[criminal libel - trial by jury - criminal procedure, costs of proceedings - civil procedure, choice of procedures - habeas corpus - press freedom - Montagu J., attacks on - Montagu J., extraordinary sentencing speech - judicial bias, allegation of - Grand Jury - libel, elements of - Stephen, Alfred, attacks on - convict service, assignment of - convict service, withdrawal of - corruption, allegations of - convicts, payment of - arrest of judgment - evidence, hearsay - press freedom, "Moral Guillotine"]

R. v. Robertson (No. 2)

Supreme Court of Van Diemen's Land

Pedder C.J. and Montagu J., 7 April 1835

Source: True Colonist 10 April 1835[1]

The Solicitor General, Edward McDowall, Esq. then rose, and with much feeling intimated to the Court, that he was instructed to apply for a rule to shew cause why a criminal information should not be filed against Mr. Gilbert Robertson, the Editor and Proprietor of the True Colonists Newspaper, for an alleged libel upon Captain John Montagu, the Acting Colonial Secretary, published in the said Newspaper on the 23d January; and for certain other alleged libels on the said Captain John Montagu, published in the same Newspaper on the 23d and 26th days of February. The Learned Gentleman stated that the first libel was contained in a letter, signed "Justice," and which imputed to Captain Montagu, that he had improperly possessed himself of a large quantity of building materials, the property of the Crown, and had employed them in the construction of his own private house. The subsequent libels were all on the same subject, but were couched in grosser terms, and imputed to Captain Montagu that he ought to be tried for embezzling the Crown property, as well as Major Lord or Mr. Paine. The one was contained in a letter purporting to be addressed to Joseph Hume, Esq., M. P., and signed Gilbert Robertson, in the paper of the 23d February, and commenced with the words - "Why are Captains Forster and Montagu not prosecuted as well as Pain, &c.;" and again - "Should any information be filed against me, &c." The other passage charged as libellous, the Learned Gent. sated, was contained in an article purporting to be a Report of what took place at the Police-office, and published in the True Colonist of the 26th February, and commencing with the words - "I charge Mr. Fitzpatrick, &c. &c." The Solicitor General here said, that to offer one word of comment upon such publications, would only be to offer an insult to the judgment of their Honours; he would, therefore, proceed to read the affidavits which he held in his hand - affidavits, perhaps, the most candid and explicit that were ever read before any Court, and which, he had no doubt, would form a most satisfactory and triumphant answer to his (Captain Montagu’s) maligner. The Learned Gentleman then produced Mr. Robertson’s affidavit of proprietorship, and an affidavit of Mr. Pitcairn’s, that the signature of "John Montagu, Colonial Secretary" were written by Captain Montagu. He then read the affidavit of Captain Montagu, which was long as a bill of indictment, and which set forth that the articles charged was libellous were altogether devoid of truth - that he had not, at any time, used in the erection of his house, any materials which are, or ever were, the property of the Crown or the Government; that he had bought and paid for all the articles used in and about the house, of different tradesmen in the town, with the exception of some few articles which he had imported from England, and about 50 or 60 loads of broken ironstone which had been quarried by the gangs employed in levelling the cliffs opposite his premises. The Solicitor General then read the affidavit of John Anderson Brown, which set forth that he was employed by Captain Montagu to superintend the building of his (Captain Montagu’s) house - that he purchased, and paid for, all the materials, &c., used in the said building, being supplied with money by Captain Montagu, and that he was to receive £100 for his trouble and superintendence; that there was no particle of Government materials used in or about the said building. Mr. McDowall then read an affidavit of one Frederick Patterson, who stated that he was employed to put up the verandah at Captain Montagu’s house, and found the materials, except such as were imported from England by Captain M. There was no particle of Government materials used. Here a supplementary affidavit of Captain M’s. was read, that the painting was done by Mr. Harbottle and the smith work by Mr. Russell. The next affidavit was that of Mr. Edward Winch, architect, who deposed to having put up the gates, and found all the materials, no portion of which belonged to the Government. The last affidavit was that of Roderic O’Connor, - Esq., the Inspector of Roads, which set forth that some years ago the Government made an agreement with the then proprietors of the land on the margin of the Cove, to level part of the cliff in front of their respective properties, on their giving up a certain portion of the land next the river for public purposes - that Mr. W. H. Hamilton was then one of the proprietors, and that Mr. Montagu had purchased his land. It further set forth, that in the process of levelling the Cliff, an immense quantity of iron stone had been thrown down by gangs under his superintendence, and that several of the proprietors of land, among others Messrs. Kerr, Grant, &c., had by permission taken portions of that stone, and that Captain Montagu, had also had part of the same stone, but could not say how much. This deponent further stated, that although, he never gave the stone without permission, he always considered it was the property of the parties. After a few more words from the Solicitor General, the Chief Justice said, he might take a rule, so far as the publication related to Captain Montagu, to shew cause only. Shortly after some considerable discussion arose out of an objection stated by Mr. Justice Montagu, as to who was to be responsible for the form of the information, which was at last decided by a reference to the Act, which stated, that in such cases the Clerk of the Court, by the direction of the Court, was to attach the name of the Attorney General; but that, that officer’s signature was not necessary. The Chief Justice regretted that the Act should have passed in that shape, and was rather annoyed at the idea of "one officers signing for another."

Pedder C.J. and Montagu J., 14 April 1835

Source: True Colonist, 17 April 1835

EXTRAORDINARY PROCEEDING IN THE SUPREME COURT

Last week one of Mr. Pitcairn’s Clerks called on us in prison, and put the following paper into our hands:-

In The Supreme Court }

of VAN DEIMEN’S LAND, }

Tuesday, the seventh day of April, in the First Term, 1835

Upon reading the affidavits of John Montagu, Esquire, and of John Anderson Brown, Frederick Paterson, Edward Wynch, Roderic O’Connor, and Robert Pitcairn, it is ordered, that Tuesday next be given to Mr. Gilbert Robertson, to shew cause why an information should not be exhibited against him for certain misdemeanours in printing and publishing certain scandalous libels, of and concerning the said John Montagu, upon notice of this rule, to be given to him in the mean time.

On the motion of Mr. Solicitor General.

By the Court

Robert Pitcairn - Attorney for the said John Montagu

We requested him to enquire of Mr. Pitcairn, whether and how, we could obtain copies of the affidavits above referred to - to this enquiry, we received no reply. A gentleman, in the service of Government, afterwards called upon us, at the request of some friend of Captain Montagu’s, to advise us to retract what we had stated, relating to that gentleman - by an article in the newspapers, and by an affidavit, stating that we had been misinformed - adding that Captain Montagu had no object in prosecuting us, except to vindicate his own character - that he wished to avoid any charge of persecution or oppression; and would be satisfied with our retracing what we had published. We replied, that we could say nothing until we have seen the affidavits, urging what we had heard about Government bricks, stones, and carts, and also, that stones had been refused to Mr. Askin Morrison, when they were given to Captain Montagu, from the Cliff, at the New Wharf, besides the cut stone of which we had heard; at the same time we assured him, that we sincerely regretted any circumstance that had placed us in a situation, to inflict any injury on Captain Montagu. On our being convinced that we had been deceived, we would eagerly seize an opportunity of doing him justice - but that no dread of punishment would induce us to make the most trivial concession without being convinced that we had done injustice. This gentlemen afterwards brought us Pendleberry’s affidavit, which is referred to in our Petition, because we understood from him that it was filed in the Court. We had no opportunity of knowing correctly what was sworn by the other parties, nor had we an opportunity of consulting or advising with any friend on the subject, the system of terror making it dangerous for any one to come near us, so that even the lawyers are afraid to come when we send for them, or probably our ripping up the "intricacy" in the person of our Little Particular, makes them fight shy of us. It appeared to us a very extraordinary proceeding, that a man should be ordered to shew cause, and at the same time locked up so as effectually to prevent him from obeying the order, and we expected every moment to hear from Mr. Pitcairn in reply to our enquiry about the affidavits, or to receive some order to be brought into Court. But to be prepared for the worst, we wrote a note to Mr. Gellibrand, requesting him to call, that we might instruct him to make a motion for our being allowed to come into Court to shew cause. We waited until ten o’clock on Tuesday in expectation of seeing him, and when we lost all hope of his coming, we hurriedly wrote off the following petition and sent it to the Clerk of the Court to present. Mr. George Stephen, on looking over it, declined to receive it. We then sent it under cover to their Honors by a gentleman of our establishment, who handed it to the Chief Justice, by whose direction Mr. George Stephen commenced reading it:-

John Montagu v. Gilbert Robertson

To their Honors the Judges of the Supreme Court aforesaid

The Humble Petition of Gilbert Robertson, defendant respectfully sheweth.

That your Petitioner has been served with a rule of your honorable Court, dated on Tuesday the seventh day of April instant, ordering him to shew cause "why an information should not be exhibited against him for certain misdemeanors in printing and publishing certain scandalous libels, of and concerning the said John Montagu. That your Petitioner, being now a prisoner in the gaol at Hobart Town, did on receiving the order of your honourable Court, apply to the plaintiff’s Attorney, for copies of the affidavits referred to in the said order, which he has not received. That your Petitioner therefore, knows nothing of the matters set forth in those affidavits, except from the newspaper reports, with the exception of an affidavit of one William Pendleberry, sworn before Josiah Spode, Esq." (This affidavit of Pendleberry’s was shewn to us by a gentleman who applied to us on behalf of the plaintiff, to call upon us for a disavowal of the statements which we had, and from him, we learned that Pendleberry’s affidavit was filed in Court) wherein the said William Pendleberry swears, that being then superintendent of the Government Brickmakers he did contract with the said John Montagu, to furnish him with a certain number of bricks, in consideration of the services of certain brick-makers, lent to the said John Montagu, by the Government, and by him transferred to the said William Pendleberry. And your Petitioner in connection with the matter thus set forth, respectfully submits to the consideration of your honorable Court, that when the Government bricks were transferred from the Engineer to the Town Surveyor, there was a deficiency of three hundred and fifty thousand bricks belonging to the Government.

Your Petitioner respectfully intreats the attention of your Honors to the fact that John Anderson Brown, who swears that he did superintend the erection of the house, and pay the workmen for the said John Montagu, was at that time employed by the Government at an adequate salary as the Superintendent of the Government carpenters, to which duty the whole of his time ought to have been devoted - and that the said John Montagu, holding a high and influential situation in the Public Service, by employing such Public Officers who had the management and control of a very large portion of the Public Works and materials, in his own private work, where similar labor and materials were required, did furnish a great color for the charges that have been made against him, for appropriating such Government materials to and for his private purposes. And that the said John Montagu hath, by the affidavit of Roderick O’Connor, shewn that he, the said John Montagu, did use a certain portion of the materials prepared by the Government labor for his own private purposes. And that your Petitioner did see those materials conveyed to the house of the said John Montagu by carts, which he was informed, were hired and paid by the Government for carting materials for the New Wharf - and moreover, that at the time when he saw those materials so conveyed to the house of the said John Montagu, that he went there in company with one Henry Melville to be convinced of the fact, in consequence of having been informed that stones had been refused to Askin Morrison, another proprietor of the ground on the New Wharf referred to, as your Petitioner is informed in the affidavit of Roderick O’Connor; at the same time, that they were so taken and carted for the use of the said John Montagu; and your Petitioner most respectfully submits to your honorable Court, that he was, at the same time, informed, that the freestone used in building the house of the said John Montagu, was quarried and cut by the Government laborers, and carted by the Government carts, or carts in the employ of the Government. And that this has not been denied in the affidavits put in by the said John Montagu - and that your Petitioner did believed the said report to be true, knowing, as he did, that Government Officers were employed in carrying on the said building, which the said John Montagu does not deny, and having himself seen great numbers of the prisoners in the Public Works employed at the said house.

That your Petitioner has not any means of compelling the persons from whom he had his information, and who said that they could prove the truth thereof, to come forward under the present form of proceeding to give evidence. And that on account of the high official situation of Captain Montagu, and his near connection with the head of the Government, persons who could give evidence for your Petitioner are afraid to make any voluntary affidavits in the case. That your Petitioner being now confined in prison, cannot even swear an affidavit himself, much less procure the other affidavits necessary in this case. That two sittings of the Court have been held since the matter alleged to be libellous has been published, and that for certain parts of that matter, your Petitioner has been tried, convicted, and is now suffering imprisonment. And that the Plaintiff ought to have made application for the extraordinary protection of the Court while your Petitioner was at liberty, and in a condition where he could defend himself. That your Petitioner having, in the exercise of his right as a British subject, complained to the Secretary of State, and to the Imperial Parliament, of the acts with which he has charged the plaintiff, that pending the result of the charges so made, and particularly as the plaintiff, by the shewing of his own affidavits, has done that which will render him culpable in the event of a Parliamentary enquiry on the complaint and petition to Parliament of your Petitioner. The granting of a criminal information in the present stage would be an undue interference with the ends of justice, as conviction and imprisonment would follow as a matter of course, and thereby prevent your petitioner from prosecuting his complaint, or supporting it before any commission that may be appointed to enquire into the truth of the various charges which he has preferred to the Supreme Government, and thereby make your honorable Court an instrument to defeat the ultimate ends of justice.

That if the face of the affidavits of John Anderson Brown, Roderick O’Connor, and William Pendleberry, your honorable Court considers the plaintiff entitled to its extraordinary protection, by granting a criminal information against your Petitioner, that the form of a trial will be unnecessary, for, according to the law laid down by the Chief Justice of your honorable Court, in the case of a criminal information by the Attorney-General, your Petitioner has libelled the plaintiff, and can offer no defence, being by law prevented from shewing the grounds on which he made the charge said to be libellous. Your Petitioner humbly prays that in consideration of the facts set forth in the affidavits of John Anderson Brown, Wm. Pendleberry, and Roderick O’Connor, and pending the charges made by your Petitioner to the Secretary of State, and to the House of Commons against the plaintiff, that your honourable Court will dismiss this rule.

Pedder C.J. and Montagu J., 14 April 1835

Source: Tasmanian, 17 April 1835[2]

On Tuesday last, the rule obtained by Mr. Solicitor General Mc Dowall, for a criminal information against Mr. Robertson, for a libel upon Captain Montagu, in the Colonist newspaper, was made absolute.

We should not have offered one word upon this subject, in the present stage of the proceedings, but for certain observations made thereof in a Contemporary of Tuesday; made, we have no doubt, entirely from a misconception of the course pursued by Captain Montagu’s legal advisers upon the occasion, and of the effect of that course. As in consequence of that misconception, some misunderstanding as to the present state of the case may arise, we find it necessary, in justice to that gentleman, and to all others who may adopt a similar course, to explain fully the nature and effect of the course adopted.

We might perhaps observe somewhat upon the sentiments propounded by our Contemporary in the article which elicits this notice, being as it evidently is, not of our Contemporary’s usual fabric, but with that the public have nothing to do. It is what is written that is alone properly tangible - with the writer no one has a right to interfere.

The fact which have induced the present prosecution by Captain Montagu, are very shortly as follows:

A charge of felony was exhibited against him in the Colonist, in the conversion of the bricks the property of the Crown, to his own use in the construction of his house. And the Head of the Government was most indecently charged with being an accessory to that felony, in sanctioning it after it had been committed, by an anti-dated letter, authorising its commission. Our Contemporary (it is useless quoting at length) say, "Captain Montagu is bound to clear himself from these charges, for that if the charges made by the writer be correct, or remain unrefuted, a stain will be constantly left upon his character." Our Contemporary then proceeds to argue that civil action was the only proper course to do this, for that "Captain Montagu cannot refute the accusations made against him in the Colonist by criminal proceedings.

One word will suffice to convince our Contemporary by his own shewing, that Captain Montagu has done exactly what our Contemporary himself requires from him. He has refuted the charges made against him, and that in the most conclusive manner possible!

Let us see how this had been effected by Captain Montagu by his present course, and how it could have been effected by the course our Contemporary insists upon - civil action.

Captain Montagu does not proceed by the ordinary course of sending his information to the Attorney General (the Grand Jury), with the affidavit of mere publication - (all which the Grand Jury can receive, without reference to either truth or falsehood) he adopts a very different course. He goes before the Supreme Court, and moves for a criminal information, a sine qua non to which, is the complete expurgation by the applicant by his own and corroborative affidavits, of the whole of the charges made against him. Captain Montagu makes this affidavit - he produces a host of affidavits corroborative of his own, and thus he, to adopt our Contemporary’s words, refutes- clears himself from the charges made against him in the fullest - most complete - we may add, the most perfectly conclusive manner - more so, than he could do by civil action. We will shew this to be so.

Upon the motion being granted for a rule to shew cause, a week’s time was given the defendant to reply. If the charges made were true, if even so far true as to afford even a colorable pretence for the making them, the defendant has it open to him to shew this by affidavit; he has, indeed, an infinitely greater latitude open to him to shew this by affidavit; he has, indeed, an infinitely greater latitude open to him than he could have by a plea of justification in civil action; for, in the latter, he must prove to the letter the truth of every word he has asserted, or there must be a verdict for the plaintiff. Whereas, in the former, under the motion for criminal information, if he can shew by affidavit, not only that there were some grounds- some shadow of pretence for making the charges - the rule will be at once discharged - which again, we repeat, and we entreat our Contemporary’s particular recollection of the fact, is never granted but upon the most plain and positive denial upon affidavit, of the whole of the charges made! Yet more. - The defendant has, in this process, an advantage which he is deprived of in civil action. He has the prosecutor himself before him, and can examine him upon every particular fact or circumstance, ever so remotely connected with the charges made. If the prosecutor prevaricates or evades, he, the defendant, has all the advantage thereof, and his acquittal is certain - if, on the other hand, he, the prosecutor, persists in denying the charges, he is open to indictment for perjury, and upon much less evidence than would be necessary to establish a plea of justification in civil action.

It is quite impossible, therefore, that there can be more complete refutation of any charges made by one person against another, than by the adoption of the course to which Captain Montagu has had recourse- motion for criminal information.

The reason why this course is so constantly adopted in England, is where the libeller may be in such circumstances as to render process by civil action a punishment only to the injured party. We say, not that such is the case with Mr. Robertson, but our Contemporary does - he says, Mr. Robertson is as "harmless as he ever can be rendered by law."

But our Contemporary charges Captain Montagu with cowardice in adopting this proceeding "against a fallen enemy, without the possibility of his (the enemy) returning the blow." Indeed! - Now, in our apprehension, the fact is exactly the other way. Look at the continued vituperations of the Colonist. If the doctrine of our Contemporary was to obtain, Mr. Robertson might, with the most perfect impunity, continue to be the organ (for we do him the justice to believe he is little more) of the malice of really cowardly assassins, who, shrinking from public view- from "the possibility of returning the blow" to themselves, vomit forth the effusions of their poisonous malice against those whom they hate, "because they hate them" - whom they annoy, "because they like to annoy them!" The cowardice is in those who strike when the blow cannot be returned. If the Colonist wishes impunity, it should at least case to vituperate.

We trust we have convinced our Contemporary (we are sure that we have convinced the public) of his mistake in stating that "if a conviction follows the present proceedings of Captain Montagu, the charges of which he is accused in the Colonist will not be refuted." That they will be so, and in the most conclusive manner, is evident from what we have shewn.

One word in conclusion - The Colonist continually asserts, that Mr. Robertson is incarcerated for having stated only what was true. On the direct contrary, he is so, for having stated what was false. Look at the present proceeding by Captain Montagu - look at the Supreme Court report of Mr. Rowlands' case in another page - in both, all he put forth is proved to be false to the very letter! That they were malicious, nobody has been found to deny.

…

Tuesday April 14

This day the Court did not sit until one o’clock, on consequence of the general attendance of all classes at Divine Service.

The Solicitor General moved, that the rule to shew cause which he obtained on this day week on the part of Captain Montagu, why a criminal information should not be filed against Mr. Robertson, the published of the Colonist, should not be made absolute.

Mr. G. Stephen, the Clerk of the Court, stated, that Mr. Campbell, the Clerk to Mr. Robertson, had delivered to him a paper, purporting to be a petition to their Honors the Judges from Mr. Robertson. The Chief Justice, after a short consultation with Mr. Justice Montagu, desired Mr. Stephen to read it aloud. It commenced with setting forth, that he (Mr. Robertson) had applied to the Solicitor of Captain Montagu for copies of the affidavits upon which the rule had been obtained; but that, he had not obtained them - and that he, therefore, knew nothing of their contents except from newspaper report. One affidavit of a Mr. _______

Mr. Justice Montagu. - "This is, really, a very improper course of proceeding. When the petition was presented, I supposed it was for a habeas corpus, that Mr. Robertson might be brought up to defend himself, or for some other indulgence from the Court, instead of which, he sends here a petition commenting upon the affidavits filed in the Court, and this unaccompanied by any affidavit. I consider this petition cannot be read further."

The Chief Justice enquired what was the prayer?

Mr. George Stephen read the prayer which was, that the Court would discharge the rule.

Mr. Justice Montagu. - "It is impossible this petition can be received. If Mr. Robertson wished to have copies of the affidavits, his proper course was to apply to the proper officer of the Court for them, who would have furnished him with office copies of them as matter or right".

The Chief Justice expressed himself to the same effect. Enquiry was then made as to the service of the rule upon Mr. Robertson, which was made absolute.

Montagu J., 7 April1835

Source: Hobart Town Courier, 10 April 1835

The King v Gilbert Robertson – The Solicitor General moved the Court on behalf of John Montagu, Esq., Colonial Secretary, for leave to file a criminal information against Mr. Gilbert Robertson, as editor and proprietor of the True Colonist newspaper, for certain publications in that paper, on the 23d Jan. and 25th and 26th Feb. last, charging Captain Montagu with having surreptitiously or unlawfully obtained and used a large quantity of government materials in the building of his house, and afterwards to avoid prosecution, obtained an ante-dated letter of license from his relative, the Lieutenant Governor, sanctioning the use of such materials. The Solicitor General stated, that he made the motion upon several affidavits, denying the truth of the several imputations in the libels; which he proceeded to read.

The affidavits of Captain Montagu, Messrs. John Anderson Brown, Fredrick Paterson, Howard Winch, and Roderick O’Conner, were then read by the Solicitor General.

Rule granted. – Cause to be shewn on Tuesday next.

Pedder CJ and Montagu J., 14 April1835

Source: Hobart Town Courier, 17 April 1835

Tuesday, April 14. – Before the Chief Justice and Judge Montagu.

In re John Montagu v. Gilbert Robertson. – The Solicitor General moved that the rule granted on Tuesday last in this case should be made absolute, it having been proved that the rule had been duly served upon Mr. Robertson.

A petition was hereupon presented on the part of Mr. Robertson, and the officer of the court proceeded to read it when the Judges stopped him stating that they could not receive such a petition, and desired the officer to inform them whether such an affidavit as the petition mentioned was on the files of the court. Mr. George Stephen replied that there was not, and the court then made the rule absolute, that a criminal information should be filed against Mr. Gilbert Robertson for printing and publishing libels against John Montagu, no cause being shewn to the contrary.

Montagu J., 5 May 1835

Source: Hobart Town Courier, 8 May 1835

Mr. Pitcairn presented an information against Mr. Gilbert Robertson as to the suit of Captain Montagu, in pursuance of the order made for that purpose during the last term.- The Judge sent for Mr. Robertson to come into the court and plead. Mr. Capon returned immediately and stated that Mr. Robertson would not come unless force were used. The Sheriff then ordered Mr. Capon to bring him over. Mr. Robertson accordingly came into the court and protested against his being brought over before he had time to prepare himself. He protested also against this information being filed against him for the libels charged in it, and because the petition which he had addressed to the court upon the occasion of a rule absolute for this prosecution had not been heard by the Judges.

Judge Montagu said that at the present moment he had nothing to do with that, nor could he then inquire into the justice of that determination for the obvious reason that the Chief Justice has decided the matter as well as himself. The Judge directed the information to be read to Mr. Robertson; and Mr. Robertson requested permission to plead to it on Thursday; and that in the mean time he might be furnished with copies of the information. The Judge granted the delay and stated that the officers of the court would furnish him with the copies of the application being made to them.

Montagu J., 7 May 1835

Source: True Colonist, 8 May 1835[3]

On Thursday afternoon, Mr. Robertson, the Proprietor of this Journal, was again brought up to plead to Captain Montagu’s Information - he prayed for more time; as he had not received copies of the Information and affidavits. The Court granted until Saturday next at 10 o’clock for Mr. Robertson to plead. Judge Montagu asked Mr. Robertson if he could not afford to pay for copies of the affidavits and informations. Mr. Robertson said that he understood that they would come to a considerable sum, and that having a large family, and being in prison, with heavy fines hanging over his head, he could not afford to pay for them. Judge Montagu said - If you have no money to pay for them, or no friend to assist you, the Court will order you gratis copies."

Mr. Robertson. - I cannot say that I cannot find money to pay for them, but I have a family of six children, and I am in prison, and have far better use for any money I can get.

Judge Montagu. - Then if you can get the money you must pay for them, for to give them to you gratis would be defrauding the Government of its fee!!!

Mr. Robertson. - It is extremely hard that a man is to be charged with an offence, and put upon his trial for doing a public duty, and then made to pay for knowing what he is charged with, if he had not another farthing left to buy bread for his children.

Judge Montagu. - I cannot hear that, you have your remedy, and may bring your action.

Mr. Robertson. - A pretty hopeful remedy.

Judge Montagu. - When can you plead.

Mr. Robertson. - I do not know, Sir, until I have received copies of the Informations.

Attorney General. - You can have that from Mr. Pitcairn’s office in half an hour.

Mr. Sorell. - The affidavits are being prepared in my office.

Judge Montagu. - Then Mr. Robertson must pay for them.

Mr. Robertson. - Then I can’t help myself.

Judge Montagu. - Can you plead on Saturday?

Mr. Robertson. - My plea must be a special one, and I must employ Counsel to prepare it; and Mr. Gellibrand, who I would wish to apply to, is engaged in the Court tomorrow, so that I think it would be impossible for me to be ready on Saturday.

Judge. - Then you must put in an affidavit, stating that you have sent your papers to Counsel, and what hour, to prepare a plea, and that is it not ready.

Mr. R. - I should think, your Honor, that it makes very little difference whether I plead on Saturday or not, as the Sheriff must have six days notice of the vemire.

Attorney General. - Indeed, he must not, though I shall very likely put you on your trial on Saturday, for you will find that you are not entitled to a Civil Jury.

Mr. R. - Then the Act of Council is of little use, for you will surely admit that Captain Montagu was a Member of Council.

Attorney General. - (smiling significantly) - Oh, yes; but notwithstanding, you will find yourself much mistaken if you expect to have a Civil Jury.

Judge. - This is not the time to argue that question.

Mr. R. - At all events, I have a right to traverse.

Judge. - You must apply for that after you have pleaded.

Attorney General. - I don’t think you have.

Mr. R. - I have been most cruelly and unjustly treated in the whole of this case, from beginning to end - first, in the ex-parte proceedings on the motion for a Rule - then, in being dragged up to Court without a moment’s notice.

Judge. - Then I can’t hear you - there is no motion before the Court; you understand you are to be ready on Saturday, at ten o’clock.

Mr. R. (bowing to the Court.) - I will be here, your Honor, if they will let me.

Now, Readers, what do you think of this scene - above you have the opinion of Alfred Stephen, Esq., His Majesty’s Attorney General, the framer of our famous antipodean Jury Act; and you would think that he had heard quite enough about it whilst it was under consideration, to impress every word of it, most distinctly upon his memory. Now just read the sixth section of Mr. Stephen’s own Act, where you will find it written as follows:

"And be it enacted, that after the publication of his Act, in every Criminal "Prosecution, instituted either in the Supreme Court, or any of the Courts of General "Quarter Sessions, in which it will, immediately after the plea, pleaded (or if the party "prosecuted shall have been previously committed or holden to bail them within ten days "next after such committal, or holding to bail) be made to appear to the Court in which "such plea is pleaded, or to one of the Judges of the Supreme Court, that either the "Lieutenant-Governor or other Officer administering the Government, or any Member "of the Executive or Legislative Council for the time being, or any Naval or Military "Officer, within either of the Colonies of New South Wales or Van Diemen’s Land, on "full pay, is virtually; or in fact that Prosecutor otherwise interested in the prosecution, "or will be affected by the result thereof in person, or in reputation, then and in every "such case, the trial shall be had by a Jury, consisting of twelve persons, who shall be "returned under the provisions of this Act, from amongst the class of Special Jurors only, "unless the Court or Judge making the order for such last mentioned Jury shall see fit to "direct otherwise."

There can be no doubt that Mr. Stephen had his mind impressed with the Act which he intended should have passed, and he quite forgot what was wrung from him by the Deputation of the People, although he has contrived by means of his chapter of Esquires, very nearly to nullify any benefit that the accused can possibly derive from a Trial by a Civil Jury. What a pity that he did not venture to trample a little more on the Law of England, and make the verdict in criminal cases depend upon three-fourths of the Jury; he might then, with his special official Esquires, and his power of striking out six suspected names, insure a verdict against any man he might think proper to indict for any offence. There is now a chance, and but a very slight chance of escape for any man accused of any offence against the Members of the Colonial Government.

Montagu J., 9 & 11 May 1835

Source: Hobart Town Courier, 15 May 1835

Mr. Gilbert Robertson was again brought up. The Attorney-general moved that the information might be amended by inserting some words in it. The Judge granted the application. Mr. Robertson making no legal objections to it, and the Attorney-general stating that he had an affidavit to prove the service of the notice of this motion having been given to Mr. Robertson.

Mr. Robertson was then called upon to plead. He urged the same objections as on former occasions – complaining of the injustice of proceedings against him- of his petition not having been received by the court- of his being dragged there without any notice or preparation or legal process.

The Judge stated that he could not hear such observations- that Mr. Robertson had been treated by him with the utmost kindness and forbearance, and that he thought Mr. Robertson was insulting the court to the last degree; that he had been brought up to plead, this day having been appointed in consequence of his request to have further time, and that Mr. Robertson now refused to plead. The Judge stated that he felt satisfied that Mr. Robertson’s sole object in pursuing this line of conduct was to get up a scene to publish in the newspapers.

The Attorney-general told Mr. Robertson that if he did not choose to plead, he would enter a plea for him at the expiration of six days.

The Judge again asked Mr. Robertson if he would plead to the information – and he refused. The Judge then directed the Sheriff to remove him, whereupon a most indecent scene took place: Mr. Robertson caught hold of the rails of the bar, and refused to go, declaring that he was illegally detained, & c. – The gaolers and other officers were obliged to force him out of the court – Mr. Robertson exclaiming all the while, and behaving in the most intemperate manner.

…

The Attorney-general informed the court that he had received a letter from Mr. Robertson, stating that he was prepared to plead, and moved that Mr. Robertson be brought up for that purpose.

The Judge stated that he had been brought up once or twice for that purpose, and that he had positively refused to plead, and therefore he should not order him up again.

9-10 May 1835

Source: True Colonist, 15 May 1835

In another place, we have given some account of the dreadful proceeding in the Supreme Court last Saturday - we here intreat the public attention to the following affidavits:-

In the Supreme Court of Van Diemen’s Land.}

John Montagu, of Hobart Town, in Van Diemen’s Land, Esquire, Colonial Secretary of Van Diemen’s Land, maketh oath and saith, that in the True Colonist newspaper, dated the twenty third day of January last, hereunto annexed, there is contained an article respecting this deponent, (and who is there mentioned as Captain Montagu, and is also therein further referred to as the nephew of His Excellency the Lieutenant Governor.) And this deponent saith, that the said article, is in the judgment and belief of this deponent, a gross libel upon him, and intended to bring him into public disgrace and contempt, the subject matter of that article principally relating to certain Government materials, which this deponent is there charged with having unlawfully and improperly taken and used in the building of his house. [Then follows a long passage, identifying Major Lord and Mr. Paine.] And this deponent saith, that the charge or imputation so contained in the said libel is wholly false and without foundation; for this deponent solemnly swears that to the best of his knowledge and belief, that there are not now, or ever were any Government materials, nor any articles of any kind whatsoever, either bricks, stone, timber, or any other things which are, or ever were the property of the Crown, or of the Government, used in the building or finishing this deponent’s house, or any of the out-building or other appurtenances thereof, or any part thereof; and on the contrary, this deponent saith, that he employed Mr. John Anderson Brown, of Launceston, to superintend the building of this deponent’s said house, (being the house in which this deponent now resides, which is the house alluded to by the said libel;) and that this deponent hath paid him for the whole of the materials of every description used in the building, and finishing of the said house and out-houses, except a few articles which this deponent imported from England; and this deponent saith that he finished his said house and buildings (except ads to the particulars herein detailed) in or about the month of June, one thousand eight hundred and thirty-three; and that in or about the month of January, one thousand eight hundred and thirty-four, he employed Mr. Frederick Paterson, of Hobart Town, builder, to put up the verandah to his said house, and this deponent paid him for putting up and furnishing the whole materials for the same, except the metal covering, the roof thereof which this deponent imported from England; and this deponent saith, that at the time of the publication of the said libel, Mr. Edward Winch was engaged in building the wall which encloses a small space adjoining his said house, and this deponent has paid him for building the same, and for furnishing the whole materials for the same, excepting that there are (as this deponent believe) about fifty or sixty cart loads of iron stone, used in the said wall, which have been obtained from the excavations made by the Government, near the New Wharf, and to the use of which stone, in common with Mr. Grant, Mr. Watson, and Mr. Kerr, this deponent believes himself to have been entitled - those gentlemen, and this deponent, and others, being proprietors of the land from which the said iron stone was quarried. And this deponent saith, that in fact he, this deponent, has paid for the building and finishing his said house, in the whole upwards of four thousand pounds. And this deponent further saith, that it is in the said libel also stated in substance that this deponent has obtained some ante-dated letter, or written license or authority from the Lieutenant Governor, in respect of the use of Government materials by this deponent; and the said libel insinuates that such letter or license was fraudulently ante-dated, in order to screen this deponent from prosecution; and this deponent saith, that the said statement is in every respect false and without foundation, for that this deponent never obtained any such letter or license, on any letter or writing of any such nature; nor has this deponent ever seen or known or any such letter or license, nor does he believe that, in fact any such letter or license or any writing or thing whatever in relation to this deponent of any such, or any similar nature, has ever existed. And this deponent further saith, that in the True Colonist newspaper, dated the twenty-fifth day of February last, (hereunto annexed), the same charge against this deponent, as in the said newspaper of the twenty-third day of January last, is in substance reiterated, but in grosser terms, this deponent being thereby expressly charged with having appropriated a large quantity of Government materials to his own use in building his said house; and a threat is therein held out of instituting a criminal prosecution against this deponent for such alleged offence; and in the True Colonist newspaper, hereunto annexed, dated the twenty-sixth day of the same month of February, there is inserted a supposed account or report of a criminal charge of that nature, having been actually made against this deponent, by the person whom this deponent believes to be the Editor of the same newspaper, at the Police-office.

John Montagu

Sworn in open Court, the seventh day of April, 1835.}

Geo M. Stephen

In the Supreme Court of Van Diemen’s Land}

John Anderson Brown, of Launceston, in Van Diemen’s Land, builder, maketh oath and saith, that in the end of the year, one thousand eight hundred and thirty-one, this deponent was employed by John Montagu, of Hobart Town, Esquire, to superintend the building of the house in Hampden Row, Hobart Town, in which the said John Montagu resides. And this deponent further saith, that it was then agreed between this deponent and the said John Montagu, that this deponent should purchase and pay for all the materials of every description which might be required for the building; and that this deponent should engage and discharge, and pay all the workmen as this deponent thought proper; and that this deponent should pay all other expenses that might be incurred in building the said house, and that the said John Montagu should furnish this deponent with money for those purposes as this deponent required it. And as a remuneration for this, deponent’s said superintendence, the said John Montagu agreed to pay him the sum of one hundred pounds upon the completion of the building. And this deponent further saith, that he did accordingly superintend the said building and the outbuildings until they were completed, as they now stand (except the outer wall, the gates, and the verandah), and that the whole of the materials of every kind used in the said building were purchased and paid for by the deponent, with the exception of some ornamental articles, which, under the direction of this deponent, the said John Montagu, got from London, and a quantity of iron stone which was on the ground, and some free stone which was obtained from Mr. Hone’s quarry, at New-town. And this deponent further saith, that in many instances the said John Montagu did not know from whom the materials were purchased, until the accounts were furnished to him by this deponent; and this deponent swears that in the whole of the said building, or in the out-houses, there is not one particle of Government materials of any description. And this deponent further saith, that he has recently seen in a newspaper, called "True Colonist," dated the twenty-fifth day of February last, an article, in which the said John Montagu is charged with having used a large quantity of Government materials in building his house, and this deponent saith that such statement is utterly false.

John Anderson Brown

In the Supreme Court of Van Diemen’s Land}

The King, on the Prosecution of John Montagu, against Gilbert Robertson.

Gilbert Robertson, of Hobart Town, in Van Diemen’s Land, aforesaid, yeoman, on his oath, deposes and saith, that he, the said deponent, on or about the eighth day of April last past, did receive in prison, where he was then confined, the copy of a Rule of the Supreme Court aforesaid, ordering him on Tuesday, the fourteenth day of the said month of April, to shew cause to the said Honorable Court why a criminal Information should not be exhibited against him, for certain misdemeanours, in printing and publishing certain scandalous libels of and concerning the said John Montagu. That this deponent, being then confined in prison, could not appear in the saith Court to shew cause against the said Rule, and that this deponent did then address to the Honorable Court a petition praying that the said Rule might be discharged, on reasons in that petition set forth, which to this deponent seemed good and sufficient reasons for discharging the said Rule, and that notwithstanding that this, deponent was then imprisoned under the sentence of the Honorable Court, and consequently prevented by the act of the said Court from appearing to shew cause against the said Rule, that the Court did refuse to allow the said petition to be read, and did there upon order the Rule for a Criminal Information against this deponent to be made absolute, without hearing the only cause which this deponent could, in consequence of his imprisonment, shew against such Rule being so made absolute. That on Monday, the fourth day of May instant, this deponent, being still in prison, received the first notice of such Rule being made absolute. That on Tuesday, the fifth day of May, this deponent was assaulted by the keeper of the prison, and by him forcibly and violently dragged and pushed out of the prison, wherein he had been confined under the sentence of this Honorable Court, and without any writ of Habeas Corpus or other authority, so far as is known this deponent, was forcibly taken into Court, and was then and there for the first time, this deponent was informed, by the Court that a Criminal Information was presented to the Court against him, at the suit of John Montagu, Esq., and this deponent was then and there ordered to plead to the said Information, which the deponent refused to do, because he had not received a copy of the Information, or of the affidavits on which the Court had granted the Rule; and further because the Honorable Court had granted such Rule entirely on an exparté statement, without hearing the petition of this deponent, shewing cause against the Rule; and without bringing this deponent before the Honorable Court to allow him an opportunity of shewing cause in person, which this deponent was by law entitled to do. That the Honorable Court did then and there allow the deponent until Thursday, the seventh day of May instant, to prepare his plea, at the same time ordering that he should be furnished with copies of the Information and affidavits. That this deponent afterwards was unlawfully, and without any authority, brought into prison by the keeper of the gaol and the Sheriff’s Officers, and there unlawfully detained. That on Thursday, the seventh day of May, this deponent was again, in like manner, taken out of prison, and taken into the Supreme Court, and called upon to plead to the Information aforesaid, and that upon the shewing of this deponent that he had not then received copies of the Information and affidavits, that the Honorable Court did again allow the deponent until Saturday, the ninth day of May instant, to prepare his plea, and that afterwards this deponent, being still held in custody, was by the Gaoler and Sheriff’s Officers again unlawfully and forcibly taken to prison, and there illegally held and detained. That after deponent was so brought to prison, he received a notice of a motion at ten o’clock on Saturday morning to amend the Information against him in this case, and on the same evening, that is to say, Thursday, the seventh instant, deponent received copies of the Information and affidavits. That on perusal of these this deponent has discovered that this Information is for matters published in the month of January last past, and that since the publication of those matters now charged as libellous, two Criminal Sessions of the Supreme Court have been held at Hobart Town, and that the prosecutor, contrary to the Rule in cases of application for Criminal Informations by order of the Court, did not, at either of these Sessions, apply to the Court for leave to file such Information; but that he did, as deponent believes, wilfully and purposely delay making such application, until deponent was tried, convicted, and imprisoned, on another charge, for the same matter for which this Information is filed; and that when this deponent was so imprisoned, the prosecutor in this case did take advantage of deponent’s inability to appear to shew cause against the Rule in this case, and did then file his affidavits, well knowing that deponent could not file the necessary affidavits in reply. That the affidavits filed by the said John Montagu are, on the face of them, inconsistent, contradictory, and untrue, as this deponent would have shewn by affidavits to the satisfaction of the Court, had he been permitted an opportunity of so doing. That between the time of the Court granting the Rule Nisi, and the said Rule being made absolute, one Frederick Manning, an officer of His Majesty’s Customs, did come to this deponent in the prison, where he is confined, to advise this deponent, and request him to publish a statement, acknowledging that he (deponent) had been misinformed as to the grounds of charges that he had brought against the said John Montagu, and that this deponent did agree to publish such statement, upon the said Frederick Manning, or any other person on behalf of the said John Montagu, producing any evidence that would satisfy him (the deponent) that those charges were without foundation; and that the said Frederick Manning; acting as the deponent believes, at the request, and on the behalf of the said John Montagu, did show to this deponent an affidavit, sworn by one Thomas Pendleberry, before Josiah Spode, Esq., setting forth that the said Thomas Pendleberry did contract with the said John Montagu, or some one on his behalf, to furnish to the said John Montagu a certain number of bricks used in the building of his house, which is referred to in the Information; in payment for which bricks the said John Montagu did give to him, the said Thomas Pendleberry, the labour of certain convicts, lend to him, the said John Montagu by the Board of Assignment. That the said Thomas Pendleberry was at that time in the pay of the Government, as Superintendent of Government brick-makers - that that the said Frederick Manning, acting as the deponent believes, on behalf of the said John Montagu, did inform this deponent, that the affidavit of the said Thomas Pendleberry was filed in the Supreme Court in this case. That his deponent knows that the said John Montagu did receive from the said Thomas Pendleberry several thousand bricks, he the said John Montagu well knowing at the same time, that the said John Montagu did so receive such bricks from the said Thomas Pendleberry a great quantity of bricks, that is to say, upwards of three hundred thousand bricks, were discovered to be deficient in the Government brick-fields, and this deponent further saith, that the affidavit of the said John Montagu, and also the affidavit of John Anderson Brown, are both false; inasmuch as both set forth that the said John Anderson Brown was paid by the said John Montagu for all the materials of every description used in building and furnishing the house of him, the said John Montagu, referred to in this Information; and this deponent further saith, that the said John Anderson Brown, at the time he was employed by the said Montagu, in building and finishing the said house, was employed and paid by His Majesty’s Government as Superintendent of Government carpenters in the Public Works, which fact the said John Anderson Brown, and the said John Montagu have in their affidavits failed to set forth, thereby wilfully and artfully, as the deponent believes, deceiving this Honorable Court as to the grounds on which the said John Montagu founded his claim to this extraordinary protection of the Court by granting a Criminal Information - and the deponent, on his oath aforesaid, deposeth and saith, that by reason of the exparté proceedings in this case, he had been debarred from justice.

Continued

Notes

[1] See also Tasmanian, 10 April 1835. See also R. v. Robertson (No. 1), 1835; Ex parte Robertson, 1835; R. v. Pain, 1834; R. v. Lord, 1834.

[2] This led to another comment, True Colonist, 17 April 1835. The same pattern of relentless criticism of the government, even while the editor was in gaol, was also evident in New South Wales. See the several cases called R. v. Hall, 1829. On 1 May 1835, the True Colonist even published a note which appeared at first to be a report of a trial in the Supreme Court, but which was not. It was published under the heading "The Gallows," which was in gothic type.

[3] See also Hobart Town Courier, 15 May 1835. Robertson's passionate opposition to the Lieutenant Governor and other government officials lasted throughout 1835: see True Colonist, 22 December 1835.