Friend v Goodwin, 1839

[jury, dismissal of – Launceston – Quarter Sessions – repugnancy to English law – press, freedom of – libel]

The three Acts of Council which we noticed in our number of the 20th ultimo, as having been pronounced contrary to law by Mr. Judge Montagu, were brought under the review of the Colonial Legislature last week. Two of these measures, the Act to amend the law of the Colony relating to stealing from vessels in distress, and the Act for the further Amendment of the law of Debtor and Creditor, the Council adhered to without alteration; but the third, the Act to amend the lately passed Quarter Sessions Act, they repealed, as well as the said Quarter Sessions Act; which latter, re-engrossed, with all the necessary amendments introduced into the body of the bill, was finally passed as one complete enactment. This seems to have been the appropriate remedy as respects this measure; but how far the Council is justified in adhering to the other two enactments, we are but ill prepared to say. Of the exact nature of Mr. Montagu’s objections we are in ignorance; but if they were really well founded objections, and there were any other means by which the objects of the two acts could have been effectually and at the same time legally attained, we hold their conduct to have been highly censureable.

We fully expected that the Meeting of the Council would have put us in possession of the opinions of the two legal members of that body on the alleged illegality of the disputed “Ordinances;” but both the Chief Justice and Attorney-General seem from what we can gather, to have been seized with some singular qualms of delicacy on the occasion. We presume that the representation by either of the Judges, of the illegality of Acts of Council transmitted for registration to the Supreme Court, is not to be considered as a final and irrevocable interpretation of the law; it is only the opinion of the Judge we presume - as such of course to be received with respect, but not with blind submission. The question comes before Council, whether certain Acts, pronounced by one of the Judges illegal, are to be adhered to or abandoned; surely it is competent to the Council to consider, as one of the grounds for influencing their determination, whether such opinion of the Judge is well or ill founded? Not that the Council is, on the other hand, to determine upon the law ex cathedra; but that they should form their opinion on the matter, as well as the judge his, and guide themselves in their decision accordingly. And who so proper to examine into the validity of the judicial protest as the law members of the Council, placed as they are in the Council, one would suppose, for the purpose of meeting legal questions as they arise in the course of its legislative proceedings? A punctilious delicacy often affords the pretext for avoiding the performance of duties of an invidious and therefore personally disagreeable character, and we trust the Chief Justice and the Attorney-General have not been thus unconsciously led to evade their duties in the Council on the present occasion.

The Sessions of the Supreme Court which have been held during the week in Launceston, will be memorable in the legal history of the Colony. We of course allude to their abrupt termination, on the motion made by Mr. Stephen as counsel for the defendant in the case of Friend versus Goodwin, for libel. The first cause for trial on Tuesday last, was that of Best against Cheyne, the Director or Roads, to which we have directed attention elsewhere. Previously to the Jury being sworn in in the succeeding case, Mr. Stephen rose to object to the whole pannel, on the grounds that many of the gentlemen present as jurymen were not jurors. It appeared that the Launceston jury list, the final revision of which by the Magistrates in Sessions, had been, as our readers will remember, repeatedly postponed, was at length settled, when settled it was, at a period when no Quarter Sessions (as we have understood Mr. Stephen's objection) could legally have existed - the old Quarter Sessions Act having been repealed by the Legislative Council, and the new Act not having been brought into operation by the necessary Proclamation of the Lieut.-Governor. So that in fact, the last Meeting of Magistrates in Sessions in Launceston to settle the Jury List was no Meeting of Magistrates; there was at the period, in effect, no existing law by which they could assemble in Quarter Sessions; their proceedings had therefore no more legal validity than had they been the proceedings of so many private gentlemen; and the Jury List accordingly, revised and corrected by them, was no Jury List at all, and consequently the parties summoned under it were incapable of acting in the capacity of jurymen. It was subject of remark at the time that the Meeting of Magistrates was illegal; but we believe the Magistrates felt that they should nevertheless proceed in the ordinary routine of their duty, leaving it to the Government to act under the circumstances in such way as might be thought advisable; but whether the Government were apprised of the existing difficulty we are unable to say. Had they been so apprised, the neglect which followed cannot be too severely reprehended; for a short Act of Council, legalising the Sessions of the Magistrates, would, we imagine, have been all that was needed to set the matter right. As it is, we see the course of justice obstructed in a manner wholly unparalleled. Whether the invalidity of the Launceston List affects all the lists of the Island, we are unable to say; we believe it will not; but at any rate no Jury in which a Launceston juryman is impanelled can be legal.

The validity of Mr. Stephen’s objection was promptly admitted by Mr. Justice Montagu, who declined the trial of the cause; upon which a very singular scene took place. Upon the swearing in of the jurymen in each successive case, a similar objection was raised and admitted.

The surprise of the spectators may be readily conceived. Every man seemed dumb-founded. The Court had come over from Hobart Town; here were lawyers fee’d, witnesses subpoenaed, jurymen called in to the neglect of their affairs at the most busy season of the year - up rises a counsel and addresses the judge for some ten minutes and all this vast preparation, with all its attendant expenses, is rendered abortive. Certainly if anything were wanted to encourage the too prevalent idea for the welfare of society, that a throw of the dice were as satisfactory a mode of deciding a civil issue as a trial in the Supreme Court, being at all events cheaper and less troublesome - it would be furnished in the proceedings in the Supreme Court last Tuesday. Where we are to look for the seat of blame for all this, or whether a strange conjuncture of circumstances may be satisfactorily pleaded for absolving any party in particular from culpable neglect, we shall not now pretend to determine. Unfortunately the public scandal is the same in any case.

We believe by the Jury Act that new lists cannot be prepared until next October, so that the extent of embarrassment arising out of the present state of things cannot clearly be predicted. The people of the district ought not to rest satisfied with their disfranchisement for twelve months; nor ought the inhabitants of the north of the island, unless they are disposed to forswear legal proceedings altogether, to be satisfied with the trial of their causes in Hobart Town. We see no remedy but in the convocation of the Legislature once more.

On this cause being called and previously to swearing of the Jury, Mr. Stephen rose and objected to the panel on the grounds that several of the jurymen had not been legally returned. [This point is further explained in another portion of our paper.] The Court admitted the objection, and refused trying the case.

The same objection was made in each of the remaining causes set down for trial; namely - Anderson v. Field’s Executors; Rose v. Field’s Executors; Cape v. Kilner; Same v. Same; White v. Dixon; and of course in each case his Honor refused the trial.

This long pending vexatious action, was decided in the Supreme Court on Tuesday last. The result has created through the community a feeling of disgust which time nor circumstance will ever wipe-away. The subject has so often been before our readers, that we would not do more than allude to it, in the course of our remarks upon the trial in this number, did we not deem an extended notice of it necessary to make the English reader acquainted with the manner in which the Law is dealt out to the responsible conductor of The Free Press, when an official thinks proper to cause its machinery to be put into motion against him, for having disseminated the unanimous voice of the public in disapprobation of his public conduct.

The trial, which forms the subject of our present writing, cannot properly be separated from that which preceded it; it is our duty therefore first, to afford an outline of it, which we cannot better do, perhaps, than by quoting a few extracts from a letter we are about to forward to England, which we have delayed, to embody in it the opinion of His Excellency the Lieutenant Governor upon the Report of the Public Investigation of certain charges preferred by Mr. Goodwin against Lieut. Friend, in June last, and the decision of the civil action, as ascertained on Tuesday last. This letter, from which the following extracts are culled, to _________,it is necessary to state, accompanies a petition for redress for the unconstitutional and oppressive treatment Mr. Goodwin has suffered at the hands of the Local Government and some of its subordinates.

* * * * * * Your Lordship cannot fail to acquit me of any sinister or malicious motive in preferring these charges against Lieut. Friend. Honored with the confidence of the public (excluding, of course, that portion of it, whose interest it is to deny the existence of abuses - and the abuses, that do exist in this Colony, your Lordship, are of a character, that must be witnessed to be believed.) I have acted in the discharge of my onerous duties - not the less so because voluntarily undertaken, with the utmost fidelity, and I fearlessly challenge, even the most unprincipled advocates of oppression here, to deny the correctness of my assertion.

Nor should I have sought redress at the hands of your Lordship - if redress was attainable in this Colony. The Chief Authority, here, has denied it to me, and instead of the redress humbly sought - redress that was my due - redress that the result of a public investigation, of charges preferred by me against Lieut. Friend proved that I deserved - I have been hunted down by the blood hounds of the law, with a ferocity and vindictiveness, that forms a precedent in the history of the colonies.

Your Lordship will discover from the accompanying correspondence No. to No. between myself and the several officers of the Local Government, that, after I had applied for a public investigation of charges I preferred against Lieut. Friend , and after His Excellency the Lieutenant Governor had ordered it to take place - that the Attorney General filed a criminal information against me for an article that appeared in the paper I have the honor to conduct, which formed the ground work of one of the charges preferred by me against Lieut. Friend, and, that the investigation was not permitted to proceed “until the ex-officio was disposed of.”

I beg leave to refer your Lordship to the report No. of that legal process - for trial it cannot be called, by which your Lordship will see that the truth of the writing was given in evidence; and likewise to the report of the proceedings of the investigation No. when the evidence of John Debbings, Henry Matson and William Lawton, is conclusive of the truth of the writing for which I was harassed by the oppression of the law in its most oppressive process.

I do most loudly complain of the oppression that has been practiced against me, for having exercised the legitimate privilege of an Englishman. Every day occurrence proved incontrovertibly whether or not the duties of Port Officer on the River Tamar are efficiently discharged, and whether or not the frequent very serious accidents among the shipping navigating the River Tamar are indeed the result of accident, or of the want of a competent head to the Marine Department. These queries imposed upon me the duty of representing the fact publicly, in order to reach the knowledge of the Chief Authority, which, in the absence of publicity would not likely be the case, I discharged my duty in the full hope that the evil would be remedied, and by referring to the file of papers No. to No. your Lordship will discover that the voice of the public in censure of the Marine Department was loud and frequent, but I believe not half so frequent as occasions of negligence required its censure.

I have further to refer your Lordship to the report of a competent Board No. , appointed to investigate into the cause of a disgraceful accident that occurred to the ship Honduras in the River Tamar, and likewise to letters No. relative to the same circumstance.

I beg respectfully to submit to your Lordship that the Local Government unjustly exercised its influence in favor of Lieut. Friend by instituting legal process against me, ex-officio, for a writing in my Journal based upon a charge preferred by me against that Gentleman, after His Excellency the Governor had promised it should be investigated publicly, to the interruption of that investigation, and I moreover, submit to your Lordship, that the subsequent arbitrary legal proceedings that have been instituted against me, occasioned by my proper and constitutional disapprobation of the imbecile public conduct of a public offer are alike disgraceful and oppressive.

I appeal to your Lordship, respectfully, yet with confidence, if I am not correct in saying - that proceedings could not be adopted in England against a public Journalist similar to those that have been adopted in this Colony against me? and whether a similar result of an ex-officio in England, to that I allude to, as having occurred here, would leave the official whose character, required such a process to support it is the quiet and full enjoyment of his public situation. What, may I be permitted to ask your Lordship would be the result of a public investigation into charges preferred against a public officer in England - the whole of which being distinctly proved against him

The reader has here an outline of our complaint, as prepared for the information and edification of the home parliament, (up to the termination of the ex officio) who, about being taught a lesson by the multitude - by the suffering millions - will not throw it by as undeserving of notice, nor shall our complaint be unheeded - it shall be continued until it be redressed. We knew well when we engaged in the cause of the people, that ours would be no easy path - no bed of roses to recline upon, - no sinecure - and we engaged in the cause heart and soul, not as a pounds, shillings and pence concern, but as a matter of principle - we took charge of the ship, and nailed the standard of British integrity to her mast. There it remains, and there it shall remain fearless of the petty assailings of hirelings and piss-ants, while the hull rides in bold contempt of her less than miserable assailants. When the Chronicle sinks, we will sink with her; but so long as our arm has nerve to direct her helm in the cause of the people, which is a virtuous and honorable cause, we fear not her destruction.

To bring up the series of persecution against us as briefly as possible, we republish an article; from our paper of the 30th ult., which will explain the mean shifts and strategems adopted to our prejudice by our vindictive opponents, up to the commencement of Tuesday’s exhibition:-

“Instances of Van Diemen’s Land Official Honor! - Six months ago (April next) the action brought against Mr. Goodwin by Lieutenant Friend, was put off until the following Sessions, in consequence of the Rev Dr. Browne having a day or two before that, on which it was put down for trial, preached a sermon, the most blasphemous perhaps that was ever uttered from the pulpit, with the intention of prejudicing the jury, who might be impannelled to decide the case. On that occasion, Mr. Goodwin pledged himself to His Honor the Chief Justice, that he would not allude to Lieut. Friend in the Chronicle, until the case was disposed off, which was expected to be the next Sessions. For several weeks after this time, each publication of the Launceston Advertiser teemed with the most scurrilous and cowardly taunting and Billingsgate abuse towards Mr. Goodwin, who pledged not to allude to Mr. Friend, was not in a position to defend himself.

“The conduct of Mr. Friend’s party in this instance was the essence of cowardice - but at the next Sessions it was atrocious. About twenty-five additional names were added to the original Jury list, who for the most part were men of principle and understanding. The old Jury List was composed, with little exception, of Colonel Arthur’s Magistrate, who, of course, were on the side of the clique, whose overbearing and idiotism we had to unceasingly exposed. It was contrived by some means, which, to the disgrace of the authorities, have not to this hour been explained to the public, to summon as jurymen in the action brought by Mr. Friend against Mr. Goodwin, all the old Magistrates, and two gentlemen only out of the seventy-five eligible to sit as juror; and those two not in alphabetical rotation, but one in the letter B and one in the letter S. The impudence of this manoeuvre was too glaring to pass unnoticed by Mr. Goodwin, who, by making affidavit of the fact before the Judge, and of the incompetency of the Court, succeeded closing its business for the Sessions.

“Thus, a second time, was the party frustrated in their cowardly and unconstitutional proceedings.

“We have now to record another scheme, which, if not equally wicked with the others, is the most indelicate and disgraceful.

“The same day (last Thursday) on which Mr. Goodwin received notice of trial at the forthcoming Sessions, does the ready tool, the Advertiser, put forth notice that an address had been presented to Lieut Friend upon the occasion of his resigning the duties of Police Magistrate at George Town. “This announcement we do confess, did astonish us, because we were not prepared to believe that Mr. Friend would submit to be placed in so humiliating a posture before the public. Mr. Friend’s successor has been Gazetted three months!! How is it that he was not addressed on the occasion, at the time of his retirement? The reason is obvious. The address to Mr. Friend was reserved to be exhibited in the newspapers, just at the identical time when his action against Mr. Goodwin was to be decided in the Supreme Court, and when it was presumed public feeling would be excited in his favour.

“What must be the opinion formed of society in this Colony at home, and by honorable and just people in other countries, judging of the means that have been employed against the proprietor of this Journal by Mr. Friend and his party? By a Lieutenant in her Britannic Majesty’s Navy!! - a Magistrate!! And his friends Magistrates!!!

“When his Honor the Chief Justice exacted from Mr. Goodwin a pledge not to interfere with Mr. Friend until the trial was disposed of, he could not have anticipated the cold-blooded, unconstitutional, dishonorable, and indelicate means that have been so foully practised by Mr. Friend and his party towards Mr. Goodwin. Such a medley of scheming affords a better character of the official portion of the Colonists, than all the written characters emanating from His Excellency and the Clergy of the Colony.

“The Address that has been got up, to answer the purpose of Mr. Friend in the forthcoming trial, deserves a few remarks at our hands, notwithstanding the days are gone by for addresses to have any effect upon sensible minds. A Magistrate having the ear of authority may procure a dozen signatures for a ticket-of-leave; a conditional pardon will ensure twenty; the chain-gangs are prolific sources for address manufacturers, and a day’s canvas of the bush, amongst the shingle splitters and sawyers, will amply repay a magistrate or a chief constable employed in the noble business of address-making.

“But of Mr. Friend’s address, which is said to be that of the “free inhabitants of the George Town district.” It has apprehended to it eighty-two names, which are not worth analysing. Five of them are J. P’s. Mr. Hardwicke, who resides, we believe, somewhere in the vicinity of Norfolk Plains, sixty miles from George Town; Mr. Wilmore, of Sugee Point, on the west bank of the Tamar, several miles from George Town, and Messrs. Barnes, Reibey and James Henty, residents of Launceston, forty miles from George Town. One man, whose signature is attached, is a settler in Port Phillip between forty and fifty are shingle splitters and sawyers, who labor at their avocation in any part of the country where they can find good timber; one is lying in gaol on a charge of horse stealing, and the remainder are pilots and persons connected with the Marines Department, and residents of George Town and its vicinity.

“So much for the Address got up in honor of Mr. Friend, and to prejudice the Jury in his favor on the forthcoming trial.”

In our next, if we can procure the characters of the personages who signed the address above alluded to, we will lay it before the public.

And now, to the action; Friend v. Goodwin, Her Majesty’s Attorney General and Solicitor General for plaintiff - Alfred Stephen, Esq., for defendant. Plea the General Issue. Damage laid at £5000.

We may here state, that we were out-generalised by the plaintiff’s counsel, for we had refrained from pleading “Justification,” and did not call witnesses (to save the expense), knowing that the truth of our writing could not fail to be proved by the witnesses the plaintiff might produce. The plaintiff’s counsel, however, no doubt finding out the sort of cause they had undertaken, refused to call any witnesses, excepting in support of the first count. The reader will judge from their evidence how far they benefited their friends cause. We dare not publish the statements in our possession, in this Colony, in justification of our writing, but the British Government shall be put in possession of them.

Mr. Solicitor General opened the case to the Jury, when Mr. Attorney-General rose, and addressing it, declared, that he had never felt deeper interest in any case in his life, not, however, as far as his client’s character was concerned. Oh no! He admitted the plaintiff’s character had suffered no injury whatever, notwithstanding the series of libels directed against it. The system of calumny practised by the Cornwall Chronicle was unparalleled (in his opinion) in the coarsest portion of the press. He trusted the Jury would by their verdict annihilate such a Press! If not, the greatest mischief might accrued, for the plaintiff was an officer in Her Majesty’s Navy; and the newspapers went elsewhere. The Cornwall Chronicle had an immense circulation - it was the favored Journal of the people of Van Diemen’s Land, and no damages the Jury could give to his client, could compensate him for the damage sustained by the series of libels written against him in such a paper. No damages, repented the learned orator, you can give, can be sufficiently large to compensate my client for the injury done to him in this land. He would defy the defendant’s counsel to produce so base a production in any country; but he wished again to say the libels did not injure the plaintiff - they injured the Colony. The Press, continued the learned speaker, that should defy the arrogance of power and the artifices of the law, is in this Colony disgraceful. Is it to be endured? He hoped that the jury, that day, would teach every man, in the person of Mr. Goodwin, that they were not to apply the power of the Press to the injury of any public officer. He would admit that the Press, whose power was tremendous, had a right to canvass public characters with the utmost freedom, - with a freedom too, bordering upon licentiousness, but, he hoped the Jury would visit Mr. Goodwin, who was the organ of the refined and intellectual spirits of Launceston, who supported his journal, with a verdict to the tune of £3000 or £4000, which no doubt would be immediately subscribed.

Here the learned Counsel introduced with exceeding bad taste, we thought, the pledge given to the Judge by Mr. Goodwin, that he would not mention the plaintiff in his Journal until the case was disposed of, which was not allowed by the Court, and proceeded in a strain of abuse towards defendant, which we will spare our readers the pain of reading. We have seen in the course of our experience, foul language in print, but we never read anything half so foul as the language that dropt from the refined lips of Her Majesty’s Attorney General on Tuesday last, as applied to the Proprietor of the Cornwall Chronicle.

Mr. Solicitor General. - on Mr. Attorney General closing his extraordinary speech for his client, rose, and proved by the affidavit of Mr. Montagu, late Colonial Secretary, the proprietorship of this newspaper, when he read the following alleged libel, which form the lst Count. (That part in italics is the alleged libel, but the whole article being read in Court we publish it.)

It has come to our knowledge, that the most corrupt, jobbing, and worthless servant in the employ of the people, was very recently canvassing the town for signatures to a requisition to the Sheriff, to convene a public meeting, to take into consideration the state of the Press of the Colony;” and that he obtained, after the labor of some days, seven signatures, five of which were those of the only public servants the Press on this side the Colony has ever interfered with. It is a most remarkable fact, that no person can discover a severity in the tone of the Launceston Press, save those officials, whose misconduct in their public situation oblige its conductors to visit frequently with castigation; and equally remarkable is it, that the whole of the suffering population are unanimous in declaring the Press not half severe enough in its censures. It would be very presumptuous on our part, to say that the opinions of a population consisting of many thousands of persons, is so correct as that of seven corrupt jobbers, in their capacity of Government Officers, and of the two less than contemptible worthies who signed the requisition alluded to. We should, perhaps concur with the five officials and their friends, and should set at naught the opinion of the inhabitants of this northern division of the Island of Van Diemen’s Land; both parties are interested - the five in securing to themselves the means by which they pocket, in a manner unjust, unmanly, dastardly, and dishonest, their salaries and privileges, and the community, in endeavouring to destroy those means; and if we acknowledge the principle correct of making the few happy at the cost of misery to the many, the Officials and their two pals are right, and the community is wrong. But how, does it happen that the requisition, so respectably signed, has not found its way to the Sheriff? How does it happen, that after nearly a week’s canvass of a populous town, seven signatures only could be procured to the requisition? How does it happen that the Official (whose name, by the bye, is one of the seven,) has slunk away to his official residence, and abandoned the attempt to get together the public of Launceston in public assembly, “to take into consideration the state of the Press of this Colony.” Had it taken place, a few home truths would have gained publicity, that would have been nothing to the credit, and as little to the satisfaction of the conveners. Why did it not take place? We will tell the officials - it was because the public is thoroughly disgusted with the conduct of the Supreme Authority, in permitting men holding Government situations - the privilege of plundering it at their pleasure after their properties are known and their villainies discovered.

This is plain language; - it will be rightly understood; - that it should be, is our desire.

In what estimates can the officials alluded to who attempted to draw the public together upon such an occasion, hold that public! Our flesh quivers while we consider the insult offered to the public by men, whose lives are one scene of corruption and robbery. We do not think proper to mention any names, but we hesitate not to declare, that the principal mover in the attempt is the prince of Colonial jobbers; - holding a monopoly of public situations, he draws a large annual income from the public purse, and rewards his paymasters by neglecting the duties he is paid to perform - to privately and extensively job! This man is told by the Press, that he is robbing the public by his jobbery, and that, for the want of a head, his department is shamefully conducted, and he comes forward - presuming that his tinselled and paltry official importance will drive the public whom he robs, to concur in condemning the Press, which dares tell him of his dishonesty - On upon such contemptible conduct.

Mr. William Pritchard Weston, who stated as follows:- I had a conversation with Lieutenant Friend about some steps to be taken relative to the Press of this Colony; I think the article refers to Mr. Friend, who was Port Officer, and acted as Police Magistrate; in my opinion it imputes dishonourable conduct to him as a public officer; I should not think “the Prince of Colonial Jobbers,” alludes to Mr. Friend.

Cross-examined by Mr. Stephen. - I should certainly think that the article alluded to Mr. Friend by the word “Tinsel” knowing that Mr. Friend usually wore uniform, but it is mere conjecture; there may be more tinselled gentlemen in Launceston, but I do not recollect any other gentlemen than Mr. Friend; I think the article alluded to Mr. Friend, because he once happened to speak to me upon the subject of combining for the purpose of suppressing the licentiousness of the Press - but for the circumstance of the conversation and the allusion to the tinsel, I should not imagine it to mean Mr. Friend; I took the “Prince of Jobbers” to mean Mr. Friend from the frequency of the notorious attacks upon him for jobbing. I should think it mean Mr. Friend; I never read the newspapers, but I know, from the constant charges against plaintiff for jobbing, it meant him.

By Solicitor General. - I have no doubt but that the article alludes to plaintiff.

Mr. William Page Ashburner examined. - I have read the paragraph generally; it is impossible for me to say who is meant by “We do not choose to mention any names;” but, taking the whole passage together, I am of opinion it refers to Lieutenant Friend, it charges him with robbing the public, and neglecting the duties of his department; I believe it refers to plaintiff from the fact of knowing that his conduct had been repeatedly canvassed in the cornwall chronicle and also from the word “Tinsel,” which I believe referred to Lieutenant Friend, from his wearing a uniform of gold.

By Mr. Stephen. - I am not in the habit of seeing the paper, and cannot speak other than from what I have heard from persons with whom I associate; from my own knowledge I cannot say if Lieutenant Friend has been accused of jobbery; I first read the article at the last sessions; I may have seen it before, but am not quite certain; but for the circumstance of my being subpoenaed, I should not have read the article; I was in Court when the trial was last heard, and cannot call to recollection anything relative to a compromise with Mr. Goodwin, but I believe it more particularly referred to a continuance of the action.

Mr. Stephen here requested the whole of the article might be read, which being done by the Clerk of the Court, the several papers were put in containing the other counts, as follows, plaintiff’s counsel refusing to call any other witnesses, and closed his case:-

In adopting the course I did, in preferring certain charges to the Governor, against you, to prove the correctness or otherwise of the frequent complaints made against you in the Cornwall Chronicle, with your consent, and with your sacred promise made to me “upon your honor as a gentleman and an officer” that you would not take any proceedings against me by Law - should matter arise out of the investigation that would furnish you with the opportunity - I should have recollected that the private professions of a man capable of betraying his public trust, were unworthy of reliance. Had I so reflected when you assented to the plan I proposed, and read the charges to you, of submitting your conduct to the test of public investigation, I should have required from you something more binding than your verbal promise, “upon your honor.” To have secured me from the treacherous advantage you have taken of my confidence.

I think it is only proper I should tell you, that, however much I regret to find the power vested in the hands of the superior authority, exercised unjustly to your advantage, and that the protection which is afforded you, (protection that you, if an honorable man, would refuse to accept,) is unjust, as it is disgraceful; I should not have thought quite so meanly of you, had you, even at the expense of your sacred promise, proceeded against me by civil action, thereby affording me the means of proving the truth of my charges against you. No gentleman, conscious of integrity, and of having faithfully discharged his official trust, and knowing himself to be unjustly accused, could proceed against his accuser by ex-officio! An honorable man having a desire to clear his character from unjust imputation, would afford to his accuser the opportunity of proving the truth of his accusations by civil action, upon the plea of general issue. You, Sir, fearing the test - proceed by the most arbitrary, unjust and villainous process the tyranny of olden times manufactured, for the protection of corrupt public servants.

This witness named coffin, was rated coxswain in the Marine Department, and had regularly drawn his rations and pay from the country - at the same time he was employed, by Lieutenant Friend, in working a boat, his (Lieut. Friend’s) property, in transporting bark from Ringarooma Bay and other places to George Town for shipment to England.

Sir. - Can you tell me, as a licensed victualler, paying a large sum of money every year to the Government for my license and privileges, whether the Port Officer has taken out a license to keep a public house, and whether, without it, he is allowed to sell spirituous liquors?

I had always considered that Lieut. Friend must have been, if not an honorable, at least a clever man (or else how is it that he has so long averted the arm of justice?)

Look at the glaring stupidity and self-conceit of the man, in supposing that the public will take his mere ipse dixit in oppositions to facts, when only a few days since you told him to his face that he had broken the word which he gave you “upon the honor of a gentleman and officer, that he would not take proceedings against you by Law.

Taking into consideration the singular limpet like intimacy of Lieutenant Friend, the Port Officer, and Matson, his Harbour Master, we can estimate the removal accordingly. What degradation do not some minds stoop to.

Mr. Stephen, for Defendant, addressing the Jury, said, This is an action in which a gentleman named Matthew Curling Friend is plaintiff, the gentleman whom I represent is William Lushington Goodwin. It is brought to recover damages for supposed injury done to the plaintiff’s character. From the speech of the Attorney General, it would appear that the public at large is plaintiff, and that Mr. Friend appealed to the Court in capacity of Champion General of the whole Colony. The Attorney General, in a very able and very eloquent address, had not been sparing in censures upon the unhappy defendant, whose praise he denominated censure, and his censure praise. He had eulogized his Press as a nuisance, and in the course of his address had stated circumstances which were wholly unconnected with the case at issue; he had brought forward no proof, and had shrunk from enquiry. The plaintiff’s counsel had stated that his client had been subjected week after week - year after year - to the foulest imputations - his house had been turned into a house of mourning - his domestic peace had been destroyed. Now, he, Mr. Stephen thought, that, after such a speech the Jury had a right to expect some proof of the imputed libels - some proof of the truth of his learned friend’s assertions; he, the Attorney General had stated, that the plaintiff’s domestic peace had been destroyed, his domestic privacy invaded, and yet nothing of the sort was attempted to be proved - not a tittle of evidence had been brought forward to justify such sweeping denunciations; for, whether defendant published the matters charged as libellous - whether, if libellous, they are malicious - whether they refer to the plaintiff - for though you may be of opinion that they are libels, and that they refer to the plaintiff, if the meaning is not clearly shewn by evidence, you must, Gentlemen, return a verdict for the defendant.

Gentlemen, thought it may suit the interest of Mr. Friend to justify his appearance in this Court upon the present occasions for public reasons, he comes here as a private character, and he has no power to put his own construction upon the writings for which defendant is here to answer, in obedience to the laws of his country - he must substantiate his complaints by proof, which, if he falls in, your verdict, Gentlemen, must go against him. It is my duty to see that plaintiff’s case be proved - it is my privilege, which I shall exercise for defendant’s benefit to the extent of my power.

Mr. Stephen then proceeded to dissect the allegations; I declare, said the learned gentleman that in the whole course of my practice, I never before saw a declaration drawn with such subtlety; In the course of my life, I never hear such reason given, as those by Messrs. Ashburner and Weston, for fixing upon an individual the meaning of an article, that was directed in the plainest language to seven or eight; I assert gentlemen, that the article laid as the first count, cannot be construed by the utmost ingenuity to mean Mr. Friend; it cannot be fixed upon that gentleman; there is not the slightest evidence to shew that Mr. Friend is even alluded to in it. The friends of the plaintiff are not the proper persons to decide to whom the writing alluded. Is it not your opinion - asked the Solicitor-General - to Mr. Ashburner, that the article now shewn to you alludes to Lieutenant Friend? Most undoubtedly, replied Mr. Ashburner. Of course, gentlemen, according t o the opinions of the Ashburner’s and the Weston’s the article is decidedly directed to their friend the plaintiff; he is the butt against which the shafts of the defendant have been directed, but, recollect gentlemen, we have no proof of this being a fact - mere opinion of plaintiff’s personal friends, and opinion, gentlemen, in my opinion, is good only according to the argument given in support of it, and that when reasons fail, opinion falls to the ground.

Gentlemen - my friend the Attorney General, gave you his opinion upon the Freedom of the Press; he told you gentlemen, that the character of public men might be freely and fearlessly discussed - that they were the property of the public, and might be convened with the utmost freedom, a freedom too, bordering upon licentiousness, I have the learned gentleman’s words before me - “a freedom, too, bordering upon licentiousness: - does this licentiousness allude to the plaintiff in his private capacity? I apprehend so. The allusion made to the Port Officer - if allusion is at all meant in the article which forms the first count in this information. I do declare gentlemen, that plaintiff holding office, had no right to combine with others, and use his public and private influence to oppress the defendant, in the proper exercise of his profession of a journalist. No wonder that the defendant felt himself annoyed, and denounced in plain terms the persecution practised against him. A set of Government Officers rise up to crush him, they attempt to put him down, not by the Law of the Country but by a foul proceeding. Gentlemen, can you wonder that defendant felt himself, vexed by such a course adopted against him? Can you wonder when these Government people, using their public and private influence, put themselves forward to attempt his ruin that he complained? They oppressed him, and he resisted their oppression, and in so doing he displeases them; they were annoyed, finding that they had a tough and rough customer to deal with, whose truths were unpalatable to them. With regard to the second count, I maintain that a verdict must go for the defendant. The plaintiff had offered no evidence whatever in support of it. I fear nothing, said Mr. Stephen, from the farthing rushlights of inconclusive reasoners. There is no evidence whatever, to shew that the letter was addressed to plaintiff; and I apprehend, therefore, that charge to be at end.

Mr. Stephen made some few observations upon the remaining counts, conclusive of their harmlessness, and ludicrously represented the absurdity of plaintiff presuming himself to be the knight-errant to redress the grievances of all mankind, which he clearly imagined himself to be, disclaiming as he had done, all damage for himself.

If, continued Mr. Stephen, the defendant’s press is a nuisance, as stated by the learned Attorney General, I am sure the respectable and virtuous community of Launceston would not support it. If, as the learned gentleman has stated the Cornwall Chronicle has so large a circulation, it is evident that his censure is inapplicable to that Press, because, if otherwise, it would not be so liberally supported. I am therefore, bound to believe it to be a public blessing and not a curse, or it would not obtain the circulation it has.

Gentlemen - I do not pretend to say that the Press is not sometimes too severe - that it does not sometimes apply the lash too severely; but in consideration of the immense general good that it effects, errors should be forgiven. The Press is the only safeguard the people possess against uncontrolable and irresponsible power - crush it, and you destroy liberty itself.

His Honor in summing up admitted, that the plaintiff’s counsel had unfortunately failed to prove by evidence the application of the 2nd Count, particularly to the plaintiff; but, said His Honor, “if a Jury from living in the neighbourhood, could identify itself with the article it is just they should do so; they need not mind whether it is established by facts.

Again, said His Honor, “ it happens unfortunately, as I said before that plaintiff’s counsel has failed to produce proof that the letter was addressed to Lieut. Friend, and it would be going too far for the Jury to presume so in the absence of evidence to that fact.”

Again - “Although there may be no evidence as to is being the Port Officer, yet you may presume the fact”

Again - “it does not argue that he does sell spirituous liquors, but all the world would believe it so to imply.

Again - “Unfortunately, by not giving the whole of the letter itself, as the plaintiff might have done, there is a hiatus. There is no evidence to shew that part to allude to Lieutenant Friend; yet if you think it applies to him you can find for Lieut. Friend, and assess damages accordingly.”

We shall not here offer one syllable of comment upon the new mode of judging recommended by His Honor to the Jury. His Honor’s recommendations to the Jury to dispense with evidence, and to decide according to their knowledge, is a new doctrine, which we are bound to consider inconsistent with the oaths of the Jury, by which they pledge themselves before Almighty God they will decide according to evidence.

Just previous to the jury retiring, one of them leant over the box and put the following question to His Honor:-

Juror -“Are we to find according to our own immediate knowledge or by evidence.”

We understood His Honor to reply - By your immediate knowledge in the absence of evidence.

Mr. Stephen at once objected to this mode of charging the Jury, declaring, that in the whole course of his experience he had not before heard a similar charge, and produced some legal authorities in objection to it, which, however, not being satisfactory to his Honor, the Jury returned with the charge they had received from His Honor.

One hour and twenty minutes after the Jury had retired, His Honor, having been convinced of his error, sent for the Jury, and expressed himself as follows:

“Gentlemen, - I am free to confess that I have misdirected you. I told you, with regard to the second count, that no evidence was given to make it applicable to plaintiff; yet, if facts within the knowledge of all of you satisfied you that it applied to him, you could make use of those facts. I find I was wrong, and that you must consider your verdict according to the evidence before you; and I am much obliged to defendant’s counsel for having put me right. You will therefore retire and reconsider your verdict.”

The Jury retired, and in a very few minutes returned into Court, finding defendant Guilty upon all the counts - Damages £400.

The case of Friend v. Goodwin, which has been so repeatedly postponed, came on for trial at the last Launceston assizes. The public are sufficiently acquainted with the circumstances to need but little explanation of the facts connected with this prosecution. Not only was official neglect charged upon the plaintiff in his capacity of Port Officer at George Town, but the grossest peculation and corrupt practices, coupled also with the most abominable insinuations, made up the sum of the libels of which the plaintiff complained. Never surely was there a more cogent reason for a jury to interfere between the ruthless defamer and his victim; and the damages which were given on the occasion, afford ample proof of the indignant sense entertained of the slanders heaped upon the plaintiff, and the determination on the part of the public, to resist an odious tyranny which rests so calumny for its foundation. There was no attempt at justification - the learned counsel for the defendant was obliged to confess that there could be none - that the character of the plaintiff could not be affected by the libels which were the subject of the action - that it stood too high in the estimation of every one to be sullied by the slanders of the defendant, and that as the paper in which they appeared stood so low in public estimation, according to the statement of the Attorney-General, the damages ought merely to be nominal. This is helping a lame dog over the stile with a vengeance! But we are told that amongst a certain class of readers it has an extensive circulation, and that as it panders to their base appetite for vilification, they think it right to support it by subscribing liberally to the wants and mischances which in the shape of damages may befall its proprietor. We are not sorry, therefore, to see another opportunity afforded them of proving to the world the extent of their generosity. At all events, in whatever estimation the journal in question is held, and it needs but a hasty glance to detect the character on which it lays claim to public sympathy, there is this obvious fact, before us, that many of these libels reflecting on the character of Lieutenant Friend were copied into highly respectable journals “at home” (graced with a different name, to be sure, from that of their origin, which enabled the base coin the more easily to pass current,) and found perhaps credence in many parts of the globe to which chance or the fortune of his profession might have borne Lieutenant Friend, and where his name might have been remembered with esteem and regard. The poison now gone forth it is difficult to convey the antidote, and thus it happens that for some malicious purposes a fabricated falsehood is forthwith thrust into this receptacle of calumny - the common sewer into which are disgorged all the worst productions engendered by bad passion - it is circulated abroad - it is perhaps published in England, and by the publication acquires a greater and more extended sphere wherein to make its way - and an officer of the navy, who has passed through a long and honourable period of service - and in no service can honour be more highly prized - who has faithfully discharged his duty towards his country, and found under.

is thus by a few lines - by some vile and revolting insinuation, cast down at once from the high position which he occupied, to be the mark for the scorn and contumely of the world. What a triumphant handle it might afford those who would traduce our moral character at home, if they thought encouragement were given for a moment by the people of this colony to a journal which had such vile objects in view! And how would that feeling be increased by the knowledge that for such scandalous libels, for which no justification is attempted - for which it is admitted there is not a shadow of foundation, after the opportunity which has been prayed for by the defendant, is afforded of establishing in evidence the truth of the alleged libels - a subscription is attempted to be got up for the sake of bearing the proprietor harmless of any pecuniary loss. The premium is worth the hazard of the venture; and, as observed by the Attorney-General, the balance sheet of libel and compensation, becomes a nice matter of calculation, if the journal would retain that interest which we are taught to believe attaches to it on account of its slanderous character. The repeat of the trial we expected at least would be fairly given, but on the contrary, it exhibits a most important attempt to bolster up the defence, to the prejudice of the prosecution; and it is too barefaced to impose, with a mock appearance of bravado, even upon the credulity of the most ardent admirers of the journal. In this spirit does the proprietor put forth a manifesto, in which he declares that in the exalted cause in which he is engaged, he has mailed his colours to the mast, but has left it to the fancy of his readers to imagine the peculiar colour of the flag under which he expresses such determined devotion.

An attempt is made in the report of the case which appears in the Cornwall Chronicle to induce the opinion, and therefore claim a further degree of sympathy, that the Chief Justice wrested the law somewhat from its authority, in order that the defendant might not escape through the legal objections taken by his counsel; but nothing can be more scandalously false than this attempt to bring the Bench into disrepute. The charge of Sir John Pedder, as all his charges are, was distinguished for its strict impartiality, and almost too scrupulous care to let anything go to the jury, which is not supported by law, as well as equity. He told the jury in the outset, that they should disburthen their minds of all previously conceived prejudices upon the case - that he was aware that great excitement had prevailed upon a former occasion, in consequence of which the trial had been postponed, and that now if after the lapse of time that had ensued, there still remained any impressions either one way or the other upon their minds, he besought them to dismiss it, and approach the case dispassionately, and with the same tone of thoughts and feeling by which they would judge of a case of which they had never heard previous mention. In the course of his address, and in that part which referred to the second count, the whole of the letter, the inscription to which was “to Lieutenant Friend”, not having been put in in[sic] evidence, he stated, that apart from the consideration of the remaining portion of the letter, as there might some difficulty exist in determining who was the person alluded to in the alleged libel, yet that the jury were at liberty to make use of any information they themselves might possess tending to assist them in fixing upon the person against whom the libel was directed. Against this Mr. Stephen protested, and His Honor having been subsequently convicted of his error, gave directions for the jury to return, when in the most handsome manner he acknowledge that he was wrong, and charged them merely to attend to the substance of the libel itself without giving to it any interpretation which their previous information might enable them to put upon it. Never was acknowledgment of error upon a point of law done with better temper and taste from the bench of any country, and it only shows the miserable evasions to which the defendant in this action is compelled to resort in order to escape universal execration, and fix upon himself the martyrdom of injustice.

Before His Honour the Chief Justice and the following Jury - Messrs. Emmett, sen, (Foreman), E. Dumaresq, A. W. Horne, P. Dalrymple, F. Freeman, W. H. Gough, G. Eddie, George Fraser, D. McGown, W. Fletcher, and __ Evans.

The Solicitor-General opened the case by very briefly stating to the Jury the nature of the alleged libels as set forth in the several counts of the declaration.

The Attorney-General then rose and addressed the Jury. The learned gentleman commenced by observing that in the whole course of his professional experience he had never been engaged in a case in which he felt so strong a personal interest. It was one of the highest importance to the interests of society, which he was certain the Jury would uphold by their verdict that day. It was high time that the systematic slanders indulged in by the defendant should be put down and annihilated forever. The Jury should contemplate the injury which that system inflicted on themselves - on the community at large; not so much in this Colony, where the character of the slander is known, and they are appreciated at their just value, as in other countries where their character cannot be properly estimated. It was not here, where the contemptible production of the defendant was truly appreciated and despised - where the precise value of its analysis of character was accurately estimated - that the mischief was done; it was in other lands that it was effected. And here it was that the plaintiff, individually, had most ground to complain of any damage which he might sustain from such publications as the defendant’s. The character of the plaintiff, known as it was elsewhere than in the Colony, would, wherever the character of his calumniators was unknown, be judged and condemned by such publications. He, the plaintiff, an officer in the Royal Navy, would be held up to the world as a dishonourable man - as guilty of the mean and despicable conduct imputed to him in the Cornwall Chronicle. He would prove to the Jury that the libels which had so unceasingly been directed against the plaintiff by the defendant, had been transmitted home and extensively circulated in respectable publications in the mother country; but, to make the matter worse, they were given to the world, not as coming from the Cornwall Chronicle, but as extracted from a journal, which was one of the most respectable journals in the Colony. No damages that the Jury could give, would be large enough to shew the sense they must entertain of the vital injury which thus might ensue to the plaintiff, and by such means to the reputation of colonial society. He challenged his learned friend. Mr. Stephen, with all his great and splendid talents; he defied him to produce in the most degraded portion of the periodical press of any country a series of libels of so gross a character, more depreciatory of the party libelled, or of the country in which the libellous matter was alleged to have taken place. He challenged his learned friend to peril the high reputation he had obtained in this Colony, and which - yielding to honourable solicitation and the consciousness of eminent abilities; he was speedily about to bear with him to the Bench of the Sister Colony, to which he could not fail to become a distinguished ornament; he defied him to produce a parallel to the matter contained in the newspaper of which the plaintiff in this action complained. It was surprising that the Colony could tolerate so unparalleled a nuisance of a Press. He said this as no enemy to the Freedom of the Press. He knew the value of the proper exercise of that freedom; and so long as it was exercised in a manner conducive to public interests he would be the last to circumscribe its powers. Let it attack public men in their public capacities, and no one had a right to complain. He would have the Press defy both the arrogance of power and the subtleties of the law, in the discharge of such a salutary public duty - he would even complain not if in so doing it bordered on licentiousness. But was this to be called the Freedom of the Press, such a course as was pursued by the Cornwall Chronicle. Had that journal confined itself to a legitimate canvass of Lieutenant Friend’s public conduct - had it even taxed him with inefficiency and ignorance in the discharge of his public duties - however unfounded the charge might be - the plaintiff in this action would never have come into court. So far as the public conduct of men is concerned, discussion is of inestimable advantage is right, meet, and proper. But has this been the course of defendant. Has he not followed the plaintiff week after week, year after year - followed him into the secret assylum of his home, raked up his most private transaction, and made his house a house of mourning. Charging him with mean and dishonourable conduct, he had defied the plaintiff to give him an opportunity of proving his manifold charges against him; and when, at length, that oft solicited opportunity is given him, when he is at length enabled to prove the truth of his charges, what is the conduct of this discreet defamer? He shields himself under the plea of the general issue. He has learnt from his able advocate that he thus is not called upon to prove the truth of his allegations, but simply contends that they either do not refer to the plaintiff, or that they are no libel. It was to be hoped that the jury would not limit their damages to such an amount as the defendant could well afford to pay; so enabling him to re-commence his career of calumny. Of the circulation of defendant’s newspaper here he knew nothing; but he envied not those worthy personages by whom its intelligence and talent were patronised, their correctness of taste or elevation of sentiment. He knew not, he said, its circulation; but he had no doubt that the defendant regularly made his account - On one side he looked to his list of subscribers -on the other to the chances of being called on to answer for his libels; - and he had further no doubt that the Jury would give the “Liberals” of Launceston the opportunity of abundantly showing their sympathies for the persecuted defendant, which, as yet, he presumed they could not have had a fair opportunity of doing. He was extremely reluctant to do any thing that should be in any way professionally irregular; but his Honor would recollect that this action was commenced nearly twelve months ago, when it came on for trial before the present judge. An application for postponement, however, was made, under the plea of excitement existing at the time against the defendant; which was granted upon defendant pledging himself that he would not, during the intervening period between that time and the time of the trial, allude to the plaintiff in his journal in terms of censure. The defendant has however shamefully violated his pledge, having over and over again repeated his slanders. This fact, if not irregular, and that his Honor would of course determine, he should put in, in aggravation of damages. [The Judges declined receiving any evidence to this point.] - The learned Gentleman then proceeded to refer to the various counts of the declaration at some length. The lst count was the only one in which there was no distinct reference made to the plaintiff - all the others referred to him distinctly; upon that count alone he should therefore call any witnesses. - [We do not feel it desirable to republish the whole of the alleged libels in this place. One of them taxed the plaintiff with breach of faith in causing a criminal information to be filed by the Attorney-General against him, the defendant, a mode of proceeding which defendant characterised in very severe terms; and upon which the learned counsel remarked “that defendant’s law was not equal to the elegance of his style.” The libel went on to dare the plaintiff to a civil action in which the truth could be pleaded in justification; but “when the honourable man came into court” (proceeded the Attorney-General) “he does not attempt this justification, but pleads the general issue.”] This, continued the learned counsel, was the way in which all the libels were met. For instance, here was a letter which purported to come from a correspondent. It charged the Port Officer with illicitly vending spirituous liquors. This was no slight imputation on the character of plaintiff - but if true, how easily was it proved. But no, the general issue was pleaded to all. He did look to the Jury for large damages. He looked to them to protect society, against such a system of slander as that which the Colony suffered under. For any injury to the character of the plaintiff in the Colony, he asked no damages. That he believed would not receive any such injury. The praise of the just - laudari à laudato - was always to be desired; but the best praise which could be received at the hands of the base, was their censure, and the heaviest censure their praise. But something was due to the wounded feelings of men, and much was due to society; and he looked to the Jury to make by their verdict that day the just sense which they entertained of such slanders as had been heaped upon the plaintiff, remembering that not the most remote attempt at justification had been made by the defendant. Finally, he looked to the Jury to mark by their verdict, that they would ever distinguish between the liberty, and the licentiousness of the Press.

Mr. Lewis, the Clerk of the Court, proved the publication of the Cornwall Chronicle by the defendant.

Attorney-General: (The Cornwall Chronicle of 17th February was handed to Mr. Weston) Will you read that part of the paragraph commencing - “It has come to our knowledge, that the most corrupt, jobbing, and worthless servant in the employ of the people, was very recently canvassing the town for signatures to convene a public Meeting to take into consideration the state of the Press of the Colony;” - and tell me who you think is meant by it?

Mr. Weston. - I think it applies to Lieutenant Friend, and I think so because I remember Lieutenant Friend speaking to me on the subject of taking some public steps regarding the state of the Press of the Colony.

Attorney-General. - Will you read the latter part of the paragraph - “this man presuming that his tinselled and paltry official importance will drive the public whom he robs to concur in condemning the Press, which dares tell him of his dishonesty;” and tell us who you think is here meant?

Mr. Weston - I think it is meant for Lieutenant Friend; and I should think so from the word “tinselled” applying to the uniform Captain Friend usually wore.

Attorney-General. - Then, taking the whole paragraph together, do you think that the person there pointed at is Lieutenant Friend?

Mr. Weston. - I think the latter part imputed dishonesty and dishonourable conduct to him as a public officer.

Attorney-General. - Was Lieutenant Friend Port Officer at George Town at that time?

Cross examined by Mr. Stephen. - The opinion you form of the latter part of this paragraph is I presume a mere conjecture of your own mind.

Mr. Stephen. - And would you form such an opinion on conjecture, principally from the word tinselled?

Mr. Stephen. - Is there no other public officer that you know that wears an uniform?

Mr. Weston. - I do not know of any, in a civil capacity. Perhaps I may be allowed to mention another reason which occurs to me. From the words “prince of colonial jobbers” which are used in the alleged libel, I should certainly judge the paragraph to mean Lieutenant Friend, unless some other person were mentioned.

Mr. Weston. - From the attacks which I am informed are so frequently made on Lieutenant Friend in the Cornwall Chronicle.

Re-examined by the Solicitor-General. - Have you any doubt in your own mind that the whole paragraph alludes to Lieutenant Friend?

Attorney-General. - What is your opinion of the paragraph commencing - “it has come to my knowledge &c.?”

Mr. Ashburner. - I am of opinion that it refers to Lieutenant Friend; and my reasons for thinking so are from conversations I have heard in society as to the attacks made on Lieutenant Friend in the Chronicle. Another reason is from the use of the word “tinselled.”

Mr. Ashburner. - With jobbing, robbing the public, shameful conduct and dishonesty.

Cross examined by Mr. Stephen. - Then the whole of your reason for judging this to mean Lieutenant Friend are the reports you heard in society amongst your friends?

Mr. Ashburner. - Chiefly from report; but I myself have seen references to Lieutenant Friend in the papers.

Mr. Stephen. - Then if you had not been subpoenaed here today you would never have read the paragraph at all?

The libel was then put in and the whole paragraph read. - The paper of the 24th February was then put in and the next libel read. - The papers of the 10th and 17th March were put in, in a similar manner, and read; and the plaintiff’s case here closed.

Mr. Stephen then addressed the jury for the defendant. This was an action, said the learned counsel, in which Matthew Curling Friend was plaintiff and William Lushington Goodwin defendant. It was an action for the recovery of supposed damages to the character of plaintiff, from alleged libels published of the plaintiff by the defendant. He was the more particular in calling attention to these facts, because from the speech of the learned Solicitor General the Jury could learn little of the nature of the present action; while the Attorney-General had abandoned any claim for damages done to plaintiff in his public or private character, appearing only to claim damages for injuries done to the Colony. The Attorney-General during a very able and eloquent address to the Jury had certainly not spared his unfortunate client. His press had been described as an unparalleled nuisance, and the Jury had been called on to annihilate it; whilst so sunk in moral principle had his client been described, as that his praise should be deemed as censure and his censure praise, by all good men. Then circumstances had been referred to which he hoped his learned friend would have been silent upon; and his client had been charged with breaking his solemn pledge, and described as pursuing his victim week after week, year after year, with a ferocity almost described as brutal. After a speech of this kind he had expected some attempts to furnish the Jury with some examples, some proofs of what was thus alleged against defendant. The only witnesses examined however were Messrs. Weston and Ashburner, upon the first count of the declaration. Even had defendant raked up private matters relating to the plaintiff, the attacks of his learned friend could scarcely be excused. He would now press the real question upon the attention of the Jury. - lst. Whether the defendant had published the libels referred to. 2nd. Whether the matter was really libellous. 3rd. Whether they were published in the way really set forth to the declaration. If they were held to be libels, but there was any doubt as to their application to the plaintiff, the defendant was entitled to the benefit of that doubt.

The Jury will remember, (the learned gentleman proceeded,) that the plaintiff, by his declaration, sets forth that he complains of injury done him as Port Officer. The Attorney-General had admitted however the right of the Press even to border on licentiousness in canvassing the conduct of public functionaries. Now the Cornwall Chronicle had done no more than canvass the public conduct of the plaintiff and for this, thus admitted by the learned counsel as the legitimate duty of the Press, the plaintiff comes here to demand damages. His claim to this he must fully establish in your minds, or failing doing so your verdict must pass for defendant. But the Attorney-General had disclaimed damages to the plaintiff’s character. Of that plaintiff he (Mr. Stephen) would himself say that he believed him to be a gentleman who was generally esteemed; and he was one for whom he himself felt the highest respect. This gentleman called for damages done to society. But he had no right to demand any damages but for those sustained in his own person, and for those alone; if any, the Jury could return a verdict. It had been said that it was open to the defendant to justify; but in taking the course which he had done, in pleading the general issue, the defendant had only availed himself on a privilege which the law allowed him; and it was a privilege of which he Mr. Stephen, as counsel for the defendant, should not fail to avail himself to the fullest extent. He would now proceed to look at the declaration which he should dissect for the information of the Jury.

The learned gentleman then commenced a detailed commentary on the several counts of the declaration. He contended that the references to the plaintiff were not sufficiently made out. That only upon one had evidence been called, and the jury had heard the inconclusive reasons given by the witnesses for their belief that the alleged libel referred to in that one count, had reference to plaintiff. In another, a letter had been read, but it was impossible to say to whom that letter was addressed. The direction had not been read. He had carefully noted the omission, and it was impossible for the jury to say that the letter was addressed to Lieutenant Friend. Nor had it ever been proved that Lieutenant Friend had canvassed the town for signatures, to convene a meeting against the Press, to give some plausibility to the averment that the public functionary referred to in one of the alleged libels as having so done, was meant to describe the plaintiff. The whole declaration Mr. Stephen commented upon in very severe terms, and expressed himself unable to unravel its meaning.

But what, continued Mr. Stephen, if the fact were, as was stated by the Chronicle, that some public functionaries were endeavouring to crush that journal. Was it not natural that the defendant should endeavour to protect himself against their exertions. No doubt he was looked upon as a tough customer by men in office, and they would do their best to weaken such an opponent. But was it not natural that he should defend himself in turn. The Attorney-General had characterised the Press of the defendant as of the most odious description. If it were as described by the learned gentlemen, this was not the way to repress its licentiousness. This was not the way for society to be righted, if so grievously wronged. He would, the Press being as described, have men meet together and devise other means for putting down such a curse to society. A general movement should be made against its pernicious course of mischief. The law presented an ineffectual remedy; for though its forms and intricacies were supposed to be intended for the furtherance of justice, they were too frequently productive of a far different effect. But he maintained that very different from this must be the press in the hands of the defendant. To suppose otherwise were to libel society. For hear what a writer had said - one to whom his profession were in the constant habit of referring in cases of this nature. He would read the jury a passage from Starkie’s work on Slander: “If” said that able writer, “at any time the public press should have become generally venal, corrupt and licentious the necessary conclusion would be, that the very condition of society was tainted and unsound. To say the Press is corrupt is but a figurative expression; it means, in reality, that one set of men publishes, whilst the rest of society read, approves of, and encourages vicious productions. If it should be the disposition, or, at all events the apathy of the public, in regard to the morals of the Press to encourage or tolerate its ministers in committing licentious violations of truth and decency, it is manifest, not only that the temptation would always be sufficient to ensure a constant supply, at all risks of scandalous and illegal matter, but that all attempts to earn favour by honest means would be vain and fruitless. The real corruptors of the Press are the public themselves; and the licentiousness of the Press, though it tend greatly to increase the evil, is yet to be regarded rather as symptomatic of a defect in public morals, than as the cause of the declension.”

These were the words of a man of great ability, who viewed the question not merely as a lawyer, but as a philosopher. And was he (Mr. Stephen) to believe that a Press such as was described in the eloquent address of his learned friend, could be tolerated by this moral and virtuous community! Was it to be credited that if the Cornwall Chronicle was the journal it was stigmatised as being, by the counsel for the plaintiff, it could enjoy the large circulation which his learned friend had stated it possessed.

The Attorney-General interrupted - No: he had never stated that it possessed a large circulation.

Mr. Stephen proceeded - Well, was it to be credited that such a press, as described by the Attorney-General, could, he repeated, have an existence in this moral and intelligent community. The Jury would not believe that such a press could exist, because that would be to libel society; but seeing what society was, they must decide that that portion of the Press which was under the direction of the client, was the reverse of that which was described by the Attorney-General; that it was a blessing on the community and not a curse; that it was a just and a useful Press. It might happen that the press did occasionally transgress the bounds of strict decorum; but the Jury should look to the great good which it did, and make allowances accordingly for trifling deviations into error. The Press here had been denounced as being unparalleled for its licentiousness. He could adduce innumerable instances if it were necessary - and if he did not feel a regard for his learned friend’s report and therefore refrained from trespassing upon him to make a reply - which proved to the direct contrary. It was matter of notoriety the licentiousness of the Press in England. But here it should never be forgotten that we were without any political privileges save that of the Press alone. It was the only safeguard which the people possessed against irresponsible authority, and the Jury should show appropriate reluctance in doing anything that might tend to weaken or crush its powers.

The Chief Justice then summed up, and was directing the Jury with reference to the letter the address of which had not been read by the Clerk of the Court, that if they, of their own knowledge, knew that the letter was directed to Lieutenant Friend, they might consider it as so directed, as fully as though that fact had been given in evidence; when he was interrupted by Mr. Stephen, who submitted to his Honor that the Jury could not legally entertain any facts but such as appeared in the evidence sworn so before the Court. The Chief Justice differed from Mr. Stephen, and after concluding his charge dismissed the Jury.

The Jury had retired for about an hour, when the Chief Justice having conferred with Mr. Stephen, who had submitted several authorities in support of his opinion, directed the Jury to be called into court; when his Honor re-directed them, that they were not to be guided by any personal knowledge they might have on the case before them, frankly acknowledged his previous error in giving them a different direction, and thanked Mr. Stephen for his correction.

The Jury retired again, and shortly after returned in to Court, finding a verdict for plaintiff on all the counts, damages £400.

[1] See also Tasmanian, 11 January 1839. For Friend see P.K. Cowe, ‘Matthew Curling Friend (1792-1871)’, ADB, vol. 1, pp. 417-18 and for Goodwin see C. Craig, ‘William Lushington Goodwin (1798?-1862)’, ADB, v. 1, pp. 457-8.

[2] See also Launceston Advertiser, 11 April 1839.

[3] This newspaper also published a report of the trial on the same day.