[seditious libel - criminal libel - trial by jury - press freedom - law reporting - Montagu J., criticism of - Montagu J., dismissal of - Stephen, Alfred, criticism of]

R. v. Robertson (No. 1)

Supreme Court of Van Diemen's Land

Pedder C.J., 9 March 1835

Source: True Colonist, 11 March 1835[1]

Before His Honor the Chief Justice and a Civil Jury consisting of the following gentlemen:

John Bell, Esq. J. P

Andrew Crombie, Esq. J. P. merchant.

George Watson, Esq. J. P. ditto

John Boyes, Esq. merchant

George Bilton, Esq. ditto

George Gatehouse, Esq. ditto

Michael Vicary, Esq. retired officer

Arthur Davies, Esq. half-pay R. N.

W. H. Barrow, Esq. retired officer.

H. J. Emmett, Esq., sen. Government officer.

H. J. Emmett, Esq. jun. Ditto

John Lee Archer, Esq., ditto

This action, which has excited great and general interest, was, as the indictment stated, for a false and malicious libel, tending to bring into contempt the Lieutenant Governor and the Government of this Island, which was in the True Colonist newspaper of the 10th of January last. The article complained of being read.

The Attorney General, in his address to the Jury, stated, that he thought it would be as well for him to state the nature of the averments divested of their legal clothing, for that the evidence would thereby be rendered more plain and simple. First, then, it was stated that the defendant had published the libel with intent to bring the Governor into contempt, inasmuch as it charged him with wilfully and maliciously altering a figure in a grant deed, for fraudulent and dishonourable purposes. He next stated, that Colonel Arthur, mentioned in the indictment, was Lieutenant Governor of this Island at the time of the publication of the alleged libel, and had been so for some time previously and then proceeded to state, that a more simple information could not be drawn - there was nothing to embarrass the Jury. It would be worse than insult to the understanding of the Jury to comment on such a libel. "The Head of the Government is boldly charged with having altered an enrolled deed, which is true; he is charged with altering an enrolled deed, with fraudulent intent, which is false! It is no crime to alter an enrolled deed, it may be altered for the best of motives - to do justice; but to say that a man alters it for unfair purposes, is a libel, and a gross libel." The Attorney General then alluded to the observation about the Attorney General being bound to prosecute the writer, if the statement put forth was untrue; and observed, that he felt is his duty to do so the moment he read the libel. "I will not, as Crown Lawyer, stand here and violate the rules of evidence, because if I violate them, the defendant will be also allowed to do the same; and as he will not be able to say the libel complained of is true, so will I not say it is false; I will not say so, because such an assertion I should consider would not only be unnecessary, but I should consider it an imputation on the good sense of the Jury to declare it so - a charge more disgraceful to the man who wrote it, or to the head that conceived it, never yet emanated from any press." The Attorney General then went on to say, that he was not so much the Attorney General of any Governor as the Attorney General of His Majesty whose commission he held - it was his duty to protect the servants of His Majesty, and that His Excellency had nothing whatever to do with the present prosecution - that he instituted the same without his knowledge, and that unless he received positive instructions from the Governor himself, he would not put an end to the prosecution, and if such orders were conveyed to him he would instantly give up his situation. After observing that every courtesy had been shewn Mr. Robertson on the occasion, he was proceeding with the case, when the defendant admitted publication, proprietorship, and printing of the True Colonist of the 10th January.

Mr. Robertson admitted the grant produced to be the one he alluded to, and that it was enrolled previous to the publication of the paper.

Mr. Robertson in his defence said, that the situation in which he was placed by the Attorney General, made him appear as the most guilty, he was not only accused of libelling Colonel George Arthur, but also of libelling all future Governors, for he says the Government is at an end if such accusations are to be published without punishment. Mr. Robertson went on to say, that it was with pleasure he saw a Jury of the description then in the box, who came there to decide upon his case, and that it was the first Jury of civilians that had ever tried a criminal case in Van Diemen’s Land. He said that he admitted printing and publication, but that he did not consider that he had done more than he had a right to do. Situated as the Colony was, without any Legislative Council of the people, the Press was the only check over the measures of the Government, and so highly was this liberty valued in the Mother Country, that on a motion made in the House of Commons about this Colony, it was sure to be set aside, by the Secretary for the Colonies stating that the Liberty of the Press was allowed here. He then went on to say, that this prosecution was a law aimed not at himself, but at the Liberty of the Press, and upon the verdict depended, more than any punishment or injury it might inflict on himself and family, for the liberty of every fellow man was at state. According to the doctrine of the Attorney General said he, the Government Officers may do wrong, and they cannot be told of their errors, the people may lament by their fire sides, or they may complain to each other, but if one dare point out their errors, he is subject to be brought before a Court of justice and subject to fine and imprisonment. [Several quotations were made from Junius, and other sterling authors who have written on political liberty.] Mr. Robertson then went on to shew that the Attorney General admitted the facts, and proceeded to the Attorney General’s observation about his having been treated with extraordinary courtesy; he admitted he had been treated with courtesy, especially in one instance, where he had asked for the loan of a law book and had it refused him. The Attorney General, he said, accused him of aggravating the case by printing the preliminary proceedings which took place in the Police-office, but he argued that the Solicitor General said at the Police-office, that all His Excellency required was, that the matter should be explained fully, and that in order to do so, he had published the full proceedings before the Magistrate. He then declared he did not know in what manner the Attorney General was prosecuting him - one moment, he said, he is Grand Jury, and another moment he is Attorney General - one moment he comes here to prosecute me for Colonel Arthur, as Colonel Arthur’s Attorney General, and then he tells you, he is the King’s Attorney General. He called upon the Jury, he said, it was to them the public looked for protection, to protect Editors of newspapers when commenting upon the acts of public officers. The Attorney General said it was a crime to publish any of the bad acts of any public officer; this may be the Attorney General’s doctrine, but he hoped it would not be the Jury’s. The facts published in the Colonist, he said, were related to him by a person interest - this he considered would take away the malice imputed. He knew very well the Attorney General would prosecute him, if he stated that which was not true; but said, he, the Attorney General admits the facts, and yet he prosecuted him. By printing the statement, he considered he did the Government a deal of good for it was the means of the Crown Lawyers going to the Police-office and explaining the transaction; and yet was he brought there as a terror to others, lest they should do the like. Mr. Attorney General might just as well introduce his gagging act, which thank heavens, the Home Government, would not allow. As to the subject of the libel, it was a subject of vast importance to the Colony. What would shake the confidence of the people, more than the knowledge, that enrolled deeds might be altered without the sanction of the Council that gave the orders for the grants - but it appears in this case, that the Governor altered the date to meet the day on which such order was given, and for the best of purposes, not for fraud as the Attorney General imputed that the defendant said he did. He strongly pointed out to the Jury, that what they had to consider, was whether the publication was made to bring the Governor into contempt, or whether it was not for the purpose of bringing under notice of the Secretary of State, and the Members of the House of Commons, the real state of things in the Colony, and whether that an enrolled deed could be altered without the solemnity of again passing the Council, to approve of such alteration.

[Mr. Robertson continued his defence for several hours, during which time he made frequent references to law books and others - the limits of a newspaper will not allow us to follow him through his long discourse. He declined calling any witnesses, and concluded his defence by the following quotation from a lately received London Journal.

"The trial of Mr. Archibald Prentice, the spirited editor of the Manchester Times, on an indictment for libel, presents some points which ought not to pass unnoticed. It will be seen that even under the existing law, Juries may hive a conscientious verdict inspite of the dictum of the Judge. Mr. Prentice was accused of publishing a malicious and scandalous libel. The circumstances of the case are quite insignificant, - it was mere newspaper squabble; but there was no evidence to prove malice on the part of Mr. Prentice, - though the letter in which the libel was said to be contained, certainly had a tendency to bring the complainant into ridicule and contempt; and it would seem he richly deserved to be so exposed, for he had made a calumnious charge against Mr. Prentice, which he would neither retract nor justify. The Judge, according to the righteous practice of Judges in libel cases, told the Jury that the publication was a libel, if it had the tendency to bring the complaint into ridicule and contempt, and that the law would infer malice. But the Jury yielded their assent to the acute and forcible argument of Mr. Prentice, who defended himself; and who maintained that the avertments in the indictment must be proved, not inferred. This is the doctrine of Bentham; who held that where falsehood or malice is charged, the words are not to be construed as mere surplusage, but as things necessary to be proved. In July 1831, another Manchester Jury acquitted this same defendant on an indictment for libel, on the ground that falsehood was not proved. Having this verdict before his eyes, the prosecutor, in the case which was tried last week, did not pretend that the libel was false, but that it was malicious. The common sense of the Jury revolted at the monstrous doctrine that they were to find a man guilty of a malicious libel when not a scintilla of evidence was adduced to prove malice, and they accordingly acquitted the defendant.

Here, then, we have two instances of Juries having insisted upon falsehood in the one case, and malice on the other, being proved before they would find the accused guilty. That this is agreeable to sound sense, is plain; but Juries should be told that it is agreeable to law also, in the opinion of one of the best jurists that the world ever saw. There are the dicta of Lord Mansfield and other Judges on the side of oppression and absurdity, there is the deliberate opinion of Bentham on the side of justice and common sense. Let Juries refuse to suffer their understandings to be hoodwinked by the solemn nonsense of the Bench, and insist upon proof of the charge in cases of libel, just a doggedly as if they were cases of horse-stealing or murder. Why should guilt be inferred in one case more than another?

The verdict of the Jury on the recent trial of Mr. Prentice - finding the publication of a letter but "without malice" - was plainly one of acquittal. They negatived expressly the imputation of malice, which they were directed to infer. Yet we see that the Clerk endeavoured to falsify the verdict, and pervert the meaning of the Jury; and so much was the Judge nettled, that he would not allow till next day that the defendant was acquitted. The constant leaning of Judges and official persons against defendants in libel cases, is another reason why the Juries should be careful not to allow their understandings to be mystified by judicial dogmas.

If Bentham’s construction of the law were generally admitted, it may be said, the law requires little alteration. But although intelligent and independent Juries will sometimes be found to return verdicts in accordance with Bentham’s interpretation of it, most Juries are not intelligent, but are led entirely by the Judge, who exercises his right of giving an opinion on the law of the case, very much in the tone of a command. At present, different interpretations are put upon the law; it is therefore necessary that it should be clearly defined - that men should have something more certain to rely upon than the opinion of a Judge or the intelligence of a Jury. In the meanwhile, until the law is placed upon a better footing, we recommend all Juries to follow the example set them at Manchester; and, whether the form of trial be by criminal or ex officio informations, or by indictment, never to find a man guilty, till it has been proved before them that he is so. - Spectator, November 8th, 1834.

The Jury retired and remained out about fifteen minutes, when a verdict of Guilty was returned.

Pedder C.J., 9, 13 March 1835

Source: Hobart Town Courier, 13 March 1835

Monday, March 9. - Before the Chief Justice and the following Special Jury, summoned upon the motion of the defendant Mr. Gilbert Robertson:-- W. W. Barrow, H. J. Emmett, sen., A. Davis, A. Crombie, J. Boyes, G. Bilton, J. Bell, G. Watson, G. Gatehouse, H. J. Emmett, jun., J. L. Archer, M. Vicary, Esqs.

Mr. Gilbert Robertson was tried for a libel upon the Lieutenant Governor; published in the True Colonist on the 10th January last.

The Attorney and Solicitor Generals conducted the prosecution, Mr. Robertson himself the defence.

The Attorney General during a long address to the Jury stated, that in instituting the present prosecution he had acted upon his sole responsibility, and without consulting the opinion or receiving the direction of any other person. He stated that he would willingly court every inquiry into the circumstances connected with the libel in question, but that as he knew the defendant would not be allowed to prove the truth of the matter charged as libellous, nor himself the falsity of it, in a prosecution of this description, he could not as the first law officer of the Crown travel out of the course prescribed by the rules of law by entering upon the subject farther than to explain the matters contained in the information. He stated that the present form of prosecution was the only method by which an officer of the Crown so high in rank as the head of the government could proceed to obtain redress by law.

The Attorney General described the advantages that might result to a community through the medium of a well regulated press, and reprobated the conduct of individuals who becoming possessed of a few types, took upon themselves the office of public censor, and thought proper to disseminate such gross calumnies as the present.

The Attorney General then proceeded to read the libel; upon the several passages of which he commented with much strength of language. He observed that the article was so clear to every man’s comprehension that he would not insult the understanding of the Jury by attempting to offer any explanation of the writer’s meaning; that he would not descend so far as to put a forced construction upon any writing, and had therefore abstained from introducing in the information any farther inuendos that were absolutely necessary to make out the sense of the article. He asked the Jury to read the article carefully, and that if they could for a moment say that it was not intended to convey a charge of fraudulent conduct against the Governor, to acquit the defendant instantly.

Mr. Robertson having admitted the publication and the correctness of the information in setting it forth, the case for the prosecution closed, and Mr. Robertson proceeded to make his defence.

Mr. Robertson informed the Jury that it was his duty as the conductor of a public newspaper to publish to the world such actions of public officers and others as were either oppressive, unjust, or otherwise injurious to the interests of society. That this duty of an Editor has been admitted even by a Secretary of State, for he had in the House of Commons stated, that the people of this colony had a free press as a check upon the government. He contended that the alteration of a deed after enrolment was an act injurious to the interest of society; was much worse as it tended to destroy the people’s confidence in those instruments under which persons held their lands, and that he had a right therefore to comment as he had in the article complained of. Mr. Robertson quoted many passages from ‘Starkie’s’ law of libel, and applied them to the present publication. He told the jury that their verdict that day would determine whether the press of this colony should be longer free or not; for that, if they found him guilty, no man would dare in future to speak, much less write his sentiments upon public measures. He called upon them therefore, for the sake of the interests of themselves, as member of the community, and their families, to acquit him. He stated that to convince the Jury that no malice against the Governor had actuated him, and that no other motive than a regard for the general good of society had called forth the present publication; he would state that he had no hesitation in admitting that he had received many favours and obligations from Colonel Arthur, and that he did not mean to attribute any improper motive to his Excellency in having altered the date of the grant, but that he had done it on the contrary for the best of purposes.

The Attorney General then rose to reply, notwithstanding the defendant’s opposition, on the ground that he had called no witnesses. However, the learned Judge informed Mr. Robertson that the Attorney General had, ex officio, a right to reply upon all cases.

The Attorney General said, that he had intended to make a reply - nor would he have availed himself of his privilege, had not Mr. Robertson introduced topics which called for an answer. He then proceeded to state, that the office which Mr. Robertson held as editor of a newspaper was one not forced upon him, but was taken upon himself, the Attorney General supposed for the purpose of his private emolument. He had therefore no excuse in transgressing the bounds which the law had set for the protection of individuals against improper attacks from public writers. That it was the duty of the defendant, upon investing himself with so responsible an office, to make himself acquainted with its liabilities. The Attorney General then regretted to hear the defendant confess that he was under obligations to the man whom he had grossly traduced, as he thereby convicted himself of what the poet has described as the worst of crimes - namely - ingratitude.

His Honour shortly acquainted the Jury with the law of the case and the duty which they had to perform. He informed them, that although they were the sole judges of the law as well as the fact, yet he had a right to give his opinion upon the subject matter of the prosecution, and he felt it his duty to state that opinion to be that the article in question was a gross libel - but that they were not at all bound by that opinion, they were to decided.

The Jury retired, and in about a quarter of an hour returned with a verdict of Guilty. Mr. Robertson was then bound over to appear on Wednesday to receive judgement.

…

The attention of the Supreme Court has been occupied during the three first days of this week with the trial of Mr. G. Robertson, for libels published in his journal the True Colonist. A brief report of that on Monday will be found in the proper place, want of room preventing us from doing justice to the others until our next, we now confine ourselves to stating that Mr. Robertson was found guilty in all three cases - the two first at the instance of the Attorney-general, being for libels on His Excellency - the one regarding the alteration of the date of a grant to Mr. O’Connor, and the other with regard to the removal of hay from the farm at New town, and the last for a libel on Mr. Rowlands. Yesterday morning His Honor proceeded to pass sentence on the defendant, when, as nearly as we can recollect, he expressed himself as follows:-

"You set yourself up as a self-elected commentator upon the conduct of public officers, and how do you do it? You establish a system of terror? I do not know what to compare your paper to, it is an engine which I can only compare to that fearful one used in other times in another country, the guillotine, and for the avowed purpose that the persons who used that engine did so, being as they said because they thought it the only means of entirely eradicating the then existing government, by the decapitation of the men who framed and upheld it, while you by your engine -- your guillotine, endeavour to rob men of their characters, and there are many persons who would as soon lose their property and their lives as their character, and some who would sooner. I am astounded when I consider you writings, as I discover from one of your own papers that you plainly foresaw the consequence of such writings. I have the passage before me, though I do not think fit to read it, but you well recollect it - here Mr. Robertson said he did not know the passage his Honor alluded to, and his Honor read it, and continued to say that that passage fully shewed, that Mr. Robertson was well aware, nay contemplated, that his writings would disturb and destroy the peace and happiness of society, and that it was with that intention they were written."

"In the libel which you are first charged you accuse a gentleman holding high rank as an officer of the army, and intrusted by his King with the government of the society in which you live - a personage who every moral and religious feeling should have prevented you from libelling. You accuse the Governor of forgery, if the article means any thing. And, in the second libel, you accuse the Governor of having written a letter to protect his own nephew from the consequences of the crime of larceny, which you endeavour to shew he would have been subject to had not that letter been written. In the hay case you accuse the Governor (I am horrified to use the term) of larceny. I make these observations upon the several libels to account to the public for the sentence which I shall pass being so light, as the law officers, for what reason I know, have not charged you on the first information, as they might have done, with accusing the Governor of forgery, but merely of accusing the Governor of dishonourable and unworthy conduct; and so in the second, you are not charged with accusing the Governor of larceny, but that is also more lightly charged.

"And now I most sincerely trust, that at the expiration of the sentence of imprisonment which I shall pass upon you, you will entertain far different views of the duties of a public writer from those which you say you now entertain, although I can hardly believe with the abilities which you have shewn yourself to possess you can seriously entertain such.

"With regard to the third information, the libel on Mr. Rowlands, I shall merely say, that I think the verdict is a most correct one; but I must at the same time observe, that I think that it is to be regretted that that case was brought forward at the same time with the others, which are so infinitely more important.

"For the libel of which you were first found guilty, I sentence you to pay a fine to the King of sixty pounds, and to be imprisoned in His Majesty’s gaol in Hobart-town for four calendar months, and that you be further imprisoned until the fine be paid.

"For the second libel, I sentence you to pay a fine to the King of one hundred and twenty pounds, and to be imprisoned in His Majesty’s gaol in Hobart-town for eight calendar months, to commence from the expiration of the last sentence, and that you be further imprisoned until that fine be paid; and for the third libel (on Mr. Rowland’s) I sentence you to pay a fine to the King of twenty pounds, and to be imprisoned one month."

Here Mr. Robertson wished to address the Court, but His Honour left the bench and said all further communications from the defendant must be addressed to the Lieutenant Governor.

Source: True Colonist, 14 March 1835

The first of these cases was tried on Monday, the 9th instant, before His Honor the Chief Justice and a Special Jury. We will not at present stop to offer any observations on the manner in which Special Jurors, (we mean the list returned to the Sheriff), are appointed, as we are informed, by Captain Forster and his subordinates, the Chief District Constables; who, if common report speaks correctly, are invested with the power of creating esquires for the purpose of Mr. Stephen’s Jury Act, the working of which in special cases, very clearly appeared in the panel that was returned to try the charges against Mr. Robertson. The greater proportion of the names thereon being Colonel Arthur’s Magistrates, Officers holding situations at the pleasure of the Governor, full pay Military and Commissariat Officers, and other expecting civil employment at the hands of His Excellency, with a very thin sprinkling of men not connected with the Government; leaving it impossible for the defendant, even with the privilege of striking out six to obtain anything like a Jury that could be called purely independent. Our readers will observe that by this very cunningly framed act (which is in fact only a cheating the people out of their rights, as conceded to them by orders of the Secretary of State). There is no challenge allowed, no not if all the eighteen out of whom the defendant would be allowed to strike six, were even the brothers or sons of the party said to be libelled, nor could that party himself be challenged had his name appeared on the panel. So much for the benefits of Mr. Stephen’s Jury Act, and its consistency with the law of England. That these are not mere assertions will appear in the sequel. The Jury which tried the present case were the following Gentlemen:

Michael Vicary, Esq., Foreman, a Justice of Peace, a retired Military Officer formerly a Police Magistrate, and subsequently Ordinance Store Keeper under Colonel Arthur.

Henry James Emmett, Esq., senior; late principal clerk to the Secretary’s Office now doing duty for his son who is a clerk in that office, and expecting his own reappointment.

Henry James Emmett, Esq, junior; a clerk in the Secretary’s Office, and not a householder.

John Lee Archer, Esq.., Civil Engineer to the Government, and J. P.

Arthur Davis, Esq., J. P.; half-pay R. N, and also one of the Military Jurors.

John Watson, Esq., J. P.

Andrew Crombie, Esq., J. P.

John Bell, Esq., J. P.

W.W. Barrow, Esq., a retired Military Officer expecting a civil appointment.

John Boyes, Esq.

George Gatehouse, Esq.

George Bilton, Esq.

The indictment in this case, the first count of which we give verbatim, was as follows:-

Van Diemen’s Land,

To wit,

Be it remembered, that Alfred Stephen, Esquire, Attorney General of our Sovereign Lord the now King, who for our said Lord the King, in this behalf personally comes into the Supreme Court of Van Diemen’s Land, at Hobart Town, in Van Diemen’s Land aforesaid, and for our said Lord the King, gives the said Court here to understand and be informed, that Gilbert Robertson, late of Hobart Town, in Van Diemen’s Land, yeoman, on the tenth day of January, in the fifth year of the reign of our Lord the King, at Hobart Town aforesaid, in Van Diemen’s Land aforesaid, unlawfully and maliciously intending to bring His Excellency Colonel George Arthur, then and still being the Lieutenant Governor of Van Diemen’s Land and its Dependencies, and the officer administering the Government thereof into hatred and contempt, and to cause it to be suspected and believed that the said Colonel George Arthur, so being such Lieutenant Governor, had been guilty of fraudulent and improper conduct in wilfully and improperly altering, for dishonorable and unworthy purposes, a Deed of Grant or Instrument, under the sale of Van Diemen’s Land and its Dependencies, before that time issued or caused to be issued by the said Lieutenant Governor, and then lately before enrolled in the Supreme Court of Van Diemen’s Land, did print and publish, and cause a procure to be printed and published, in a certain newspaper, entitled "The True Colonist, Van Diemen’s Land Political Dispatch and Agricultural and Commercial Advertiser," a certain scandalous and malicious libel of, and concerning the said Colonel George Arthur, so then and there, and still being such Lieutenant Governor as aforesaid, and of, and concerning the said Deed of Grant or Instrument to issued and enrolled as aforesaid, which said libel is as follows - that is to say:

FEARFUL DISCOVERY

"A letter forged! St. Jude to speed,

Did ever Knight so foul a deed!"

Marmion

It is now some weeks since we noticed the very extraordinary proceedings of the Forster and O’Connor Faction, the Caveat Board, and the Executive Council - in the matter of O’Connor against Walker. Our readers will recollect that we stated that Mr. O’Connor’s grant was dated several days before the case was decided in Council. It appears, that on the 29th of September, the parties were heard before the Commissioners - Mr. Robert Lathrop Murray appearing on behalf of his friends, Mr. O’Connor, and his principal agent, Captain Forster. On the 10th of November, the appeal of Mr. Walker was heard before the Executive Council; next day, Captain Forster paid the fees, and took up the grant, (meaning the said Deed of Grant or Instrument so issued and enrolled as aforesaid), which was dated the tenth September! and instantly sent his Clerk, Mr. Tomlins, (the Permit Clerk) to have it enrolled, at the office of Mr. Sorell, the Registrar of the Supreme Court.) After we had published our first notice of this extraordinary proceeding, His Excellency, (meaning the said Lieutenant Governor), very properly considering that the date of the grant (meaning the said Deed of Grant or Instrument), when compared with the date on which the case was considered in Council, might have a very awkward appearance, sent for the grant (meaning the same Deed of Grant or Instrument), cancelled the original date, and in his own hand-writing inserted a new date, the 16th November putting his initials to it, with this alteration, to suite the date, on which the Council decided the case. The grant was carried back to the Registrar, to be enrolled a second time, according to the new date, but Mr. Sorell demurred, on the plea that he had already enrolled it; and on referring to the Chief Justice, His Honor approved and confirmed the act of Mr. Sorell, and pronounced the altered grant to be utterly useless. Mr. O’Connor, of course, can never eject Mr. Walker, and the "Faction" are caught in their own snares! But in what a manner does the King’s Representative (meaning His Excellency the Lieutenant Governor), nor stand in this strange - aye, we may say, fearful affairs. What had Mr. Robert Lathrop Murray done when he was cleared with forgery? Tried, convicted, left for years in gaol under conviction, and all but hanged. Why, on the shewing of his accusers he had only altered the date of a paltry promissory note or bill of exchange, for the alleged purpose of defrauding Captain Ritchie of a few pounds. And was he not again brought to the Police Office, and nearly made to pass through the same horrid ordeal, on a charge of having altered a figure in a grant, which alteration Mr. Evans, the Surveyor General, confessed to have made himself "after signature" by the Governor. We dare not trust ourselves to comment on the situation in which the Governor (meaning the said Lieutenant Governor); stands, or, at least, ought to stand. Had we done the like, we should have been getting some friend to write to Sydney to get a good master to take us of the store when transported. Is Colonel Arthur (meaning the said Colonel George Arthur, so being such Lieutenant Governor as aforesaid); above the law. How often have we told him what the Forster and O’Connor faction would bring him to!!! Shade of Colquhoun! - ye injured, and calumniated names of Bradley, Gellibrand, Gordon, Burnett, and all the lesser victims of the system - look upon your accuser and pity him. We cannot forget our own wrongs, and the wrongs of our children. Our convict servants got drunk at a harvest home - two years afterwards, His Excellency under the influence of Captain Forster, denounced us in consequence as an improper character to have the control of convicts. Servants were refused us and we in consequence were compelled to abandon our occupation, and come to watch the acts of His Excellency (meaning the said Lieutenant Governor) and the Faction!!! We think we have them now. What with this, altering dates of enrolled deeds, the hay, and a few other little things that we have in petto, which will be brought forward in good time. We will consider the whole of this subject very seriously in an early number, in a letter to Mr. Spring Rice, which we will publish here, and give the despatch writer an opportunity of replying to it if he can; we think it will cost him some trouble to get up a case to meet this. If this does not open the eyes of the Ministry, we know not what will" - to the evil example of all others in the like case offending and against the peace of our said Lord the King, his Crown and Dignity.

The Indictment then goes on to recite the articles in the first count, with the following addition - "Will the Attorney General prosecute us for this. If it is not true, he is bound to prosecute us."

The Attorney General, after having thrown the defendant off his guard by informing him that the prosecution would be conducted by the Solicitor General, addressed the Jury in a speech calculated to make a powerful impression on any set of men, directed as its most powerful passages were to their passions. The learned gentleman said that the Solicitor General thought it necessary to open the proceedings in the usual form, and that he would explain to them the nature of the averments, for the purpose of simplifying the evidence. First, then, said he, the Indictment charges the defendant with having published this libel with intent to bring the Governor into contempt, by imputing to him that he had wilfully and wickedly altered the date of a grant for fraudulent and dishonorable purposes. The second count charges the defendant with the same offence in a different form, with the following addition to the matter charged as libellous in the first count.

And the said Attorney General who prosecutes as aforesaid for our said Lord the King, further gives the Court here to understand and be informed that long before and at the time of the printing and publishing of the libel next mentioned, His Excellency the said Colonel George Arthur was and still is Lieutenant Governor of Van Diemen’s Land and its dependencies, and the officer administering the Government thereof, to wit, at Hobart Town aforesaid in Van Diemen’s Land aforesaid, and also a little before the time of such printing and publication, a certain Grant purporting to be a Grant of our said Lord the King of certain land in Van Diemen’s Land aforesaid to one Roderic O’Connor, had been enrolled in the Supreme Court of Van Diemen’s Land (to wit) at Hobart Town aforesaid. Yet the said Gilbert Robertson, knowing the said last mentioned premises, but contriving and intending to traduce and injure the said Colonel George Arthur, so being such Lieutenant Governor, and to bring him, as such Lieutenant Governor, into public disrepute, and disgrace afterwards (to wit) on the said tenth day of January, in the fifth year aforesaid, at Hobart Town aforesaid, did print and publish, and cause and procure to be printed and published. In reference to the said last-mentioned Grant, so enrolled as aforesaid, a certain scandalous and malicious libel of and concerning the said Colonel George Arthur, so being such Lieutenant Governor as aforesaid, which said last-mentioned libel is as follows: - "Fearful, &c."

(To be continued in our next)

Source: True Colonist, 16 March 1835[2]

Mr. Stephen for the prosecution: -

The only inuendos were, when a certain grant deed was spoken of, it meant a certain deed of grant issued to Mr. Roderick O’Connor; and when his Excellency, or Colonel George Arthur was spoken of, it meant Colonel George Arthur the Governor of this Island. The learned gentleman continued - " more simple information could not be drawn; there is nothing to embarras the Jury or perplex the defendant, and it would be worse than insult on your understanding to comment on such a libel. I will therefore occupy a very short space of your time." He then read the motto, and continued - "This, gentlemen, is the heading of the article, the text from which the defendant preaches, and you will find that throughout the article, he draws a parallel between the conduct of the Lieutenant Governor here, and that of the miscreant whose conduct is there referred to - the Felon Knight in Marmion; and on reading the article, if it does not appear that he means to charge the Governor with having committed forgery. I am sure, I do not know what it means. Here you find the Governor of the Colony charged with having altered an enrolled deed for base and unworthy motives; the head of the Government is charged with having altered an enrolled deed, which is true - he is charged with having altered an enrolled deed with a fraudulent intent, which is false. It is no crime to alter an enrolled deed, or any other deed, so long as it is done for an honest purpose. It may be altered for the best of motives; to do justice; but to say that a man altered a deed for unfair purposes, is a libel, and a gross libel; for an alteration made for that purpose would be highly criminal, and subject the offender to transportation. It is in this light that the defendant charges Colonel Arthur, and in conclusion he said, "Will the Attorney General prosecute us for this, if it is not true he is bound to do so. We shall see, "thereby invoking punishment on his own head, which, as far as I am concerned, I will take care he does not escape. For the moment I saw the article, I resolved to prosecute and this I do solely on my own responsibility, for I have never had any communication with Colonel Arthur on the subject, I am not the of Colonel or of any other Governor of this Colony. I am the officer of the Crown, and to the Crown I am responsible for the due discharge of the duties connected with my office. Had the defendant confined himself to a mere statement of the facts, he would have been guilty of no offence, and I should not have felt it my duty to prosecute him. I have no doubt that this case will be met by the old outcry of the Liberty of the Press being in danger; and that Mr. Gilbert Robertson will tell you, that by finding him guilty, you will be destroying the liberty of the press; but I hope gentlemen that you will not listen to such absurdity, it is not the liberty of the press, but licentiousness which you are bound to check and to punish I admit that the Liberty of the Press a great blessing, when confined within bounds. The Liberty of the Press consists in recording passing events, and communicating anything that is for the benefit and instruction of mankind, and commenting, in respectful terms, on public measures. It is simply this, that by the law of England, any man may publish what he chooses without being subject to previous censorship; but then he does so at his own peril, and if he imputes bad acts or unworthy motives to any public officer, in the discharge of his duty, he subjects himself thereby to the merited punishment. But is it to be tolerated, gentlemen, that because a man becomes the proprietor of a few printing types, he is to erect himself into an authority superior to the law, and at this pleasure to drag any man holding public office to the tribunal of public opinion, to answer for any offence with which he may think proper to charge him? What man would be safe if the Press possessed such a liberty? The defendant, like every other man, who abuses the Liberty of the Press, pretends to be actuated by the most pure, praiseworthy, and patriotic motives. But look at his own writing, and you will there find his real motive, and a more base, unworthy, and I may add, a diabolical motive never operated on any mind. He confesses himself that his motive was revenge for personal wrongs. (Here the learned gentleman read a passage from the article charged as libellous, referring to the defendant being refused assigned servants on which he did not venture to comment.) He says he was compelled to come and watch the acts of His Excellency and the Faction. But who compelled him? He, Mr. Gilbert Robertson (with a sneer) arrogates to himself the office of Censor over His Majesty’s Government, and he adds, "We think we have them now." We have them forsooth (with peculiar expression.) Yes, gentlemen, (stretching out his hand and clenching his fist) here we have got them, and now we will destroy them. And is Colonel Arthur, because he is the King’s Representative, to be subjected to attacks such as these from such a man as Mr. Gilbert Robertson, this self-constituted redresser of public wrong; is his peace of mind to be invaded, and every hour of his life embittered by having such charges as this brought against him? Is he to be compared to the scoundrel whom Scott has pictured as a felon Knight, or to another who I shall not name, who has been here - in this Court, prosecuted, tried, convicted - justly convicted, and (with extraordinary action and emphasis) all but hanged? Is the King’s Representative to be compared with such wretches as these? and is the man who dares to make such a comparison to be allowed to pass with impunity? Or is the King’s Representative to be compelled to vindicate his character, and seek redress by an action for damages, which, as Governor of the Colony, he is precluded from doing, and which even his rank as a private gentleman would prevent him from stooping to do; which I myself, independent of my public office, could not condescend to do against the attacks of Mr. Gilbert Robertson, (there spoke a true Colonial aristocrat, who would have expected this from Mr. Alfred Stephen. It shall not be forgotten at a proper time; this is an excellent illustration of the sentiments of the man, we beg his pardon, the exalted personage who "would not address another word to such a Jury") Which of you, gentlemen, would like to be exposed to similar attacks, and then be told to vindicate your characters by disproving the malicious accusation in seeking damages from a false accuser. Mr. Robertson asks "is Colonel Arthur above the law." I say no, gentlemen. If Colonel Arthur, or any other man, however high in rank or station, commits crime, the law will punish him; and I entreat you, gentlemen, not to reprive him of that protection from the law which is his right as a private gentleman, and to which he is especially entitled as the Head of the Government; for if such proceedings are tolerated, and suffered to pass without punishment, it is impossible that any Government, exposed to such attacks, can exist. The law has provided a mode for punishing such conduct, and it is my duty to see that punishment is inflicted. I confess that I feel some difficulty in the present case, for I am not to stand here as the law officer of the Crown, and to violate the rule of proceeding in such cases. I will not offer you evidence to prove that the statement of the defendant is false, for then would he be permitted to offer evidence of its truth, which could not avail him in the present case. I wish to take no advantage of the defendant; he must admit that he has been treated with every courtesy, and every opportunity afforded him of making his defence. Knowing that he could not be allowed in this Court to shew the grounds on which he published his malicious libel, the case was sent to the Police-office, for the purpose of eliciting the whole facts, and affording him every facility in making his defence - and he took even this opportunity to aggravate his offence by the most indecent conduct in summoning all the Members of Council, and other Public Officers, to give evidence there for the purpose of eliciting information on subjects quite unconnected with this trial. And after thus insulting the Government and the Magistrate, he had the audacity to complain, and to threaten that he would make his being brought to the Police-office, the subject of complaint elsewhere. At the Police-office, he had an opportunity of bringing out all the facts, and of ascertaining the real cause for which the alteration was made, but did he avail himself of the locus peintentia thus afforded him. No, gentlemen, he continued to aggravate his offence in his subsequent writings. He is not content in this libel with stating facts which I will not attempt to deny, and with comparing the King’s Representative with that miscreant the felon Knight in Marmion, and with the other who has been tried, convicted, and I think most justly convicted, and all but hanged. He not only says what has Mr. Robert Lathrop Murray done. I beg your pardon, gentlemen, I did not mean to mention his name, but he is not content with comparing the conduct of Colonel Arthur to the act done by that individual, but he adds, that if he, Gilbert Robertson, had done such an act, he should have been transported. And no doubt he would, and so would say man who had done what he ascribes to the Governor; and will you allow such conduct to go unpunished. I repeat that I alone am responsible for the prosecution. I have commenced it without the instruction of any man, and I have consulted no man upon it except my colleague here; nor would any thing induce me to abandon the prosecution except the positive order of the Government, and if I got such an order I should immediately resign my office; for no man who had the least regard to his character could condescend to hold office under a Government where he would be subjected to similar attacks from any miscreant who, reckless of consequences, could get the command of a few types. I trust, gentlemen, that you by your verdict will convince the defendant, and every other person connected with the Press of this Colony, that the acts of public officers are not to be subjected with impunity to their insolent and malicious attacks.

(The above is but an imperfect outline of a very able address, in which similar sentiments were urged upon the Jury, with every advantage of language and oratory to enforce them. How far they were consistent, with the rights of Englishmen to discuss the conduct of the public servants of the Crown, in a Colony so far removed from all constitutional control, we leave to those who heard the learned gentleman to pronounce, but every man must admit that few men in this hemisphere could have made so much of such a subject.)

We are compelled to defer Mr. Robertson’s defence till our next.

Notes

[1] For Robertson see M. Godfrey, ‘Gilbert Robertson (1794-1851)’, ADB, vol. 2, pp. 384-5 and E.M. Miller, Pressmen and Governors: Australian Editors and Writers in Early Tasmania, Sydney: Sydney University Press, 1973.

See also Hobart Town Courier, 6 February 1835; and see R. v. Robertson (No. 2), 1835; Ex parte Robertson, 1835. This led to strong commentary in the press. See True Colonist, 9, 10, 11, 18 March 1835; Colonial Times, 17 March 1835.

Lucy Mills, one of the research assistants in this project, wrote a note to the editors of this website as follows:

"Note on the True Colonist:

"Gilbert Robertson was prosecuted at least twice for libel (once in a criminal action), but remained unbowed: much of his reportage, in particular his Supreme Court reporting, is commentary.

"Robertson's trials, a similar (dismissed) action against a Launceston publisher, & the virulent comments directed at the Press from the Bench by Justice Montagu, may have had a dampening effect on Press reporting of the Supreme Court - 1836 & 1838 seem particularly light."

In support of these comments is one by the Colonist, on 12 May 1834:

"Mr. Justice Montagu. - We have heard a report that His Honor has lately talked of administering Justice, on the water, of on the top of the London Monument!!! Most gladly would the Colonists hear of his being appointed Lord Chancellor to Neptune or Eolus. Van Diemen's Land can well spare him. Oh! That Stephen had caught the judicial mantle of his honoured Father." On Stephen, see also Pearce v. Loane, 1834.

The latter is a reference to Alfred Stephen, who was Attorney General in Van Diemen's Land at this time. He later became a Justice then Chief Justice of New South Wales. His father, John Stephen, was the first puisne Justice of the Supreme Court of New South Wales.

For further press criticism of Montagu and Stephen, see particularly Colonist, 20 May 1834; 1 July 1834.

Justice Montagu was eventually amoved (dismissed) from office, leading to Privy Council litigation: see Montagu v. Lieutenant Governor of Van Diemen's Land (1849) 6 Moo PC 489; 13 ER 773 (appeal dismissed).

[2] Robertson's extremely long defence was published in the True Colonist of 17, 18, 19 March 1835.