R. v. Robertson (No. 2), 1835

Continued - Part 2

Pedder CJ and Montagu J., 16 June 1835

Source: Hobart Town Courier, 19 June1835

The Attorney-General moved for a rule to bring up Mr. Gilbert Robertson to plead to the information filed against him in the prosecution of Capt. Montagu.

The Attorney-General stated the fact of the defendant having been brought up to plead and having refused to do so; and quoted authorities as to the English practice in such cases.

The Court granted a rule calling upon Mr. Robertson to plead on or before Monday next.

Pedder C.J. and Montagu J., 23 June 1835

Source: True Colonist, 26 June 1835

In Banco

Present His Honor the Chief Justice, and Mr. Justice Montagu

Mr. Gilbert Robertson appeared on the boards, being brought from His Majesty’s Gaol at Hobart Town, by virtue of a Writ of Habeas Corpus.

On Mr. Robertson entering the Court, Mr. Justice Montagu said, "Mr. Sheriff, is the prisoner that was sent for in Court?"

Sheriff. - Mr. Robertson is present.

Justice Montagu. - Bring him forward,

Mr. Robertson was then brought forward to the Bar where the Counsel sit, and the Attorney-General prayed that Mr. Robertson might be called on to plead to an Information for Libel, filed at the suit of John Montagu.

The Chief Justice then addressed Mr. Robertson, and stated, that there was an Affidavit before the Court, which stated that Mr. Robertson had been served with a notice to plead, and a copy of the Information; before the shutting of the Registrar’s Office on Monday, and failing in that he should be brought before the Court to plead on Tuesday.

Mr. Robertson. - I have received the notices, your Honor.

Chief Justice. - Are you then prepared to plead or demur to the Information?

Mr. Robertson. - I am not prepared to plead, and I do not understand the technical nature of a demurrer. But I will state to the Court my reasons for not pleading, if your Honors will hear me.

Chief Justice. - Do you demur to the Information, or to the jurisdiction of the Court?

Mr. Robertson. - I do not object to the jurisdiction of the Court, nor to the form of the information, but if your Honors will hear me, I will state such objections to the whole proceedings in this case as will shew the Court that there are sufficient grounds to quash the Information.

Chief Justice. - This is not the time to state your objections, you ought to have done so when you were served with the Rule, to shew cause why the Information should not be filed.

Mr. Robertson. - I had not an opportunity of doing so, your Honor knows that I was confined in prison.

Chief Justice. - You might have applied for a Habeas Corpus to be brought up.

Mr. Robertson. - I did not think it would have been of any use, for I addressed a petition to the Court, which the Court refused to read. I have been denied an opportunity of shewing cause against this Information, but I am now prepared to do it, if the Court will hear me.

(Here their Honors consulted apart for some time.) when the Chief Justice, addressing Mr. Robertson very testily, said, "You must either put in a plea or a demurrer, or the Court will order a plea to be entered for you."

Mr. Robertson. - Then your Honors will not hear my reasons for not pleading.

Justice Montagu. - The information has been filed by order of the Court, and I, for one, will not sit here one minute to hear any objection against what the Court has already decided upon.

Mr. Robertson. - The Court has decided without giving me any opportunity of being heard.

Chief Justice. - (Interrupting in an angry manner) - Have you any affidavit?

Mr. Robertson. - The facts which I have to state, being either on record in the Court, or having occurred before your Honors on the Bench, I did not think that affidavits would be necessary. But if your Honors will allow me time, I will prepare affidavits.

Justice Montagu. - (To the Chief Justice) - Certainly not; this is trifling with the Court.

Chief Justice. - (To Mr. Robertson, very angrily) - Certainly not! Do you intend to plead?

Mr. Robertson. - It is no use for me to say a word, your Honors won’t hear me.

The Chief Justice. - (To the Clerk of the Court) Ask him if he is prepared to plead?

The Clerk of the Court, addressing Mr. Robertson in a new formula, said, "Are you prepared to plead or demur?"

Mr. Robertson. - I am prepared to state my reason for not pleading.

Mr. Justice Montagu. - ("With vigour.") Ask him will he plead?

The Clerk. - Will you plead?

Mr. Robertson. - I will state my reasons for not pleading, if the Court will hear me.

The Chief Justice. - (Hastily) Let a plea of Not Guilty be entered for Mr. Robertson, and let him be remanded.

Mr. Robertson. - I have twice tendered a plea in this case, after I was ordered by the Court to plead within six days, I addressed the Attorney-General, that I was ready to plead if I could be brought into Court. The Attorney-General, as I am informed, applied to the Court to bring me up, which I am informed the Court refused to do. Then, as I was instructed by the Attorney-General, I sent an agent to present a plea on parchment to the Judges, who were then sitting in Chambers. The Judges refused to see my agent, and the Clerk of the Court declined receiving my plea.

While Mr. Robertson was saying this Mr. Justice Montagu roared out "remove the prisoner, take him away," and Mr. Capon the keeper of the Gaol laid hold of Mr. Robertson, endeavouring to prevent him from speaking, and to force him out at the same time, and had succeeded in getting him outside the bar before he had finished his sentence. As Mr. Robertson was going out, half forced by Mr. Capon, the Chief Justice called after him, "Have you got an affidavit of these facts?" Mr. Robertson said, "No, your Honor, but if the Court will grant me two minutes, I will get two affidavits prepared." [Here Justice Montagu muttered something which was inaudible, unless it was to Mr. Capon, who immediately forced Mr. Robertson out of Court. We believe the Chief Justice said – No!]

 

Montagu J., 7-8 July 1835

Source: True Colonist, 10 July 1835

About 2 o’clock this afternoon, Mr. Robert Pitcain, Solicitor for the prosecutor, called on the defendant, in prison, to ask if he wished to be present in Court at his trial! ! in the above case.

The defendant replied, just as the Court pleases - they have done as they pleased hitherto in the matter, and they can continue to do so. I am entirely passive in their hands, they will of course do with me as seemeth good unto them. Mr. Pitcairn then left the prison, and in the course of half an hour, one of the turnkeys came into Mr. Robertson’s room, saying "you must come along with me if you please."

Mr. Robertson. - I must know by what authority, or for what purposes.

The turnkey then left the place, and soon after Mr. Capon came in saying "come away, I am ordered by the Court to bring you over; why should you make any nonsense about it."

Mr. Robertson - I only want to see the authority of the Court.

Mr. Capon. I have sufficient authority from the Court, and you must come.

Mr. Robertson. Then I suppose you will use force to compel me if I refuse.

Mr. Capon. - Certainly, I have the order of the Court, and I must bring you.

Mr. Capon being attended by sufficient force to compel compliance, Mr. Robertson accompanied him into the Court, guarded by one of the turnkeys and a javelin man.

Supreme Court

Criminal Side

Tuesday, July 7, 1834

Before His Honor Mr. Justice Montagu, and a Military Commission of seven Officers

The King at the prosecution of John Montagu v. G. Robertson

On entering the Court, Mr. Robertson stood at entrance to the Reporter’s box, when Justice Montagu addressed him, saying "Mr. Robertson, do you wish to make any notes."

Mr. Robertson. - I do if your Honor will permit me.

Judge. - Then come forward to the table.

As soon as he took his place, the Clerk proceeded to call and swear the Jury; on giving the defendant notice of the proper time to challenge. Mr. Robertson said, "your Honor, I object to be tried by this Jury, because I have a right to be tried by a Civil Jury, and from the manner in which the proceedings in this case have been conducted, I have been prevented from making the application, for I have never (as your Honor knows) been committed or held to bail on this charge. (His Honor - I know you have not) If I had; I might have applied and obtained a Civil Jury; I did not plead to this information for reasons which I would have stated to the Court, had I been permitted.

Court. - Did you not hear the Court. Order a plea to be filed for you, Mr. Robertson.

Mr. Robertson. - I did your Honor, but that was after my reasons for not pleading had been refused to be heard.

Court. - It is now too late to make any application of the sort. If you had applied to the Court at the proper stage, a venire would have issued to empannel a Jury, which cannot be done now. What are your objections to trial?

Mr. Robertson. - My application is that your Honor may not try the case.

Court. - Have you any affidavits in support of your application?

Mr. Robertson. - My application is that your Honor may not try the case.

Court. - Have you any affidavits in support of your application?

Mr. Robertson. - No; the subject of my objection has transpired in the Court, and is grounded on what fell from your Honor on the Bench.

Court.- State your objection.

Mr. Robertson. - It has been reported, to me that on the occasion of an application made to the Court on my behalf, your Honor stated that the Press was wicked and obnoxious, and that you wondered how any person could go to church after reading my paper.

Court. - I never did say anything of the sort; I spoke of the Press generally.

Mr. Robertson. - I have been brought here in the character of an Editor, to be tried for a libel published in a newspaper, and I think that such an observation having fallen from your Honor, will prejudice my trial; and I would appeal to your Honor with all respect whether such an opinion held by your Honor, will not, in the natural course of things, have weight in your Honor’s disposing of this case.

Mr. Montagu. - I cannot entertain the objection made at this time. You knew that I was to sit in trial on you, and I think it was due to the prosecutor and his witnesses that you should have thought of this before. I can state that I have no feeling whatever in the case; if you are innocent, I shall be happy to see you acquitted, and if guilty, as a member of society, anxious for the protection of all persons, I shall be glad that you are convicted.

The Solicitor-General opened the case by stating this was a criminal information, at the suit of John Montagu, against the defendant, Gilbert Robertson, for a scandalous and malicious libel, published in the "True Colonist" newspapers of the 23d January, and the 25th February last. The libellous matter was contained in two letters, the one signed "Justice" and the other being a letter addressed by the defendant to Mr. Joseph Hume, M. P. The information contained four counts, varying the libel and inuendos.

Attorney General. - Gentlemen of the Jury, the present is a prosecution of a nature entirely new in this Colony, being a prosecution by criminal information, filed by the Clerk of the Court, with leave of the Court, which is analogous to an information in England filed by the Master of the Crown Office. This is a prosecution instituted by Captain Montagu, against the defendant, and it is filed in this form in order to give him an opportunity of clearing himself from an imputation which has been affixed to him, and also to give the defendant an opportunity to shew that he had grounds for charging the prosecutor with what he has charged him; or that he did so from no motive of malice. I will trespass on you for a short time in order to explain to you the several modes of proceeding in like cases, to shew that the defendant has been treated with every fairness in the present prosecution. There are three modes of proceeding in cases of this description. The first is by indictment of a Grand Jury, which is analogous in this Colony to an indictment filed by the Attorney General, who stands here in place of a Grand Jury. In that case it does not signify whether the language charged be true or false. It is instituted to punish offences committed against the public peace, the truth or falsehood of the language is not at issue. The person complaining goes before a Magistrate, and states the nature of the offence, and the defendant is held to bail. The question then is, did the libel reflect so far on the prosecutor as to make it a punishable offence; or did it reflect on the prosecutor at all, and that that portion of the case ends. The next portion is when the case comes before the Grand Jury, or in this Colony, the Attorney General, when, if a true bill be found, the defendant is put on his trial. It is generally understood that this mode of procedure is not an honorable one, and it is not resorted to if the complainant wishes to exculpate himself from the charges made against him. In fact, it merely calls on the Court to punish the offender without reference to the truth or falsity of the allegations. The second method is by civil action, and in this procedure, unlike the former, the truth or falsity of the libel is material to be proved, for if the defendant prove the libel to be substantially and literally true, there is an end of the plaintiff’s claim. But in many cases it happens the defendant published a statement not literally, but what he believed to be true, from good motives, or from imaginary good motives, but which he cannot prove to be true, and in this case he must fail. Another case is where the defendant could prove from the plaintiff’s own mouth that the matter charged was true, but without the admission of the plaintiff himself he could not. This the law does not allow, and he must fail. This proceeding has also another tendency not favourable either to plaintiff or defendant. It is brought to transfer so much money from the defendant to plaintiff, and if the plaintiff gains a verdict, the defendant has to pay the costs, and the plaintiff gets the amount of the verdict. But the disadvantages are obvious to the plaintiff, where the defendant is a pauper, for then he can get no compensation money, and he can get nothing else. But in most cases of this sort it is a general argument that the plaintiff comes before the Court under a pretence to clear his character from what he knows to be true, although the defendant, poor man, can’t prove it, and that the action is brought not for the justification of the plaintiff’s character, but for the money. For the several reasons I have explained, a civil action was not thought desirable in this case. The third mode of proceeding is analogous to both those I have described. Here the defendant, before being put on his trial, has a preliminary trial; and to give the defendant this advantage this prosecution has been brought in tis present form. In this case, it is customary for the plaintiff to file an exculpatory affidavit, and I will say there never was a less unqualified denial of the whole facts, than is contained in the affidavit of the prosecutor. I will cite from a very eminent authority - (The Attorney-General looked very significantly at the defendant.) Starkie on slander, Vol. 2, ps 287 and 298.

There the mode of proceeding is this. A prosecutor applies not to a Magistrate; not to a Grand Jury, nor to its representative, but comes before the Judges of the Supreme Court, and asks them to protect him, on the ground that the accusation is false, and if he cannot shew satisfactorily that it is false, then the bill is thrown out. But if he can satisfy the Court that the charge is false, then the defendant is called upon to shew cause why an information should not be filed against him, and unless he can shew cause, a true bill is found, and he is called on to plead; so that the defendant has the advantage of shewing that the charge is true in substance, or that he believed it to be true, and had good grounds for publishing it. But he has the further advantage of putting defendant into the witness box, and cross-examining him. To a man therefore who has slandered another with unqualified malignity - with unqualified false-hood - false in sense and substance - it affords the defendant an opportunity to prove the truth of his statement, or that he had just grounds for believing them to be true, or to admit that he had been misled. To an upright mind - to a mind endued with any sense of honor, it gives the defendant an opportunity of retracting his statement, or offering an apology for the injury done. And I can state from experience that this is almost always the termination of this mode of prosecution; it is all the satisfaction that an honorable mind would desire. Another feature in this procedure is this, the defendant is not saddled with any costs. Before the plaintiff comes into Court, he is obliged to enter into reocgnizances to pay to the defendant all the costs he may have sustained, so that Mr. Gilbert Robertson comes before you free from any embarrassments he might be put to in other modes of procedure. In the second part of the book I have already read from is this passage, and I will trouble you with no more extracts:-

"Although the Court or King’s Bench, & c."

Having, Gentlemen, not only for your information, but for the sake of the Gentleman, who I shall shew you mere fully hereafter has been mostly grossly slandered, libelled, defamed, insulted in a manner which I have never before seen, explained the different modes of prosecution, I will proceed to state the particular proceedings in this case. This is an information for a libel published by the defendant in a newspaper. When it was published, Mr. Robertson was at large, and master of his own actions, and was at the time Proprietor, (I believe) Editor, and Publisher of a paper, called the True Colonist. No motion for a criminal information can be made excepting in term time, and before both the Judges of the Supreme Court , that is to say, in banco, so that the application here must be made before the two Judges. They sat on the 7th of April, which was the first day of Term, when a motion was made for a criminal information against Mr. Gilbert Robertson. At this time he had been tried twice at the suit of the Governor, and once at the suit of Mr. Rowlands, convicted, and stood committed to gaol. A rule to shew cause was granted, and a notice to that effect was served on him on the same day, the 7th of April. The information was presented on the 14th April; he did not appear, and the rule stood over from the 14th to the 29th. The defendant was brought over on the 5th May, to plead. Now, Gentlemen, you may say that the defendant had no opportunity of knowing that the information was filed. You will expect that a concession was made by the defendant - no, Gentlemen, instead of that this newspaper has continued one tissue of abuse, one course of libel up to this hour. I have stated to you, that before the information was filed, the truth of the libel was denied by the plaintiff’s affidavit, in the most sacred manner, being confirmed by the affidavits of other persons in every point. He may see them all if he likes. On the 5th May, he was brought up, and not being prepared he got time. He was again brought up on the 9th, and he then refused to plead, and because he would not plead he could not be tried. He was afterwards brought up again, and when he once more contumaciously refused to plead; a plea was entered for him - he had notice of trial, but as he has made allusion to his not being tried by a Civil Jury, I can only say that Captain Montagu did not desire that he should be tried by any but a Civil Jury, and that he should have the fullest opportunity of proving the charges he made, and I hold in my hand an affidavit in support of what I assert. I might have moved to call upon the defendant to plead, and let the case proceed, but knowing that in this Colony he was obliged to apply immediately after plea, pleaded for a Civil Jury, I did not do so. He had notice given him of this.

Mr. Robertson. - I never received any notice.

Attorney General (violently) - I heard application made to the Court, and the Judge declared the sentiments to be false. I heard a statement made, that no notice had been given, and I heard Mr. Pitcairn say that was false.

Mr. Robertson. - I hope your Honor will stop this course of proceeding. Am I to sit and hear myself branded as putting forth false statements, where I have no opportunity of proving the contrary. Is the Attorney-General allowed to wander out of his case in this way for the purpose of libelling me; and is the Court to be made a Theatre for personal abuse. He takes advantage of his station to make use of expressions he would not dare to use elsewhere.

Attorney General. - If I hear a statement made by you, that I consider false, I will stigmatize it as false. Don’t stop me, Sir.

Court. - I really should be sorry to stop you, Mr. Robertson, in your address to the Jury, and I really don’t see how I can stop Mr. Stephen in what he considers to be of moment in his case.

Attorney-General. - I am willing to be judged by any man who hears me, excepting always Mr. Gilbert Robertson, for the correctness of what I am stating and I do so on the authority of Mr. :Pitcairn, whose character is above all reproach. Here is a letter, dated the 11th of May, signed Robert Pitcairn, addressed to Mr. Gilbert Robertson, and beginning. "Sir, - I hold a copy of that letter, sworn to be true, and delivered to the defendant in gaol; and I again state that this was served after he refused to plead."

[Letter Read.]

As the Attorney General had commenced reading and had read the date,

Mr. Robertson said I admit having received that letter, but not at the time the Attorney General stated. That letter had no reference whatever to the last time I was before the Court, as the Attorney General represented, for the purpose of misleading the Jury and the Public.

Attorney General. - It would be much better if you did not interrupt me, but I admit that letter was sent, and the affidavit sworn on the 11th May; and more than that a copy of the Information on which I am now addressing was forwarded to the defendant on the seventh of May, and this is the 14th July, if I am right in my calculations. The defendant had the information and notice two months ago; so that when he says he had not full time and opportunity to make application to prepare himself, I must state that he has had every benefit the prosecutor could afford him. I am not at liberty to disclose what is contained in Captain Montagu’s affidavit; but as he intends to appear in the witness box, Mr. Gilbert Robertson may make use of it if he pleases. But let me state to you, that the circumstances being denied in substance and in letter, what can authorise me in this part of the case, and in every other, not to urge upon the falsity of the charges. You cannot expect me to stand here and not to designate the charges as base, false, baseless as a vision; and if I could make use of the expression, less than nothing, when there is not a reason shewn for supposing them to be true. I shall come to the letter next - and, Gentlemen, I shall not ask you to consider the prosecutor in any other light than you would another individual - I shall not ask you to look upon him as a Gentleman upon whom the breath of slander never rested; I ask you to look upon him as a person of whom you have never heard, and if you like to assume it, Mr. Robertson as his equal. Mind, he is not a felon, suffering the just punishment of his crimes; and I will draw your attention to this passage -

"Will you ask them, (all for the sake of information) how long it was after Captain Montagu had taken and used the Government materials, with which he built his house, that he applied for and received the written authority of his uncle to take and use those materials? Ask them also, whether that letter was given on the day it was dated, or how long after? Ask whether the real date of that writing, not the surreptitious one had any reference to the date of the charges against Major Lord and Mr. Paine."

Mr. Pain, Gentlemen, was a person who not many weeks before was tried and convicted, and Major Lord was also tried and acquitted. Look at that paragraph, and tell me as men of common sense, whether it can mean anything but that the prosecutor took advantage took advantage of his situation, as the Governor’s nephew to cover his peculation. Not that he did not use them as many men might have used them, blamelessly and wrongfully; that would have been bad enough, but wickedly, basely, dishonestly, dishonorably. I will call your attention to another part of the letter:-

"With reference to Mr. O’Connor’s grant of Mr. Walker’s Mill, it is alleged that Colonel Arthur being the only party signing that deed, he had a right to antedate the grant, and afterwards to alter that date when he saw occasion. This is certainly a very convenient doctrine, and if true, must apply to Captain Montagu’s letter of license, as well as to Mr. O’Connor’s grant. What a pity that poor Mr. Pain could not have obtained a letter of license ante-dated. As for Major Lord being a step nearer the Vice-regal throne than Pain, he did very well without one, and if you look correctly at the case, you must observe a very beautiful connection and gradation in the circumstances of the parties. Captain Montagu, a Member of the Vice-regal House, and main spring of the Council, takes Government bricks, stones, timber, labour, and every thing, ad libitum and builds him a fine house."

Do you believe that Captain Montagu, subject as he is to the liability of such an act, would swear that was false? He has sworn that he never had Government bricks, Government stones, or Government labour, and the letter of license alluded to is all fiction. Can you believe, that in a British Colony, a newspaper stalks abroad, putting forth these statements sworn to be false? Will you believe that there was no such thing as a letter of license. But to continue the letter:-

"When he hears of a stir being making against others, who had been helping themselves in like manner, he obtains a letter of license of convenient date, which places him beyond the reach of prosecution."

This is the kind of charge, that the Press, in a free Colony, puts forth, devoting a weapon, meant for the best of purposes, to the torment of every person obnoxious to a certain class - to Mr. Gilbert Robertson, a gentleman of the first character and connections charged with felony - charged on oath? No; that would have been beneath the dignity of a free Press. No, he charges him, tried, convicts, and sentences him, and sends him branded as a felon to every part of the world where the interest of him who wrote or published the slander could convey it - a document to be held as a reproach to his children wherever they might go. Is that Liberty? Is that Patriotism? Great God, gentlemen, is that the Liberty of the Press? No! that weapon is a firebrand in the hands of a madman. Would you bring a man into Court, and condemn him without witnesses without trial? Oh, no - but Captain Montagu is subject to the Liberty of the Press, and Mr. Gilbert Robertson; and he and others might be libelled without mercy. Gentlemen! I say that no punishment can be inflicted on such a man will sooth the painful inflictions he has aimed at an honorable and feeling man - no person is safe from such a weapon - I am libelled in this very paper - no man in the Island supposes that Major Lord was acquitted by any unjust proceeding on my part, and yet see this letter:-

"The third ground of criminal information on which I am to be prosecuted is as follows: The appropriation of public property to private purposes by persons entrusted with the care of it, had become matter of such notoriety, and the people who had no share in the appropriation, (I dare not use the more appropriate word), became so loud in their animadversions, that it became necessary for the Authorities to make some shew of an example. A poor man, named Pain, an overseer of Government carpenters, was selected and convicted of stealing either one or two boards, value I think below one shilling; he was sentenced to seven years transportation; the Public thought that the example was very badly selected, and it was very generally believed that the man had only borrowed the boards, and that he had really returned them by the hands of the convicts, who gave evidence against him. The Public petitioned strongly for the remission of Pain’s sentence, and his punishment only increased the outcry against those who had intermeddled more extensively with the public property. Major Lord, the ex Commandant of Maria Island, the Honduras friend of Colonel Arthur, and supposed depository of very important evidence in Colonel Bradley’s case, and against whom repeated previous charges of malversation had been made by various officers who served under him at that settlement, was next tried, and certainly a greater farce than this trial (was considered throughout the Colony) never was enacted in any Court of Justice, he was acquitted, as every one who heard the charges felt convinced he must be before they heard the evidence, still the Public were more dissatisfied than before, and the cry for justice was louder - the general exclamation was, "Why are not Captains Montagu and Forster tried as well as Pain, they have had a pound of the public property for every penny that poor Pain has had."

The next libel which I come to is a letter to Joseph Humes, Esq. a gentleman in the habit of bringing forward charges upon the slightest authority, and so Mr. Robertson applies to him, and spreads abroad these aspersions. I drop the epithet most appropriate to the circumstances. I shy it is too bad.

"At this time it was publicly rumoured that Captain Montagu applied for, and obtained from Colonel Arthur, a letter, authorising the appropriation of the large quantity of Government materials, which he cannot deny having used in building his house. Several independent gentlemen intended at the time to have instituted prosecutions against these two officers, for their appropriation of Government property, but the report of Colonel Arthur’s letter of license, as it was called, and the connection of those officers with the Supreme Authority, presented so many obstacles that the intention was relinquished; and in another part of the said libellous matter, the tenor thereof is as follows (that is to say) should any information be filed against us in Captain Montagu’s case, I will immediately charge that gentleman, before a Magistrate, with appropriating the Government property to his own use. I am perfectly able to prove the fact, although I have no doubt he will meet the charge, and quash it by producing Colonel Arthur’s authority."

Gentlemen, I shall take up no more of your time with this letter; you will be the best judges of its tenor. Now, Gentlemen, before I sit down, I must notice one circumstance. I have received a notice from Mr. Robertson, (though by the bye, it has no date to it, but it was received on the first of the month) to produce the affidavit of Thomas Pendleberry. Now, as I take it for granted, that this is the defence he intends to pursue, I will explain to you the nature of the affidavit. There it is, (throwing it down) and he may have it if he likes. It turns out that this Thomas Pendleberry was superintendent of Government brick-makers, had so many men lent to him on Saturdays, or the men were allowed to work for themselves, and he employed them. Pendleberry hired a small piece of ground to make bricks on, and carried on that trade. He contracted with Capt. Montagu for the supply of a quantity of bricks, and that is the whole history of Thomas Pendleberry. That is the only affidavit which Mr. Robertson will venture to meddle with; and although all the rest of them have sworn, that not a single piece of earth, board, or a single brick were Government property; because he finds that Pendleberry makes bricks with the hands that he has lent to him by Captain Montagu, he makes use of this fact to give colour to this base, wicked, false, malicious charge, that these were Government bricks. Why, Gentlemen, this is an aggravation of the libel; worse than sending forth his statements to all parts of the world. The writer of this letter compares Mr. Robertson to the Roman Knight, who to save his country, leapt into a gulph; and no doubt, Mr. Robertson expects his name to be handed down to posterity as a patriot - in armour doubtless. But, Gentlemen, he will not attempt such a defence for you; (he cannot impose on your judgment) but for the inspection of other persons, who he wishes to impose on. I have done.

William Sorell, Esq., - Registrar of the Supreme Court, produced the indictments of John Daunt Lord and John Paine. Paine was tried and convicted of larceny, for stealing three pieces of board, value one shilling and six pence, the property of Government on the7th of May, 1835. Major Lord was tried for stealing an Iron Cross, and acquitted.

Mr. Robertson declined cross-questioning the witness.

Captain Montagu, sworn. - My name is John Montagu. I am Colonial Secretary; I produce two affidavits, sworn before me by the defendant, one dated the 26th of September, 1834 - the other the 5th of March, 1835. They are affidavits of the defendant being proprietor and publisher of the True Colonist newspaper; and the second one was sworn in consequence of the office being moved to different premises. (The Solicitor General put in two papers - the True Colonists of the 23d of January, and the 25th of February, 1835. These papers appear to be edited, printed and published, and signed in the usual way by Gilbert Robertson, the defendant. I see an article headed "Original Correspondence," and signed "Justice." I have seen and read it before; it refers to me, at least certain parts of it; the parts where Captain Montagu is mentioned. The paper, dated the 25th of February, appears to be printed at the same place, and signed by the same person; it was delivered at the Colonial Office; I have read the letter addressed to Mr. Joseph Hume; in the third column of the letter, the paragraph beginning "The third ground of Information." The person mentioned as Captain Montagu refers to myself; I see a letter of license referred to in both papers, and I have not the slightest idea to what it refers.

Cross-examined by Mr. Robertson. - I am the prosecutor; I have sworn an affidavit, on which this information was granted by the Court. I know John Anderson Brown; in my affidavit, he is stated to be of Launceston; he was not of Launceston at the time I employed him; he was of Hobart Town; he was superintendent of Government carpenters; I am at present a Member of the Executive Council but was not at that time, I was Clerk to the Council; I think Mr. Brown received either £150 or £130 a year as Superintendent of Government carpenters; he contracted with me to superintend the building of my house. At that time I had in my service, lent to me from the loan gang, two carpenters, for twelve months at a time. I had other mechanics; I had some stonemason; I am not quite certain, but I do not think I had more than one at a time; I had two brickmakers for three months. I cannot be certain which, I had a plasterer for six weeks. I had no sawyers, nor shinglers, nor stonecutters. I had a labourer, of whom I made a quarryman, but he was not one when I got him. In speaking of these, I wish to be understood that I am not certain as to the length of time I had them; it is so long ago I cannot state accurately. I applied for these men in the usual way, to the Board of Assignment and got them. I have no recollection of applying for any particular order directed to the Superintendent of Convicts for those men; I cannot say that there was no particular order given by the Governor about those men, but I never applied for any. The Board might have written for such an order for what I know; but I knew of none. I never applied for any. I never heard that the Principal Superintendent of Convicts had an order to allow me to select as many men as I required. It is now a particular order that Superintendents shall devote the whole of their time to their particular duty under Government. It was not at that time, and I will give a particular instance. At the time I employed Mr. Brown, I knew of his being employed by six or seven individuals, both in and out of town. I really am not prepared to say how long it is since an order was promulgated, directing the Superintendents in Government service to devote the whole of their time to their duty. It may be a year or two. I have already said I employed Mr. Brown, when he was Superintendent.

His Honor thought it would be as well to adjourn the Court, as both himself and the Jury had been sitting for several days, and it was not likely the trial would be over soon. Mr. Robertson said there was no probability of its being over by 12 o’clock at night, as he had many witnesses to call.

Court adjourned at 10 o’clock on Wednesday.

Continued