[libel - Stephen, Alfred, litigation of - Attorney General, libel of - Attorney General, private practice of]

Mr. Rowlands moved for a rule nisi, to shew cause for a special jury of 12 being granted in the case Stephen v. Melville, which is to be tried during the next civil sittings - Rule granted.

Mr. Rowlands, explained to the court, that he was awkwardly placed with regard to counsel to the defendant’s case, inasmuch as the Attorney General had retained Mr. Horne on his side; Mr. Ross was the plaintiff’s solicitor, and Mr. Macdowell had declined accepting a retainer.

His Honor the Chief Justice doubled that the court would interfere in such a case, but if proper grounds were shewn when the case was called on, His Honor felt assured that the Judge presiding would postpone the trial.

Mr. Macdowell being present, Mr. Rowlands again adverted to the situation he was placed in with regard to counsel, when the former gentle man excused himself for not accepting a retainer, on the ground, that the libel reflected on his colleague in office, and he considered, on the score of delicacy, it would be unseemly in him to stand up and do “all that in him lay” for the defendant.

His Honor the Chief Justice observed, that the private feelings of a counsel could be no plea for refusing a retainer. His Honor considered that counsel should act solely for the benefit of the public and the obtaining of justice, private considerations ought not to interfere with their public duties.

His Honor the Chief Justice stated, that the court did possess the power of interfering. Mr. Justice Montagu wished it to be understood, not to have given any opinion.

The Chief Justice observed, that Mr. Rowlands had better state his case when the trial was called on, and it was fixed for Friday the 9th of June.

This case was tried before his Honor the Chief Justice, and the following special jury:-

Francis Smith, Anthony Williams, George Frederick Read, Peter Roberts, James Turnbull, James Ross, Nicholas Wrixon, James Peck Poynter, Samuel Westbrook, John Walker, George McKillop, and Thomas Learmonth, Esquires.

Mr. Horne rose and stated this was an action brought by the plaintiff, Alfred Stephen, Esq. against Mr. Henry Melville, to recover damages, which were laid at £1000, for having published and caused to be published a certain libel reflecting on the Attorney General in the Colonial Times on the 21st February.

Sir, - Mr. Alfred Stephen appears exceedingly sensitive as to his professional practice, and declares that, contrary to his usual custom he is compelled to rush into the “dust and strife” of the “darkened arena” of newspaper controversy. Your observations that many cases have existed in this Colony where palpable injustice has been the result of allowing the Crown Law Officers to accept private practice is too well authenticated a fact to be for a moment doubted - and notwithstanding all the special pleading of Mr. Stephen’s last avowed production in the paper, the public cannot be misled by means of his observations on “general” and “special” retainers. Let him at once produce his fees or presents (if he received any) in the case of Lyttleton v. Lewis, Fereday v. O’Connor, Spode v. Terry, and the compounding felony case, perhaps D’Hotman and Loane might as well be included, and then let the public judge for themselves.

Let me remind Mr. Stephen of the case of J. H. Thompson. Did he not, when acting as barrister to the assignees discover, or fancied he had discovered, some delinquency on the part of his late clerk, did he not pledge himself as attorney general in open Court to prosecute him? But did he do so? No! and his breach of promise did not proceed from a doubt of the party’s guilt, what course did he take? That, if explained might perhaps show that palpable injustice has been the result of allowing the Crown Law Officers to take private practice.

I promise you some other facts when Mr. A. Stephen has given his reply, but this will do for the present.

“May it please your Honor - Gentlemen of the Jury, it is quite unnecessary for me in the present instance to occupy your time by explaining the reasons for which I appear here in my own defence, as they are principally those which affect my own private feelings. I shall therefore content myself with merely attempting to prove to you that the statements put forth by the defendant in this action are such as are calculated to convey base and gross insinuations reflecting on my honor, and for which I have found myself bound to come here and seek redress at your hands; but gentlemen, if there is any one reason that has prompted more than another it is the welfare of society, considering as I do that such publications are inimical to its peace and tranquility; and I do say, such gross and continued reiterations of abuse and scandal, attacking private character, as are continually being made in this colony, is calculated wholly to destroy society - and this system of private scandal and abuse has now arrived at such a height that if suffered to go unchecked it will prove the destruction of the island; and, gentlemen, I now call upon you, by your verdict this day, to put an end to it. I have never, that I am aware of, injured the defendant in this action, or the author of this libel in any way whatever in my life, and I hope and trust that your verdict this day may have a tendency to put an end to such a system of persecution. I am now only addressing you in the character of a private gentleman, and as such I call on you to set your faces wholly against such a system, which is the only means of stopping such unwarrantable attacks, which attacks will not allow of justification, for the defendant has not attempted to justify in this case. Gentlemen, I am, I assure you, no friend to criminal prosecutions, and I have instituted this method of prosecution by civil action in order to allow the defendant to come forward and prove the truth of what he has put forth, and to explain to the public the point at which he aims, for as to that I myself am at a loss to know what it is, and I do say, that unless he proves to you this day that I have done something to call forth such insinuations as are contained in this libel - that the whole imputation cast by them upon me are wholly unjustifiable and call for redress - and if such be the case, I hope and trust you will do me ample justice, and give large and exemplary damages, which I contend, gentlemen, will be doing the greatest possible good to society in which we live; for gentlemen, you may every one of you be attacked in your turn, and I do hope, that as I have set the example and come forward boldly, and gentlemen, let me tell you it is a hold thing to attack a newspaper proprietor - a proprietor of types - it is as it were to put your hands on a wasp’s nest - but as I have come forward boldly and set the example, I trust every individual who values his character and feelings will follow my example, and bring actions against any and every person, I care not who, who puts forth to the world such wanton , base, and gross imputations, and if all that are thus insulted, slandered, injured, and in any way attacked in their private character, will follow the example, I trust that it will be conducive to the establishment of that peace and tranquility among society in this colony which I consider the decision of this day bids fair to bring to light.”

Having read over the libel, the learned gentleman continued - “What can this language imply but that Thompson, having been my clerk, some bribe had been given me, or some dishonourable conduct on my part had prevented his persecution. If it does not imply that, I know not what construction can be put upon it; is it not a clear insinuation, that I for some improper motive of my own, connived at the fault, and forbore to prosecute; but, gentlemen, what the particular imputation is I confess I never could find out - my friends have given me different constructions of it which will be laid before you in evidence; but gentlemen, I contend the baseness of such insinuations are much worse than a distinct, direct and tangible charge, for had the article contained a direct charge, I should at once have answered it by a reply as I had done before. This libel appeared in the publication of the 21st February when I think it was not fair to have attacked me, and in fact, I was informed that the defendant had no wish to annoy me; in consequence of which I had written the following very mild and gentlemanly letter, which is inserted in the Courier:-

Sir. - It is seldom that I notice attacks made on me in the newspapers, but there are reasons which induce me to depart from my general rule, on this occasion. In an article in the last Colonial Times, there is an imputation on my professional character, which demands a prompt and public contradiction, and I adopt this course of affording it, because I am led to believe, that the writer was himself scarcely aware of the serious nature of the charge made by him, and will be glad of an opportunity, on further reflection, or retracting it.

The article in question states, that many cases have existed in this colony, “where palpable injustice has been the result of allowing the Crown law officers to accept private practice.” One instance alone will we mention, as a striking proof. When the attorney general returned from England, he was feed with a general retainer by Mr. Lyttleton as his private Counsel. What followed? From what he was informed and from what he learned from the documents before him, in the case of “Bryan v. Lyttleton,” he thought it advisable that Mr Lyttleton should prosecute Mr. Lewis;- when he, as Attorney General, actually did so prosecute him, and, as Grand Jury, found a true bill. Had the attorney general been prevented from practising as private counsel, Mr. Bryan would, in all human probability have remained quietly on his farm at Carrick.

In December 1833, Mr. Bryan had either brought or threatened to bring sundry actions against Mr. Lyttleton, Mr. Foote, Mr. Leith, and Mr. Dyball. This appears from the circumstance that those gentlemen severally sent me a special retained in that month, at Mr. Bryan’s suit There, all and each of the matters, whatever they were, rested. I received no instructions in any one of these cases; nor ever conferred with any of the parties; nor even knew what was the subject of the actions, or any one of them, until the month of April following. Mr. Lyttleton never gave me a retainer in his life.

In March 1834, I received an official letter from Mr. Lyttleton, complaining that Mr. Lewis had not been prosecuted at the then recently terminated Launceston Assizes; and enquiring where the prosecution was to take place. Up to this time, I had never had any communication whatever with any one respecting such a prosecution; and I do not believe that I had ever heard of Mr. Lewis’s name. I immediately referred for explanation to the Solicitor General; and from him I received a deposition, which I found had been placed in his hands by Mr. Lyttleton, as the foundation of such a prosecution. There was, also a letter either from the Lieutenant Governor or the Chief police Magistrate, requesting that, if a ‘True Bill’ were found by me, the prosecution might be carried on by the Law officers.

There could be no doubt, as to finding a bill; for the alleged offence was clearly sworn to. I advised the Government, however to apply to the Court, in the ordinary way for a criminal Information; and in April, the Solicitor general moved for such information accordingly. This was the only advice ever given by me on the subject.

I have detailed all that, up to this period, I ever knew from any one of either the case of Mr. Lewis or Bryan. I leave the commentary if one be required, to the conscience of the writer of the article which has elicited this statement from me.

N.B. - I might add that, as to Mr. Bryan, not only were that gentlemen’s servants removed before I entered on the duties of my office, but that until April, I was ignorant of the grounds of that measure.

On the 28th of that month, I wrote officially to the Lieutenant Governor, soliciting the necessary information on that point. So untrue is that - that for my practice as private counsel - “‘Mr. Bryan would, in all human probability, have remained quietly on his farm at Carrick.’”

And what was the consequent of this letter? On the 2lst of February comes out an article containing five columns of reiterated abuse, and invective concerning me. But for this, gentlemen, I have no right to ask damages at your hands, nor do I and in this article the editor refers to the Correspondent, K. L.; but I was wrong perhaps in so writing as I did; I was wrong in considering the Colonial Times could for once do justice, and withdraw from abuse; but I will own I deserved abuse for condescending to write in the manner, I did, and laying myself open to be treated, I will not say in so ungentlemanly a manner, for I think defendant practically knows very little about that, but at this time in steps K. L., supposing he has now a fine opportunity of attacking me, and publishes his letter which is ten times worse than the former; and so, gentlemen, I first having had recourse to the mild course, and find that useless by the appearance of K. L., I am driven into Court to seek justice at your hands. I had no other course to pursue, for I tried first to expostulate - no, that was no use, and K. L. thinks proper to rake up my private affairs and I am now here to defend myself from such calumny. But, gentlemen, what is the course pursued by the defendant? Why, I am served with a notice to produce all my books, papers, and memorandums for years past, to produce a list of all fees and presents I have received, for I know not how long past; and, gentlemen, however, extraordinary such a demand may seem, there they are, and there is my clerk, he shall produce the whole of them if they require them; and for this, gentlemen, I do ask large damages at your hands, for I contend I have as much right, and as great a claim to the protection of a jury as any other man; and if one’s life is thus to be harassed by a newspaper editor, or his correspondents - if one’s private affairs are thus to be dived into, I contend life itself will become unendurable. The day after the appearance of this correspondence of K. L., I wrote a letter to the defendant, requesting him to give up the author of the article, pledging myself not to prosecute either himself or the author criminally, to which I received a reply that he, (the defendant) having consulted the author, who refused having his name avowed, was compelled himself to become the defendant in this action. Now, gentlemen, if this man, be he who he may, is a man of character and a man standing well in society, why be afraid of avowing his name against mine? He might and with a good grace, come forward boldly, and assert his standing in life, and say “I wrote it, and am not ashamed of it, and am ready to stand the consequences of having done so.” But, gentlemen, from his not having done so, is not the inference plain, that he is afraid of the consequences? Gentlemen, if the defendant, as the proprietor of a mighty engine, which might be the means of doing excessive good in the colony, and also the means of excessive mischief, likes to employ that engine for the purpose of harassing and annoying not only individuals, but families, it is nothing but right he should pay in his own proper person the damages for so doing; and, gentlemen, I consider he has greater right to do so if he thus comes forward for the purpose of screening a base and skulk - I repeat it, one who can be thus capable of writing against a public officer and a gentleman, and is then afraid to avow himself the author, is a base and skulking person; and I consider the editor is more culpable than the author, because he has the means which he had not in himself, and can from behind the screen put the very author of the attack into the witness-box, and use him as evidence against me, and I do think that if editors of newspapers took the bold and honest method of giving up their authors, we should have less slander - less calumny; and was the author obliged to come forward in his own person and avow himself, we should have no skulkers behind the screen; then, gentlemen, a man could not hide his dishonourable head behind the shield of the editor, while he draws his curtain around him, and suffers him to shoot forth his darts upon the public. Gentlemen; if the defendant has not been well indemnified from the consequences of publishing this article, it was his own fault, and if the costs are to come out of his own pocket he will have little cause to complain. Gentlemen, as in most cases of this kind, I am totally at a loss to know what the defence that will be set up may be, but I think you will admit that I am not discharging a duty, I owe to myself with greater warmth than is required; that I feel anxiety - great anxiety I do not deny; but, gentlemen, in this case they have not dared to justify; I don’t know but they may rest their defence on the ground that it is inexpedient for the Crown Law Officers to accept private practice, I can only say I shall not raise the point, or enter at all into the question whether it is a desirable thing or not; but, I am willing for the purpose of this action, that you may take it for granted that it is inadvisable, but if it is, why am I to be attacked in my private character? I ask, is it not a pardonable effort in me to provide for a family, at any rate it is one - for which I have the precedent of every Attorney General in every colony. Why then, I ask, am I to be thus attacked with imputations on my honor for some unexplained dirty cause? But, gentlemen, it is not an uncommon course in a case like this, to try to convince a jury that there was nothing meant, and to say who could have thought you would have viewed it in such a light. Dear me, they may say, why it was intended to convey something else; should that be their defence, I shall read a paper published last week, containing the editor’s opinion of this very libel, which will plainly shew that this action being brought has not stopped the feeling:-

“By the last received papers from New South Wales, we observe that Mr. Sydney Stephen, brother to Alfred Stephen of this colony, has been unsuccessful in establishing certain charges made by him against the Attorney General. It would appear that the success which attended Mr. Alfred Stephen when he caused the removal of Mr. Gellibrand from office, had induced his brother to follow his example; but times have changed, and Mr. Sydney Stephen has to deplore the failure. The charges preferred, we believe were in substance, that the public duties of the person holding the office of Attorney General and Grand Jury were neglected, and public business suspended in consequence of that officer taking private practice - and further, that he was influenced in his decisions and conduct as Attorney General and Grand Jury by receiving fees from interested parties. We have not yet seen Mr. Sydney Stephen’s promised reply, and we shall therefore not decide upon his conduct till his version of the affair is published. We cannot help observing that Mr. Alfred Stephen’s action against our proprietor will shortly be decided; by which action Mr. Stephen is seeking damages for an alleged libel written by one of our correspondents, who was endeavouring to prove, that he Mr. Stephen being Grand Jury and Attorney General, and also a private practitioner, could not be expected to be void of the very failings with which his brother has charged Mr. Attorney General Plunket. We abstain, from reasons easily perceived, from further observations, and will give an extract of what occurred in the Supreme Court of Sydney, as extracted from the Herald.”

From, this gentlemen, it is clear I am charged with gross neglect of public duty, but I anxiously seek peace and quietness; and as to the charge of writing in the public papers, I assert that I never have, that I am aware of, written in them without avowing myself as the author. I know certainly what is referred to, and I now declare that I have nothing whatever to do with it and perhaps disapprove of it as much as K. L. I will now, gentlemen, explain to you the circumstances of Mr. J. H. Thompson. I attended at the examination of Mr. Thompson, on behalf of Messrs. Mayers, to discover the disposition of the estates of the insolvent, during which examination I discovered or fancied I discovered a gross fraud on the part of Mr. Thompson, and I then told the parties I would do my best to find it out, and if I thought it right I would prosecute him, but when I left the court my duty to my clients Messrs. Mayers was at an end. I told Mr. Pitcairn I should return the fee, or rather I had never received one at all; but was it to be expected I was to walk out of court, and immediately institute a prosecution against Mr. Thompson? no, every man has a right to be charged before a magistrate, and have the case investigated; I held no retainer from the assignees, or from any one else in the case, and I think it could not be expected that the Attorney General should go to the police office to prefer the charges. I wrote to the Crown Solicitor, expressing my opinion that a fraud had been committed, and requested him to prefer such charge against Mr. Thompson, but the Crown Solicitor differed from me, and considered it was the province of the creditors to prosecute, and that the Crown could not institute the prosecution. I then inclosed the Crown Solicitor’s letter, in one from myself, to the assignees of Mr. Thompson, viz. - Mr. A. Williams (now on the jury) and Mr. Boyes, I did, gentlemen, all that I could, and I did what I did on public grounds - and those only - and I am not, I hope I never shall be ashamed to meet any man in a fair and open manner in this court, or any other; and for this I am called on to come here to day, and I ask what are the insinuations against me, for I cannot tell. I am here, and here they are, and I now call on them to tell what it is they complain of, and blame me, for there shall be no quibbling on my part - no criminal prosecutions. If I have availed myself of a privilege I know I have a right to, do not blame me; but if it is wrong take it away from me; but do not I say, stab me in the dark - do not, so long as I possess the right cast insinuations that I am acting improperly in exercising it, and I call on them now to come forward and attack me boldly and manfully - skulk not behind the screen, but openly avow, what the base insinuations are aimed at. Gentlemen, if you find that the proceedings throughout have been as base as unmanly, I am sure you will not suffer me thus to be persecuted, but you will by your verdict put an end to it, and do an essential service to the community, for I am sure when I read you the notice I now hold in my hand, you will say the conduct and feelings of the defendant up to the very last moment has been as unjust as impudent. - Mark the unfeeling manner in which it was written. [Notice to produce books, papers, &c. read] This was delivered to me yesterday, and I think it is very impudent and exceedingly gross; but as I said before, my books are all here, and anything they require shall be produced; but I cannot but say again, that the feeling evinced and kept up in this case has been abominable.

Mr. Horne then handed in the libel, which having been read by the clerk of the court, the publication was admitted, as also all formal proofs. A letter was then read from the Solicitor General to the Attorney General about Thompson’s case.

A letter of Mr. Stephen’s was then read which had been copied from the Courier before inserted.

Also an extract headed “Sydney Lawyers,” from the Colonial Times, as above.

Sir. - In your newspaper of yesterday is inserted a letter with the signature “K. L.” containing the most scandalous aspersions on my character.

It is my intention to prosecute for this libel by civil action, and I now call upon you to furnish me with the name of the writer, and the necessary proof of his authorship.

You will understand that I pledge myself not to proceed against either you or the author criminally; I mean to adopt a proceeding; that shall enable the defendant to justify his insinuations, if well founded, and to substantiate his allegations, if they are true.

If I do not receive from you the particulars required be me in the course of this day or tomorrow, I shall commence an action against yourself on Friday next, and I shall give this letter in evidence against you at the trial.

I shall be obliged by your addressing your reply to my Solicitor, Mr. Hugh Ross,

Sir, - I have received your letter of the 22nd inst. In which you notify your intention of proceeding against me by civil action for a letter signed “K. L.”, inserted in the Colonial Times of Tuesday last unless I give up the author of the same. In reply, I beg to inform you that I have applied to the author, who has for certain reasons declined having his name mentioned; I am therefore placed in the unpleasant situation of being myself the defendant in the threatened action, my duty as conductor of a Public Journal preventing me from giving up the name of the author without sanction. I am extremely sorry if any thing which cannot be substantiated has been published in my Journal, but on this occasion will most happily defend the action, quite confident by so doing, the objectionable system of allowing the Crown Law Officers to accept private practice must be abolished- feeling confident that the system must receive its death blow as soon as it becomes fairly discussed.

Mr. Stephen’s letter was then read, enclosing the Crown Solicitor’s letters to Mr. Williams and Mr. Boyes, the assignees of Mr. Thompson.

Mr. Anthony Williams examined. - We did not prosecute J H. Thompson, as that letter recommended, the principal creditors not wishing to take the responsibility on themselves.

Cross examined by the Solicitor General - There was a dividend of 5s. in the pound paid; his debts were £3600. I recollect receiving the letter I heard read; Mr. Thompson was never prosecuted for this alleged fraud.

W. De Gillern Esq., examined. - This is a paper of the 21st of February; have read the part here charged as libellous; the first impression on my mind, is that Mr. Stephen had written in another paper, and this was answering him. The second part of it appears as the Attorney General was afraid to prosecute Mr. Thompson, and bring him to justice - as if he (Thomson) knew something to the prejudice of Mr. Stephen, which he (Mr. Stephen) did not wish exposed, Mr. Thompson having been Mr. Stephen’s confidential clerk, might have known something Mr. Stephen did not wish made public in Mr. Stephen’s office; it must have been something wrong; or there would be no necessity to conceal it; certainly, I consider if it was true, it reflects greatly to the dishonor of Mr. Stephen. I see the terms “palpable injustice” here, the impression on my mind is from that, that Mr. Thomson not being prosecuted, some injustice would be done to the public by Mr. Stephen being Attorney General, and privately practising. The Mr. Stephen I have been speaking of is the Attorney General.

Cross-examined - I saw this article about a week ago, at Mr. Ross’s; Mr. Ross asked me to read it. I see the first part in this article, stating that the Attorney General pledged himself in open court to prosecute, I should have drawn the same conclusion if I had known the Attorney General had so stated he would prosecute.

John Dunn, Esq., - examined by the Attorney General. -I have looked at the parts of this article that are side lined, and I consider they impute to you something dishonorable; when I first read it, it made no impression, but when my attention was particularly drawn to it, that was the impression on my mind; I consider it imputes dishonor to you, both in your public and private character; I see the words “palpable injustice” inserted twice; I take the whole together at an imputation on your honor. I consider “palpable injustice” here, applies more to the system, pointing out that palpable injustice might arise from the combination of two duties, by the Crown Law Officers, the latter part of the article, I consider as an insinuation, that you have been guilty of palpable injustice; it appears to me to mean, that you knew Mr. Thompson had been guilty of something wrong, and you had passed it over, and not brought it to public justice. I should consider it implies your not having done so, was a gross omission of duty. I think a further insinuation is, that you have screened Mr. Thompson from guilt, or rather from punishment.

Cross-examined. -I read it attentively for the first time yesterday; if I finish the sentence, I should consider the system was attacked. Supposing an instance of my hearing the Attorney General openly in court say he would prosecute a person, and seeing him afterwards at large unprosecuted, I should think it a fit subject for legitimate discussion; I should think it becoming in the defendant as an editor of a newspaper, to call upon the Attorney General, through the press to explain why it was; my objection is rather to the phraseology; I think it implies dishonour; in answer to the following question, - “could you attribute the non-prosecution of such a man to a less venial cause than his being engaged in private practice? Answer, “I should impute no motives until I had asked the Attorney General for his explanation.

Re-examined. - I consider that article does impute dishonorable motives; enquiry might have been made without writing this article at all.

By a juror. - I do not consider that the character of Mr. Stephen was affected by this publication; it might have a tendency to injure his reputation with strangers, but not with me.

Thomas George Gregson examined. - I see the part of the publication sidelined; I have read it; the writer is speaking of the Attorney General; on reading this it appears to me, that the Attorney General having pledged himself to prosecute Mr. Thompson, and not having done so, that he (the Attorney General) had done something that he was afraid to prosecute - that, in point of fact, the clerk could destroy the Attorney General if he did prosecute. On its first appearance I said the Attorney General was not fit to hold his office if this statement was true, or unless this statement could be shewn not to be true, and that is my present impression; the insinuation is of that nature as to destroy all confidence in the Attorney General; I see the words “palpable injustice”; the imputation is conveyed in the insinuation, and consider they have a general tendency to injure the plaintiff; the first part did not strike me as libellous, but the second part I thought insinuated that the clerk was acquainted with something criminal of the plaintiff, and therefore he was afraid.

Cross-examined. - The latter part of this article is the only part that made any impression on my mind, I read it on the day of publication, and the only conversation I had respecting it was on that day with the editor of the paper; my impression was, and still is, that it was particularly pointed to the plaintiff in his capacity as Attorney General, that he did not dare prosecute his clerk; had I heard a pledge publicly given by the Attorney General to prosecute, and finding the pledge not to have been redeemed, I think it would have been a fit and proper subject to have been discussed, (properly), but not in this way. It was I think, a legitimate subject for discussion; I consider it was the duty of an Editor to take notice of the nonfulfilment of such a pledge. I stated at the time to the Editor, that it was the grossest libel I had ever read, and hoped he was not the author. (Solicitor general read part of the libel.) It is quite possible the construction of the words might be that great injustice had been done to the public by the Crown Law Officers taking private practice; but in my opinion it is not a fair and reasonable construction. I have read the letter of the Attorney General, which appeared in the Courier, and also the paragraph referred to by him. I think that paragraph imputes to the Attorney General conduct highly dishonorable. The Attorney General’s refutation, I am not satisfied is a complete and triumphant refutation. It is my opinion, that where a person acts as private counsel and public prosecutor, it is impossible for him to fulfil both duties without a bias. (The Solicitor general read the letter of the Crown Solicitor, and also the Attorney General’s letter to the assignees.) Supposing such a refutation as the letters you have now read had been put forth by the Attorney General I consider it would have completely and fully exonerated him from any thing dishonorable.

Robert Pitcairn. - I, on account of Messrs. Mayers, & Co., instructed the Attorney General to attend the examination of J. H. Thompson, an insolvent; I paid him no fee in that case. I have read the part of this article which is side-lined - the writer is there speaking of Mr. Stephen, the plaintiff, On reading them I should say the first part infers that injustice has been the result of Mr. Stephen having private practice; the second part seems to insinuate that the Attorney General from some improper motive, did not prosecute Thompson, because he was afraid to do so; I should hardly say it imputed dishonorable conduct - it appears to impute impropriety - an improper motive for not prosecuting Thompson. It appears to impute that injustice has been the result of Mr. Stephen’s taking private practice. I would not go the length of saying it implied he abstained from prosecuting because of his private practice, nor can I ascertain from this what is imputed except what I have before stated - injustice is the result of the private practice not of the improper motive of Mr. Stephen. I do not think the improper motive I have spoken of is at all synonymous with dishonorable conduct. The second of these paragraphs has, in my opinion a tendency to reflect on the character of the Attorney General, and the first also in some degree.

By His Honor. - It might have been an improper motive in twenty ways without being dishonorable - for instance if he had done it from kindness to his clerk I should hardly think it to be a dishonorable motive.

Cross-examined. - Taking the whole of the sentences together, I think it is an attack on the system and on the Attorney General personally also for his conduct in the matter of Thompson; looking at the whole, I think it would be a fair and reasonable construction to put upon it, that the attorney General was too much occupied with private practice to prosecute Thompson, and that the writer would like to have his answer on the subject, but it is not the construction I put upon it.

Thomas Young, solicitor. - (Article shewn to him). Has read them, they refer to the plaintiff. The impression they convey altogether is that of Mr. Stephen being biassed or acting corruptly as attorney general through his private practice. I understand it to imply that the plaintiff had made his duty as attorney general, succumb to the interests of his clients in these private cases, that is my inference from the first. I do not altogether understand the second paragraph for it makes an accusation and carries with its own refutation. It states that Mr. Stephen after having in his private capacity promised to prosecute his late clerk, yet as attorney general, he did not do so, though he ought to do it. - And this shews the injustice of the attorney general taking private practice. I think the malice of the writer had so blinded his intellect that he did not understand the inference he was drawing, the premises logically do not warrant the conclusion, which is drawn from the malice of the writer having blinded him to his own premises - on the superficial reading, not logically speaking the general tendency of the article is undoubtedly calculated to injure the character of Mr. Stephen.

Cross-examined. - To any one that reads carefully and knows the plaintiff it would not injure him - The stimulant arising from private practice would have induced the attorney general to prosecute rather than prevent him.

The Attorney General having stated that his case was closed the Solicitor General rose and spoke to the following effect:-

“May it please your Honor, and Gentlemen of the Jury, the plaintiff having closed his case, it becomes my duty to address you at this stage of the proceeding, on the behalf of the defendant Mr. Henry Melville, but I assure you I myself have no interest in wishing that the result of this action, may be the means of Mr. Melville meeting with that entire success, which he appears so anxious to accomplish; for he tells you in his letter to the Attorney General, that “he feels confident that the system,” (that gentlemen is the system, of allowing the Crown Law Officers to take private practice), “must receive its death blow, as soon as the subject becomes fairly discussed;” but I assure you gentlemen, in those hopes and expectations of Mr. Melville, I have no direct interest in wishing realised. But gentlemen, according to the evidence that has this day been laid before you, whether you are of opinion, that injury was or was not intended to the Attorney General; one thing, I am certain you must be of opinion that the Attorney General’s has sustained no injury, even in the very slightest degree, and I contend the Attorney General might, if he had chosen, have set his character right, if he considered it had been attacked, the next week, for having once entered the arena of dust, &c., he might have come forward as he did before, and explain satisfactorily to the public the charges made against him; he had, I say, an opportunity of setting his character just where it stands to day, by publishing the statements he has now laid before you, and then, gentlemen the case would not have been left to what was the opinion of Mr. Gregson or Mr. Pitcairn, or of the last witness Mr. Young, who reminds me of Mr. Burke, who because he was perplexed, fancies he was profound. Had he done so, and have put the case fairly before the public, his own testimony would have been a sufficient explanation; but not having done so, I contend the Attorney General has no right to complain; and I do say, that having once entered into the controversy - having adopted one mode of defence - having as it were, tried a lance and finding it break, and consequently he was worsted. He has no right, therefore, to say, I will now try another method, and come into this court and ask for damages, when he himself gave the challenge, if I may use the term, for look at his letter, which he concludes thus, - “I leave the commentary if one be required to the conscience of the writer, &c.” You see, gentlemen, he gives out the text he invites, and courts the commentator; the commentator appears, and because he does not exactly approve of his language, it being somewhat too strong, he says, ‘oh, away with literature - away with comment, I must commence a legal war - no more newspaper writing for me,’ and so this action is brought. Now, I do submit, that having once commenced the warfare, having used his weapons, and finding himself beaten, he had no right to come into this Court with all the talent of the Attorney General against the editor of this newspaper. With regard to Mr. Gregson’s evidence I must say, I cannot for one moment make out his construction of this article; according to his own shewing, he must be one of the very worst witnesses I ever met with, for he himself tells you he happened once to be in a minority of one against seven very obstinate gentlemen, and I do not see why you, gentlemen, are to rely any more on the construction of Mr. Gregson than of Mr. Pitcairn, Mr. Young or Mr. Dunn. Gentlemen, I think nothing can be more clearer than that the object of the writer of this article was to follow up the answer of the Attorney General, and is intended to shew the impropriety of the Attorney General’s taking private practice, which I contend is a fair legitimate subject for discussion by the editor of a newspaper, especially as Mr. Melville considers, such an objectionable practice. But gentlemen, let us see what are the facts of this case - after hearing the Attorney General in open Court, solemnly declare he would prosecute Mr. Thompson for a gross fraud; month after month, you see the very man going about the streets not prosecuted. Is it not I ask, right for a newspaper editor, to enquire the reason. Would he, I ask as the editor of an independent journal have done his duty to the public had he not made the enquiry - why was not Mr. Thompson prosecuted. The public are the supporters of his journal, and they have a right to expect through the editor of a paper an explanation. But the Attorney General has not gone far enough; in my letter I stated, I could most cheerfully undertake the task, if the assignees refused, and most cheerfully would I have prosecuted, had the Government, or the Attorney General given me instructions. I for one, do think that it would have been most desirable for the pledge to have been redeemed, having been given, and that it was given, is not denied; but what are the opinions you have before you of this article. Mr. Pitcairn tells you, he thinks the first refers to the system. Mr. Gregson tells you, that he considers the clerk knew of some criminal transaction of the Attorney General - some murder, felony, or treason committed by him, and therefore, he was afraid to prosecute, but what is virtually the writer’s meaning, is it not, you have accounted for your conduct in Mr. Lyttleton’s case. I would now ask, how it is you have not redeemed your pledge and prosecuted Mr. Thompson. Mr. Gregson even admits, that in his opinion, the answer of the Attorney General, was not a complete justification of his conduct. Mr. Gregson also told you, he considered it was an objectionable practice; at any rate as far as the Attorney General went; I am not aware he went further; but the explanation was asked for, and why was it not given, it might have been given I have not the pleasure of an intimate acquaintance with Mr. Melville, but what I do know of him, convinces me, that his conduct is not such, as to call forth the comments in which the Attorney General has this day so unfairly indulged. Talk of base insinuations; has, I ask gentlemen, the Attorney General’s practice this day been consistent with this theory? Has he not, I ask, made insinuations over and over again as to the writer of the article; he did not talk to you about a particular person skulking behind the editor; and, supposing the Attorney General to be correct in his surmises, is he not perfectly aware that there are such things as recognizances to be entreated on any person if convicted of libel writing; but, gentlemen, I am sure you will not suffer yourselves to be misled by such insinuations as the Attorney General has thought proper to indulge in. But what says Mr. Dunn? I am sure you remember his evidence, and he is a man of talent, a man of education, and, I doubt not, eminently calculated, to conduct a newspaper, if not the Court Journal, one or perhaps both of the opposition ones; he objects, you recollect to the phraseology of the article. I doubt not he would conduct his paper in a very mild and a very proper manner; and this subject I contend, either in the hands of Mr. Dunn, or of Mr. Melville, is a perfectly legitimate subject for discussion, and the Attorney General had no right to complain of it; but you will remember, the Attorney General read you an article, which I believe, he was almost ashamed of afterwards, about the Sydney Lawyers, which I doubt not, he produced out of sheer humanity to shew the editor’s own construction of this very libel; what would he have you believe - that that was done to annoy him; I don’t mean to say it was done out of kindness, towards him; but I do say, that if Mr. Melville finds the post of the Attorney General vacated - finds that he is at at [sic] the north when he ought to be at the south; he ought to point it out to the public; and if he is deeply impressed that the duties of Attorney General are neglected through his taking private practice, (differing however, somewhat from me on that point) he would be remiss in his duty as a public journalist if he did not. This article asserts that the Attorney General has allowed Mr. Thompson to escape, Mr. Melville asks why? There is no doubt, the Attorney General pledged himself to prosecute, and there is no question that he did not do so; and what says the editor. “that if explained, &c.” The great ground of complaint, appears to be on that; to Mr. Young, gentlemen, it appears to be a mystery; I hope you understand what he said gentlemen, for I am sure, thought none has a higher regard for his talents than myself, a man of the soundest intellect, a most expert metaphysician - a man well acquainted with the writings of Hnme[sic], Adam Smith, &c., &c., &c., &c. I really could not comprehend this god-like man, but I believe he told you the malice of the writer destroyed the venom of the conclusion, to which he had theologically arrived; and I believe, agreed entirely with my friend Mr. Horne (who I have no doubt, is well acquainted with Thomas Aquinus, and Thomas A. Kempis, &c. &c.) that the conclusions arrived at, were false conclusions, and were not warranted by the premises. I think gentlemen, you will agree with me, that the argument between these two stars, severed very much to enliven this case, after the heavy ground over which we had before travelled.

I believe now gentlemen, the whole of the case is before you, and I contend the object of the writer was to point out the impropriety of, or that injustice might arise from allowing the Crown Law Officers to take private practice. I do not stand here as the advocate of licentious press; but gentlemen, I would point out to you, that the character of a private gentleman, and a public one are very different, and a wide line of distinction; is drawn between them; and I say, it is important to society, that the acts of public men should be scrutinized, and their acts as public men are legitimate subjects for editors of papers to comment upon in this case, the attorney general having opened the field, I consider it would have been much to his advantage, had he continued his correspondence as he did the week before; but I am not here to cast any reflection on the attorney general, nor am I instructed to do so; the facts being now before you, I give Mr. Stephen credit for explaining satisfactorily to you Mr. Thompson’s affair which he could have done long ago, but do not give him a verdict.”

His Honor summed up at considerable length, and the jury after a short deliberation, found for the plaintiff, damages £100.

[1] See also Hobart Town Courier, 16 June 1837; Launceston Advertiser, 15 June 1837. For commentary on this case, see True Colonist, 16 and 23 June 1837. For Stephen see M. Rutledge, ‘Alfred Stephen (1802-1894)’, ADB, vol. 6, pp. 180-87 and for Melville, E. Flinn, ‘Henry Melville (1799-1873)’, ADB, vol. 1, pp. 221-2.