obtained possession of the Belvidere allotment improperly, but not dishonorably, as he acted under error and in ignorance.

            The Attorney-General apprehended that a finding on a special plea was a substantialfinding, and, therefore, in his favour. After some observations from the Chief Justice, Mr. Justice Montagu remarked, that the gist and substance of the plea amounted to the imputation of falsehood and dishonorable conduct on the part of Mr. Moore, the jury found neither one nor the other.

            The Attorney-General maintained that the jury had found one thing, and said another, they found the plaintiff guilty, and said he was not?

            The Chief Justice suggested, that, might not a person take possession of propertyimproperly under the impression that he was entitled to it?

            The Solicitor-General followed on the same side, and observed, that he came into the case unbiased by any prejudice, (prepossession, interrupted the Attorney-General,) but it appeared to him, that the jury, in their anxiety to help a lame dog over the style, had appended a qualification to their special verdict on the 2nd plea, the effect of which was to plunge the "lame dog," more deeply into the mire; The learned Counsel now read over the several allegations,seriatim, and then submitted, that the verdict should be for the defendant, and not for the Plaintiff. In delivering his opinion, Mr. Justice Montagu observed, that the case was as clear as noon-day, and he was absolutely surprised, that it had been brought before the Court. The jury had clearly found for the plaintiff, on that plea. And the Court sanctioned such verdict, with the costs of suit, as against the defendant.

Montagu J., 18 June 1839

Source: Hobart Town Advertiser, 21 June 1839[3]

Before His Honor Mr. Justice Montagu, and a special Jury composed of the following Gentlemen:

            W. Kimberley. (Foreman)                     J. Kelly

            R. Lewis                                               T. Hopkins

            T. Lightfoot                                          J. Hiddlestone[?]

            M. Hopkins                                          J. Johnson

            M. Jeffreys                                           M. Lackey

            A. Haig                                                E. Geiss. Esqrs.

            This was an action brought by the plaintiff, Roderick O'Connor, Esq., against Joseph Henry Moore, Esq., the Commissioner of the Insolvent Court, to recover compensation in damages for certain libels published in the Courier newspaper in the months of June, July and August 1838.

            The damages were laid at £500.

            The declaration contained three counts. The first count set forth, that the defendant, in several letters published in the Courier newspaper in the months of June and July, had asserted that the plaintiff had endeavoured to induce him (the defendant) to connive at a fraudulent transfer of a greater portion of Crown land than was actually sold by the defendant when Collector of Internal Revenue, to the plaintiff, at a public sale of Crown land. The land actually sold, as stated by the defendant in the publications referred to, was lot 32, 1500 acres, which quantity, as stated in the letters, the plaintiff wished defendant to connive at being fraudulently altered to 5301 acres, at a time when the lowest price of land was 50s per acre.

            The second and third counts set forth that the defendant had in certain letters published in the Courier newspaper, asserted that the plaintiff had endeavoured to dispossess the defendant of a certain allotment situated in Hobart Town called Belvidere, and which assertion the declaration stated to be false, scandalous and malicious. To the declaration the defendant pleaded the general issue.

            The Attorney General and Mr. Ross for the plaintiff; - the Solicitor General for the defendant. The Solicitors were Mr. Rowlands for the plaintiff, Mr. Allport for the defendant.

Mr Ross opened the case by reading the declaration and the extracts from the various letters containing the libellous matter inserted therein.

The Attorney General then addressed the Court, He said that he should consider it his duty to put the jury in possession of all the matters connected with the various letters and transactions, out of which the present action arose. He knew that by so doing, he should not have an opportunity of again addressing them; but in cases like the present, where the character of an individual was so seriously concerned, he considered every circumstance should go clearly and distinctly before the jury, therefore he would at once state his intention of placing all the letters both of the plaintiff and defendant before them. He felt himself bound to say, that as far as the publication of them was concerned, they reflected no credit upon either party; but the plaintiff could not avoid bringing the case before the Court. It was impossible for him to submit to such infamous statements and insinuations without seeking satisfaction at the hands of a jury - statements imputing that the plaintiff sought to possess himself of land by fraudulent means - statements which could not be justified, and he believed the defendant would not attempt any justification; and if none were attempted, and the defendant came into Court to defend the publication complained of, he (the Attorney General) was satisfied the jury would by their verdict consign the defendant's character to merited disgrace and infamy. The plaintiff, in the publications complained of, was charged with the most deliberate fraud - was charged before the public with the most detestable fals[e]hood; and [t]he defendant's answer; when called upon to prove the truth of his assertions, was, that he did not publish them, and that if he did they were not libellous. The amount of damages which he was satisfied the jury would award to Mr. O'Connor would however satisfy the public that the defendant had published the letters complained of, and also that that they were false, and scandalous, and grossly libellous. He had already said that Mr. O'Connor had no right to complain of Mr. Moore in the controversy, but when Mr. O'Connor held office under the government and was in the commission of the peace, the defendant had put it to the government whether it was right the plaintiff should continue to hold those appointments. Mr. O'Connor had expressed a desire to have all the matters connected with the defendant's statement investigated, but Mr. Moore had refused to submit to any such investigation.

The Solicitor General here objected to the statement made by the Attorney General, and contended that they could not be received.

The Attorney General said he had stated at first his intention to lay every matter connected with the case before the jury, and he contended that the course he had adopted was the correct one.

His Honor said he did not see what the Court had to do with any matter that was not before it in the declaration. His Honor thought that the only thing necessary in order to send the case to the jury, was to prove the publication.

The Attorney General said the publication was admitted.

His Honor did not see how other matters than those immediately before the Court could be entered into.

The Attorney General contended he might show, in aggravation of damages, any matters immediately connected with the transaction out of which the present action arose.

His Honor said such a course might take the defendant by surprise, and he could not see that it could tend to aggravate the damages.

The Attorney General said he should not dispute his Honor's opinion, and would therefore confine himself to what appeared on the face of the declaration, the first count of which contained a distinct charge of fraud. Mr. O'Connor was there charged with endeavouring to induce Mr. Moore to assist him in a fraudulent transaction which would have put into Mr. O'Connor's pocket from two to three thousand pounds. The second count contained matter charging Mr. O'Connor with endeavouring to obtain land by fraudulent practices. The matter of which the third count was composed charged Mr. O'Connor with endeavouring fraudulently to dispossess Mr. Moore of an allotment in Hobart Town called Belvidere. Notwithstanding the libellous matter complained of had been put forward with such pomp, the defendant did not come forward to justify it. If the defendant had placed a justification on record, he (the Attorney General) admitted Mr. O'Connor must have retired from the Court a disgraced man; but he had not done so, and therefore it must be assumed he had no justification to offer. He (the Attorney General) cared nothing about the intemperate language used by the defendant, for there had been intemperate language on both sides; the question for decision was, whether the letters complained of were libellous, and if they were, what is the amount of damages which Mr. O'Connor ought to receive for the deliberate injury done him by these publications.

His Honor observed that he did not mean to say that the matter which the Attorney General wished to bring before the Court could not be received, but merely that it could not tend directly in aggravation of damages - it might tend to shew the deliberate and determined malice with which the libels, if they were such, were published, and for that purpose they might be given in evidence, but not purely as facts for the consideration of the jury.

The Attorney General continued - The Jury would find in the course of the correspondence opened at large in the declaration, that allusion had been made to what was called Mr. Burnett's allotment, purchased by Mr. O'Connor. Mr. O'Connor denied all recollection of the conversation there referred to and further stated that he was not on such terms with Mr. Moore as to render it likely it could have occurred at all. It had been stated that the correspondence out of which the present action arose had originated with Mr. O'Connor, but he thought the Jury would be of opinion it had originated with Mr. Moore. He would read to the Court the mutual agreement between the Solicitors in this cause that no document connected with the case should be with-held.

His Honor said that what was admitted on record need not be given in evidence.

The Solicitor General said of course the documents were to be used as part of the defendant's case.

His Honor said they had been read already by Mr. Ross in the declaration.

Solicitor General. - "Only extracts your Honor"

The Attorney General continued - he would read Mr. Moore's letter of the 3rd August (letter read). That letter he[?] contended[?] conveyed the heaviest censure which it is possible for one man to direct towards another. Mr. Moore had said that Mr. Burnett knew him too well to doubt that what he cared to utter, he dared to justify. But the jury would perceive that what thedefendant had dared to assert in the letter before them, he had not dared to come into court that day and justify.

(The Attorney General here read Mr. Moore's published version of the transactions connected with the sale of lot, 32.

The jury would see with the greatest apparent accuracy, Mr. Moore had communicated Mr. O'Connor's application to the head of the government who informed him of the probability of his being dismissed if he had connived at such a barefaced fraud and he the Attorney General thought if he had, he would have merited something worse than dismissal. Mr. Moore denied the publication. He, the Attorney General contended that the damages were moderately laid at £500. If Mr. Moore had attempted to justify his publications the jury might have concluded that he had labored under some unfortunate hallucination with reference to lot 39[sic], and the Belvidere allotment. Mr. Moore might have instructed his counsel to offer explanation of those publications, that might have formed some excuse for their publication, but he had done no more for his own care than plead the general issue relying on the abilities of the Solicitor General to induce the Jury to give Mr. O'Connor small damages.

The Solicitor General rose to reply. He said that the observations he had to make, he should endeavour to lay before the Court as fairly as he possibly could; the duty imposed upon him was a painful one, but he should not shrink from its performance. He should endeavour to follow the excellent example of the Attorney General, and couch his reply in as few words as possible. The case of O'Connor and Moore he considered one of the most remarkable cases every presented to a jury. The only question for their decision was, as the Attorney General had truly told them, what amount of damages would they give the plaintiff for the injury he had received; and he was quite satisfied the jury would arrive at a sound and proper conclusion. The case before them was a most painful one for all concerned, particularly for the friends of the respective parties, and for the parties themselves. Whatever might have been the original feeling of the parties in the correspondence which was the subject of the present action, whatever might have been their motives, such an utter disregard of former friendship was every way to be deprecated, and he was sure the jury would be opinion was contrary to every proper feeling. He was equally satisfied, that at the door of the party, with whom the correspondence commenced, the jury would lay the whole odium of the subsequent proceedings. If the jury would examine the correspondence, they would see that the first publication was a private note of Mr. Moore's to the plaintiff. This note related to the most sacred private family affairs. It was evident from the publication of that note, that Mr. O'Connor's object was to annoy Mr. Moore. The whole correspondence and proceedings in this case and in connexion with it, were such as he believed his Honor, in the whole course of his experience, never before met with. A more dastardly proceeding than that of the plaintiff's he (the Solicitor General) had never met with. Mr. O'Connor, after gratifying his revengeful feelings by the publication of the defendant's private and sacred family affairs, came into that Court and claimed damages for conduct which was the immediate and necessary consequence of his own. He contended, that if the jury gave any damages at all, if there was a coin smaller than a brass farthing, that was the coin they would allot to the plaintiff. Mr. O'Connor had no more right, after having lugged the defendant, if he might so say, into a controversy for his own ends, to claim damages for his own act, than a common prize-fighter, who enters the pugilistic arena for the sake of filthy lucre, has to claim damages of his opponent for the bruises he receives. The simile he made use of was precisely in point, the two cases were precisely analogous. The case naturally divided itself into three counts - the first had reference to lot 32; the two last were confined to the Belvidere allotment. The same argument applied to all three. It was perfectly evident that there had been some misunderstanding about Lot 32, Mr. O'Connor himself admitted in his letter, and it was equally evident in Mr. Moore's letter. [Letters read.] These letters offered the most convincing proof of the intimacy of the plaintiff and defendant at the time of the sale of lot 32. With respect to the defendants not having come into Court to justify what he had written, the learned gentleman said that his legal advisers must bear whatever blame might be attributed to him for not having justified. He would pass to the second and third counts where Mr. O'Connor was charged with perfidy and fraud. If Mr. Moore had published those letters without Mr. O'Connor's own inducement then the damages were not laid too high, but the fact was directly the reverse. Regarding then the letter of Mr. O'Connor as the first stone thrown, the jury would have no difficulty in deciding who commenced the controversy. The temptation was undoubtedly Mr. O'Connor's own, and unhappily Mr. Moore yielded to it. He (the Solicitor General) sincerely hoped for the sake of society, and for the credit of the country from which they came, that the jury would teach Mr. O'Connor that he was not first to drive his opponent into the field, and then for the injuries he sustained, seek reparation at the hands of a jury of his countryman.

His Honor summed up at considerable length, when the jury retired for half an hour, and returned a verdict for the plaintiff upon the whole declaration - Damages 40s.

Notes

[1]              For O'Connor see P.R. Eldershaw, 'Roderic O'Connor (1784-1860)', ADB, v. 2, p. 296-7.

[2]              The Tasmanian, 22 March 1839 also provided another version of the trial.  It stated the members of the special jury as being: John Dunn, Alexander Cheyne, G.T.W. Boyes, James Davis, T.B. Cowle, Thomas Capon, Lieutenant Corbett, Henry Condell, F.A. Downing, George Burn, J. Dixon and Captain Boyd esquires.

[3]              See also Hobart Town Courier, 21 June 1839; Tasmanian, 21 June 1839.

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