[libel, placard - duelling - jury verdict, majority]

Gregson v. Arthur

Supreme Court of Van Diemen's Land

Pedder C.J., 10, 12 June 1837

Source: Hobart Town Courier, 16 June 1837[1]

The Jury in this case having been called, and taken their seats, the proceedings were about to commence, when the Attorney General, on the part of the plaintiff, objected to Mr. Kermode being one of the Jury, and that gentleman himself appealed to the Chief Justice to be allowed to withdraw, as also did Mr. Beauvais, another of the Jury. Considerable discussion followed between His Honor and the Attorney and Solicitor Generals, in which it appeared that the error arose in striking off the list. At length it was agreed by the Counsel on both sides to strike the list over again, when the following gentlemen finally took their places as Jurymen:-

Jas. Turnbull                    Thos. Learmonth

G. F. Read                      M. Smith

H. Thompson                  Dr. Ross

Jas. Smith                       F. Smith

John Walker                   S. Westbrook

Peter Roberts                  C. Rocher

The Attorney General in rising to open the case, stated that this was an action for libel, in which the damages were laid at £1000, brought by the plaintiff a gentleman, who, he was sure, had always ranked high in the estimation of his fellow colonists. The Jury would observe, that the defendant pleaded the general issue. He must confess, that he felt considerable embarrassment in opening the present case to the Jury, under the consciousness that he should be unable to do full justice to his client, he thought that it would be almost better to abstain altogether from observation, indeed the case was such, that it did not require much. He would endavour to place a simple narrative of facts before them. The question which they would be called upon to decide, was whether Mr. Henry Arthur did or did not print and publish or assist and identify himself in the publication of the libel affecting his client. He should that day bring evidence to shew that the defendant had done so, and he proposed to confine his remarks to the statement of the evidence to be produced. He could have wished that it had been possible to have avoided this action he had hoped that all further appeal to law in this case would have been dropped, but it must be remembered, the proceedings had not been originated by Mr. Gregson, that gentleman had been criminally indicted for an act arising out of the publication of the libellous placards he had suffered severely, and had lain in jail for several weeks, which circumstances obliged him to bring the present action. If any individual present expected that he (the Attorney General) was present that day to cast aspersions upon the character of the defendant, they would be disappointed - such was not his intention - interferences would undoubtedly be drawn - conclusions were irresistible - but he should leave all to their verdict. The charge he should substantiate, was, that Mr. Henry Arthur himself, voluntarily published, or assisted to publish, the gross and violent placard, in referring of which, he felt almost ashamed to revert to the term therein used; he could not conceive why it had been deemed necessary to use such abusive expressions. Mr. Gregson, the Jury would find, was therein termed - “a liar, a bully, and a dastardly coward.” No one possessing the feelings of a gentleman, or the heart of a man, could hear such epithets used towards him without causing the very flesh to creep on his bones. In the usages which custom seemed to have sanctioned, upon such occasions, the term coward might be consistent in posting the adverse party, but here “liar, bully, and dastardly coward” were superadded, he know not why. Think what affect such language produced in a family, an effect which the lapse of many years would scarcely obliterate. The offensive placards were circulated throughout the country - could the Jury suppose that such things were printed and not laid up by many in their bureaus to be hereafter produced to the misery and injury of the party aggrieved. He would unhesitatingly assert, that no damages which it was in their power to inflict, could compensate for the injury, wipe out the almost indelible stain, or cause the painful remembrance to be forgotten by his friends; no after atonement could be a sufficient reparation. Mr. Henry Arthur was charged with having been implicated in, and a party to the publication of these wantonly outrageous placards. He should prove that he had left the copy of it at a public printing office in this town, that he was present with Mr. Henry Jellicoe, when they were being printed, that he was seen assisting and preparing them for publication, that the room in which was the defendant, was strewed with the offensive things, that Mr. Henry Arthur called in Mr. McDowell, and showed him one of the vituperating placards (there was no escaping from this evidence) that while Mr. McDowell was there, Mr. Anstey entered, and that Mr. Henry Arthur then took a part in the conversation respecting the placards, with Mr. Anstey, saying, “We have sent out a man with a hundred, and we expect him back presently for more.” He would also shew the Jury that Mr. Anstey had stated that the impression made upon his mind at the time was, that Mr. Henry Arthur had mixed himself up in the transaction - that he had in fact identified himself with the publication of the placards; that Mr. Anstey must swear to the truth of this or he must swear the reverse; and that he would prove incontestibly, that Mr. Henry Arthur had done the act which was imputed to him. He should also call one William Wilson, and Graham Finlayson, both at the time in the employ of Dr. Ross, at his printing office. He would not venture to prognosticate their evidence, but his instructions warranted him in stating, that their evidence could prove, that as Mr. Jellicoe attached his signature to the bills, Mr. Henry Arthur gathered them, that they both spoke to Graham Finlayson upon the subject, and that Mr. Henry Arthur handed the bills to Mr. Jellicoe for his signature. If then this evidence is given by these witnesses, the charges against Mr. Henry Arthur are substantiated. But it might be asked, where is the bill-sticker? He could only state that every effort had been made to find him, and to bring him there that day - without success - he could not even tell his name. There was also another witness who could have confirmed the evidence of the last two witnesses, a boy named Stevens - but he was out of the country - if not, he would have been called. The learned gentleman then proceeded to state, that he should call upon Mr. Kermode, to prove that Mr. Henry Arthur, had admitted to him that he was a party to the publication of the placards. He had heard that Mr. Wedge would, on the other hand, be called upon distinctly to contradict Mr. Kermode’s evidence on this point. He felt satisfied of this, that neither the one or the other of those gentlemen were capable of telling an untruth, it was undoubtedly difficult to reconcile the contradiction, but he was quite sure that the error could only be imputed to unintentional mistake. He should, however, prove that Mr. Kermode had written to Mr. Henry Arthur to know whether he considered himself a party in the affair and that he received an answer declining any communication - that he communicated the result to Mr. Gregson, and afterwards went to the Macquarie Hotel, and that during that interview Mr. Kermode asserts, that Mr. Henry Arthur admitted that he was a party concerned. If, therefore, the Jury believed the testimony of Mr. Kermode, no doubt would exist as to the fact.

[Here Mr. Attorney General was about to state a circumstance which had reference to a statement made upon a former trial, when the Solicitor General was counsel for the plaintiff, which led to some discussion between his Honor and the opposing counsel, which, however, owing to the crowd between ourselves and the bench, we were incapable of hearing except occasional sentences, when the learned gentleman resumed.] He stated that it was notorious that from the publication of the placard by Mr. Henry Arthur,Mr. Gregson was led to believe that Mr. Henry Arthur was a party concerned, which circumstances led to the assault, that Mr. Henry Arthur prosecuted Mr. Gregson, who had suffered; that he could not shut his eyes to the fact that no person is entitled to two satisfactions for the same thing; all he asked was that his client should receive from the Jury that verdict to which he was fairly entitled. In conclusion he regretted that he could not but feel that he had rather underrated than done justice to the case. He proceeded to call on his first witness the Solicitor General.

Edw. McDowell, Esq., - Was at Dr. Ross’s office on the lst Nov., thinks it was Tuesday; was there for an official purpose; knows the reading room; it was then divided by a partition about 7 feet high from the lobby; voices in the room can be heard outside when the door is shut; saw defendants in the room; whilst witness was in the lobby the door was shut; was talking to Mr. Finlayson who had explained there was difficulty in getting the subpoenas; said, well I’ll go to Mr. Melville and get them done there; Mr. Henry Arthur opened the door and asked him to walk in, he handed to witness a printed placard and said “will you read that?” witness did so and replaced the placard on the table before Mr. Henry Arthur; believes that was all the conversation he had with Mr. Henry Arthur on that occasion; there were 30 or 40 placards laying on the table; might have been more; defendant was doing something with them; Mr. Henry Jellicoe was engaged in signing them, and observed - “he had never done any thing more painful to his feelings in his life, but what else could he do;” Mr. Henry Arthur was either handing them to be signed or was receiving them when signed; probably both; whilst witness was there Mr. Anstey entered; witness remained about two minutes only in the room; thinks Mr. Anstey was there reading the placards; left him there reading a paper; thinks he heard - knows he did - Mr. Jellicoe ask Mr. Anstey to read the placard; heard nothing more; the placards were placed between Mr. Jellicoe and Mr. Henry Arthur; Mr. Jellicoe was sitting and Mr. Arthur standing; on the same side of the table any person going in might see them; does not know whether the placard shown him was signed; should know the placard again; saw them afterwards about the streets; the signature was written; the other part was printed; Henry Jellicoe was the names signed; recognised the one in his hand to be a fac simile of the placard in question; did not take one away; did not see Mr. Henry Arthur and Mr. Jellicoe in company after that; saw them meet as he was coming from the Club house early that day.

Cross examination. - Was annoyed at the pragmatical manner of Mr. Finlayson; thinks he talked louder than usual, and could be heard by Mr. Henry Arthur and Mr. Jellicoe; does not know whether Mr. Henry Arthur asked him in on his own notion or not; R. Stevens did not enter the room whilst witness was there; does not think he could have done so without witness seeing him; Mr. Henry Arthur had no conversation with him beyond what has been already stated; witness saw three or four of the bills stuck up in the streets; did not stop to read them; recollects seeing one near his own house, with Mr. Jellicoe’s signature attached, has no doubt they were the same as the one exhibited today.

Thos. Anstey, Esq., - Known the parties; was at Dr. Ross’s reading room, lst November; it was two days after Colonel Arthur sailed; must have been on a Tuesday; he saw first the Solicitor General next the door, then Mr. Jellicoe and Mr. Henry Arthur sitting at the table; recollects no conversation passing whilst the Solicitor General was in the room; might have been, but does not recollect; does not think he could have remained more than one or two minutes; saw a number of placards strewed on the table; did not read any before the conversation began; they were printed; the signature of Henry Jellicoe was from him; thinks so, but did not attempt to read; Mr. Jellicoe said “look at my lips Mr. Anstey, here’s pretty treatment for a gentleman;” witness asked if those were the bruises received the night before at the Theatre, Mr. Jellicoe said they were; witness could not pretend to tell accurately every word which passes, but they were to that effect. Mr. Jellicoe said “I have demanded the satisfaction of a gentleman, he has refused to meet me, and says that I am a coward, but I am sure you Mr. Anstey, have known me long enough to know that I am no coward;” Mr. Jellicoe handed me one of the placards; whether this proceeded or followed, cannot be positive. Witness read it and said, “this is a severe thing, there is no mistake here,” or words to that effect; Mr. Henry Arthur said, in a jocose way, “no, no mistake at all;” was then about to leave the room when Mr. Jellicoe handed to me one of the placards, and said, “Perhaps Mr. Anstey you will do me the favor to put this in your pocket.” Witness replied, I suppose these are intended for posting;” Mr. Jellicoe answered, “Yes, they are already stuck, or being stuck, or words to that effect; witness said, Indeed; Mr. Henry Arthur said “yes, we have sent out a man with 100 and expect him back every moment for many.” These were as near as possible the very words. Witness said, “that being the case, I shall see them on the walls, and need not take your placard; Mr. Jellicoe said, “you will oblige me by taking it, I am going to leave the Colony, and shall be 16,000 miles off, it will be a curiosity some years hence;”  witness then took it, and returned home; when Mr. Jellicoe made some remarks, Mr. Henry Arthur said yes, assenting to what Mr. Jellicoe said. Sought for the curiosity before he left home, but could not find it; believes the one now put in his hand to be a facsimile, excepting that the signature is wanting; those on the table had signatures; there were a considerable number; Mr. Henry Arthur sat by the side of Mr. Jellicoe and as he signed, the former took them away; their faces were upper-most; had no doubt to whom the placards referred; they alluded to Mr. Gregson; no other Mr. Gregson in the colony that he is aware of has a most perfect recollection of the conduct of Mr. Henry Arthur; might just as well doubt my own existence at this moment; struck him at the time, that the present defendant had identified himself with his principal; his want of caution was remarkable.

Cross-examination- When he first entered the room, Mr. Jellicoe said, “Look at my lips &c.,” he observed his lips were swol[le]n; the only part of the conversation Mr. Henry Arthur took, was saying, “there was no mistake”; believes they were the very words; Mr. Henry Arthur used the word we; he is quite sure of that, when speaking of the number which had been sent out; was struck with his want of caution; it struck witness that Mr. Henry Arthur had identified himself with the placards; did not enter into his mind that it was an excess of duty; has no idea that it is the duty of any gentleman to subject himself to an action on account of his friend; only narrates the impression upon his mind at the moment, which impression remained for a long time afterwards.

Graham Finlayson. - Has made two affidavits in this matter; was in Nov. last principal manager to Dr. Ross’s printing office; saw Mr. Jellicoe and Mr. Henry Arthur; they came twice to his knowledge, if not thrice; saw them first on that day about one o’clock; saw them in the reading room; there were some placards printed on that day; has not got one; saw one on table, [the witness alluded to the placard produced in Court] has not seen any other today; believes the one now put in his hand to be the one spoken of; is not sufficiently conversant with the mechanical department, to swear to the type; there were two hundred placards printed on that day; they were handed over to Mr. Jellicoe by himself, took them into the reading room, in three lots; defendant was there on each occasion; believes they were handed by himself to the bill-sticker to be posted; the whole 200, excepting any were retained or given away by Mr. Jellicoe and Mr. Henry Arthur, of which he is not aware; does not know the name of the bill-sticker; saw him last a week or two after this affair; does not know where he is to be found; various enquiries respecting his name and residence have been made without effect; Master James Ross picked him up somewhere on the wharf; Mr. Henry Arthur gave no orders to the bill-sticker, in this hearing; Master James Ross went for a bill-sticker at his request; thinks Mr. Henry Arthur spoke to him on the subject of printing the placards; has no doubt of it, but cannot say what words he used; Mr. Jellicoe directed that they should be posted in the most conspicuous place about town; does not recollect Mr. Henry Arthur giving orders on that subject; when Mr. Jellicoe signed the placards he handed them over to Mr. Henry Arthur; who laid them out to dry, collected them, and gave them to witness; thinks this was on Tuesday lst November.

William Wilson. - Has made two affidavits in this matter; got the champaigne in consequence of the first, neither that, nor any thing else, would bribe him to make a false statement; the affidavit was made first, the wine drank after; the affidavit was sworn to before they had the wine; does not recollect the day, but remembers some placards being printed; the one now shown him is very like one of them; has a piece of one in his pocket. [Here witness compared the one handed to him with the piece.] Is positive this is one of the placards then printed; knows the lad Stevens; has not seen him lately; saw Mr. Anstey and the Solicitor General at Dr. Ross’s; heard a voice out of the reading room sing out - “post the bills in the most conspicuous places; it was spoken loud enough for those by to hear; thought at the time it was Mr. Henry Arthur’s voice; to the best of his believe it was; cannot tell who was in the room when the voice sung out, as the door was shut by Mr Finlayson, had seen Mr. Anstey, the Solicitor General, Mr. Jellicoe, and the defendant, cannot say what time had elapsed; should think it was good many minutes; does not know if Mr. Anstey and the Solicitor General had gone still thinks it was Mr. Henry Arthur’s voice; has heard Mr. Henry Arthur and Mr. Jellicoe talk, but very serious; there was only one occasion upon which these placards were printed; thinks he struck them of himself at Dr. Ross’s printing office; was not in the reading room at all; saw Mr. Henry Arthur and Mr. Jellicoe only once in the room; should not have seen them at all if he had not been in the gallery; does not know who the bill-sticker was; heard Mr. Henry Arthur say nothing to the bill-sticker, but what he has already stated; thinks he saw Mr. Henry Arthur there two or three times; did not hear Mr. Henry Arthur say anything on the first, second, or third occasion, beyond what he has already stated; the placard a piece of which he had produced, was perfect in the forenoon; thinks all that were given to be stuck up were signed; does not know what has become of the manuscript.

Cross-examined. - Is sure the one now produced was printed at Dr. Ross’s; a written paper was given him by Mr. Finlayson, from which the placard was printed; had seen Mr. Henry Arthur and Mr. Jellicoe come several times to the office; thinks Mr. Finlayson gave the placards to the bill-sticker in the lobby; at that time, the door to the best of his recollection, was closed, so that the parties inside could not see the bill-sticker; the bill-sticker and Mr. Finlayson were talking in the lobby, the parties inside, therefore, must have heard; believes but is not positive the voice was that of Mr. Henry Arthur; was in the gallery before the Solicitor General came in; saw Mr. Anstey, Me. Jellicoe, Mr. Henry Arthur, and the Solicitor General in the room; was there five or ten minutes after he saw Solicitor General in the room saw[?] you (Solicitor General) enter the room; the Solicitor General might have seen witness if he had directed his attention to the corner of the gallery; did not see Mr. Anstey enter the room, his back being turned; heard conversation, but cannot tell what it was; did not listen; no other person entered the gallery while witness was there.

Re-examined by the Attorney General. - Saw no other person enter the gallery while there; a person might have been on the steps, but not the height of the partition.

By a Juror. - Should have heard the footsteps of any person in the gallery; thinks it impossible any one could have come in without his seeing them.

By the Judge. - Was in the corner by Murray Street.

[Here, after some objection on the part of the Solicitor General, which was overruled by His Honor, the placard stating Mr. Gregson to be a liar &c. was read.]

Charles Toby. - Knows the affidavit - now placed in his hands; does not recollect when first he saw it; it was brought to Mr. Melville’s printing office; read it when he first saw it; it was on a Tuesday in November last he read it; thinks it was not signed when first he saw it; it has the signature of Henry Jellicoe, Mr. Mitchell and Mr. Jellicoe were in company; Mr. Jellicoe attached something afterwards; witness lent him the pen for the purpose; was present when Mr. Henry Arthur was examined in the Supreme Court; there was a placard similar to this read and put into Mr. Henry Arthur’s hand; it was torn like this; thinks Mr. Dobson put it into his hand; Mr. Henry Arthur was examined relative to this by Mr. Gregson; cannot recollect whether it was produced at the cross examination; gave it to Mr. Melville; does not know what he did with it.

Cross examination. - Is sure it is the same that was given him at the office; heard Mr. Henry Arthur state that the placard handed to him was in his own hand writing, with the exception of the signature; recollects words to the effect that Mr. Henry Arthur did not consider himself responsible for copying it any more than was a clerk responsible for copying a deed in a lawyers office.

[Here the copy of the placard, in the hand writing of Mr. Henry Arthur, was read.]

William Kemode, Esq., - Knows the parties; on Tuesday lst November spoke to defendant on the subject of a placard; about 1 o’clock as near as he can recollect; had a placard in his hand, a manuscript to the effect of that already read in Court; handed the placard to the plaintiff in this action; got it from the hands of Mr. Abbott, asked Mr. Henry Arthur “do you know any thing about this?” - handing him the placard; Mr. Henry Arthur said, “yes, I do;” witness said “do you assent that you are a party to it,” or words to that effect; and then said “I hold you responsible for it, as the friend of Mr. Gregson;” and added, “you have both got yourselves into a mess, or, into a basket, and are sure to get well laced:” witness then left Mr. Henry Arthur with Mr. Wedge; after that saw him at the Macquarie Hotel, and afterwards in Elizabeth street, between 4 and 5 as near as he can recollect; said a few words to him; had previously written a letter to Mr. Henry Arthur; saw him in the evening about 9; had received an answer to my letter about 8; imagine the interview lasted about half an hour, went back to Mr. Gregson and communicated the result to him between 9 and 10; went again after this to the Macquarie Hotel and again saw Mr. Henry Arthur; this interview was rather long three quarters of an hour or longer; saw Mr. Mitchell upon this occasion before he left the hotel; returned to Mr. Gregson; all negotiation on my part after this terminated; witness then became a principal; went again to the Macquarie hotel, and had an interview with Mr. Henry Arthur; this was after 12 at night; on this occasion took with me three distinct writing from Mr. Gregson; they were two apologies for two persons to sign and a memorandum; all these papers were in the same hand writing; to the best of my recollection in the hand writing of Mr. Gregson; believes they were written in Mr. Abbott’s room; will not swear that Mr. Abbott was present when they were all written, but thinks he was; Mr. Gregson and himself were present. The memorandum stated that if the parties did not sign the apologies they must take the consequences; should know them again; the memorandum now put in his hands is the same; left Mr. Gregson’s with the two apologies and the memorandum about 1 o’clock; got the memorandum for the express purpose of taking to the Macquarie hotel; and in case the apologies were refused to be signed there were Mr. Gregson’s sentiments.

Memorandum in Mr. Gregon’s writing read - “If Mr. Arthur persists in acting as the friend of a liar, and refuses to give me any satisfaction, after acknowledging himself a party to the infamous placard, I shall act according to the advice of my friends.”

Witness laid both the memorandum and the apologies before Mr. Henry Arthur, at the Macquarie hotel; Mr. Henry Arthur read them before me and took them into the next room; witness said he would wait an hour for the answer; they were taken out of his presence at all events; has no doubt whatever; is quite clear upon the subject; the memorandum imputed to Mr. Henry Arthur then being a party concerned; he (Mr. Arthur) did not object to the phrase or make any remark; waited considerably more than half an hour before he saw Mr. Henry Arthur again; Mr. Mitchell came into the room before he saw Mr. Henry Arthur again; when he (H.A.) came in he told witness that his friend would not sign the apologies, nor would he, and he returned me the papers; witness took them, the memorandum and the apologies back to Mr. Gregson between 1 and 2 of the morning of the 2nd, upon delivering them to Mr. Gregson witness put his initials on the memorandum; Mr. Edward Abbott and Mr. Gregson were present when he did so; communicated the result of his interview.

Cross-examination. - Saw Mr. Gregson first on the subject of his quarrel between 9 and 10; saw Mr. Henry Arthur about an hour after at the Macquarie hotel; he admitted that Mr. Gregson had struck Mr. Jellicoe; refused as Mr. Gregson’s friend to allow him to give Mr. Jellicoe the satisfaction he required at the first interview; Upon that occasion stated to Mr. Henry Arthur that Mr. Gregson was willing to go out with him, but not with Mr. Jellicoe; is almost certain Mr. Henry Arthur’s answer was, “No negotiation Sir!” The next time he saw Mr. Henry Arthur was in Macquarie street between 12 and 1. At that time had a manuscript similar to that which has been produced here to-day; proceeded to Mr. Gregson, and communicated to him the result; after that saw Mr. Henry Arthur again at the Macquarie hotel, to the best of his belief, it was about two; his object was to bring matters to a favourable termination; again told Mr. Henry Arthur he had called in order that he and his friend might explain as to the placard; Mr. Henry Arthur’s answer was “no negotiation, Sir?” communicated that to Mr. Gregson; next saw and spoke with Mr. Henry Arthur in Elizabeth street; there were two other gentlemen with him; asked him if he had received any letter which I had left for him at the Macquarie, and said "will you persist in being the friend of a man who has told a deliberate flasehood, if you do you are as bad as he is;" offered to shew him the proof but he would not see it; that was about four hours after he had told me he was a party to the placard; saw Mr. Gregson twice or thrice after he had been told this; desired Mr. Henry Arthur to give a definitive answer to the letter; stated that if they did not sign the apology they must take the consequences.

Re-examined by the Attorney General. - When Mr. Gregson admitted that he had struck Mr. Jellicoe, he stated as his reasons that himself and Mr. Abbott were in the saloon of the Theatre, that Mr. Jellicoe and Mr. Henry Arthur repeatedly came in and out and that they both placed themselves between them and the fire, in an offensive manner; that Mr. Jellicoe with a large stick stirred up the coal, and flourished the stick about, and that Mr. Henry Arthur having asked Mr. Jellicoe when he left town, the latter replied, “not until I have settled an account with two or three blackguards”; Mr. Gregson said to Mr. Abbott, “do you observe the offensive manner of these two gentlemen, I shall certainly speak to Mr. Jellicoe when he returns;” that they did return, and Mr. Gregson shut the door and walking up to Mr. Jellicoe asked him “if he had stated that he had called him (Mr. G) out, and that he had refused to meet him;” that Mr. Jellicoe at first denied and then said that “it was neither a proper time or place to put such a question;” Mr. Gregson said, you shall answer Sir, and Mr. Jellicoe gave Mr. Chiene as his authority; Mr. Gregson said, “You know you are asserting a base falsehood.” Mr. Jellicoe said, “I did call you out, your friends Mr. Lamb, Mr. Lascelles, and Okes can prove it;” Mr. Gregson said, “it’s abundant proof, the witnesses you have given me, but it’s a gross falsehood;” that Mr. Jellicoe then said, “you are a liar:” Mr. Gregson struck him. Witness refused to allow Mr. Gregson to meet Mr. Jellicoe because Mr. Jellicoe was the aggressor; because he (Mr. Kermode) knew something of the transaction two years ago; when he saw Mr. Jellicoe offer Mr. Gregson his hand, and that Mr. Gregson refused, saying, “I cannot give you an open hand at all events, you have behaved as much unlike a gentleman, you have traduced me.” Witness refused also, upon the grounds of Mr. Jellicoe having called Mr. Gregson a liar; he was guided also by a letter from Mr. Lamb. [Letter read.]

“Dear Gregson,

“I never called you out, consequently you could not refuse. Yours, truly,

D. Lambe”

Here the case for the prosecution closed, no witnesses were called on behalf of defendant, and the Solicitor General rose in reply.

He approached the duty which now devolved upon him with difficulty, but he was quite sure, with respect to the manner in which his learned friend the Attorney General had performed his duty that no one could but agree with him that he (Attorney General) had done ample justice to his client.

When this action was first brought, he had felt extremely anxious for its postponement, owing to the excited state of the public mind, and, he did think, that even now that the Jury would not escape from its effects; there had been a vast portion of feeling manifested throughout, and, he was not yet certain, though the storm was hushed, that the sea had ceased to roll. He would remind them, that it was not fair that Mr. Gregson should have the advantage of his popularity, and without that, he had little fear of their verdict, there was nothing about the case which called upon the jury to give heavy damages. What was there in his clients admission? And to what did his statement amount? In a public saloon at a public theatre Mr. Gregson fancies that he is insulted - he observes something in Mr. Jellicoe’s and Mr. H. Arthur’s manner - he calls his friend’s attention to it, and determines that he will bring them to task. Upon their return to the saloon, instead of enquiring if the offensive words and manner referred to him; Mr. Gregson contents himself with enquiring of Mr. Jellicoe, if he had not stated an untruth, respecting him. Now the learned gentleman would ask was not Mr. Jellicoe’s reply correct; that that was neither a proper time or a proper place to put such a question; but Mr. Gregson says, “you shall answer, Sir.” Mr. Jellicoe then owns that he did say that he had called Mr. Gregson out, and that he had refused to meet him; What follows? Mr. Gregson and Mr. Jellicoe give each other the lie, and Mr. Gregson strikes Mr. Jellicoe; for this blow Mr. Jellicoe demands satisfaction. But gentlemen - he is to be denied satisfaction - and why? Because forsooth Mr. Kermode deemed Mr. Jellicoe to be the aggressor, Is that, gentlemen of the jury, is that a reason why Mr. Jellicoe is to be denied the satisfaction of a gentleman - both parties could not be in the right - because a man has been the aggressor, he is to be denied satisfaction. He (the Solicitor General) was quite sure the jury would not listen to such a doctrine. If Mr. Gregson had said, I look upon duelling to be a most pernicious practise; as the father of a family, I have no right to risk my life for an absurd quarrel; I will not offend against the laws both of God and man. Such objections as these he could understand, but Mr. Kermodes reasoning, he could not comprehend. His (Mr. Kermode’s) second objection was like unto his first. That two years before Mr. Jellicoe had come to Mr. Gregson, and held out his hand to him, that Mr. Gregson had said, “No, Sir, I cannot give you my open hand, you have acted unlike a gentleman, you have traduced me.” If Mr. Gregson thought so, why did he subsequently say, “I shall call him to account.” Was Mr. Jellicoe to be called to account by brute force alone, for that must be the meaning if the jury took Mr. Kermode’s reasoning. If Mr. Lamb’s note asserted that Mr. Jellicoe had said that which was untrue; was that a reason why he was to be denied satisfaction? The learned gentleman would say that Mr. Kermode had exercised an injudicious discretion, and all that had afterwards fallen upon Mr. Gregson was his own seeking. Was Mr. Jellicoe to hire a bully to fight with Mr. Gregson? he (the Solicitor General) would contend that Mr. Jellicoe had no other resource left - but to post Mr. Gregson; he did not indeed justify the terms which had been used, but under the circumstances it was not likely that he would be cool enough to choose his expressions. Mr. Gregson must have expected the result. But then Mr. Gregson comes against his client Mr. Henry Arthur as being the friend of Mr. Jellicoe, and as having mixed himself up in the transaction. He wished to know what Mr. Henry Arthur was to do but assist his friend in the way he did? At the Macquarie Hotel, Mr. Henry Arthur had told Mr. Kermode that he would not negotiate; Mr. Gregson must either meet his friend or not. His client afterwards accompanied Mr. Jellicoe to Dr. Ross’s printing office and ordered the placards; he contended that it was the duty of a friend to assist upon such occasions; had Mr. Henry Arthur acceded to the proposal made by Mr. Kermode, he would have set the seal of irrevocable ruin upon Mr. Jellicoe. There was a slight difficulty in reconciling one part of Mr. Kermode’s evidence with the other. It appeared that, by his own statement, he had ceased to be a principal in the affair at 10 o’clock and yet you found him again at 1 o’clock anxious to get apologies signed. He perceived that his learned friend, the Attorney General looked a little astonished, but he (the Solicitor General) confessed that to him it appeared irreconcilable. It was put forward that Mr. Henry Arthur was a party to the production of the placard, yet as far as the testimony went, up to one in the morning Mr. Gregson had not asked for satisfaction, but he comes here gentlemen of the jury, to claim damages at your hands. How, he would ask, has Mr. Gregson been injured? How could Mr. Jellicoe have acted differently than by circulating (he would not say in these precise words) the placards which had been published? He submitted that the question to be decided by the jury was whether Mr. Henry Arthur had exceeded his duty one iota in going with his friend Mr. Jellicoe to get the placards printed; he felt quite sure that when they came to consider the evidence that their verdict would pass for nominal damages only. Did he possess the learned ingenuity and ability, and he might add also the irregularity, of the Attorney General; he could have strengthened his clients case - he could have committed a similar irregularity, but no, he abstained from so doing, and he must be permitted to say that the Attorney General had done so most unfairly.

The Chief Justice briefly placed before the Jury the law of the case, he pointed out to them that legal proof had been given of the publication of the placards, on the part of Mr. Henry Arthur, inasmuch as he had assisted and was therefore, in point of law, guilty of the libel. His Honor apprehended, that their verdict must pass for the plaintiff, and the only thing for them to determine was the extent of damages, which, under all the existing circumstances, they should be inclined to give.

The Jury retired about six o’clock in the evening, and not having agreed before 12 o’clock, His Honor was unable to take their verdict, the following day being Sunday; the Jury were therefore conducted to the Macquarie Hotel, where they remained in the long room until Monday morning, on which day, at eight o’clock in the morning. His Honor took their verdict for the plaintiff. Damages £250.