[libel, allegation of peculation - religious minister, allegation of corruption against - jury, disagreement on]

On Wednesday the trial Naylor v. R. L. Murray for libel, which had excited considerable public expectation, came on before His Honor the Chief Justice. It occupied the whole day; and as we shall furnish the Colony with a full report of the whole proceedings in our next number, we shall now only give their outline. The alleged libel was contained in an article in this journal of the 16th June, headed “Feed my Sheep,” the object of which, Mr. Naylor “Declaration” stated to be to charge the Reverend gentleman with peculation as Superintendent of the Orphan Schools. To prove this, the plaintiff’s counsel, Messrs. Solicitor-General McDowell, Crown Solicitor Ross, and Port Philip Solicitor Pitcairn, called Mr. Learmouth, Mr. Hugh Murray, Mr. James Grant, and Mr. William Gellibrand. The two former gentlemen, although “Port Philippians,” fully impressed with the importance of the “feed my sheep” system, gave only qualified opinions as to the tendency of the writing in question; but Mr. William Gellibrand (the co-executor of the Reverend plaintiff of Mr. J. T. Gellibrand, the report of whose calamitous death many people believe to be still unfounded, notwithstanding the plaintiff’s active reserarches upon the occasion of the “feed my sheep” Port Philip excursion,) and Mr. Grant (examined thro’ Mr. McLachlan as interpreter,) swore point blank to the matter, the former with a tone, a manner, and a spirit, which the whole crowded auditory failed not to observe. Against them, and directly in their teeth, Mr. Murray had the gratification to have the testimony of the following gentlemen, wholly unconnected, all of them, with Port Philip, “feed my sheep” traffickings, and some of them of the highest rank and station in the Colony, Captain Montagu, the Colonial Secretary, Mr. Gregory, the Colonial Treasurer, (both Members of both Councils), Mr. McLachlan, Member of the Legislative Council, Mr. Boyes, the Auditor, Mr. Commissary Yeoland, the Reverend Mr. Conolly, Mr. Gilbert Robertson. Besides these, the Reverend Mr. Palmer, the Rural Dean; Captain Forster, Member of both Councils; Captain King, R.N, the Port Officer; Mr. Sorell, Registrar of the Court; Mr. Colligott, J. P., Postmaster General; Mr. Dunn, J. P., Manager of the Commercial Bank; Mr. Abbott, J. P., and several other gentlemen were not called, but whose evidence would have been equally decided with that of the first mentioned witnesses, which the defendant’s counsel, the Attorney General Stephen, and Mr. Young, considered so plain and positive, that they forebore to occupy the time of the Court with further testimony, so conclusively, in their opinion, was the defendant’s case established. The Chief Justice summed up with great precision and impartiality; His Honor directed the Assessors, Messrs. Armstrong, Bogle, Briggs, and Baker, to throw out of their consideration every thing but the single issue before them, did Mr. Murray charge Mr. Naylor with peculation; if they did not find this, their verdict must be for the defendant. The Assessors retired for a short time, and on their return, the Foreman delivered their verdict - “for the plaintiff - damages Forty Shillings.” His Honor asked if they had limited their consideration to the single question of “peculation” The foreman replied, “we are not unanimous upon that point; we have found a general verdict upon the whole article." His Honor refused to receive it, and sent them back to reconsider it. On their return, in rather less than two hours, they delivered the same verdict in the same terms, which was received and recorded.

We are enabled to state, and it will be established at the proper time by affidavit, that the Assessors were unanimously agreed to deliver their second verdict exactly as their first, and that the same want of unanimity upon the subject of peculation existed on the second occasion as on the first. Of course the verdict is a nullity.

Thus the matter stands for the present. On the first day of next term the Court will be moved for a new trial, not only upon the above grounds, but upon several others, one of which alone is decisive. The defendant pleaded to the plaintiff’s declaration the general issue to some parts, special pleas of justification to others. Strange to say, the plaintiff’s counsel adopted a proceeding unprecedented in “the Books.” He made up the Record, passing by the defendant’s pleas of justification altogether, and compelled him to go to trial upon the general issue alone! Thus the cause not being considered by his counsel properly “at issue” they were unable to move for a Jury, and he was compelled against his will, and his written instructions to them, to go to trial before Assessors! So bold a manoeuvre of war as this, well designated by the Attorney General, a “gagging” operation of the most effectual description, being wholly without “precedent,” was attempted to be met by Mr. Murray’s counsel moving “to strike the cause out of the paper.” The Chief Justice would have done so, but the plaintiff’s counsel objected that they had not received written notice of the motion, although oral notice had been abundantly given, the same motion having been made at chambers before Mr. Justice Montagu, who considered that it could only be made either at the trial or before the Court, one Judge not having power to decide upon it out of term at chambers. The plaintiff’s counsel took advantage of the want of written notice, and insisted upon it. Not so the defendant’s upon a point quite as important. Although his counsel had made no written admission, of publication &c., &c., without which the plaintiff could not have gone to trial, yet it being verbally understood that they would do so, they followed not the course of the plaintiff, but admitted all that was required.

In our next number we shall give a full report of the motion, the trial, and the whole proceedings. We feel convinced the whole Colony, the Port Philip Feed my Sheep Speculators excepted, will be unanimously with the defendant.

The Solicitor General, the Crown Solicitor, and Mr. Pitcairn, were for the plaintiff; the Attorney General and Mr. Young were for the defendant. Upon the cause being called on for trial, the Attorney General rose to move that the cause be struck out of the paper upon the following affidavit:-

Robert Lathrop Murray, of Hobart Town, in Van Diemen’s Land, and Thomas Young, of the same place, gentleman severally make oath and say - And first this deponent, the said Thomas Young for himself saith, that he is Attorney in this cause for the said defendant, and that he did by his client’s instructions get a special plea prepared justifying a part of the alleged libel set forth in the declaration in this cause. And this deponent further saith, that he did on the second day of September instant, obtain an order by the consent of the plaintiff’s attorney, for liberty to plead in this cause the plea of the general issue, not guilty, and a plea of justification; and that this deponent did accordingly file the said pleas with the Registrar of this Court, copies of which are hereunto annexed marked A. And this deponent further saith, that he did on the fourth day of September instant, receive in the above mentioned cause the following replication:- “And the said plaintiff as to the said plea of the said defendant by him above pleaded, and of which he hath put himself upon the country, doth the like.” And upon the back of which replication the following notice of trial was endorsed:- “take notice of trial in this cause for the Sittings at Hobart Town next after the third Term, 1837.” And this deponent further saith that after the receipt of this notice of trial, this deponent, together with the plaintiff’s attorney, appeared before his Honor Mr. Justice Montagu, upon an application made by this deponent, for the plaintiff to shew cause why he should not be restrained from setting down this cause for trial, the same not being at issue. And this deponent further saith, that His Honor dismissed the said application as well as another which was at the time consented to by the plaintiff’s attorney, namely, that the plaintiff might shew cause why he should not reply to the special plea filed in this cause. And this deponent further saith, that he understood His Honor Mr. Justice Montagu to dismiss such applications on the grounds that a single judge in vacation could not entertain them, and that they could only in His Honor’s opinion be disposed of by the Court or by the Judge presiding at the trial of the cause. And this deponent further saith, that he has been informed and believes that the record made up in this cause upon which the same has been set down for trial, omits altogether the special plea above mentioned. And this deponent further saith, that he was instructed by the above named defendant to apply to the Court for an order that this case should be tried by a jury of twelve, but that he was unable to do so on account of the cause not then nor yet being at issue. - And this deponent, the said R. L. Murray for himself saith, that he instructed the said Thomas Young to get a plea of justification prepared; and he further saith that he verily believes that he cannot safely go to trial unless he is permitted to prove the matters therein set forth, which proof he is advised he cannot give under the general issue. And he further saith that he did instruct the said Thomas Young to apply for a jury of twelve men to try the issue to be formed in this case.

The Attorney General addressed the Court at some length in support of his motion; contending that the bold proceeding of the Counsel for Mr. Naylor, in passing by the defendant’s pleas of justification, and making up the record, leaving the general issue alone thereon, was utterly unprecedented. He had heard of gagging acts, but this was one of the most decided description that he could conceive possible. The plaintiff’s declaration consisted of only one count. It recited a very long article, published by the defendant, in the Tasmanian and Austral Asiatic Review newspaper, on the 16th June, headed “Feed my Sheep” The plaintiff averred that the defendant’s object was to charge him with peculation in the administration of the funds of the Orphan School, of which he was Superintendant; but it was remarkable, and he believed no instance of a similar course could be found, there was not one single inuendo, whereby to point out the passages which the plaintiff considered convey that charge. Thus the defendant had been advised to plead the general issue to certain portions of the declaration, and special pleas of justification as to the remainder. He could not do otherwise, in order, as he had shewn in his affidavit, to go to trial with safety. The usual and proper course, indeed the only one he (the Attorney General) could find laid down for adoption in such cases, was, that if the plaintiff considered the pleas improper, either to demur to them, or to move the Court to strike them out. Instead of which, he had adopted the summary gagging process, of passing them by altogether, telling the defendant, I will not permit you to defend yourself as you may be advised is best for you, I will make you go to trial with the defence which I may please to select. In consequence, the defendant’s Solicitor, Mr. Young, considering that the cause was not properly at issue, had been unable to comply with his client’s direction, to move for a jury, lest by doing so, he should admit that the cause was at issue, until which no motion for a jury could be made. Thus the plaintiff, by his gagging course, would not only compel the defendant to go to trial with that part only of his defence which the plaintiff might chose to select, but also to compel him to be tried by such a jury as he, the plaintiff, might prefer, shutting the defendant out from a jury of twelve, which he considered the proper tribunal to decide upon the case, and compelling him to be tried by a jury of four, to which he objected. So soon as the defendant’s counsel were aware of this extraordinary proceeding, they adopted the only course open to them. They went with the plaintiff’s solicitor, Mr. Pitcairn, before Mr. Justice Montagu, upon a summons to shew cause why the plaintiff should not be restrained for putting down the cause for trial until the course of pleading should be determined upon. His Honor considered that it was not in the power of a single Judge to do this, at Chambers, out of term, and the only course left for the defendant in the unprecedented position in which the plaintiff had placed him, was the present application.

A long conversation, rather than argument, took place between His Honor the Chief Justice, the Attorney and the Solicitor General; the result being that the Chief Justice expressing his intention to comply with the motion, the Solicitor General objected that he had not been furnished with a written notice of the present motion, to which, by the rules of practice, he was in strictness entitled to. The Attorney General hoped the Court would consider that the plaintiff’s counsel being in full possession of every circumstance, was quite equal to actual written notice. The Chief Justice asked the Solicitor General if he persisted in requiring the strict fulfilment of the rule of practice, which the latter gentleman insisted upon. His Honor said it was out of his power to overrule it, and the cause must go on. The Assessors were then sworn.

Mr. Crown Solicitor Ross opened the case by reading the plaintiff’s declaration, which was in the following words:-

Tuesday the Twenty-second day of August in the year of our Lord, One Thousand Eight Hundred and Thirty-seven

Van Diemen’s Land (to wit.) Thomas Beazly Naylor, the plaintiff in this suit by Robert Pitcairn, his Attorney, complains of Robert Lathrop Murray, the defendant in this suit, (who has been summoned to answer the said Thomas Beazly in an action on the case.) - For that whereas before, and at the time of the committing by the said defendant of the grievances hereinafter mentioned - the said plaintiff was as he still is, a Clerk in Holy Orders, and, also Superintendant of the King’s Orphan Schools at New Town, in Van Diemen’s Land, aforesaid. And whereas also, before the time aforesaid, a Committee was appointed by His Excellency Sir John Franklin, Lieutenant Governor of the said Island of Van Diemen’s Land, aforesaid to enquire into and report upon the aforesaid King’s Orphan Schools - yet the said defendant well knowing the premises, but contriving and maliciously intending to injure the said plaintiff, in his good name, fame and reputation, and especially in his character, as Superintendant of the King’s Orphan Schools, aforesaid, and to cause it to be suspected and believed, that the said plaintiff had been guilty of a misappropriation of the public property, and of speculation, and in particular, that the said plaintiff had, whilst he was such Superintendant as aforesaid, applied the funds of the King’s Orphan Schools aforesaid, to his own use, and otherwise intending to injure and annoy the said plaintiff - (to wit) on the sixteenth day of June, in the year of our Lord, one thousand eight hundred and thirty-seven, at Hobart Town, in Van Diemen’s Land, aforesaid, unlawfully and maliciously did print and publish, or cause and procure to be printed and published a certain newspaper entitled ”The Tasmanian and Austral-Asiatic Review,” a certain false, scandalous, malicious and defamatory libel, of and concerning the plaintiff, as such Superintendant of the King’s Orphan Schools, aforesaid, and of and concerning the proceedings of the Committee, aforesaid, which libel was, and is in one part thereof as follows (that is to say.)

“Feed My Sheep - Perhaps there cannot be institutions which more loudly call for the strictest care and attention on the part of those by whom they are supported, than those known by the familiar appellation of “Orphan Schools.” If this principle generally applies, how most particularly does it so in a Colony such as this, where the objects of its charity are so essentially entitled to the most parental attention which can be bestowed, not only as to their treatment in every consideration, but as to the correct - the honest disposition of the funds generally appropriated by “The People” to their support.. That the public opinion was not over-favorable to those by whom the Tasmanian Orphan School has been administered, is quite sufficiently proved by the fact, that the Chief Authority has considered it necessary, in compliance with that attention which he has on all occasions shewn to the wishes of the people when they have been made known to him, to cause an investigation, intended by His Excellency to be of a thorough searching description, to be made by a “Committee,” placing thereupon Messrs. McLachlan and Dunn, of whom we hope to be enabled to say that they are not the men to suffer even the shadow of abuse to pass by unnoticed.

Perhaps never was public astonishment greater than was occasioned by the appointment, almost immediately after his arrival in this Colony of a very young man, a Mr. Naylor, to the chief administration of this most important establishment. Mrs. Naylor received also an appointment - called in Mr. Elliston’s Almanack, “Female Superintendent;” salary one hundred pounds per annum. Their united emoluments are generally understood to amount to at the least six hundred pounds per annum! In Mr. Elliston’s little book, we further fine Mr. Naylor enrolled as follows:- “Chaplain at New Town, Rev. T. B. Naylor.” Mr. Elliston gives the salaries in most instances. In this particular he passes it by; but in the next page we find “King’s Schools - Chaplain, Rev. T. B. Naylor; salary, three hundred pounds per annum!” It is impossible to tell what have been the services rendered for these emoluments, so much beyond what the Colony can afford, or ought to bestow upon any individual for such services. But what are the especial claims for such excessively lavish expenditure of the public money upon the lady and gentleman in question? Of the former, with that courtesy to “the sex,” which we hope ever to maintain, we shall forbear to speak further - Mr. Naylor is entitled to no such reserve. He is a public servant; and as such is open in his public conduct to that scrutiny, which it is the duty of the Press, if it has any at all, carefully to institute.

It is well known that Mr. Naylor, a gentleman having just obtained “Holy Orders,” arrived here without any appointment from the Downing-street Autocrat. It was not saying very much for either his claims or his interest in England, that he came forth so uninvested. If there is any part of the would where a solemn, staid, respect inspiring deportment and even appearance is necessary in Clergymen, it is especially in a “large goal” such as this, the inhabitants of which being, according to the Secretary of State, and as the fact confirms, “materials for punishment.” That Mr. Naylor exhibited, not outwardly (what this inward merits may best appear by reference to the principle, “By your fruits shall ye be known,”) any thing at all resembling the appearance and deportment we have mentioned, is we believe, the general opinion. Nice to a scruple in his person, his equipage, and his domicile - the cosmetecism of his juvenility not subjected to those drawbacks, which old-fashioned, and we believe we may now say new-fashioned men consider, if only for form’s sake, necessary in “the Clergy” - he may be not inaptly considered “le beau clerc” of the Colony. It is generally believed that Mr. Naylor, having established himself in the families of Captain Swanston and Mr. Gellibrand, as a sort of out-door domestic Chaplain, combining the happy union of pleasant table companionship, and orthodox sacerdotalism, he could not fail to obtain the warm patronage of gentlemen, who, cheerful in their devotions, were delighted with such a combination. But neither of them seemed to be disposed to establish exclusively so expensive a within-door retainer - such an one especially as Mr. Naylor’s companionable habits, however desirable in their enjoyment, evinced that he would become, it cannot be surprizing that he found himself stationed at New Town at the public expense, denominated as before described.

Sweet are the good things of the Government - delightful are the ways of the public purse. Mr. Naylor first rejoiced upon a comfortable hackney; soon, however, “another pudding smoked upon the board,” and the snug “Tilbury”, “Lincoln mountea” harness, and smirk “Petersham” astonished the multitude in general, and the “orphans” in particular. Mr. Gellibrand becoming more and more involved in Port Philip, Mr. Naylor could not but follow his patron’s example; and if rumour is to be believed, the “surplus capital” found its way to that famed El Dorado in the shape of that most desirable investment, a flock of sheep. Sealed up - closed closely from the public eye as are the Orphan Schools, and indeed all other public establishments here, yet some how or other it oozed out that all was not quite right. Reports of various descriptions became generally circulated, and that best of public protections, “the Press,” taking up the subject, Sir John Franklin promptly determined upon investigating a broad based investigation, not as has hitherto been the insufficient practice, by a board of public officers, but by a Committee composed, although for the most part, of those functionaries, yet passing the rubicon, by adding to them a few gentlemen unconnected with the Government - amongst them, as we have said, Messrs. McLachlan and Dunn. The public anxiously expected from such a body, announcements from time to time of the progress of their investigation. - Again fresh rumours of strange configurations were abroad; amongst them, that Mr. Naylor, “Chaplain to the Orphan School,” was not in the habit of reading prayers in the evenings to the orphans. Strange to say, at this particular time, Mr. Naylor gallantly exhibited his perfect disdain of such dependence as “committee enquiries” would perpetrate. “Feed my sheep” is a command of the highest authority to the Ecclesiastical Shepherd, Mr. Naylor in obedience, proceeded to Port Philip, how leaving the orphans and their devotional exercises, we are not informed. It is a principle we believe invariable of every “Church,” the infallible “Established Church of England” alone excepted, that its ministers shall not be permitted to turn their attentions from “things above” to the miserable consideration of the things of this world, by entering into traffic of any sort. We consider this as it should be, and assuredly as it soon will be with the “established” also. While every Clergyman ought to be so comfortably established, as that he should walk lowly and humbly, but equally to his station in society, no Clergyman should possess more than a competence, above all, neither “grebes” nor farms of greater extent than would be sufficient to graze his horse and his cow. Above all, he should be free from traffic of every sort, wool-growing being quite as much so as trading of any other kind; but as we understand the Committee have entered at some length upon this subject, we forbear for the present to further notice. The public expectation is however considerably excited by the known improprieties, (we speak moderately) and by the anticipation of others unknown of much greater extent, which the publication of the evidence taken before the Committee can alone allay. The cost to the people of the Colony of this establishment, exceeds six thousand pounds per annum. They have a right to know the manner in which it is expended. - The evidence already taken is, as we are informed, equally voluminous and important. The people will not be satisfied with either smuggling or cushioning. It is fully expected from the known candour and integrity of Sir John Franklin, that all shall come out. Let not the excuse be made of the expense of printing. The public would cheerfully defray it, even if required, by individual subscription. We will print it ourselves for public gratuitous distribution, and trust to the interest which the importance of the subject creates for payment. There are in the establishment, nearly two hundred orphans of Crown prisoners alone! These miserable forlorn creatures are entitled to the warmest sympathy and attention; sent as they are to the greatest earthly distance from “kith, kin, or country” -- those who could [?]ged them in any way, those who (should it have appeared before the Committee that there have been any such) could deprive them of one atom, either of food, raiment, or attention, must be heartless indeed! These poor orphans are the children of the public! They are a legacy bequeathed by misfortune to humanity, and the people are the executors. Well are we convinced that they will faithfully discharge that most important of duties!

Let it not be supposed that we charge Mr. Naylor with peculation, or in any other way, misappropriation of the public property. We know nothing of that most essential part of the duties of the superintendence confided to him, either for him or again him. He may be integrity itself. He may be the very opposite, and it is in justice to the children - to the people - and to himself, that we now write with the anxious endeavour to obtain the very utmost publicity to every thing connected with so important a trust. Ignorant as we are, in common with the whole public, for every thing connected with its administration, distrusting rumour busy as it is, we can only judge from appearances. From these, we should say that Mr. Naylor is not highly favourite with the public as the person to whom to confide such an institution as the Asylum for the hapless children of sorrow, whether of crime or misfortune. The general opinion of him is not in accordance with that grave, staid, experience and whole-attention-giving habit, necessary, absolutely and unqualifiedly necessary, in the superintendent of such a public charity as the Orphan School of a Penal Colony. A “beau clerc” however favorite a companion in the combination room of his College - however distinguished as the very Nimrod himself of the “subscription pack” of his county - however skilful as a charioteer, all of which accomplishments are considered of first rate recommendation, even under the Bishop’s eye, of a fashionable “Established Church of England” Clergyman, they are not, in the public opinion, such as here required in the superintendent of an Orphan School. It is the practically, experienced, and useful men, long married, well versed in the cares and duties of bringing up a family, the better, if having passed through the valuable (for such a purpose) ordeal of some of the alternate “lights and shades of life to which Providence” in its wisdom, subjects erring humanity. It is such a man as this, much rather a layman than an “Established Church” Clergyman (the thrusting whom into all situations of a similar nature, begins to excite universally, considerable mauvaise odour,) to whom the people would confide, if they had, as they soon will have, the administration of their own purse, and to whom, in the meantime, they would wish to see the present popular administrator of it confide the important charge of one of the most heart-stirring institutions which the generosity of Englishmen generally, generous as it is, ever brought into operation.

Again then, we solicit of the Chief authority - the people might ask it is a right, but they will receive it as a favour - that His Excellency will at once order the evidence taken and to be taken before the “Committee” to be published for the information of those, who paying for the support of an institution comprehending interests, dearest, perhaps, of any, to every British heart, have certainly an undoubted right to be placed in the fullest and most unlimited possession of every circumstance connected with its administration.”

By the means of the committing of which said grievances by the said defendant, the said plaintiff hath been and is brought into public scandal and otherwise injured in his good name and reputation, to the said plaintiff’s damage of one thousand pounds, and therefore he brings his suit.

The Solicitor General, McDowall, stated the plaintiff’s case, in a very excellent speech of upwards of an hour’s duration. The plaintiff, said Mr. McDowall, is a Clergyman, Chaplain of New Town, and Superintendent of the King’s Orphan Schools there. About the time of the appearance of the libel of which he now complains, a Committee was appointed to investigate every thing connected with that important establishment. The defendant, Mr. Murray, thought that a proper occasion to assail the plaintiff in a manner any thing but creditable to him as a public journalist; particularly priding himself as he does, and it is fair to him to say, justly, upon the careful manner in which he abstains from attacking private character. I will not speak of the good taste Mr. Murray has shewn in bringing before the public Mr. Naylor’s person; his dress, his equipage, even his table, because I think there can be but one opinion upon the subject; but, bad as such attacks are, had Mr. Murray stopped there - had he contended himself with mere ridicule, offensive and unjustifiable as it is, this action would never have been heard of. But, he goes further; he attributes, gentlemen, to the plaintiff, in various places of the article before you, the appropriation of the funds of the Orphan School. (The Solicitor General here went through the article, commenting upon the passages which he considered to bear out charges of peculation, as he proceeded.) Gentlemen, you will perceive that Mr. Murray, having stated that it having “oozed out” that something was wrong - having previously dwelt upon the necessity of the honest application of the orphan funds, printing the word honest in capital letters - he then says, sweet are the good things of the Government, and bringing Mr. Naylor onwards, first as rejoicing on the hackney, then another pudding smokes upon the board, and the snug tilbury, and the smirk Petersham, being placed prominently in view, Mr. Murray charges Mr. Naylor, in plain words, with appropriating the surplus capital of the Orphan School to his own use, converting it into a flock of sheep, to inspect which, at Port Philip, he deserted his Ecclesiastical duties at the Orphan School. I will not, gentlemen, insult your understanding, by supposing it possible that you can be deceived by the disclaimer with which Mr. Murray accompanies this charge. It was a clumsy artifice, and I am satisfied that you will teach him that you are not to be deceived by it. He describes Mr. Naylor as being what, in his opinion , a Clergyman, particularly the Superintending Clergyman of an Orphan School ought not be; he then describes what, in his judgment, such a person ought to be. It is not the question, whether his judgment is right in this respect, but it is for you to decide, whether the making charges as these against a Clergyman is fair and legitimate discussion in a newspaper. I think you will mark them with your severe reprobation, and teach Mr. Murray that he shall in future not venture to charge a gentleman with peculation, as in the present case, without the shadow of donation. This is the substance, and substance only of the Solicitor General’s address, presenting as it did his client’s case to the Assessors in a very able manner. He then proceeded to call his witnesses.

Mr. Learmonth. - I have read this article (the newspaper of the 16th of June in his hand;) I think it attributes misconduct to Mr. Naylor. Taking the whole of this long rambling article, I think it attributes to Mr. Naylor improper interference with the funds of the Orphan School. I can view it in no other light. I think it attributes peculation. I think the words “surplus capital” infer, that funds had been improperly withdrawn from the Orphan School by Mr. Naylor, and had found their way to Port Philip in the shape of a flock of sheep.

Cross-examined by Attorney General. - I found my opinion that the plaintiff is charged with peculation upon the passages I have before referred to. I cannot mention any one passage in particular, so many bear on that point. I can select no one in particular. It is upon a general review of the whole article that I found my opinion. In my opinion, the defendant’s disclaimer intending to impute peculation to the plaintiff, does not neutralize the previous charge. I think, certainly, it may convey different meanings to different minds, but in my mind it conveys a meaning different to what it expresses. Even supposing that it was written with a sincere intention of disclaiming the charge of peculation, yet I think that even then it does not convey that intention.

Mr. Hugh Murray. - I know the plaintiff. I have read the article. The impression it originally made upon my mind was, that it attributed to Mr. Naylor that he had abstracted the funds of the Orphan School.

Cross-examined. - I draw this conclusion from the whole article. I am aware it charges the Government with lavish expenditure in support of Mr. Naylor, and that it is more than the Colony ought to expend upon him. It does not appear to me that the object of those passages is to draw attention to the importance of the Superintendent giving up his whole time to his duties. The different charges are so mixed up together, that I cannot separate them. My opinions are formed upon the whole article, not upon particular passages. I consider that it purports that Mr. Naylor had the complete control of the whole funds.

The Chief Justice. - The Solicitor General, there is no averment in the declaration that Mr. Naylor had the control of the funds.

- From the paragraph as to “others,” the defendant might not have intended to charge the plaintiff alone. I was not aware that the expenditure of the Orphan School is controlled by a Committee. I have recently heard it. I believe now that it is.

Mr. James Grant. - (This witness being deaf, was examined by finger sings by Mr. McLachlan as an interpreter.) - I have read the article twice. I understand it as charging Mr. Naylor with most improper conduct as a gentleman and as a clergyman. I think it imputes peculation to him, and neglect of his sacred duties as a clergyman. I read the word “honest” printed in capitals, and the words “surplus capital” to mean abstractions of the stores and surplus of the Orphan School. The article says Mr. Naylor has £400 a year. No person reading it can suppose that the writer meant it was the surplus thereof.

Mr. William Gellibrand. - I am personally intimate with Mr. Naylor. I have read the article; I think it is calculated to injure Mr. Naylor, as Superintendent of the Orphan School, as a gentleman, and in his usefulness as a clergyman. I read Mr. Murray’s disclaimer of intending to charge Mr. Naylor with peculation, exactly as when we say in conversation when we really mean to charge a man with any thing, Oh! pray do not suppose that I mean to insinuate any thing against him, and I think, that instead of extenuating, it really aggravates the heavy offence of the writer. (Mr. Gellibrand added something about punishment, which was not distinctly heard.)

The Tasmanian and Review of the 16th June was then put in, the Attorney General admitting every necessary preliminary of writing, printing, and publishing.

The Attorney General then addressed the Court for the defendant in a very able and impressive speech of two hours continuance, of which we can only give the following outline; He commenced with disavowing, in the fullest manner, on the part of the defendant, any, the very slightest intention of now, or in the article under consideration, imputting to the plaintiff dishonesty of any sort. If, said the Attorney General, it was any part of my duty to make such a charge against Mr. Naylor, it would cause me such extreme pain that no consideration could have induced me to do so if I could possibly have avoided it; but Mr. Murray not only never has so done, but he has never intended so to do. He disclaimed it in the original article, again on the occasion of commenting upon the expenditure of the Colony, a third time on a recent occasion, and he now again does so through me. I think, gentlemen, it will not be necessary for me to offer you any observations upon the duties of the conductor of a public journal, arduous and important as they are, and certainly not the less so because they are voluntarily undertaken. If there is any portion of them, the performance of which is universally admitted to be essentially necessary, it is the properly commenting upon the expenditure of the Government, and if it is in the opinion of a public writer improvident, it is his duty to point out that improvidence in as strong terms as he may consider necessary; certainly upon all occasions carefully avoiding to wound private feelings. If this is not the duty of the press, I do not know in what its usefulness can exist, and if it cannot do so with freedom, there had better be an end to it altogether. Gentlemen, my friend, the Solicitor General, has told you that you are not to take isolated passages of the article before you, you are to take the whole. And what must not then be the result of your so doing. Mr. Murray considered that the plaintiff’s conduct as a Clergyman, charged with so important a duty as the superintendence of the Orphan Schools, was not such as in his opinion what was required. He knew that if he commented upon it in a heavy dull manner, his remarks would not excite that attention which the importance of the subject, in his judgment, required. He thought the deportment of the plaintiff not consistent; with what should be that of a Clergyman here, and in such a situation. He objected to his appearance in the streets, and to his absenting himself from his duties to attend to his sheep at Port Philip; and he has expressed his objection in such a manner as he considered best calculated to draw attention to the subject, and to prevent a continuance of what he really believed to be injurious to the public interests. Is not, Gentlemen, this within the limits, even the narrowest limits of what must be considered fair and legitimate discussion of the press, if indeed the press is to be permitted to discuss any public subjects at all? If a public writer is to be restricted in this, what is the subject which he may venture to discuss, and what is the limitation he is to put upon himself in so doing? The Solicitor General has stated that Mr. Murray has held up the plaintiff to ridicule; but I have to impress upon you, and most strongly too, that even had he so done, as I have stated to you, it would form no part of the issue you have to consider, which is strictly narrowed by the plaintiff’s declaration to the single question, does Mr. Murray charge him with peculation? Mr. Murray has disclaimed the slightest intention of so doing, over and over again, and I think you will be of opinion that the whole bearing of the article before you justifies me in requiring from you your verdict in his favor. Gentlemen, I will shew you, by evidence of the most unquestionable nature, that the only interpretation which, in fair, and candid, unperverted, judgment is, that Mr. Murray’s intention was what he avowed it to be, not to charge the plaintiff with peculation, but with the disposition of the surplus capital, arising from the lavish, and in Mr. Murray’s opinion, misapplied expenditure upon him, in a manner highly objectionable as a Clergyman, to whom was confided such highly responsible duties as the Superintendence of that Institution, which he describes in such expressive terms. If this was his opinion, I put it to you, Gentlemen, confidently, that he be bound in the performance of his duty, as a public journalist, to express it in the manner he might think best calculated to give it weight and interest, and that if he neglected to do so, or fails in that energy of tone or language necessary to draw attention to his subject, he fails in his duty - he sacrifices those rights and privileges which I hope will ever be possessed by a free press, and held sacred by all who may ever sit in judgment upon it. If a public writer fails to prove all grievances to their source, and that too by every means short of imputing to individuals dishonesty or corruption, he fails in the duties he has undertaken, and is unworthy the public support. Mr. Murray has disclaimed all intention of exceeding these just and necessary limits, and I will shew to you by abundant evidence, that his disclaimer is entitled to the fullest credit. I will shew to you, gentlemen, by Members of the Legislative Council, that complaints of the conduct of the Orphan School had been made, even in the Council itself. That they had been frequent subject of animadversion, and in not very measured language too by the public journals, is public and notorious. The subject thus pressed upon the notice of the Government, had produced a Committee of Enquiry, which was fully occupied in investigating the whole management of the Orphan School, at the time the article before you appeared. Mr. Murray knew this, and as Mr. Naylor was generally considered to be vested with the whole control of that institution, complaints of which were so loudly and universally made, as Mr. Naylor had just before left his important duties upon an excursion to Port Philip, a proceeding which Mr. Murray considered (I am only speaking Mr. Murray’s opinions) extremely reprehensible, he felt that he should fail in his public duty if he did not bring the whole subject before the public as impressively as he might be enabled so to do. In this originated the article upon which you have to decide. I will now, gentlemen, look at the manner in which Mr. Murray proceeded to draw attention to this important subject. (The Attorney General here read the introductory and several other passages of the article, commenting upon them as he proceeded.) Gentlemen, I think it is impossible for you to find one word in this article which imputes, even by insinuation, dishonesty to the plaintiff. Mr. Murray’s whole object evidently was to obtain the attention of the Government to an honest distribution of the very large sum of six thousand pounds per annum expended, he considered very lavishly, upon this institution. The Solicitor General has dwelt upon the passage that “it oozed out there was something wrong.” It is quite clear that the Government was of that opinion, for why otherwise was the Committee of Investigation appointed? Mr. Murray does not insinuate that Mr. Naylor was alone involved in whatever might be the misconduct which the Government had felt demanded the interposition of a Committee of Investigation. He knew, and so he states, that the control of the institution was with others as well as with Mr. Naylor. He knew that, much, and he believed very important evidence had been taken by the Committee, and what is the great object of the article before you? - to obtain publicity of that evidence? He avows that he does not know in whom is the administration of the funds of the establishment. He expressly declares that he is in entire ignorance of it, and he presses strongly upon the Government, that the whole shall be made public. He says the publication of the whole evidence is held by the public to be of such deep interest, that he offers to print it at his own expense. He says he will do it gratuitously. Does not this prove that he was, as he professed to be, in the most perfect ignorance of the quarter upon which the blame of misconduct rested? That there was blame somewhere the very appointment of the Committee of Investigation proved. Mr. Murray attributed it not to Mr. Naylor alone, indeed he did not attribute it to him at all, because he says he knows nothing about it, and that he and the whole public may be made acquainted with it is the great object of his writing. He does not accuse Mr. Naylor, but he says let the truth come out, and the blame rest where it may be due! He says there is a large expenditure, and he thinks it lavish. He may be wrong in his opinion that it is so, but that he is right in drawing the public attention to it, who will deny, who considers a free press of any sue in a British community! In respect to his taste as to Mr. Naylor’s dress, or his carriage, or his appearance in the streets, it may be altogether very bad, it is not necessary on the present occasion that I should defend it - with his good taste or his bad taste we have nothing to do. It may not be quite so correct as that of the Solicitor General, but it is not your province to decide thereupon. The plaintiff dues not complain of being ridiculed, he complains only of being charged with dishonesty. This the Solicitor General says Mr. Murray has done by the manner in which he used the words “surplus capital.” I think I may safely venture to appeal to His Honor the Chief Justice that there should have been an express averment to that effect, indeed His Honor has already remarked thereon. That such an averment was necessary must be evident, gentlemen, to you, because without it we could not justify, what you are nevertheless called upon to decide upon! Had there been such an averment we could have justified the use in which we intended to apply the words. I deny the statement that Mr. Murray’s disclaimer was ironical. Is there the slightest of irony in the passage, or any part of it? I insist, in the most positive manner, that Mr. Murray meant it as he wrote it - plainly and honestly - it bears every mark of sincerity upon the very face of it. Mr. Murray professes his entire ignorance, in common with the whole public, upon every thing connected with the subject. He asks for publicity, not more for the orphans, the public, than for the plaintiff himself. He calls it a heart-stirring subject, and which of you, gentlemen, will say that it is not? He says he knows nothing of Mr. Naylor’s conduct as to the funds. He may be integrity itself for all he knows, but as there is a Committee of Enquiry sitting, he calls for publicity that all may come out. He disclaims in the plainest terms any intention to impute peculation to Mr. Naylor, and I insist upon it that he is entitled to be believed to do so with the most perfect sincerity. He has repeated that disclaimer a second and a third time, and I shall now read them.

The Solicitor General. - I object to the Attorney General reading any article which has appeared subsequent to that upon which the action is brought. A long and desultory conversation ensued between the Chief Justice, the Attorney General, and the Solicitor General, as to the reception of such evidence. The Attorney General stated the constant practise in libel cases to be, to produce subsequent libels against a defendant to encrease damages, and by analogy he could not understand why the converse should not be adopted, that the subsequent articles, whether if denial, or retraction or apology should not be produced to reduce damages. The Chief Justice called for authority. The Attorney General said, the principle seemed so plain and simple, that he had not looked for any. The Chief Justice said that in the absence thereof, he would reserve the point for future consideration.

The Attorney General then continued to address the Jury. Gentlemen, said he, look at the hardship which a defendant must be subjected to under this decision. If a writer, by a slip of the pen, in the haste of newspaper composition, should permit a libellous expression to escape him, he cannot be permitted to either explain it, disclaim it, or retract it. He must be bound by it. It must remain against him, and he is not permitted to depart from it, even although he may never have intended that it should bear the construction which he may even see upon more careful perusal may be put upon it, and that he may take the earliest possible opportunity to shew this, and in the strongest and the fullest, and the most satisfactory manner possible. Yet, having once accidentally offended, it becomes irrevocable, and nothing he may say even in mitigation of it may be received. And thus, while on the one hand, should he suffer to drop one word, I will not say encreasing that libellous expression, but even confirming it, it may be produced against him to encrease the damages or the punishment which his error may have brought upon him; on the other, nothing he can offer of denial, retraction or apology, can be received. This seems to me to be so wholly at variance with every principle of equal justice, that I cannot understand how it can be possible. Gentlemen, I did not offer these disclaimers of Mr. Murray to you with any other view than in confirmation of the sincerity of the original disclaimer made in the article itself. I again insist upon it, that Mr. Murray is entitled to have it taken as it is, part and parcel of the whole article; and as the only question for you to determine is, whether Mr. Murray intended to charge Mr. Naylor with peculation, for that, gentlemen, you will recollect, is the only issue you will have to try, the plaintiff’s own complaint throwing every other consideration overboard, as there is not one word in the whole article itself which can fairly bear the construction of intending to charge peculation, which charge, again I repeat, is expressly denied, I claim from you a verdict for the defendant, confident that it is impossible for you to come to any other decision, if the shadow of free discussion is to be permitted to a public writer upon subjects such as these, of the deepest public interest, with which the freedom of the press would be undoubtedly the very worst of mockeries. Gentlemen, that freedom is a very old and hacknied subject; but it is not the less dear to every man who values it as a great constitutional right, fully, and freely too, to discuss public measures and public men. If the subject now under your consideration is not one which calls loudly for the free exercise of that right, I cannot conceive one which can possibly be so. If this is not within the limits of free discussion by the public press, I cannot understand where those limits are to begin, and still less where they are to end. I am not here to justify taste, but to maintain the right. The one may be bad, but it does not invalidate the other; and I feel satisfied that you will be of opinion that the defendant has in no part of the present writing exceeded those limits of legitimate discussion, to which in the exercise of his duty as a public writer he is fully entitled to, I leave the case therefore in full confidence with you. Read the paper throughout - put upon it that plain and direct construction which the language itself purports to bear, and I am satisfied you can come to no other conclusion than that Mr. Murray is entitled to your verdict.

Captain Montagu. - I am Colonial Secretary; Member of both Councils. I have read the article in question when it appeared, and again to-day. Taking the whole together, I do not think it contains any charge of peculation against the plaintiff.

Cross-examined by the Solicitor General. - I understand the meaning of the passage about “oozing out” to be that there was something wrong going on at the Orphan School. The passage about “surplus capital” never intended, in my mind, to impute peculation to Mr. Naylor.

The Solicitor General here adverted to what he considered to be an admission of the Attorney-General, that Mr. Murray had intended to charge Mr. Naylor with having the control of the funds of the Orphan School, and he asked Captain Montagu whether, bearing that admission in mind, he did not consider that Mr. Murray intended to charge Mr. Naylor with appropriating them to his own purposes.

The Attorney General stated his admission to be only to the effect, that Mr. Naylor had to a certain extent the superintendence of the expenditure of the Orphan School. As to this, Captain Montagu said that he knew that Mr. Naylor had no control over the funds.

Mr. Gregory. - I am Colonial Treasurer, and Member of both Councils. In and previous to the month of June last and long before, it was public and notorious that the management of the Orphan School was in a Committee. It was matter of public notoriety. Complaints had been made both in the journals of the Colony and in the local legislature as to the profuse and lavish expenditure of the Orphan Schools. It was not only matter of much public complaint, but also of general public belief. I do not say justly, I merely relate the fact. I have read the article in question with the greatest care and consideration, and I do not consider that it imputes peculation to Mr. Naylor. None whatever. Not the very slightest.

Cross-examined. - It is impossible for me to know what were Mr. Murray’s intentions; but in my mind there is no possibility of attributing to the article, or any portions of it, the charge of peculation. I read the “surplus capital” to mean Mr. Naylor’s own surplus capital arising out of the lavish expenditure, which Mr. Murray considers the Government to have made upon him. I cannot consider that in the references to the snug tilbury, the Lincoln harness, the smoking pudding, the smirk Petersham, there is dishonorable conduct imputed to Mr. Naylor in the slightest degree. The whole article imputes to him nothing more than that he has been more attentive to things temporal than to things eternal.

Mr. Commissary Boyes, Colonial Auditor. - I do not think that the article imputes peculation to Mr. Naylor. I cannot think it does so. My leaning is quite the other way.

Cross-examined. - I have had my misgivings, but they have been very faint. I do not think dishonorable conduct is attributed to Mr. Naylor. I understand the words “surplus capital” to apply to the lavish expenditure of the Government upon Mr. Naylor, and by no means to mean peculation. I understand the article to mean that he attended more to temporal matters than become a clergyman, but not that he neglected his spiritual duties.

Captain Boyd - Deputy Surveyor General. - I have read the article through with great attention; I do not consider that it imputes peculation to Mr. Naylor; none whatever.

Cross-examined. - I do not think it imputes dishonorable conduct; I understand the passage about surplus capital; I consider it refers entirely to the lavish expenditure of the Government, and no more.

Mr. McLachlan - Member of Council. - I have read the article over carefully; I never considered it to convey a charge of peculation against Mr. Naylor; I never so considered it; neither when I first read it nor now.

Cross-examined. - I do not think it conveys a charge of dishonorable conduct; I have said I could not see what was the point Mr. Murray was driving at.

Mr.Gilbert Robertson. - I have read the article repeatedly; I do not consider it to convey any charge of peculation against Mr. Naylor; neither of dishonorable conduct; this was always my opinion.

Rev. Mr. Conolly. - I have the article throughout; the impression it makes upon my mind is certainly that it does not convey any charge of peculation or dishonesty against Mr. Naylor.

The Attorney General then closed the case for the defendant, stating that he had numerous other witnesses of high respectability to call, whose testimony would be to the same effect with which he had produced, but he was unwilling to further occupy the time of the Court, considering it utterly unnecessary.

The Solicitor General replied with much ability and tact, and it is only justice to him to state the general opinion, that to his having the advantage of the last address, and making such adroit use of it, the extraordinary result may be attributed. If, gentlemen, said, he, this case was to depend upon the witnesses called by the defendant, I confess my client would have little chance of damages, but what is the result of this testimony? - that a man of high character, who is therefore invulnerable as respects actual injury sustained from such attacks as those before you, is entitled to no redress, while the man of middling, or even of bad character, because he is so, and therefore may sustain actual injury, is to be amply remunerated! I am sure you will never give your support to such a doctrine as this. I will do Mr. Murray the justice to admit that he has seldom, I think I may say never, had to justify his writings from the charge of libel; but on the present occasion, however dextrous[sic] he may be in ordinary cases, he had overstepped his usual caution in a manner which I am convinced you will be of opinion entitles me to your verdict. I admit that there is no charge in the declaration for ridicule, yet I think you cannot but take into your consideration the annoying manner in which Mr. Naylor is held forth. It shews you the spirit of the article, which obviously was to overwhelm him with ridicule. Perhaps Mr. Naylor, from his high attainments, is not exactly the person calculated for the superintendence of an Orphan School, but is that any reason why he is to be exhibited, of the bad taste of which I shall say nothing, at the tables of Captain Swanston and Mr. Gellibrand, and subjected to the severest shafts of Mr. Murray’s ridicule. If you are in doubt, gentlemen, as to the animus with which Mr. Murray wrote, that doubt is at once removed by observing the persecuting spirit exhibited throughout the whole article. The opinions of a Colonial Secretary, or of a Colonial Treasurer, or of a Captain of Engineers, even of Father Conolly himself cannot justify the defendant in this, and I am convinced your verdict will be such as to protect the plaintiff from Mr. Murray’s further attacks.

The Chief Justice charged the Jury at considerable length. This, said His Honor, is an action for libel; the writing, printing and publishing are admitted; the only question you have to try is, whether the writing attributes to the plaintiff appropriating the public money to his own purpose; because, although it contains many things at which a gentleman may or may not take offence yet I am to tell you they are not complained of here. The only complaint the plaintiff makes is, as to the misappropriation of the public money. Thus, therefore, unless you can find that that charge was made, there is an end of the matter - with the animus of the writing you will then have nothing to do. Neither have you to enquire into the plaintiff’s going to Port Philip, because that subject is not before you. I have marked upon the article itself the only passage which I think you are to take into consideration. (His No. 1, No. 2, and No. 3, and were those chiefly adverted to by the Solicitor General.) The disclaimer also you are to take into your consideration, as whether it really was what it purported to be. The plaintiff’s counsel would have you understand that the words surplus capital mean that Mr. Naylor had taken some surplus funds of the Orphan Institution, which Mr. Naylor had been able to accumulate, but the declaration does not contain averment that he had power over those funds, if there were any, and the defendant’s Counsel insists upon it that this would be necessary to the plaintiff’s case. There is another passage upon which you will have to determine, whether it does not imply that the plaintiff had power over the funds, and whether, taking those passages together, they do not charge the plaintiff with converting the funds of the institution into a flock of sheep; on the other hand, the defendant has called evidence to prove that those passages will admit no such interpretation, but if you think that they impute to him that he had the control of the funds, and he did convert them into a flock of sheep, then it is no answer to say, as Captain Montagu did, that he could not so convert them. In respect to the disclaimer, (His Honor here read it,) the question you will have to determine will be, whatever may be your interpretation of the passages I have referred to, will you now say that such a distinct disclaimer of the writer is not a sufficient answer to the charge of intending the contrary. Some of the plaintiff’s witnesses say that it is not sincere - the defendant’s witnesses state the contrary. If you wish it I will go through the evidence. (Captain Armstrong, the foreman of the Assessors, stated that one of them having taken it down, they would not trouble His Honor to do so.) If you are to take the value of the evidence by numbers, the defendant has, I believe, double the number of the plaintiff; but, after all, the opinions of the witnesses, however numerous or however respectable, do not bind you. You are to look at the article itself, and say what is the interpretation you put upon it. If you think it does impute peculation to the plaintiff, the knowledge of the witnesses that he could not do so does not affect the charge. If you think it does not hear that interpretation, the defendant is entitled to your verdict. Of the sincerity of the disclaimer I can only say, that words are always to be taken in the sense they are understood by ordinary readers. Both words and writings may certainly bear a different interpretation to what they express if taken alone, which might become quite changed if taken with other passages. In cases of this sort it is not what the writer meant or intended to write, but what the writings themselves convey; if, upon the face of them they carry one meaning, the evidence of a thousand witnesses that the writer intended to convey another, will not change it. You will now retire, and consider your verdict.

The Jury wished to take the Declaration with them. His Honor refused it, stating that he could only permit them to have the newspaper in which the writing charged to be libellous was contained. His Honor however read the Declaration to the Jury. They then retired, and in a short time returned.

Captain Armstrong. - We find a verdict for the plaintiff - Damages forty shillings.

The Chief Justice. - Did you find it upon the ground that the defendant charged the plaintiff with peculation?

Captain Armstrong. - We are not agreed upon that point. We find a verdict upon the whole article.

Chief Justice. - I cannot receive it. You will retire again, and re-consider it. You must limit your consideration to the simple question of peculation.

Captain Armstrong. - We have. We find a verdict for the plaintiff - Damages forty shillings.

It was immediately publicly known that the Jury had returned the same verdict in the second occasion as they had on the first, exactly under the same circumstances - the same want of unanimity as to the single question they had to consider - the same determination to return the same general verdict.

They expected to have been again sent back, in which case no verdict would, most probably, have been returned.

[1] See also True Colonist, 15 September 1837; Hobart Town Courier, 15 September 1837 (noting that the Attorney General on the part of Mr Murray, had moved for a new trial). For Murray see C.R.. Murray, ‘Robert William Felton Murray (1777-1850)’, ADB, vol. 2, pp. 272-4.