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Decisions of the Nineteenth Century Tasmanian Superior Courts

South Australian case

The following case appeared in the Tasmanian Cornwall Chronicle in August 1839. We reproduce it here for comparative purposes.

[perjury - law reporting - newspapers - evidence, admissibility - criminal procedure - South Australia - contempt - Grand Jury]

R. v. Stephen

Supreme Court of South Australia

18 July 1839

Source: Cornwall Chronicle, 10 August 1839

            The Queen at the prosecution of Archibald Macdougall against George Milner Stephen for Wilful and Corrupt Perjury

            This case which excited considerable interest came on for trial on the above day. The following persons were sworn at petit jurymen:

James Lawrence                       Thomas Sims

William Mincham                      Joshua Fisher

John Hunt                                 John Bailey

Robert Bristow             George Dehane

Kirton Diprase                          James Brown

Thomas Mullard                       William Bradshaw.

Mr. Mann, who appeared for the prosecution in opening the case, said - I appear on the part of the Crown in a prosecution for perjury brought by Archibald Macdougall against George Milner Stephen, Esq., Mr. Mann read the indictment, and proceeded to say - I need scarcely tell you that the crime of perjury is one of a very heavy nature, that faith we place in each other is that by which all the concerns of life hang together. It is by that faith that all transactions of business are carried on; therefore in cases of perjury, the law has laid down proper formula. A man may state that in a court of justice which may be false, and yet of so frivolous nature as to be immaterial to the matter at issue, to have no bearing upon it. If I shall prove that this case comes within the line of materiality, I shall be entitled to your verdict. The best way, perhaps, to bring this matter before you, will be to give you something like a chronological statement of facts. 

His Honor. - Perhaps it will be the better course for me at this period of the proceedings to state what part of the indictment I consider defective.

His Honor then pointed out, we believe, the  first, second, and third counts to be defective, they being too general, as it was necessary in order to assign perjury, that the time, place and person, should be brought to the notice of the witness, and his honor quoted some cases to prove the correctness of his remarks.

Mr. Mann. - You will see by the very nature of the case that it was impossible to name time and place.

The Judge. - I feel bound to object to all such general statements as I have pointed out, they do not give the party a fair opportunity of answering.

Mr. Mann. - Your honor will see the difficulty in which I am placed; I did not know the existence of such facts till the morning after the trial of Mr. Macdougall for libel.

Mr. Nicholls. - Mr. Stephen is extremely anxious, your honor, that all the facts should go before the jury.

The Judge. - I can make no distinction between this case and another. If a party is found guilty contrary to law, I could not carry the sentence into effect.

Mr. Mann. - I shall then proceed to argue on the other counts. As I said when I commenced, the better way I consider for me would be to lay before you a chronological statement of all such facts as are material to the issue. Mr. Stephen is, as you know, proprietor of a large estated called the Milner Estate. On the 12th of April last, a statement appeared in the South Australian Gazette and Colonial Register, headed "Town of Milner," in which is stated that half the Milner estate had been sold for £20,000. This was preceded by a few facts. There is no doubt that a sale had been effected - a bargain unquestionably had been made - but I am instructed that I can shew you that prior to that article appearing, Mr. Stephen stated the fact that it was his intention to state the prices of the purchase higher than it actually was; whether he was justified in doing so or not is not for me to say. On the evening of the same day, I am instructed I can shew you that Mr. Stephen was at a party when the subject was brought up, and that Dr. Woodforde had stated to him that he had heard in the course of the day that he had sold half the Milner estate for 10,000l, and that Mr. Stephen answered, not ten, but £20,000. This was said in the presence of the Rev. Mr. Howard and several other persons. A remark, I believe was made to the effect that this colony was not like England there you could believe only half that was stated - here you must believe as much again. Mr. Stephen then left the place stating that he was going to the Gazette office to have the fact inserted in the paper. This I am instructed was about half-past eleven o'clock; he was seen first at that office by Mr. Thomas the Government Printer, to whom he made the same averment, and asked if Mr. Stevenson was in, saying he should like to write an article to that effect to be inserted in the paper. Mr. Thomas replied that Mr. Stevenson was not within, but that they were then about to send over some proofs to him. Mr. Stephens then asked if he could write a letter to Mr. Stevenson, and was shewn to the desk of Mr. William Kyflin Thomas, to whom he made the same statement, that half the Milner estate was sold for £20,000, which was overheard by several others in the office. You will thus see that there was a carrying out of the same averments through the whole day. The letter Mr. Stephen had written was then sent to Mr. Stevenson, who wrote a paragraph nearly in the same words as the letter, merely altering it from the first person to the third - in fact, it was a complete shadow of the letter - and it was returned immediately to the printing office for insertion; you will find that statement corroborated by the evidence of Mr. Stevenson, who will identify the letter.

The Judge. - I don't see, Mr. Mann, how that letter can be given as evidence but I will take not at this time take a formal objection, I will reserve it till that part of the case is brought before me - but it will be difficult for you to shew that a certain article was inserted in the paper at Mr. Stephen's request; you must shew that he requested the insertion of that particular article.

Mr. Mann. - I have every wish to limit my statement, your honor, to that which is material to the matters at issue; and I think, if can shew you how exactly this letter corresponds with the article, you will admit that it is material. I will now read the letter (Mr. Mann then read the note written by Mr. Stephen.) -

"(Confidential)  

                                                                                    Friday Night

"My Dear Sir. - You may announce, if you please (as it will be to the general satisfaction of the "Milner" proprietors) that I have sold to Capt. Allen, of the E.J. Service, and Mr. Ellis, also from India, passengers buy the Buckingham, half the Milner estate for £20,000; They are, in conjunction with myself, going to lay out some thousands of pounds on the town of Milner, by erecting houses, a saw mill, &c., and are going to carry on agriculture to a great extent forthwith.

"Bentham has sold nearly a fourth of the town in three days!

"There is no news that I can give you, but this intelligence will do something towards the advancement of the province at home.

"Your's very truly,

"Geo. M. Stephen

"George Stevenson, Esq., J.P."

I shall show you Mr. Stevenson, that this note was brought to him late on the night of Friday, or early on the morning of Saturday, the 13th; and the paragraph was returned within half an hour. This I consider to be the most material, as it completely connects the time, place and person.

Mr. Stephen. - You will find, Mr. Mann, that in the note, the statement of the sale of the Milner estate is [not] in figures in the paragraph it is in words, and I think it material to my case that that fact should be known to the jury.

Mr. Mann confirmed Mr. Stephen's statement, and went on to say - Such, gentlemen, are the particular facts of the case - such is the authority for the insertion of the paragraph. If the one does not bear out the other the case fails. It appears to me that what slight alterations there are, are quite natural, and are a test of truth rather than otherwise. There are other collateral facts which I shall bring before you, all tending to the materiality of the case. I think from what I have already shewn you that the paragraph headed "Milner Estate" was inserted at the request of Mr. Stephen is completely borne out - that he had not only requested it but had authorised it. Now, gentlemen, having brought to your notice so much of the case, I shall proceed to offer a few remarks with reference to the bearing of the facts on the case, in point of fact, as to the materiality of them.

The Judge. - You had better, Mr. Mann, I confess I cannot at present see how those facts are material to the case, or how perjury can be assigned from them.

Mr. Mann. - If I fail in proving materiality, of course I must give up my case, and I should be very sorry to waste the time of the Court unnecessarily, but it will be in your honor's recollection. I  remember well that the jury, upon the trial for libel, expressly asked of your honor whether they could bring in a verdict of guilty of publishing the libel without a malicious intent, and your honor very properly told them they could not. Now, your honor, I contend that had the facts which I have now laid before you been known to that jury, they would not have returned the verdict they did.

The Judge. - The words in the indictment are - "tending to subvert the law" - and it is not what a jury might be induced to do, but what they ought to do.

Mr. Smith - Your honor, Mr. Stephen is extremely anxious that the case should go to the jury.

The Judge. - It certainly would be an unfortunate thing for Mr. Stephen if this case was decided by a point of law, but I cannot act in a different way in this case from any other. If I had any doubt whatever in my mind I would not decide too hastily. Nothing can be more painful to the feelings of a judge than to decide a case of this kind on a point of law.

Mr. Stephen. - Will your honor allow me to state that over and over again have I seen cases allowed to go on to the end, and then arguments have been entered into with respect to the admissibility of the evidence adduced.

The Judge. - I do not see how this could be allowed. Some points might arise as to your character, Mr. Stephen, which you would not have an opportunity of answering. The object I have in view is, that character may not be prejudiced unnecessarily by evidence being partially gone into. It would not be my duty to permit anything of the kind. Now, Mr. Mann, you can go on. I think it will be fully in your line of duty to shew whether the facts you have stated are material.

Mr. Mann. - Then I shall address myself on this point more particularly to your honor. It appears that it is necessary in order to substantiate a case of perjury, that the facts upon which that charge is founded should be material to the case at issue, and it is necessary for me to show how these facts come within the scope of the issue at all. I submit that that is material which tends to aggravate or diminish the damages, and that is immaterial which does not either extenuate or increase the damages or guilt. The way in which one of our best test books lays down the point is clear and distinct. Bacon says - "the thing sworn to must be in some way material, for if it be wholly foreign from the purpose and does not tend either to aggravate or extenuate the damages, nor likely to induce the jury to give an undue credit to the substantial part of the evidence, it does not amount to perjury; and the very language used necessarily implies the existence of perjury when either aggravation or extension of guilt or damage arise." As an instance, Mr. Justice Turton, quoting Popham's Justice, says - if A swears that he saw B steal a deed, and when he did it he was dressed in blue, this is not perjury. Here is a true instance of immateriality. And again, when the substantial objection to a contract was, that an agreement was valid by the statute of frauds, but in his answer the defend[ant] denied the existence of any agreement, it was held that this was not perjury, as the agreement was wholly imperative, and could not influence the result. In short, if the thing is of a nature utterly impertinent, it is clear the existence of materiality cannot be asserted. The way is in this case is derived from the following train of reasoning. If I shew that Mr. Macdougall, instead of a mala fide had a bona fide purpose - if I prove that, instead of intending to libel the character of another he published the statement complained of to clear his own fame, then, I think, I bring the matter within the line of materiality. It appears that Mr. Macdougall had heard of certain facts, which he published to the world. He was led to do this to clear his own character, not to asperse that of another. The libel complained of by Mr. Stephen alledges that puffery had existed with regard to the Milner estate. Now, the real facts of the case are such that to clear himself it was requisite that Mr. Macdougall should publish what he did. He had aided that puffery by asserting as fact what he afterwards learned to be erroneous. Hence, therefore, to clear his own character, it was requisite, to follow the course he pursued. Instead, therefore, of attributing malice, there is a fair and reasonable cause to attribute a very different motive to that publication. Had I known the facts as to which I cross-examined Mr. Stephen as fully as I do know them now, I would myself have led evidence in chief in defence, in order to shew the absence of malice, or at any rate, in extenuation of guilt. If your honor recollects, it was my object to shew, and I did shew, that so far from their having been any previous malice, this very paper had stated that a large sum had been given for a moiety of the Milner estate. There is no malice in this. As I conceive I had at that time a perfect right to shew that there was no malice - (and if no malice, then no libel) - I now conceive that I am as much entitled to shew that what was then material must be now material. Had I obtained an affirmative instead of a negative answer, I should have gone to the jury on very high grounds.

Mr. Stephen said that that part of the libel related only to the Milner estate.

The Judge. - The amount of materiality is of no consequence; the question is, whether there is materiality at all.

Mr. Mann said. - The evidence in question is material. It would have shew either that there was no malice, or it would have operated in extenuation of guilt. As I have already said, the jury asked your honor whether they could bring in a verdict of guilty of publishing a libel without malice. It is the very gist of the offence that there should be a malicious intent; and I think I may say, with regard to that jury, that the converse of Mr. Stephen's evidence would directly have operated so as to shew to the jury the absence of malice, and the existence of a right instead of a wrong cause of publication, and must, therefore, directly and materially have influenced the result of the trial. Mr. Mann then went on to argue that Mr. Stephen's evidence once admitted, must either directly or collaterally affect the result.

The Judge. - With regard to that point, Mr. Mann I was led into a mistake - I was led to allow that paper to be put in evidence, which I ought not to have done. In the paper of the 13th of April, it was stated that half the Milner estate was sold for £20,000. I thought it was consistent with the paper containing the libel, but I afterwards found that half the estate had in the latter paper been stated to have been sold for £10,000. I was willing to allow all the latitude I could in favor of the defendant. It turns out that that paper was not alluded to at all in the libel - nothing of the kind - so that I found that Mr. Stephen was asked some questions about that which I ought never to have admitted. All this arises out of a paper which ought never to have been produced.

Mr. Mann. - With reference to this I must argue that it being requisite on the part of the crown to shew malice, the evidence or absence of malice is obviously material. As a consequence I contend that any fact which may bear upon malicious intent or the converse is material; in point of fact, that I am entitled to show whether a person acts upon a wrong or right principle. Even, however, if I take the lower ground of extenuation of guilt, evidence of this kind comes within the scope of the issue. But there is another and a material point. Mr. Stephen was not only called upon my cross-examination, but he was committed in chief, and your honor will find that the cross-examination is material to the issue, inasmuch as if Mr. Stephen had given an affirmative answer instead of a negative to the question put, it would have enabled me to have gone on high grounds to the jury; his credibility would have been affected. I could then have told them, a point of fact, that he was not worthy of credit. I ask - is not this just one of those things that would influence a jury? I think that all those facts which clear character on the one hand, or asperse it on the other, ought to go the jury. I shall be very sorry if the court is against me as these points, but if it is so, I must bend with submission to its dictates.

Mr. Stephen. - I have no objection, Sir, that these things should be gone into. I am with Mr. Mann.

The Judge. - I believe in strict law, I had no right to admit what I did. I am quite clear I was wrong. Certainly, if the court had been aware that the prosecutor had been guilty of conduct of such a kind the court would not have passed so severe a sentence. We all know that if Mr. Stephen's case had been brought by information affidavits would have been put in; and if Mr. Stephen had sworn falsely on those affidavits, he would have been liable to an indictment for perjury. On this point rests the only doubt in my mind, with regard to materiality or immateriality in this case. If Mr. Stephen had stated that which was false and it had not been disproved, it undoubtedly would have influenced the minds of the jury. I really feel placed in a very painful situation. I think, on the whole, I shall allow you to go on and call your witnesses; but perhaps, Mr. Mann, I had better name to you I have other objections which I shall state to you as the case goes on.

Mr. Mann then called.

Mr. Henry Newenham, Clerk of the Court, who proved that the usual oath was administered in a proper manner to Mr. Stephen when he tendered himself as a witness on the trial of Stephen v. Macdougall for libel.

Mr. Edwards, who reported the trial for the Southern Australian, was called and proved the substantive facts at issue.

A.H. Davis, Esq., was then called. He said, I was present at the trial, and took notes, I did not take the notes in court, but immediately on going into my store I wrote down what had occurred on the cross-examination of Mr. Stephen. The fact is that, previous to the trial, I was aware of certain circumstances; and when I heard Mr. Stephen's observations, I was struck, and went, as I said, to my store, and put them down on paper. After several questions asked of Mr. Stephen on the article headed "The Milner Estate," in the Gazette, Mr. Stephen said - "I intended to write a letter to contradict that statement, but the editor said he thought it unnecessary."

Cross-examined by Mr. Stephen - I did not furnish the report to the Southern Australia. I supplied the editor of the Southern Australian with the notes before mentioned. The Southern Australian came out later than usual, it did not come out till the Thursday. I remember meeting the editor of the Gazette and the editor of the Southern Australian in the back parlour of Dr. Weston's dispensary - the fact was, I was walking with the editor of the Southern Australian, and we met the editor of the Gazette in the street, and went in to Mr. Weston's, I don't exactly know how long we were there - I know I was there long enough to be tired, for I wanted to go home to dinner. I remember certain questions being put to the editor of the Gazette in the paper subsequent to that containing the trial. We were not at that meeting planning those questions. It is very probable that we were talking about your trial, as everybody else was. I believe it might be on that occasion I furnished the editor with the notes I took. I really don't know which door I went out at, nor whether separated in different ways. I should be very happy at all times to be seen with either of these gentlemen, separately or together.

George Hall Esq., was then called. He produced the original letter sent by Mr. Stephen and Mr. Stenson, and also a copy of the same letter written by Mr. Stevenson and certified as a true copy by Mr. Stephen.

The Judge. - I don't see how you can give this paper in evidence.

Mr. Mann. - I produce this note as being the main support of my case. Your honor will find that there is an authority to the editor of the Gazette to publish a statement in that paper.

The Judge. - You put in that paper, in fact, as the authority or request of Mr. Stephen so to do?

Mr. Mann. - I do.

The Judge. - I think on the former trial you should have asked Mr. Stephen if that was his handwriting or not.

Mr. Mann. - I put in that paper, your honor as the best evidence I can get on that point. That evidence is in Mr. Stephen's hand writing.

The Judge then said, that that very point had been decided in the great case of Queen Caroline. We understood the Judge to add, that in that case a witness was asked question as to the effect of a letter which was not produced. The judge decided against the admission of the evidence.

Mr. Mann. - I humbly submit to your honor that there is a difference in this case. I ask not to give evidence of the purport of the letter, but to produce it. I can bring forward Mr. Stevenson to shew that he had received that letter from the defendant; that it was in his handwriting; and to produce it to the court. I submit that this is the best evidence I can give.

The Judge. - As that letter was not in evidence on the other trial, much less can it be in evidence now.

Mr. Mann. - If your honor so decides it, I must submit.

The Judge. - You cannot Mr. Mann, give it in evidence here; for on the former occasion Mr. Stephen should have been asked if that was his handwriting. You can't produce it now; Mr. Stephen ought to have had notice of that letter at that time.

Mr. Mann. - Your honor is aware that I did not at that time know that such a letter had existence. Am I to understand that I cannot call Mr. Stevenson, inasmuch as I cannot examine him orally as the head of authority?

The Judge. - Certainly not Mr. Mann. Supposing that the request had been made both by word of mouth and writing, then you might have proved the verbal evidence.

Mr. Stephen then called Mr. Hall's attention to a certain part of the note, and asked him if he could see that any alteration had been made?

The Judge. - I don't see, Mr. Stephen, that you are justified in examining a witness to that point.

Mr. Stephen. - It is in evidence, Sir. It has been read by Mr. Mann.

The Judge decided Mr. Stephen could not cross-examine the witness.

Mr. Stephen. - Your honor's decision precludes us from producing that note on other occasion.

The Judge. - My decision, Mr. Stephen, precludes you from incurring peril on that point.

Mr. Stephen. - There is already a chain of evidence to convict me without a power of reply.

The Judge. - No, Mr. Stephen, there is not.

Mr. Robert Thomas was then called. After stating that he was along with Mr. Stevenson, a proprietor of the 'South Australian Gazette and Colonial Register', and that the copy of the Gazette containing the paragraph relating to the sale of the Milner Estate, was published by them, Mr. Mann proceeded to question him.

Mr. Mann. - Did you on the opening of the 30th April last, see Mr. Stephen, the Colonial Secretary?

Witness. - I did - he came to my office about eleven o'clock.

Mr. Mann. - Did he request you to insert a statement to the effect, that he had sold half the Milner Estate for twenty thousand pounds?

Witness - He did.

Mr. Mann. - Will you point out that article which Mr. Stephen requested you to insert?

Mr. Thomas took a copy of the paper, and pointed out and read the paragraph headed "The Milner Estate," as containing the substance of what Mr. Stephen requested to be inserted.

The Judge then interfered, and said he supposed Mr. Mann was coming again to the same evidence which he had before refused to admit, it being all connected with the letter said to be written by Mr. Stephen. He would examine the witness himself.

The Judge. - Is that the paragraph which Mr. Stephen requested you to insert?

Witness - It is. Mr. Thomas then wished to explain the manner in which the request was made, but he was interrupted by -

The Judge, who asked - Was that paragraph not inserted from a copy written by Mr. Stevenson and sent by him?

Witness - It was. The witness again wished to explain the matter, but

The Judge would not allow him, and said (witness) was conducting himself in a manner he ought not to do. He knew what witness wished to say, as he had seen the statement made by him and by others which had been published in the paper, and he was very sorry that Mr. Thomas had been guilty of such a violation of all rules of justice, as he had been by publishing these statements in his paper.

After some other warm language.

The foreman of the jury rose and addressed the Judge, stating that the jury were very much displeased with the mode of proceedings, as it would render it impossible for them to come to a conclusion on the case. They, therefore, wished to know if they would be allowed to give up their places as jurymen. He (the foreman) for one was unwilling to sit as a juryman to see the case conducted as it was.

The court was here thrown into a state of confusion, some of the onlookers showing marks of approbation towards the conduct of the Jury by stamping with their feet and other demonstrations, whereupon his honor ordered the Sheriff to take a person into custody whom he had observed making a disturbance among others in the crowd.

The Judge reprimanded him for using such conduct in court, and told the Sheriff to commit him for contempt of court, but he afterwards discharged him.

Mr. Mann then said that since his honor the Judge was against him on every point, and refused to admit any description of evidence which he wished to bring forward, no other course was left for him but to give up the case.

Mr. Stephen then rose, and addressing his honor, said that he should move that Mr. Thomas be committed on a charge of perjury.

His honor said he saw no grounds whereon to found such a charge.

His honor then addressed the jury. Gentlemen said he, the crime of perjury, as well as every other crime, with which any person is charged, must be made out to the satisfaction of the Judge in point of law before a verdict can be returned. The law lays down certain rules which a judge must proceed and by these rules I find it my duty to proceed in every case brought before me. If I deviate from these rules I violate my duty therefore, whatever the opinion of persons unacquainted with the law may be, with respect of the evidence on which a person may be convicted, I say that a person can only be convicted of a crime on such evidence as the law admits and sanctions. Mr. Stephen, you heard, requested me not to put a stop to the present case on account of any mere quibble, but this I felt it my duty not to comply with. This is not the first time that evidence has been brought before a jury, which being held by the judge as not being consistent with the law of evidence, has been, on that account the occasion of the case having broken down. I have heard one of the most learned judges in England, on the trial of a crime where proper and what would be considered lawful evidence was wanting, and where the defendant wished the case to proceed say, that he could not allow it to do so. I now follow the same course, and, in so doing, I am willing to take the whole responsibility of myself. In charging the Grand Jury yesterday, I told them what I considered to be the law in regard to perjury; but I also told them it would not be necessary for them to enter so minutely into the point of law as it would be for me when the case came into court and that, in respect to these points, I should take the responsibility upon myself. I have done so. I was unwilling to prevent the case being carried on to-day if it was to be stopped on merely technical grounds. This I was inclined to do, not only because I wished to let the law have its course, and that was therefore the most proper plan to adopt, but because being the only judge in the province, I was unwilling to take more responsibility on myself than I really ought to do. But when I see evidence brought forward which, were I to admit, would be contrary to all rules of justice, I would be unworthy to fill the situation I hold were I to admit it. Whatever may be the opinion of other persons with regard to my conduct - whether they may think I have a bias in this case - I care not, for I have only acted in accordance with those rules of law which I ought as a judge to adhere to. Where would be the use of a judge unless it were to point out the law? I have this day pointed out the law - I have stated my grounds for not allowing Mr. Mann to bring forward the evidence he wished to bring, seeing that by that evidence whatever amount of moral guilt might be proved, Mr. Stephen could not be convicted of perjury. The Judge then went over the different parts of the indictment, and went on to say - With respect to the first part of the indictment, it is averred that Mr. Stephen did authorise the insertion of the article regarding the sale of the Milner Estate in the South Australian Gazette and Colonial Register. With respect to this, the letter or document which Mr. Mann wished to bring forward as proving this authority ought to have been produced at the former trial, and shewn to Mr. Stephen, and he ought then to have been asked whether he wrote the letter, before it can be brought forward as evidence to convict him of perjury. This is the law in this respect; and this letter not having been produced at the former trial, cannot now be brought as evidence. The second charge in the indictment is entirely in the same situation, proof of perjury being still attempted to be founded on this letter. The third charge is too general, and has not been attempted to be proved. On the fourth, fith[sic], and sixth charges no evidence has been adduced either, Mr. Mann having given up the case. The only proof then has been on the first and second charges - whether the article was inserted at the request of Mr. Stephen. With regard to this, his honor stated his former opinion, that the evidence now attempted to be brought against Mr. Stephen, ought to have been brought forward on the former trial. Such being the state of the case, and Mr. Stephen not having been put upon his defence, the jury of course would return a verdict of not guilty.

The Jury demurred with regard to this when

The Judge said that there was no occasion for them to hesitate, no other course being left for a jury when the defendant does not enter on his defence, but to return a verdict of not guilty. He said that the jury did not know their duty, otherwise they would have known this. He therefore would not ask a verdict from them at all, but said they were discharged, and then requested the clerk of the court to enter a verdict of Not Guilty.

The Jury wished to protest against a verdict of not guilty being entered, they not having returned any verdict.

The Judge said they could not protest against it - told them they were dismissed - and a verdict of not guilty was recorded by the clerk of the court.

The Judge then said, addressing the persons in court - Gentlemen, I am very sorry to see that a degree of excitement has existed in regard to this trial which ought not to have been. I am sorry to see that the editors or proprietors of both the newspapers have published affidavits which were to be given by witnesses on this trial, this being a gross violation of all the rules of justice, in as far as the jury came into court with a knowledge of things which ought not to have been known till the trial came on and which in this case ought not to have gone to the public at all. Such a proceeding as this I hope will not again occur in the province. I merely mention this circumstance to put the parties concerned on their guard as it is a state of things which cannot be allowed.

Mr. Macdougall begged to submit to his honor that no affidavits had been published in his paper.

His Honor apologized for having stated that they had; he thought they had been published in both papers.

His honor then said he was not sure whether he ought, in his capacity as Judge, to state what he was about to do; but he merely intended to put himself right in one or two points whereon he had been misrepresented in the newspapers on the trial of Mr. Macdougall for libel, said he, I was reported to have said some things which I should be very sorry to have stated. I am there reported to have said that, in libel cases proceeding by criminal information was unconstitutional. What I really said was that 'some persons thought proceeding by criminal information in libel cases was not so constitutional as trial by indictment.' Then I never said that 'if the editor of a newspaper prys into public matters he exceed his province, and if he prys into private actions he does it at his peril." I do not think I ever said anything of the kind. Public matters are the very thing editors ought to enquire into. There are several other inaccuracies in the report of what I then said, but I shall only notice one more. It is there reputed that I said - "In small communities like our own, how exceedingly criminal how exceedingly malicious and dangerous - libels of this kind are. We are living in a small community with scarcely houses over our heads. When I arrived in the colony, I had no home to go to; but after I was introduced to Mr. Stephen, he offered me his house, and I received his kind hospitality. I hope you will take into consideration the pain I feel on this occasion under these circumstances." Gentlemen, I am sure I never said anything of the kind. I said it was a great misfortune that libels on private character should be published in any community, especially in a small community like this, when we all know one another more or less, and where, in the present instance, the judge who had to try the case had till lately been sleeping under the roof of the prosecutor's house. But, gentlemen, I do not impute any wilful misrepresentation to the persons connected with the newspapers - I only wish you to know that I should be very sorry to have made use of such expressions as I am represented to have said at that time. And, gentlemen, allow me to say, that whether my conduct may meet with public approbation or not I shall always pursue that line of conduct which my knowledge of the law, after many years' study points out to me.

Mr. Macdougall stated to his honor that the person who reported the proceedings of the Court at that time could have no interest in stating anything but what was correct. The proceedings were printed verbatim from his note taken in Court.

His Honor said he had no intention of blaming any person; neither had he any wish to enter into a contest with reporters. He felt convinced that the mistakes had occurred merely from oversight and in the hurry of reporting.

The Court then broke up.

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