The greater part of the day on Tuesday was taken up in hearing the arguments of Counsel, on the motion for a new trial in this case, which had been applied for on the grounds that the Judge had on the trial shut out the defendant from giving evidence (not material to the issue) that would have entitled him to the recommendation of the Jury to mercy. The Chief Justice, on a former day, thought that the evidence ought to have been received, and said that it had for fourteen years, been the practice of the Court to receive such evidence. When an information was sent from the Court of Queen’s Bench to be tried by a Judge at the assizes, then the sentence being passed by Judges who could not hear the evidence on the trial, it was necessary that the facts either in mitigation or aggravation of the offence should come before the Judges on affidavit. The case was different where an indictment was found in the county, the case tried by a Judge, who passed sentence probably immediately afterwards. How could he be acquainted with the facts of aggravation or mitigation, necessary to enable him to apportion the punishment to the degree of the offence, if he did not receive evidence of those facts on the trial. This was not an information issuing from the Court or returnable to it -- it was precisely in the nature of an indictment found. In the county, a case where the Judge might immediately have passed sentence, therefore the facts in mitigation ought to have been heard on the trial. But the practice of this Court had been such, and His Honor could see no good reason for departing from it. He should like to hear the case argued by Counsel.

Mr. Justice Montagu said that these were informations in the Court, and that, although the practice had for convenience, divided the criminal from the civil business, yet that the Judge might use his own discretion, either by passing sentence according to his own judgment, or reserving the punishment for the opinion of the Court. He thought that there were many cases where it was extremely desirable that the Court should pass sentence, and that a single Judge should not have all the responsibility, and often odium, thrown upon him. He was convinced that the course taken by him on the present trial was strictly legal; he had, ex gratia, on other occasions, allowed a departure from the rule, and admitted a great deal of evidence on both sides, that might have been excluded. He thought it very desirable that there should be a conformity in the practice of the Court. He would feel it his duty to bow to the opinion of the Chief Justice as to what the future rule of practice should be; but convinced, as he was, of the strict legality of the course which he had pursued on this trial, he could not, without some better reason than had yet appeared, consent to a new trial. What would be the use of it, for he would follow exactly the same course as he had done on the last trial. He stopped the prosecutor from giving evidence of any facts not material to the issue; and he also stopped the defendant from bringing out facts, which he prevented the prosecutor from giving in evidence, but told them both, that any circumstances of mitigation or aggravation might be brought before the Court on affidavit; but he was very desirous to have the case argued, and the practice fixed one way or other.

On that occasion, Mr. Stephen said it was placing him in a very awkward situation, for that he would be arguing against his own opinion, which was entirely on the abstract question of practice, with the Chief Justice; however, he should search for cases, and do the best he could for his client.

On Tuesday, Mr. Stephen shewed that he had searched most successfully, and, as far as cases went, completely established that on the law, as fixed by precedent, Mr. Justice Montagu was perfectly right, and that his own previously expressed opinion, as well as that of the Chief Justice, were completely at variance with the practice in England. Indeed, the cases and opinions quoted by Mr. Stephen went very far to shew that the crown lawyers in England were wrong in the point which they took up against Mr. Montagu in Mr. Lewis’ case, as to the improper shutting out of evidence. We say nothing of the justice or common sense of the practice, but Mr. Stephen convinced us on Tuesday that in that part of his conduct for which he was so universally condemned, the shutting out of evidence, Mr. Montagu acted in strict accordance with the law and established practice, as laid down in the best authorities. His Honor must have greatly enjoyed the very able and successful defence of his practice by Mr. Stephen, who had so strongly condemned it. The Attorney General was not nearly so lucky in finding cases to support the arguments which he was directed by the Court to maintain, and he made one or two ludicrous mistakes. His was the popular side, and every one wished and expected that he would have made out a case against Mr. Montagu’s practice; but every one who heard him was satisfied that he had not a leg to stand upon, at which they were equally astonished and disappointed, for although they were most anxious to see our Little Particular, ‘stitched,’ they thought that the opinion of the Chief Justice was most consonant with the true ends of justice. The Judges are to give their decision this day.

This day Mr. Rowlands had the benefit of a new trial for his assault upon Mr. Young. He was found guilty, and sentenced to pay a fine of seventy guineas. His Counsel made a strong appeal to the Jury, to induce them to ‘recommend him to mercy,’ and the Judge gave them a broad hint that they might do so. However, the Jury could see no grounds for mercy to Mr. Rowlands’ case, and did not recommend him.

We shall have a good deal to say next week on this subject, as regards the very extraordinary speech of the Attorney General, which he dared not to have delivered in any other British Court, without having first, according to his own very classical expression, ‘soaped his nose.’ Mr. Justice Montagu, in his charge to the Jury, gave Mr. Attorney a very proper setting down, with reference to some parts of his speech. We shall deal with him in our next as regards other portions of it. We shall also offer some remarks on the degrees of offence and punishment in the cases of Mr. Gregson and Mr. Rowlands. Probably His Honor may have seen the error of his former extreme severity.

IN consequence of our remarks in a late number on the speech delivered by the Attorney General, in the case of the Queen against Rowlands, for the assault on Mr. Young, a friend of Mr. McDowell’s brought us a full length copy of the learned gentleman’s speech, saying that as we offered some observations upon it, we were bound in justice to Mr. McDowell to publish the whole, which it seems the learned gentleman himself considers to be one of his most brilliant efforts.

After reading the speech we had resolved not to publish it, nor revive any recollection of the matter by our former intended observations, but it got amongst other copy into the hands of the compositors by mistake, and was set up in type before we were aware of it. We could not expunge it and substitute other matter, without delaying our publication too late. Our friends, who advised us not to publish it, must take this as our excuse for our not complying with that advice as we intended.

Mr. Justice Montagu, in his address to the Jury, very properly vindicated the character of the Bar from the unjust aspersion which Mr. McDowell cast upon it, in his anxiety to gratify his military propensities, and compliment his military friends. We were much astonished to hear the learned gentleman attempt to shew that the practice of the legal profession, particulsrly [sic] amongst advocates, led men of superior attainments and highly finished education, to the use of language and expressions which were considered indecorous and ruffianlike amongst the comparatively uneducated gentlemen of the military profession. With all due respect for the acquirements of military officers, we must say that it was most preposterous to hear Mr. McDowell assert that military men were more accurate judges of the scope and meaning of language than the lawyers, whose trade it is to expound the meaning of language, unravel its ambiguous expressions, or to confound and distort that language into all manner of contradictory purposes.

Mr. Attorney General’s speech, which was intended to reflect on Mr. Young’s conduct and character, operated like a two-edged sword for it cut his own client much more deeply than it did Mr. Young, who made use of plain undisguised terms to express his meaning in refuting a statement made by Mr. Rowlands, which was injurious to Mr. Young’s character, both individually and professionally, and at the same time opposed to fact. We were present in the Court when Mr. Rowlands made the statement which Mr. Young, in justice to his own character, and, as we thought, very properly, in the plainest terms declared to be untrue, which he subsequently proved it to be. We admit that Mr. Young generally selects his language with a view to the plain and clear expression of his sentiments; he does not deliver himself in ambiguous terms, nor seek to find words to disguise his meaning, and we really do not see why an honest man should; for he speaks what he thinks, and even those who have been most opposed to Mr. Young, are compelled to admit that there is not a more honest man, not only in his own profession, but in the colony (which is a very rare character for a lawyer to have). Mr. McDowell might have spared himself, and the jury too, the parade about his own university education -- his frequent absurd display of which, puts us in mind of the boy who drew a horse, at least what he intended for a horse, but bearing so little resemblance to that animal, that he felt the necessity of writing underneath it -- ‘this is a horse’. The learned gentleman may fancy that his hearers were much edified by his uncalled for sarcasms, which were entirely out of place, about the scenes of occasions in which his own client or Mr. Young had acquired professional eminence, before they were admitted to the distinguished honour of Barristers of the Supreme Court of Botany Bay junior, where the general practice is a disgrace to any body of men having pretentions to honesty; but we doubt much whether any person present could see that this flight of gratuitous insult to both parties, was at all calculated to benefit his client, in any way arising out of the case, and we have to confess our own ignorance of the occasions, on which the learned gentleman had established that -- Fame on Circuits, in the House of Lords, or elsewhere, which he appears to consider as a necessary passport of the Botany Bay Bar. But this ignorance may arise from our limited reading, and want of a university education. Probably the learned gentleman will take compassion on us, and enlighten our darkness. Now for the speech --

The Attorney General addressed the Jury to the following effect. -- In that case, he said, he appeared before them as Counsel for the traverser, Mr. Rowlands, and he must begin by congratulating his client that the Jury were now in full possession of the facts, upon the fair result of which they would pronounce their calm and conscientious verdict. Whatever that verdict may be, continued the Attorney General of this I feel persuaded, that in the competency -- in the peculiar fitness of the Jury I have now the privilege of addressing -- of determining not only the facts of guilty or not guilty, but of deciding on all the circumstances collateral to, but connected with, this charge, every gentleman that hears me must give a willing acquiescence. Your habits of life, gentlemen, the honorable profession to which you have been educated, a profession invigorated and sustained by habits of gentlemanlike intercourse, make you inevitably compel you -- to feel unjustifiable -- and ungentlemanlike language as an insult, and to resent it accordingly. It is no disparagement to my learned friend, Mr. Stephen -- it is no disparagement to myself -- or to the profession to which we belong to say, that as far as the value of language is concerned, your judgment is far -- immeasurable superior to that by which we are guided. I complain not of the manner in which this case has been opened to you; I do, on the contrary, take the liberty of saying, that it has been opened with extreme fairness, and that no attempt whatever has been made on the part of my friend, Mr. Stephen, to distort or discolour them; and if, in his inference he hath erred, I trace that error to what he must permit me to call the imperfection of his education -- an education which I have in common with his received. You know full well, gentlemen, it is of frequent occurrence in the Courts at home, that at the Bar, there language is endured -- is patiently submitted to -- is not seldom replied to in language as licentious -- to which no subaltern of three months standing in your profession would endure or could submit to without the inevitable result of the loss of his commission. To no such officer, as you, gentlemen, know beyond all question, could language which passes current at the Bar be addressed, without subjecting him who used it to the very heaviest penalty which one gentleman can render to another. This is the case at the Bar at home, where there are so many safeguards against the use of such language, where almost universally speaking, an entrance into our profession is preceded by a university education in which the humanising arts which soften manners and mitigate their ferocity are acquired. Emollet mores nec sinit esse feros it has been long since remarked is the natural consequence of a thorough acquaintance with the studies therein obtained, and it is fortunate for the high character of the English Bar, that at this period ten at least of her Judges were distinguished ornaments of the Universities, the example of such men cannot be lost on the profession, the arts which they themselves loved and cultivated they will fondly cherish in others, and therefore, though such scenes have occurred as to make one occasionally regret the stain cast on the profession, still let me add that these are the exception, and not the rule of conduct at the Bar in England. But here, gentlemen, I ask of you what have we of protection -- here when such language as you have heard from the prosecutor himself is addressed to the traverser in his case, in the presence of the Court, and passed unnoticed, or, I should rather say noticed, but overlooked by the Court. What safety is there for a prolonged professional existence in this land, where such language is in the presence of the public, in the hearing of the bar, and, according to His Honor who presides here to day, in the hearing at least of one of the Judges, used, and passed over not without observvation, [sic] indeed but without censure. Composed as the bar is here, for you are aware gentlemen, that both the prosecutor and the traverser are Barristers, if in England, and with all those securities for gentlemanlike conduct which exist there, you will find, instances, ‘few and far between,’ it is true if I do not say intemperate but offensive and ungentlemanlike language resorted to, how much more probable is it that here without such inditements to, or qualifications for, gentlemanly bearing, you will find a lamentable want of those courtesies which embellish life, and make it lovely. The materials of which a Barrister in Van Dieman’s Land is made, I, probably because I have never exactly understood, have never yet been able to appreciate. The prescription to prepare one I have never yet read. What scruples the Bench entertain in admitting, or the exact drachms of merit in the candidate for admission is to me a profound secret. That my learned friend who conducts this case to day, on the part of the prosecution, is a Barrister, I admit, and that I, myself, have the honor to be a Barrister I assert, but it is equally true that in this Court, and in this Colony, the prosecutor and the traverser, are pronounced by that unerring document, the roll of the Supreme Court, equally qualified with us “to plead causes.” What Circuit however the defendant travelled -- whether he was a Common Law man or limited his pleadings to the Court of Chancery, or devoted his services to his numerous clients at ‘the Rolls’ -- I have never yet -- it is true my enquiries have not been prosecuted with much industry, been enabled to discover. Again, the precise qualifications with which the prosecutor presented himself to this Court -- I am ashamed of my ignorance in saying so -- but of these I am just as imperfectly informed. Whether as a member of the faculty of Advocates, when his contemporary, Mr. Hope, now Dean of Faculty, then Solicitor General, opened with his clear enunciation of facts a case for the prosecution, his apprehension that guilt might triumph through the exertions of Mr. Young, was not palpable to a crowded Court and to a criticising audience, or whether opposed by the now Lord Jeffrey the escape of the panel was secured, because we have retained the services of the prosecutor of his information, or whether his principal practice was in Scotch Appeals -- there where Lord Mansfield was so much but peradventure than Mr. Young not more deservedly distinguished --

‘Grac’d as thou art, with all the power of words, So known, so honored at the House of Lords.’* In which of those capacities the learned prosecutor of this information was distinguished is still amongst the things which time may bring to light, but as yet it is an unsolved problem. How, therefore these gentlemen are estimated, whether they present themselves as the managers -- the weighers -- the meters of their own merits before admission to the Bar here, or whether they are ‘weighed in the balance’ and found sufficiently heavy that, to use the language of Mr. Burke in his letter to a noble Lord, the only question is, how they cut up -- how they tallow in the cawl or on the kidneys, and this is, to me at least, a hidden mystery, as far as their privilege to practice as Barristers is concerned. Then, gentlemen, is it to be matter of surprise to you, that men so admitted to degree, which they never once dreamt of enjoying before should be less cautious in the use and application of language than gentlemen whose previous habits of life, strengthened by the precepts of a liberal education had prepared for the exercise of the duties of a high and honorable profession; and hence the solution not only of what has hitherto occurred in this case, but of the extraordinary perseverance which this prosecutor has manifested in persisting in his prosecution. I have a right to assume, that up to this morning, he see nothing in his own conduct that necessarily led to his own chastisement; I have a right to assume, that because he fancied or felt that the defendant had made an incorrect statement -- a concession however which I do not make -- that therefore he was justified in asserting here, in open Court, that the statement was false, and of adding, immediately outside the Court, that he knew it to be false. For I must do Mr. Young the justice to say, that he has kept nothing back -- that he has given you, according to his own recollection, the words he used, and whether they were that the defendant’s statement was false, or, as I am instructed, that what he stated was a perfect untruth I care not. I submit to you, that the natural reply -- I do not say in law to be excused -- was a blow. My friend, Mr. Stephen, not being in the Commission of the Peace, just hinted at the propriety of the defendant’s violating the law in a more approved manner, by sending a friend to the prosecutor.

Mr. Stephen. -- What I did say, was, that if Mr. Rowlands felt himself aggrieved by Mr. Young’s observation in Court there was another mode, not necessarily terminating in a breach of the peace, by which he might have sought explanation.

The Attorney General. -- I am not misquoting Mr. Stephen I grant him the full benefit of his explanation. I submit that way was open to the defendant, and suppose he had walked therein -- sought and not obtained redress, I submit to you that the Queen’s peace must have been violated, or the defendant would have to use a phrase familiar here, ‘take nothing by his motion’. But when you read the letters which had previously passed between these gentlemen, and which have been furnished to you by the other side -- when in one of those ‘familiar epistles’ you find the following ‘elegant extract,’ ‘I am not surprised, however, that your ignorance has induced you to believe, and your impertinence to express’ -- when, I say, you find language of that kind addressed to the prosecutor -- addressed, too, for any thing that appears here to-day, with perfect impunity, I ask you, gentlemen, whether, if the defendant had taken that more approved course prescribed by the intrepidity of my friend, Mr. Stephen, he would not have found humanity here alone to answer to this information, but he would have, in company with his friend, to answer to another information. And, therefore, although regretting the necessity that occasionally exists; and that, whilst society is constituted as it is, must ever exist, for a recourse to the remedy of my learned friend, Mr. Stephen; and admitting that, under ordinary circumstances, it would have been a better course to have taken in the present case, yet, when you have before you that correspondence, I submit to you, with confidence, that it would have been folly in the highest degree for the defendant to have so acted in this instance. What then remained for him to do? It would have been the perfection of christian charity for him quietly to have submitted to insult; but men who have passions that knock at their breasts, cannot always adjust them so as to square with the meek precepts of christians, and, as men with such passions, and not as Anchorites, placed in that box to teach us by your verdict lessons of preternatural endurance, I address you, and I ask you, if thus doubly insulted you would have the defendant say --

No, gentlemen, it is not thus you would expect him to act -- it is not thus you would act yourselves -- and therefore, if you can rely upon the accuracy of Mr. Young’s evidence, he admits he was much excited; and if you think the first assault was committed by Mr. Rowlands, although you find him guilty, I feel convinced you will accompany your verdict by a recommendation to the Court, and I am persuaded His Honor will join to that recommendation -- proceeding as it does from such a Jury I have now the pleasure of addressing -- every attention, and if punishment should follow, my client will have this consolation to sustain him, that though he violated the letter of the law, he still acted in a manner which entitled him to the favorable opinions of an honorable and intelligent Jury.

[The Jury, however, evinced no such favorable opinion. This speech is printed as it was sent to us, but we are certain it is not a correct report. We have not a word about soaping noses.]

* We intend no approbation of this speech, or of the appropriateness of the quotation, when we state to our readers that the compliment to Lord Mansfield in these lines and those which follow, have ever been considered the most felicitous and at the same time the highest compliment ever offered by epigrammatic taste to exalted talent -- ‘Grac’d as thou art, with all the power of words, So known, so honor’d at the House of Lords -- Conspicuous scene! another yet is nigh (More silent far) where kings and poets lie; Where Murray (long enough his country’s pride) Shall be no more than Tully or than Hyde!’