[libel]

Robertson v. Abbott

Supreme Court of Van Diemen’s Land

Montagu J., 15 December 1840

Source: Hobart Town Advertiser, 18 December 1840[1]

Supreme Court - Civil Side

Tuesday, December 15th

Before His Honor Mr. Justice Montagu, and the following Special Jury:

            George Watson                                    C. O. Parsons

            Daniel Stanfield                         W. S. Sharland

            W. Warham                                         A. Orr

            W. Watchorn                                       E. Wilkinson

            W. Wilson                                            James Simmons, Merchants and Esquires.

            W. Nichols, jun.

            H. Thomson

            Mr. Anstey addressed the Jury for the plaintiff. This was an action brought by Mr. Gilbert Robertson, the Editor and Proprietor of the True Colonist, for a libel published in the Hobart Town Advertiser, of the 29th May, of which paper the defendant is the proprietor, charging Mr. Robertson with profligacy and treachery.

            The learned advocate said he was placed in a position of great difficulty, having till within half an hour anticipated that the Solicitor-General would lead this case, but that after the verdict of yesterday he (the Solicitor General) thought it would be vain to waste his physical strength in attempting to conduct this action. After that verdict,

            His Honor would not hear any remarks on the verdict of yesterday - it was one in which he perfectly concurred, when newspaper editors were libelling each other, a farthing, or half a farthing, was sufficient damages.

            Mr. Anstey continued. - That he was by no means sanguine of success, and as this was the first time he had addressed a Colonial Jury, he did not know whether the arguments which would tell upon a Jury in England, would have the same effect here. He would however beg of them to discard from their mind all prejudices which might exist, and to view the question as though both parties were unknown to them, and not to bear in mind what was possible might have occurred, that the plaintiff had at some time annoyed them or any of them by his writings. Prejudice had a great effect upon some minds, but there were others, and he (Mr. Anstey) was one on whose mind prejudice had no effect.

            His Honor interrupted. - Such remarks have nothing to do with the case. If the Jury commit perjury, it is another thing, or if I commit perjury, impeach me; but you have no right to address such language to gentlemen who are as far above suspicion as yourself.

            Mr. Anstey submitted he was entitled to make what observations he thought advisable.

His Honor. - Not to travel out of the record, and assume that 12 gentlemen sworn to do justice between the parties will commit perjury. I will not sit here and hear you travel thus out of your way - besides, it is not fair to the other party.

            Mr. Anstey continued. - The professed object of the article was no libel at all. At a certain period it was thought desirable to establish in the suspected colony of Van Diemen’s Land, a sort of censorship to enable the people to disregard the observations of Archbishop Whately, which it was the fashion to call British calumnies. The defendant had attempted to set up that censorship, and would no doubt produce evidence to show that he was pure and immaculate in his whole establishment. He would not comment upon the character of Mr. Abbott until he had an opportunity of doing so in reply. He would merely say that when the slanderer comes forward against an industrious honest man, whom Providence, for mysterious reasons yet to be divulged, still keeps under the reproach and stigma of persecution the merciless efforts to ruin his reputation (for with all of us reputation is our grand aim) be the individual rich or poor, are base in the extreme. It was for the jury to decide whether one farthing damages, or forty shillings will repay slanders so base and ill-founded. The defendant was not like an enemy but an old familiar friend; was it such a person who made the attack? He would here advert to Archbishop Whately’s remarks with regard to these colonies, and the colonists at large. A public meeting was in consequence convened by the sheriff at the instance of those, he would not use the much abused phrase “who had a stake in the colony,” but say by those who felt a deep interest in the colony, and earnest sincere wishes for its prosperity to encourage emigration to these poluted shores. The wool-growers were however the greatest support and influence to that meeting, and there existed considerable ill feeling towards those who were not designed to co-operate with the select few. The learned advocate then commented on the nature of the alleged libel, and begged the jury as they were husbands and fathers to shield his client from the pen of the slanderer.

            Mr. Degraves and Mr. Hugh Murray were called but did not appear.

            Mr. John Morgan an editor of the Tasmanian was also called but not having been subpoenaed by permission of His Honor declined to give his evidence.

            The Attorney-General admitted the publication of the article and all the inuendoes.

Mr. George Sutherland proved that Mr. Robertson was the editor and proprietor of the paper called the True Colonist, but known also as the People’s Journal.

This was the case.

The alleged libel was then read as follows:-

“Archbishop Whately has said that the best criterion of the moral condition of a community was the tone of its public press, and from that source he has drawn those unfavorable opinions of these colonies which have caused the cruel and injurious slanders circulated to our prejudice in the mother country. If therefore the colonists are desirous of acquitting themselves of the charges brought against them, those journals which indulge in vituperation and personal slander, and substitute the coarse language of the bully for the sound arguments of common sense, must not be supported or even tolerated. There is no doubt that one of our contemporaries who rejoices in the assumed title of the People’s Journal would have felt this long ago, but for considerations, which for the sake of sparing the feelings of unoffending parties, we shall not particularize. The good sense and good feeling of the community have never failed to condemn the practices of the writer in question, but Justice has been deprived of its avenging sword by the merciful benevolence of the people. However when the individual whose whole life has been one continued scene of profligacy and treachery - who has invariably repaid by abuse the kindness of his best friends, in the mad blindness of ambition for notoriety, and regardless of the substantial welfare of those for whose sake alone he has been supported, thrust himself forward as the uninvited and unwelcome champion of the public morals, which he of all other men in the colony had most contributed to misrepresent by his writings, feelings of disgust supplied the place of pity, and a general demonstration of displeasure was manifested.”

The passage marked in Italics was the libel complained of.

The Attorney-general, for the defence - Gentlemen of the jury, as counsel for the defendant it now becomes my duty and privilege to submit for your consideration the grounds on which I rest my case. I must say that I feel with the deepest sincerity the difficulty of the position in which I am placed - a difficulty arising from the extreme simplicity by which this case, at this time, is characterised, for I did indulge the hope that the counsel for the Plaintiff would have given me an opportunity of entering more fully into the facts upon which the defence depends, but he has disappointed me of my speech, and so futile are the arguments I have to refute that I feel it almost a waste of time to advert to the speech of my learned friend, or address to you a single observation. So futile was the argument - so melancholy the tone of despondency - and so calculated to call up sentiments of any thing but indignation, was the “stale, flat, and unprofitable” address of the learned gentleman, who, on this occasion has undertaken the advocacy of Mr. Gilbert Robertson’s claim to compensation, that to meddle with him at all is but to “break a butterfly on a wheal.” Yet, let me be allowed to advert to that portion of his speech in which with admirable judgment - with an intimate knowledge of his subject - he has contrasted my client Mr. Edward Abbott with the worthy personage whom he represents to day, Mr. Gilbert Robertson. I say the person he represents, for I am incapable of doing Mr. Anstey injustice, and I must therefore add that he has not, in imitation of his learned leader of yesterday, whose precipitate retirement this morning left us in so unhappy a condition - he I say, gentlemen, has not attempted to give evidence for his client, and therefore is not fairly subjected to the degradation of that man’s station. He has told you that Mr. Robertson has passed seventeen years in this colony, but he might also have told you that Mr. Abbott was born and bred here. Here he has lived from his infancy and his family have been to some of you known, and wherever known they have been esteemed and regarded. Mr. Robertson is described to you as an exemplary father and a good husband. I do not know but I shall not question it. I am sure you will be of opinion before I close this case that instead of standing here as a plaintiff claiming damages in an action for libel, he ought to appear before you as defendant in one at the suit of Mr. Abbott. The defendant you have been told is a person of doubtful character. Gentlemen this is a complement to your understanding when you consider who Mr. Abbott is. He, at any rate, is not an adventurer, nor does he require “letters testimonial from the Minister of the Kirk Session,” to vouch for his respectability, or that of his connexions. He was born among you, received his education (a very imperfect one if you believe the learned counsel on the other side and his client the defendant) among you, and he has lived among you, as I have said, from his earliest youth; and I hesitate not to affirm that the family of Mr. Abbott, in genuine respectability, yields to scarce one in the Colony. I shall not follow the example of the learned gentleman by drawing any comparison, nor shall I remark on the good taste which pervaded his opening speech, but I must take the liberty of deprecating the allusions that fell from him in reference to this Colony. First, it was “the suspected Colony of Van Diemen’s Land,” then “Archbishop, Whateley’s remarks, which, he tells us here, are but “too commonly designated British calumnies,” - and again, “not aware whether the arguments which would tell on a Jury in England, will have the same effect upon a Colonial Jury. I am sure, gentlemen, these observations could not have escaped your notice - they originate naturally enough in the disappointment occasioned by the verdict of yesterday; but the prudence, the propriety, the good taste of using them here is I think exceedingly questionable. You can afford - considering the style and symmetry of the orator, to laugh at them; but I lament that by an unhappy lapse, such miserable rhodomontade should in this place be uttered. I may offer my very sincere advice, although it may not be gratefully received, that as an advocate, I would say, whatever he may feel, it is prudent to conceal such prejudices as he has certainly as I could not but see much to your amusement let in upon us this morning. When prejudices exist, it is at all times prudent in an advocate to keep them to himself, and not peril his client’s cause by running counter to the feelings, instead of conciliating the honest prejudices of a Jury; for it may happen that a case will arise where it becomes expedient to conciliate - as for example, if I should prove before you, that as far as the calumnies affect this Colony, the gentleman, who is defendant this day is not one of those by whom the Colony has been disgraced.

Gentlemen, you have heard the libellous paragraph read in this Court, but I am persuaded that you could not have failed to remark the effect it produced in the calm, but expressive countenance of the Solicitor for the plaintiff. If I ever saw surprise in the countenance of an individual, it was in Mr. Young, when he heard the latter portion of the alleged libellous matter read. Let me, gentlemen, beg your particular attention to this libel, atrocious as it is untrue; take the whole of it together - look at its general tendency and obvious intention - the self-evidence it contains of being a reply to something which has gone before. The very commencement of the article shows it was intended to exhibit to the Colony the causes of those assertions, which all the respect I entertain for the opinions and sagacity of the learned gentleman, will not allow me to designate as any thing but the blackest, foulest, most odious of calumnies. I ask, gentlemen, is it not manifest beyond contradiction - is it not self-evident - axiomatic that it is the conduct of Mr. Robertson, and his worthy associates - insignificant though they be, which Archbishop Whately grounds his unjust censure; and thus through him and his vile companions the interests of this Colony suffers. His political career is well described in his writings, and if such scandalous articles are retailed, paragraph after paragraph, and sheet after sheet, can he with any consistency bring his case into this honorable Court for compensation. I shall shew you, gentlemen, from the writings of Mr. Robertson himself, that his political conduct has merited the terms applied to it in this article - that not only has he provoked this libel, as he terms it, but that he merits the castigation he has received, and which is fairly censurable in that it is too mild for the occasion. Not only has Mr. Edward Abbott been held up to public scorn, but “the Tiser”, as he facetiously terms it, has been almost consigned to sovereign contempt, so far as Mr. Robertson could effect it. The question is, gentlemen, is this conduct at all justifiable in this advocate for a free press - this upholder of the rights and liberties of the subject? Previous to the penning of the alleged libellous matter, Mr. Gilbert Robertson had for weeks been putting forth slanderous and scandalous libels against Mr. Edward Abbott. His private motives, gentlemen, have been grossly impugned, and his character vilified in the coarsest terms by him, from whose malignant pen neither exalted station, or inobtrusive obscurity, age, or sex form any protection. This very charitable gentlemen who is so sensitive in his own case, that even the slightest allusion to his political motives is sufficient to overthrow the natural equanimity of his disposition, has not hesitated to intrude his offensiveness into the quiet circle of unoffending families. Gentlemen, I think my client has evinced throughout his political career a magnanimous forbearance towards the plaintiff, in not long ago bringing him before this Court to answer for the libels he has written. Column after column has been poured forth, paragraph after paragraph, not containing a tittle of truth against an inoffensive and intelligent, and deserving individual, of sterling public spirit and honor - and what has been the cause and occasion of all this venom - this rancour, simply, because his pen in thus glancing at Mr. Gilbert Robertson’s charitable and patriotic writings, has been dipped in a little galling matter; and what to him must have been exceedingly offensive, forsooth, because he was debarred from disturbing the peace of certain meetings held for the purpose of removing those obnoxious statements brought against this Colony, and its rising prospects. The meeting convened by the Sheriff originated with some of the most respectable Colonists, who have “a stake in the Colony. This has been jeered at by the learned gentleman, who would have you believe, gentlemen, that it was of no consequence; and that those who have a stake in the welfare of the Island are not more interested than the man who has scarcely a chop in it. I admire the learned advocate’s disregard of pecuniary matters; but I cannot help thinking that it is a very comfortable thing after all to have that very inconsiderable thing called contemptuously a stake in the Colony. These gentlemen being engaged in a great public work, felt as they could not but feel that any association of Mr. Gilbert Robertson with the cause they were anxious to maintain would be in the highest degree injurious, and therefore notwithstanding he tried by every possible artifice to wriggle himself into the meeting, Mr. Gilbert Robertson met with so cool a reception as prevented even his attendance; and I aver, gentlemen, that had he been admitted his presence would have been a pestilential blight on the respectable concourse of persons who were present on that important occasion. The picture drawn of this transaction by the counsel on the other side is inverted. It was not Mr. Gilbert Robertson who got up the meeting, and it was not Mr. Abbott who was unvited. It was Mr. Robertson who was “the unvited and unwelcome” intruder on that occasion, and who was deliberately, and upon premeditation excluded. This, gentlemen, is the true and genuine source of his sorrow, “Perhaps it was right to dissemble our -, but why did we kick him down stairs,” - “Hinc illae Lachrymae.” “I thank thee Jew for teaching me that word.” I am much obliged to Mr. Anstey for the quotation, school boy’s though it be. Nothing could have suited my purpose or his comprehension better. Hence, gentlemen, the tears of Mr. Robertson, for his is the Lachrymosity - hence his gall and bitterness - hence his malignancy and venom.

Mr. Anstey objected to any evidence being given of what occurred at the meeting.

His Honor - “I certainly shall not allow it - I cannot stop your tongues, you talk at such a rate, but I can stop the admission of irrelevant evidence, and I mean to do it.

Attorney General. - Well gentlemen, although I could shew you that the remarks applied to Mr. Robertson were not destitute of justice and truth; and could also shew that the version of Mr. Robertson’s advocate - furnished, I make no doubt by his client, is the very reverse of what took place at the meeting; yet, I shall not call any evidence in support of it, as his Honor objects to its reception. I shall however put in the writings of Mr. Robertson, by which you will not fail to observe that I shall shew you in the papers published by Mr. Robertson, that in March, 1837, Mr. Abbott had a claim of the most unimpeachable kind to certain valuable land at Launceston, called the Swamp.

Mr. Anstey objected, and appealed to his Honor.

His Honor could not possibly say what object the Attorney General had; he trusted to the honor and good sense of counsel that they would not travel out of what was legitimate argument.

Attorney-General. - I have no objection to state to your Honor that my object is to shew what a change has come over the spirit of the defendant’s dream since 1837.

Mr. Anstey. - As counsel for Mr. Robertson, I object to this course.

His Honor. - I am of opinion Mr. Attorney-General is not departing from a fair course of argument. If he intends to shew from Mr. Robertson’s writings that a fair inference may be drawn that the words “profligacy and treachery” were applied to the political conduct of Mr. Robertson, he has a perfect right to do so, under the plea of general issue, for there would be an end of the libel. It is not libellous to state of a public writer that he has been guilty of political profligacy and treachery.

Attorney-General. - That is precisely my object, your Honor; I deny that the writing is a libel at all; and if I can shew by his productions - heavy though they be to wade through, that Mr. Robertson has been politically profligate and treacherous, I raise a fair inference for the consideration of the Jury, that my client imputed to him nothing more than he had a right to impute in fair and candid criticism upon his political writings.

Gentlemen, - I was proceeding to shew, when the learned Counsel interrupted me (of which however I do not complain) what must have been the intention of my client in applying to the plaintiff the language of which he complains. And I shall endeavour, I trust not unsuccessfully, to convince you that as nothing more is imputed, or was intended to be imputed than political profligacy to Mr. Robertson, the article complained of is not a libel, and therefore that your verdict must be for my client. I am satisfied gentlemen that I shall convince you beyond all possibility of doubt, that the intention of the alleged libel was to impute that species of profligacy and treachery, namely, as a public writer, for which allusion to him there was very good reason; and if you find in the face of these facts that the words impute anything more - that they reflect the stain of profligacy and treachery on Mr. Robertson’s private character, which nothing but the keenest sensibility could have led him to suppose, you will find that which the defendant never contemplated when he published the article in question. I am aware that if you find for the plaintiff, the damages in this case must be either great or small. No middle course will meet the justice of the case. Mr. Robertson has been most grossly libelled, or he has not been libelled at all. I contend that the article is not a libel; and before you find for the plaintiff, you must be satisfied that the defendant published the article in question, not only with the intent to impute private profligacy and treachery, but with the motives charged in the information. That he intended to destroy the fame and reputation of the plaintiff - and utterly to ruin him. Gentleman, if you can, after what I shall shew you, return such a verdict, it will be your duty to give him damages, but if you find that political profligacy was intended to be imputed, it is no libel at all, as his Honor has already told you, and even should you think the plaintiff entitled to a verdict, I am sure you will agree with me that the provocation given has been sufficient to reduce your estimate of the damages sustained by Mr. Robertson by the lowest possible coin. In the paper of Mr. Robertson, dated 3d of March, 1837, there appears a paragraph, headed “Major Abbott,” the language of which is as laudatory as can be well imagined.

His Honor. - Mr. Attorney, you are going very far back. A man is not supposed to cherish a remembrance of injury or provocation in his breast for so many years.

Attorney General. - I beg your Honor’s pardon if I have not made myself understood. I produce this paper to shew what were the feelings of the plaintiff towards Mr. Abbott and his claims in 1837, and by contrasting them with what they are in 1840, to shew that a charge of political profligacy might justifiably have been made; and therefore that the fair inference is that such was the object and intention of the article complained of.

His Honor. - Oh, very well, I trust entirely your honor not to travel beyond the line of fair argument.

Attorney General. - I shall not do so. We[???] gentlemen, in the True Colonist of the date referred to, appears the following paragraph.

Then read.

Then gentlemen, on the 10^th of November in the same year, we have the following in the paper of Mr. Robertson.

Then read.

In 1837, therefore, gentlemen, the claims of Mr. Abbott were in the estimation of Mr. Robertson so righteous as to be unanswerable; but ma[???] how easily he can himself answer them. Truly none but himself can be his parallel. None can answer Mr. Gilbert Robertson but Mr. Gilbert Robertson himself. After reading these paragraphs, gentlemen, who would imagine that Mr. Robertson could turn round and assail as corrupt, the very claim he has thus so strongly supported? I will not detain you by tracing Mr. Robertson’s opinions through the whole of the three years, but come at once to the time when he first suspects the claim of Mr. Abbott to be different from what he had previously represented it. In the True Colonist of the 15th November 1839, there is the following paragraph.

Then read.

On the occasion of the public meeting the plumage of Mr. Robertson was, it must be confessed, rather ruffled by not being invited, or rather from being carefully excluded, being prevented in plain terms from taking any part in the proceedings on that occasion. Full of bile and rancour he assail[???] all who have offended him, and not content with attacking Mr. Abbott for the part that gentleman was supposed to have taken in procuring his rejection, his malice extends to the claim of Major Abbott’s representatives, so strongly supported by the True Colonist in 1837, which is now called [???]“modest” request for £20,000, in payment for the services of the Advertiser. On the 5th of April [???] the following paragraph appears in reference to the same subject.

Then read.

Thus, gentlemen, does the honest Mr. Robertson shew a claim in 1837 to be all that is just, all that is unanswerable, which in 1840 he holds up to ridicule and contempt. Gentlemen, is not this version near skin to political profligacy? Is it not something more? Is it not a fair reason for supposing the defendant’s remark applied to Mr. Robertson, only as identified with his writings? I have shewn you, gentlemen, I think conclusively, the motive for the writing and I have shewn you that Mr. Robertson’s vanity was wounded by his expulsion from the public meeting. There was an assemblage of good men for a good purpose, and as they valued the cause they met to support, they were compelled to avoid coming in contact with Mr. Robertson, whose name was contagion, and whose presence was pollution. How are the mighty fallen? By yesterday Mr. Robertson was “the Editor of the People’s Journal.” “Where is he now?” The verdict of a jury yesterday has stamped their opinion of his character; but I look to your verdict today to complete the work. You have been told that unless you give a verdict for the plaintiff you shut the door of the temple of justice against him. I can but admire the good taste of such a remark. But, gentlemen, it is not so - justice demands the sacrifice. Let Mr. Robertson have justice, and your verdict must be for my client. I say, gentlemen, Crush the Wretch! Suppress the nuisance. Let it no longer stalk abroad in all its hideous deformity, spreading terror and dismay throughout the land. The statements made by Archbishop Whately are made by a man whom we cannot disparage, who has won his way to the honors he well wears by honorable acts, and by great and splendid talents. Convince him of his error, and this colony never had a more sincere friend, and you cannot do this more effectually than by shewing how little sympathy you have for that Press which has plundered and mis-applied the people’s name for its own base purposes. Upon incorrect data he has formed an erroneous conclusion. If he has asserted that the character of a people is to be discerned from the character of its Press, tell him by your verdict to day that between you and that foul Press there is no sympathy. Tell him that when this much injured man sought monies from you to repair his wrongs, to minister to his mind diseased - to pluck from his memory this rooted sorrow - that you gave him no sweet oblivious antidote wherewith to console himself. Nay, though with heartless effrontery he brought before you the wrongs of his family, and paraded the sufferings of his house, you remembered his career of infamy, and you consigned him to his reward. That will speak trumpe[???] tongued to Archbishop Whately, and those, who, according to the learned gentlemen, deal in “what are commonly called British calumnies” on the colonies. That from a jury, this man, in a moment of rashness, has dared to ask damages - he has sought them at the hands of a Special Jury. It would indeed be a Special Jury that would give him damages. Such a one might be concocted with the assistance of the Chief Police Magistrate, whose kindness and benevolence in this respect have been before noticed.

His Honor - Mr. Attorney, I wish you would indict one or two of the magistrates for this, it would very soon put an end to it.

Attorney General. - Your Honor said as much to me before, which I mentioned in another place to the Police Magistrate, who seemed to consider it as a good joke when I promised him the benefit of your Honor’s suggestion.

His Honor. -I think he will not find it a joke - (a laugh).

Attorney-General. - Gentlemen, although such a Jury might be got together, I am convinced the Jury I am now addressing is of a very different character. I have observed the mirth which my observations have created in the plaintiff and his counsel and admire the serenity of mind so well depicted in their happy faces; but, gentlemen, I do not see that mirth reflected by you; and I am very happy to think that I have been enabled to minister, by any observations of mine, so much to the amusement of Mr. Gilbert Robertson and his Counsel, when they certainly require some little stimulus to keep up their spirits. Gentlemen, it is almost unnecessary for me to trouble you further; I am convinced that by your verdict of this day you will put down the vile libellous spirit which has spread so much misery throughout the colony. It is clear, gentlemen, from the article itself, from which with so much ingenuity the alleged libel is selected, that the objection of my client, in writing that article, was not to injure Mr. Robertson’s character, but to establish it, in order that the public should be aware of the machinations of such a person. The calumnies of which he was the originator, ought to be rejected by every patriotic member of society. The writings of Mr. Abbott shew his intention was to repudiate the vile slanders of the True Colonist; and if his terms be a little harsh, I ask you, gentlemen, whether in dealing with such a customer as Mr. Robertson, it is to be expected you should use “holiday and lady terms?” No, gentlemen, whoever desires to cope with the plaintiff, must do so with a strong hand - a gentleman must, for the occasion, descend to his level - no slight depression - and address to him such language as he can understand. Any thing else would be wholly ineffective, would pass by him “as the idle wind which he regards not.” The matter complained of was published on the 29th May, and was in reply to an article of Mr. Robertson, published the very week before, in which the scurrilous, slanderous, and gross libels quoted by the Advertiser are contained. This article I shall submit to your consideration, unless the plaintiff’s counsel will admit the quotations in the latter portion of it - the perusal of which contributed so much to the horror of Mr. Young while the Clerk of the Court was reading it. You will perceive the provocation, and that Mr. Abbott is not a person who, to gratify pitiful personal spleen, would sit down and write a libellous article on such a man as Mr. Gilbert Robertson, whose writings (I appeal to you as men of sense and reason if it be not so) are a series of unequivocal and unprovoked libels on private character of the grossest nature. I regret, gentlemen, you should have been brought from your homes to try such a case as this; and I am sure you will give the plaintiff all the consideration he merits - I give him great joy of the position he now occupies, and will only add my firm conviction, that if you give him damages at all, you will fix them at the lowest possible amount, which will be 1 farthing more than he deserves. In your hands then is this day reposed a sacred trust. Prove yourselves worthy of it. You have an example in every way worthy of you, in the conduct which characterised your predecessors in that box. A jury of yesterday “scotch’d the snake,” be it alike your privilege - I am sure it is your duty, to day to “kill it.”

The learned advocate then put in the several papers quoted.

Mr. Anstey objected to it unless all the articles were read.

The Attorney-General had no objection, but there was a great deal of irrelevant matter, particularly in the article of the 22d May.

His Honor looked at the article, and thought so to.

Some discussion followed, when his Honor observed the whole of the article should be read, although he had no doubt the intention of the parties was to insult Mr. McDowell and Mr. Dobson, who were therein alluded to.

Mr. Anstey did not know what the articles contained.

Mr. Robertson told his Honor that it was of great importance to him that the whole of the articles should be read, but disclaimed any wish to insult any one.

Articles read.

Mr. Anstey then rose to reply. He would, according to promise, offer a few words on the justification which the defendant had set up. What was the nature of the defence. The gist of it was that in 1837 Mr. Robertson had the temerity to form a good opinion of Mr. Abbott, and his claims, which opinion he saw good reason for changing in 1840. The evidence adduced was quite irrelevant to the plea of general issue, and did not go the mitigation of damages. It was in fact a justification of the libel.

His Honor observed that no such evidence could have been given on a plea of justification, and that the defendant was quite right in offering it. The declaration charged the publication of an alleged libel. The plea of general issue denied that the article was libellous, and the evidence was tendered to explain the motives of the writer, and that he simply referred to these facts, upon which he founded a charge of political profligacy and treachery. It was no offence to say this of a political writer, and the defendant could not justify that which he contended was no offence.

Mr. Anstey complained of being taken by surprise, the defendant ought to have placed the grounds of his defence on the record.

His Honor did not see the defendant was bound to do any such thing - he pleaded that the article was not libellous, and had a right to tender whatever evidence he could in support of that plead.

Mr. Anstey then commented upon the defence set up, and insisted that it was apparent the defendant intended to charge the plaintiff with profligacy and treachery in his private relations of life. The matter referred to, Major Abbott’s claims, was not a political but a private matter, and if the jury did not give the defendant a verdict, it would be well for parties to consider in future whether it was worth while to entrust their character in the hands of a colonial jury. He must impress upon them not to suffer prejudice or dislike to operate upon their minds. Not because Mr. Robertson happened to have given offence to influential or wealthy men, to ---

His Honor. - Really Mr. Anstey I cannot permit this, I am sorry to interrupt you, but you have no right to make such observations.

Mr. Anstey. - “I have done, your Honor,” and sat down.

His Honor - Gentlemen of the jury - Mr. Anstey declines making any further observations to you conceiving that I have acted improperly in checking him in the course he was pursuing. It is really painful to see a young man giving himself such airs, on my taking the opportunity of cautioning him against the extreme impropriety of such remarks. It is impossible to conceive anything more improper or detrimental to the interest of his client. To address a jury with, “Gentlemen, are you determined to commit wilful and corrupt perjury, because the defendant is not liked by the Government officers and men in power, and not only to commit wilful and corrupt perjury, but refuse to discharge a solemn duty as arbiters - as judges between the contending parties,” is convey an imputation of the deepest, basest character, and is to taint justice in its source. I consider I ought to have interrupted him long ago, and had it been the Solicitor General, I would never have allowed him to proceed. In contrasting you with English juries, I felt that he was overstepping the bounds of decency, and I ought to have interrupted him in the outset. I am extremely sorry he has given way to the feelings of youth upon this occasion, but for my own part I care not one farthing what course a counsel takes. It makes no impression on me. I shall discard from my mind what has passed and make the same observations to you that I have all along intended. My notes were made at the time, and from them I shall address you.

Mr. Anstey rose to say that he had concluded all he had to say; the remark he was making when stopped by his Honor, was the last he had to offer.

His Honor. - Then, gentlemen, we can proceed without even the risk of doing any injury; and although I cannot but regret the manner of Mr. Anstey in sitting down as he did when spoken to, I am free to admit that he has been placed in a position of extreme difficulty, and deserves consideration at your hands, and the thanks of his client for the way in which he has performed his duty. I would not have undertaken it under the circumstances. His leader, who had been retained, having given up the case, compelled Mr. Anstey to undertake the conduct of it quite unprepared; for, as junior counsel, his duty was confined to reading the pleadings, and making such observations as were necessary to open the case. The leading counsel then makes the speech, and the junior has nothing further to do than cross examine the witnesses which requires no knowledge of the case. Mr. Anstey, till within half an hour of the case opening, supposed himself to have nothing but the duty of a junior counsel to perform, when his senior went out of course, because he would not exhaust his physical strength, after the proceedings of yesterday. Thus placed, the manner in which Mr. Anstey has conducted the case deserves consideration, and I am sure that any little defects on his part will be supplied by additional attention on yours.

Mr. Young interrupted his Honor to say that the Solicitor-General had not given up the case without the consent of the plaintiff and himself.

His Honor. - It is a rule of the profession that a counsel must discharge his duty. The privilege of an advocate is held for the public, and he is bound by law here and by honor at home, to attend to whatever case he may be retained for, be it ever so bad, and that he knows it to be so. He must do his best. Counsel cannot refuse a retainer, and for very wise reasons. It may appear inconsistent, perhaps, to compel a gentleman to defend a murderer, but look at the danger of the opposite course. A person is charged with murder, and applies to a leading counsel to defend him, which he refuses to do, because his case is so bad. What would be the impression created by a celebrated lawyer being known to have formed the opinion the man was guilty. It would be in the highest degree dangerous.

Mr. Young again interrupted his Honor, telling him that he had mentioned that the Solicitor-General had quitted by consent.

Mr. Robertson also addressed the Court in explanation of Mr. Jones’s conduct.

His Honor. - I was about to say, gentlemen, when I was prevented by the very improper interference of Mr. Young (than which nothing could be more improper and indecorous), that although a counsel was thus compelled to act on this occasion Mr. Young had informed me the Solicitor-General had retired by consent. I was about to tell you this, gentlemen, when Mr. Young rose with so much impetuosity and indecency. Mr. Young had no right to speak, and if he had, it was nothing but courteous and proper to wait till the close of the Judge’s remarks. It is not fitting that a gentleman who has the important duties to perform which devolve upon me in this place, should have his mind distracted by frivolous interruptions, when all his energies are required to do justice between contending parties. I have been many years in this colony, in this and another office, and I am not aware of having made so many mistakes as would warrant interruptions of this sort.

My first impression was that the Solicitor-General did not think it worth his while to waste his physical strength in conducting this case. It appears, however, that he tendered his brief to Mr. Anstey, by consent of the plaintiff and his solicitor. The observation made by Mr Anstey would not bear that construction - whether it was made for the purpose of casting an imputation on the jury yesterday, I do not know, nor shall I enquire the motive, after the explanation that has been given. I am sorry the observation was made, but will pass it by. I am desirous of giving every latitude to counsel, but will never allow observations to pass without reprehension which reflect upon myself, the jury, or the bar. I will pass it by.

Mr. Anstey explained, that if any blame attached to any person, it must entirely rest upon himself.

His Honor. - This case, gentlemen, rests upon one count, which charges the defendant with having published of the plaintiff libellous matter, with certain wicked and malicious motives, which you must find he did before that count can be supported. [Here his Honor read the libel and inducements.] The whole of the article is not set out, so you have to consider no other part of it than what is contained in the declaration. If the defendant has travelled out of public life, there is no doubt the passage imputing profligacy and treachery is a libel, but if the observation refers to his public conduct, it is no more a libel than any other species of fair criticism.

When a person sets himself up as a newspaper writer, his writings and political character are given to the public. If bad, they can only be put down by strong language - such as would be libelous, if applied to private persons. Supposing for example, a man writes a book not with a bad motive, but under a mistaken view of the subject - his views altogether wrong. Another man, perhaps older, has a right to criticise that book. I say older, because the older we grow, the less conceited we become. In youth we are all Solons in our own estimation, and see flaws and defects in many parts of the constitution; as we grow older, we see less of those fancied errors notwithstanding all the defects that may exist. The writer who merely exposes the political profligacy or treachery of another author, is no libeller, even though he holds his works up to detestation or ridicule. Would the critic who attacked the works of the traitor or the atheist, who is sapping the foundation of the constitution, and the christian religion; or the writings of the unwise, or the hireling, which lead mankind into error and misery, be a libeller? On the contrary, the man who, by the lights of honor and virtue tries to put down the writings of the atheist,  the unwise, the traitor, or the hireling does good service to society, and but for such the nation would swarm with those pestilential vermin.  But nothing justifies the critic in travelling out of the author, and making the work only the medium of maligning private character. This declaration charges the defendant’s motives to have been to malign, injure, ruin, and destroy the plaintiff. If he has done this he deserves punishment; but if you doubt this, seeing that something very like political treachery appears in the papers, in which the plaintiff insinuates not only a change of opinion, but something about exposure, the case is different. If written of the plaintiff in his private capacity, it is a libel; if of him only as identified with his works, it is not.

[His Honor here read the law of the case, as laid down in Carr’s case, reported in Cobbett’s Registrar, for 1818.]

If a bad book be written, it is a great service to the public to write it down. If this article imputes political profligacy, it is nothing but fair criticism; but if written of the plaintiff as a man, he is entitled to a verdict. If you are of opinion that this criticism is levelled at the plaintiff’s works, he must take the consequences, whether he has or has not been guilty of the profligacy. By becoming a public political writer, he has laid himself open to such remarks. The same principles are laid down by Lord Kenyon on the case Rex v. London and Perry, for a libel on King George III. [Read.] Here although his Majesty is written of in a manner calculated to hold him up to ridicule, it was ruled that it was within the bounds of fair criticism, because levelled at his Majesty’s measures, not himself. So, in the former case, where an author was held up as a lunatic, it was applied to him only as identified with his book. These instances bear out the law of the case. The counsel has talked a great deal about justification, and that the intended defence should have been on the record. I think the learned counsel mistook the legal nature of a justification. If a person publishes that which is injurious to another, and comes into court with a justification, he admits the libel, but alleges he had just and good cause. Here the case is different. The defendant says that although he published that the plaintiff had been guilty of profligacy and treachery, he did politically what is no offence. He therefore could not justify, nor would this evidence be given in justification. The defence has two objects, lst, to prove the article no libel, and so obtain a verdict for the defendant, 2nd, that if a libel to shew provocation in mitigation of damages.

There are other matters which I should have adverted to, but I believe no person was misled by them. I will observe, however, that suppose a man standing at that dock were to say to me, “Mr. Montagu you know me, and if you pass sentence of death upon me, you will commit murder,” or to the Attorney-General, “Sir, you do not like me, so if you prosecute you will murder me;” or one of your own servants were to address you, “Oh, you have at some former period been offended by me, so you cannot prosecute, or you will murder me.” The observations addressed to you were of this stamp, and very improper. It may be a very pretty figure of speech, but is an indignity I would not pass by if before the whole human race.

Gentlemen, you can look at the whole article, for the purpose of passing a judgment of the intention of the defendant; but, if you give damages, you must do so only for that part set out in the declaration. The words taken without the context, supply the common import; but it is for you to say, looking at the whole article, whether it be a libel or not. If you find for the plaintiff your damages will be increased or diminished by the injury on the one hand, and the provocation on the other.

The Jury retired for about five minutes, and returned with a Verdict for the Defendant.