[libel]

Robertson v. Macdowell

Supreme Court of Van Diemen’s Land

Montagu J., 14 December 1840

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

This was an action for libel. The Solicitor-General, Mr. Anstey, and Mr. Thomas Young, appeared for the plaintiff. The defendant’s case was conducted by the Attorney-General and Mr. Sydney Stephen.

            Twenty-four jurors having answered, the Attorney-General rose and said, that this was the proper time for him to challenge the array, which he did on the grounds set forth in the affidavit of the defendant, which he requested the officer of the Court to read, which was done. The affidavit was in these words.

            Thomas Macdowell, gentleman, maketh oath and saith that he hath been informed and believes that the name of Gilbert Robertson, who is the plaintiff in this action, is contained in the panel of jurors summoned to try this cause.

            The Attorney-General then tendered the following formal challenge to the array.

And now on this day, (to wit) on Monday, the 14th day of December, in the year of our Lord one thousand eight hundred and forty, before His Honor the Puisne Judge, comes as well the aforesaid Gilbert Robertson by his Attorney as the aforesaid Thomas Macdowell in person and the jurors of the jury impanelled being summoned also come, and hereupon the said Thomas Macdowell challengeth the array of the said panel, because he saith that the same panel contains the name of the said Gilbert Robertson, who is the plaintiff in the above cause, which he hath been summoned to try, and this the said defendant is ready to verify, therefore he prayeth judgment, and that the said panel may be quashed.

            Edward Macdowell, Counsel for the defendant.

His Honor inquired of the Solicitor-General what course he meant to pursue.

The Solicitor-General observed in reply that the proceeding was one of a nature so novel and so unexpected to him, that he really did not know, at that moment, how to proceed.

His Honor said – You either deny the cause alleged, or you say it is not sufficient in law by demurring to it.

The Solicitor-General having consulted with the Under Sheriff, said he should demur.

The Attorney-General then proceeded to support his motion, that the panel might be quashed. He said that the sufficiency of the affidavit being by this proceeding admitted, the only question now was, whether or not this was a valid objection in law to the array. He submitted that it was on the authority of two passages, which he cited from Bacon’s Abridgment, and also a case from Coke Littleton, in which three of the Judges decided - the fourth entertaining doubts - that consanguinity between the juror and either of the parties, was a good cause of challenge to the array.

The Solicitor-General in reply, rested his argument on the fact, that the Sheriff had returned the list, as by the Act of Council he was bound to do, in alphabetical order, and that no hardship was thereby imposed on the parties, for twenty-four gentlemen having answered to their names. The plaintiff reduced the list, in the first instance, by striking six names from it, and then the defendant had the opportunity of still further reducing it. In London the practice was for the Attorneys to attend at the office and reduce the list, and the first twelve answering to their names out of the twenty-four, to which it was thus limited, formed the jury. Mr. Gilbert Robertson could not sit on the jury -

Attorney-General - I am not sure of that. It is quite impossible to tell what Mr. Gilbert Robertson could or would do: (Laughter.)

Solicitor-General. - These observations, he submitted, ought not to be made to the prejudice of his client. The learned gentleman then referred to a case from Archbold’s practice, (as we understood) for the purpose of showing that it was at all events doubtful, if any challenge was given by law, to the case of a special jury.

Mr. Anstey on the same side said, that from his own personal experience whilst engaged in an attorney’s office in London, he could assure His Honor that the Solicitor-General had correctly stated the practice as to striking special juries.

The Attorney-General, in reply, contended that notwithstanding the irregularity pursued on the other side - notwithstanding the assumption, purely gratuitous, and of which there was no evidence before the Court - that the Sheriff had returned the list in alphabetical order - still assuming all that to have been done, yet the venire was just as much a portion of the Act of Council as the section referred to, by which the Sheriff was directed to return the panel in alphabetical order, and that venire - which, by a previous section of the Act, the Court was directed to settle - had been settled by the Court, and was now returned into Court, and from it he now read that the Sheriff was to summon those who were in no wise related either to Gilbert Robertson, the plaintiff, or to Thomas Macdowell, the defendant! Yet, in the face of this command, the Sheriff - to whom the Attorney-General desired it to be understood he imputed no improper or unworthy motives whatever, but who had, he was perfectly satisfied, followed the practice which he found to prevail in the office when he entered it - returned the plaintiff himself to try his own action; and that, which he would venture to say had never yet occurred in any Court of justice before that day, such was the modesty of the plaintiff, that when his name was called, he gave not the most remote indication of the position in which he stood with respect to the action now before the Court; on the contrary, he answered his name, leaving it of course to the defendant to strike it out of the list, and thus gaining a manifest advantage; for, had not that name stood in that list, it was surely no extravagant hypothesis to conjecture that the gentleman called in his stead would bring somewhat more of impartiality to the consideration of the cause than Mr. Gilbert Robertson in his own action.

His Honor said, that he had looked into the cases cited by the counsel on both sides, but that it appeared to him there could be no challenge to the array, except for favour or partiality, in the Sheriff; and that as this was not only not alleged, but disclaimed, on the part of the defendant, he thought the objection went rather to the individual - that is, to the polls - than to the whole array; for if the objection were to succeed, it would go to quashing the whole panel. You might, continued the learned judge, have challenged him when he was called.

The Attorney-General. - I might have done so, but had I so acted, it would have been incompetent to me to challenge the array; but that objection having been disposed of, I have now to submit to your Honor, four objections to the polls, and my first is to Mr. Gilbert Robertson, not on account of favour, but for want of qualification. I shall show your Honor that he is not only not qualified as a special juror, but that he is disqualified to sit as a juror of any kind.

His Honor observed that it was hardly worth while discussing his qualification, when it was manifest that he was not impartial.

The Solicitor-General - On that ground alone, sir, I consent to his name being struck out.

The Attorney-General. - My next objection is, to Mr. Edward Nicholas, and whatever may be my objections to that gentleman, I confine myself at present to his want of qualification.

Mr. Edward Nicholas stated, that he rented a house in Davey street at £70 per annum, and the Act requiring a qualification in Hobart Town of £75 rental, his name was struck out of the list. A similar fate attended Charles Rocher and John Charles Stracey, and in their room the following four gentlemen answered to their names, Francis Smith, William Warham, Charles Octavius Parsons, and William Stanley Sharland.

His Honor then said - Mr. Attorney-General, I consider it to be your bounden duty, to indict whatever person or persons is, or are, responsible for this list.

The Attorney-General said, that he had already called the attention of the Police Magistrate to the matter, and with respect to the name of an Esquire who had that day answered to his name, and who was in every quality and qualification that he possessed just as much entitled to be designated a Baronet as he was an Esquire. The Chief Police Magistrate had no excuse to make. His only answer was, “What could I say? The man came to me, contending that he was a much an Esquire as ever he was, and I really could not deny it.” Now this, though a joke to the Police Magistrate, was certainly acting in such a loose way in settling the lists, that he did fear he must follow the suggestion of his Honor, and indict him.

The following gentlemen then answered to their names and took their seats:-

George Frederick Reid, Esq.

William Thomas Parramore, Esq.

George Watson            )

William Warham           )

Alexander Orr              ) Merchants

William Warham           )

William Watchorn         )

James Turnbull              )

Edward Wilkinson                    )

Horatio Nelson             ) Esquires

Judah Solomon             )

Isaac Sherwin                           )

Mr. Anstey opened the pleadings. The learned gentleman stated that this was an action for defamation of character, and that the declaration alleged that the plaintiff before and at the time of the committing of the grievances by the defendant was and still is the proprietor and publisher of a newspaper published weekly at Hobart Town, in Van Diemen’s Land, intituled The True Colonist, Van Diemen’s Land Political Despatch, and Agricultural and Commercial Advertiser, and which said newspaper was and is familiarly known by the name of The People’s Journal, and by the sale and circulation of which newspaper the plaintiff made and acquired divers just gains and profits to the comfortable support and maintenance of himself and family, yet the defendant well knowing the premises, but maliciously and wickedly contriving and intending to harass and injure the plaintiff, and to bring him into public scandal, infamy, and contempt, and (amongst other things) to represent him as guilty of hypocrisy and slander, and as a disreputable person with whom none could have any connection, and as a ruffian of the lowest and most  degraded kind, with whom none could honourably associate, and thereby to lower his character in general estimation, and to prejudice and injure the sale and circulation of his newspaper, heretofore to wit on the 29th of May, 1840, in a certain public newspaper, intituled The Hobart Town Courier and Van Diemen’s Land Gazette, unlawfully and maliciously did compose, print, and publish of and concerning the plaintiff, and of and concerning him in his character and capacity as the proprietor and publisher of the first-mentioned newspaper, a certain false, scandalous, malicious, and defamatory libel, headed, and beginning with the words “The People’s Journal,” (meaning the aforesaid newspaper published by plaintiff,) and containing, amongst other things, the false, scandalous, malicious, and defamatory words following, (that is to say) “That we have disturbed the serenity of the People’s Journal by exposing its fallacies, by laying bare its fabrications, and following its fights through every labyrinth of fiction and falsehood (importing thereby to plaintiff that his writings published by him in the said newspaper, known by the name of the People’s Journal, were fallacious, fictitious, and false,) but above all that we (meaning the defendant) have shown the community how that its character is debased by the barefaced assumption resorted to, to connect and identify it with the foulest slander and the most unmanly vilification (endeavouring thereby to depreciate and destroy the character of plaintiff and of his newspaper in the estimation of the public, by representing the writings of the plaintiff published in his said newspaper, known by the name of the Peoples’ Journal, as slanderous and degrading, and unworthy of its title,) that we (meaning the defendant) have cut from under the People’s Journal (meaning thereby also figuratively to represent the plaintiff) the prop of the Presbytery so often times seized hold of in the hope of gaining countenance, if not cash, from something with the semblance of respectability - that we (meaning the defendant) have torn off the cloak of hypocrisy (importing thereby hypocrisy to the plaintiff) and bid the slanderer (meaning the plaintiff) stand forth - that we (meaning the defendant) have pictured the sacramental cup of wine on Sunday, liquidating the week’s account of untruths and cleansing from the six days’ wallowing in the mire, (meaning thereby to represent that the defendant had exposed the plaintiff as a person who had been guilty of profamation and sacrilegious hypocrisy, that we (meaning the defendant) have indeed vexed the People’s Journal, (meaning thereby the plaintiff) the proprietor and publisher of the said newspaper, by doing a public duty from which we are not to be deterred by force or fraud, is, we think, a subject of much congratulation to us and to the people themselves.” And in a certain other part of the said libel the following false, scandalous, malicious, and defamatory words of and concerning the plaintiff, (that is to say Mr. Gilbert Robertson) entered the door, sneaked in at the moment, and observing him we (meaning the defendant) said - looking at him, we think it a dishonour and disgrace to the cause of this colony, that it should ever be supposed that this disreputable person (meaning the plaintiff) had the most remote connection with it - we think it a dishonour that even he should be admitted over the threshhold of any gentleman’s door, being, as we consider him, a ruffian of the lowest and most degraded kind. Having said this we (meaning the defendant) walked out of the room.” And in a certain other part of the said libel the following false, scandalous, malicious, and defamatory words of and concerning the plaintiff - while standing with another gentleman in the middle of the street, Mr. Murray and Mr. Gilbert Robertson came out of the Derwent Bank - and the latter stood upon the footpath and blurted out something about Captain Swanston’s room having been our protection - upon which we told him to be off about his business, expressing at the same time our opinion of the estimation in which we held him in no measured terms, upon which he skulked away, exhibiting himself in the twofold capacity of what never could for a moment be doubted in one bold enough to assail female virtue, and sufficiently courageous to assault old age - namely - the bully and the coward, (meaning thereby to represent the plaintiff as a bully and a coward who assailed female virtue and assaulted old age.”) By means of the committing of which several grievances by the defendant, the plaintiff hath been and is greatly injured in his good name, credit, and reputation, and brought into public scandal, infamy, and contempt, insomuch that divers to whom the innocence, truth, respectability, integrity, and reverence and respect for religion and religious ordinances of the plaintiff were unknown, have on occasion of the committing of the several grievances by defendant, and from thence hitherto suspected and believed, and still do suspect and believe, the plaintiff to have been guilty of the offences and improper conduct imputed to him by the defendant as aforesaid, and have by reason of the committing of the said grievances by defendant, from thence hitherto and still do refuse to have any acquaintance, intercourse, or communication with plaintiff, or to subscribe for and purchase his newspaper as they were before used and accustomed to have and to do and otherwise would have had and done, and the plaintiff hath been and is by means of the premises otherwise greatly injured - and he lays his damages at Five Hundred Pounds.

To this, gentlemen, the learned counsel proceeded, defendant has pleaded first the general issue, by which he denies the publication at all, and secondly a plea of justification, which states, that as to the composing, printing, and publishing, and causing to be printed and published, so much of the supposed libellous matter as imputes or charges to or against the plaintiff, that he published slanderous matters in his newspaper, defendant saith that plaintiff before the times in the declaration mentioned published the several scandalous matters following, in his newspaper, (to wit) on the 18th day of January, 1839, in a certain public newspaper called and entitled The True Colonist, certain false and scandalous matters, imputing to Sir George Arthur, late Lieutenant-Governor of this island, that he had wickedly and corruptly bribed the Right Honourable Lord Glenelg, and in the said public newspaper of the same date imputing to the Right Honourable Lord Glenelg, that in consequence of that bribery he had corruptly denied justice to certain complaints made against Sir George Arthur, and had heaped upon Sir George Arthur extraordinary honours and promotion. And in a certain other newspaper bearing the said title, published on the 19th April, 1839, certain false and scandalous matters, imputing persecution and priestly usurpation to the Venerable William Hutchins, the Archdeacon of this island, and in a certain newspaper bearing the said title, the defendant published on the 14th day of June, 1839, certain other false and scandalous matters imputing inhumanity to Robert Jacomb, Esq., a Lieutenant in Her Majesty’s Navy, and in a certain other newspaper bearing the said title, published on the 24th May, 1839, certain other false and scandalous matters, imputing to Venerable William Hutchins, the Archdeacon of this island, a blood-thirsty and persecuting spirit, and also in the said paper of the said date, certain false and scandalous matters, imputing to the Rev. Mr. Aislabie an attempt to obtain dishonest possession of the glebe land at Richmond, and in a certain newspaper bearing the same title, published on the 28th February, 1840, certain false and scandalous matters, imputing perjury to one John Dobson, one of the Attorneys of the Supreme Court. And as to so much of the said supposed libellous matters in the declaration mentioned as imputes hypocrisy to the plaintiff - defendant saith that on the 24th day of January, 1840, in a certain newspaper bearing the said title, the plaintiff did hypocritically pretend to be a zealous promoter of christian duties, whereas the plaintiff in his newspaper of the same date, published certain scandalous matters, tending to bring the Episcopalian clergy into hatred and contempt, by imputing to them corruption and oppression; and in a certain other newspaper of plaintiff, bearing the said title, on the 31st day of January, 1840, did publish other scandalous matters, imputing corruption to the Episcopalian clergy; and as to so much of the said supposed libellous matter in the declaration mentioned, as charges plaintiff with being disreputable and a ruffian of the lowest and most degraded kind and an assailant of female virtue, the defendant saith, that the plaintiff, before the 26th day of April, 1839, in a certain newspaper bearing the said title, published certain false and scandalous matters, imputing to Lady Hester Stanhope a want of modesty, and in a certain other newspaper of the plaintiff bearing the same title, on the 4th day of October, 1839, published other scandalous matters, imputing to a lady holding a high and influential station amongst a young community, indecency and immodesty; and as to so much of the said supposed libellous matters in the declaration mentioned, as charges the plaintiff with being disreputable and a ruffian of the lowest and most degraded kind and a person who had assaulted old age, the defendant saith, that on the 5th day of November, 1836, the plaintiff made an assault upon one James Ross, late of Hobart Town, Doctor of Laws, he being an old and infirm person, and beat him in a savage and brutal manner, and continued beating him until some person rescued him. Wherefore the defendant composed, printed, and published of and concerning the plaintiff, and of and concerning the writings of the plaintiff, contained in his newspaper, the several matters in the declaration mentioned, as he lawfully might, for the causes aforesaid; and this the defendant is ready to verify.

To these pleas of the defendant, Gentlemen of the Jury, the Plaintiff has upon the first joined issue; and to the second he submits, that the Defendant has, of his own wrong and without the cause by him in his second plea alleged, committed the several grievances in the declaration mentioned - And this he now prays may be enquired of by you.

Whereupon, gentlemen, issue is joined.

The Solicitor-General then proceeded to address the Jury. He said - at length it becomes my duty to state this case on the part of Mr. Gilbert Robertson, the plaintiff in this action, and I must regret that we have been detained for two hours with the frivolous objections which have been raised on the other side - which I do indeed regret, not only on account of the time that has been thereby wasted and the nature of the objections themselves, but for other circumstances also which I need not now allude to. But before I proceed to treat the merits of the case, I wish and charge you most emphatically to dismiss from your minds all previous conceptions whatever, and forget, if such be the case, that at any time either the plaintiff or defendant may have given you provocation in their writings, or any other cause which might tend to the prejudice of either party. Let me entreat you to dismiss every prejudice from your minds, and to look upon both plaintiff and defendant as if you never heard of them before, because it is a case of a peculiar nature in a small community like this, inasmuch as it might have happened, without imputing motives to either party, that it may have been their lot to have given cause of offence at some time or other. But when I respectfully offer this suggestion to your minds, I appeal to your sense of justice if it does not appear to you the more imperatively called for after what has already taken place, when I see the defendant represented by one nearly and dearly related to him, and when I find this indiscreet undertaking has already been the means of displaying no small share of personal feeling, for already I have heard observations calculated to injure the reputation of the plaintiff, and I trust that the Attorney-General will abstain from such observations in future as shall seem in any way to prejudge or prejudice the case. And indeed I can hardly help reverting to the novelty of the objections which have been raised. The first objection was to the array. It is quite necessary in me to observe what earthly injury could have been done to the defendant by the reason of the plaintiff standing on the list? We should have struck him out and another name could have stood in his place, and that was all the injury which could be inflicted. Then again an objection is raised to the polls, and several parties are challenged. On what grounds, gentlemen, are they objected to? On the ground of consanguinity? No! What then? One of the parties, gentlemen, is objected to on the ground that the rental of his house is within five pounds of the qualifying amount specified in the Act of Council. That gentleman I examined, and found that he had held a commission in the army. Such are the objections raised, but which have not prevailed to defeat the ends of justice, and I hope they will be duly appreciated by you when coming from the defendant, who has written and published the foul libels whereof the plaintiff has complained, and who, if there was any foundation for them - who, if he felt that the plaintiff was that character therein described, instead of knowing and feeling that they were false, and that the trial itself must prove them so, would have eagerly embraced the opportunity afforded him of extinguishing such a character, instead of shrinking and taking refuge behind such objections. You heard the nature of the issues you are to try - whether the plaintiff did publish these libels - and next whether he can justify them in every point. I have an admission from the defendant that he did write these libels, and therefore it will be unnecessary to go into proof on that point. With respect to the second issue, I feel it due to my own professional reputation, and due also to the character of my client, to state, that I felt it my duty to recommend that we should demur to it; but as there was an issue on which we should go to trial, and the defendant might not be thwarted or fettered by a strict adherence to the rules of law, and that the charges against Mr. Robertson might be manfully made, and met in open Court and before a jury of his country, I was obliged by Mr. Robertson himself, gentlemen, and against my better judgment, to go to trial. We came here to-day to meet the defendant upon that issue. In cases of this kind, it becomes the defendant to prove in all circumstances of minutiae every part of the justification, and we shall presently see how he will prove it. We come to the libel itself. The defendant is the hired editor of Mr. Elliston. The reading of the libel has already impressed upon your mind its aggravated character; but when you come to examine it more closely, a libel of more virulent and deadly character cannot be conceived, or was it ever equalled, in this colony. Had this been an exhibition of criticism on the politics or the writings of Mr. Gilbert Robertson, he would not have stepped from his ordinary business in life into this Court to-day to claim damages at your hands - no; he would have contented himself with his powerful pen, wielding it as he does with known strength and ability, to repel such attacks; but being of the nature it is, and personally aimed at his character, he felt called upon to come before you, for when you look to it you will see that it contains matter which stamps it as one of the most deadly attacks that ever was directed from the pen of the moral assassin, and it marks and betrays the author, being one of a series of libels to destroy and ruin the reputation of my client in the estimation of the community, and to affix a stigma not only upon his writings but himself. (The Solicitor-General delivered this sentence with an extraordinary emphasis, in which feeble solemnity was mixed up with personal feeling, while he looked towards the defendant, who returned the glances of the learned gentleman with a look of the most solemn and perfect contempt. The contrast was not lost on the audience and the jury, and it was now easy to perceive that Mr. Jones had staked his own reputation on the issue of this trial.) Why, the common feelings of humanity - proceeded Mr. Jones - would have allowed my client to earn his daily bread; but here they were not to be found - for not satisfied with introducing his views upon political subjects or passing events, on which they might have differed, he must shake off all those rules of restriction observed by every well-regulated writer - he must harrow his feelings - he must introduce himself - he must mark him out and hold him up to universal odium. This had gone on for some time, with what object they could best judge, whether to the gratification of private feeling or the benefit of the public - until at last the present libel made its appearance. The first motto is a quotation from Juvenal - the next betrays most decidedly the quo animo with which the whole article was written. It marks the settled determination to annihilate the writer in the estimation in which he is held by his friends, and in the bosom of his own family, by pronouncing him, gentlemen - “dead for a ducat!” It is necessary, although this quotation is set forth in the declaration, that the jury should take into their consideration all such matters in the libel itself as may lead them to infer what the design and meaning of the particular passages set forth may be. The article commences –

“The convulsions of the People’s Journal resemble the prison throes of Fagin in the condemned cell, &c.”

In the condemned cage of public execration! Here you have a comparison drawn with a picture set forth by one of the eminent historians of modern life, namely, Fagin, gentlemen, which, if all of you have not read, I may mention represents one of the most degraded exhibitions of humanity that was ever conceived. ‘Tis not like that wretched man, that he has brought upon himself a well-merited fate, but it is introduced as a boast on the part of the defendant, that he has been an executioner of my client - “The pillory in which we have placed him! And now appealing to inexorable fate and the Courier.” It is necessary I should introduce this matter, in order to show you the deadly intention of the whole libel. It is bad enough of a public writer to charge another with fiction, or falsehood, but there is a degree beyond which they cannot go, although they may differ and express contrary opinions; and here the very terms imply the bad design of the writer - the real object of which is to prejudice, as set forth in the declaration, the sale and character of his newspaper. One part of the libel proceeds thus - “With a view of gaining countenance, if not cash, from something with the semblance of respectability.” Can there be a more base insinuation than this? Then follows an ill-timed plagiarism from a memorable sentence of Lord Denman, but ill-suited to the present case. Strong as the language is, and however it might have been called for at any time, here there will appear no cause of offence sufficient to provoke such insolence. I have heard that trials have abounded in the colony before for libels, but I venture to state, that never one exceeded in malignity the following - and I call your serious attention to it: - “That we have pictured the sacramental cup liquidating the week’s account of untruths, and cleansing from the six days’ wallowing in the mire” - one more unkind - more cruel - could never have emanated from the most implacable anger. Gentlemen, when one man will dare to dive into the heart of a public man and follow him thus to the table where he proceeds to partake of that atonement which rests between himself and his Creator, I ask you - whether hell itself can engender anything more foul or malignant than this? because, it is not of man to dive into the heart of another, and impute to him that he makes a show of that sacred right to endeavour to gain a reputation for sanctity. Does it not betray a wanton blackness of heart? I only wish that my duty would have allowed me to pass it over; but standing there, as it does, as part of this foul libel, I ask you whether pen and ink can exceed in enormity so dreadful an imputation? The libel proceeds - “That we have vexed the People’s Journal is no less matter of congratulation to ourselves, than to the colony at large.” I leave the defendant to the full enjoyment of his own feelings; but, gentlemen, for the colony I must be permitted to state, that short as I have been here, and limited as my knowledge may be of it, I should indeed feel sorry if such libels as these were matter of congratulation. Let me on the part of the colony repudiate the degradation of such a presumption. Let me rather this day cause it to be matter of congratulation to the colony that you have marked your indignant sense of such foul libels, and think with me that the best thanks are due to the man who would bring forward the black-hearted assassin. In the first place, the libel assumes the editorial “we” to pass this censure of condemnation. When we find one individual taking upon himself to be the arbiter as to who may, or may not, be fit to take part in objects of public interest, I think we ought, as we are enabled, to take a retrospective view of the merits of the respective parties in this case. I have already told you my client is the proprietor of the True Colonist. I have not had the honor of knowing him so long as I hope and trust many of you gentlemen of the jury have had, but I may say, that from 1822 up to the present time, without a single intermission, he had been a resident in this colony. Mr. Gilbert Robertson, notwithstanding the indifferent success which has attended the object of his emigration - although in so saying I may brave the attacks of my learned friend - is a gentleman by birth, education, and association (here a ludicrous look of amazement appeared to affect the countenance of the gentlemen of the jury and all present) - a gentleman - not in the sense in which it may be misunderstood; and here, however it may suit the purposes of some parties to run down Mr. Gilbert Robertson, and he may be made stink in the nostrils of authority, or appear in the estimation of misguided partisans - is a gentleman in every sense of the term, and who has discharged all the duties of a citizen with honor to himself - not one sprung from the sea - not one without character or family, or single tie in life - but one who arrived with recommendations, and with the best and surest guarantee, namely, a family, that he was about to become a respectable settler - and there are many men in this colony who can testify to his character during the long period of his residence for sixteen or eighteen years, and I defy any one to gainsay it in the least. I believe there is not a better conducted family in this place than Mr. Gilbert Robertson’s; he first arrived as a farmer - his circumstances unhappily reduced him to a political life, and he became a public writer; but so far as I know, there has not been one public journal in this colony which has effected that good that his journal has done; he is a public writer of the most independent mind, and may be emphatically and strictly termed the poor man’s friend, and I cannot  rescue this colony, gentlemen, from the imputation that his services have not been more appreciated. I admit that he has lost his hereditary patrimony - I admit that he has suffered in the cause of civil liberty; but that ought to be rather a shield to protect than to depress him. Is it that because he is poor - is it a reason that an upstart like that should write him down? No, gentlemen, you will throw around him that shield which every English jury is ready to do over character unjustly aspersed. He who robs him of that makes him poor indeed. I am quite sure that I do not over-estimate your characters; and let it not go forth to the world that one who has brought testimonials of the highest character to this colony, who in the strictest adherence to the defence of your rights has suffered, should be assailed and written down by one who, because he happens to be the hired scribbler of the hour, thinks therefore that he is to assail all who excite his envy, hatred, and jealousy; and is it to be patiently borne that he is to indulge in these feelings?  I ask you, gentlemen, whether it rebounds to the reputation of this colony, that you will tolerate such a system - gentlemen, don’t let me suppose that any observations, such as these, are made through any personal feeling on my part, for every one who crosses his path is subject to a similar ordeal. The present libel is justified, and there is the justification. The defendant has had an opportunity of justifying, owing to the anxiety of my client, that the whole truth should go before the jury. He says - “If I am that man therein represented, it is good that I should be known; let me be sent adrift and severed for ever from the public as this defendant wishes; but if not, let me check this course of slander. Do not let my acquaintance shun me, and my own family suspect me.” Gentlemen, I observed a smile on the countenances of some of you when you heard the pleas read. There is one referring to an article in the True Colonist of the 18th January, 1839, imputing to Sir George Arthur, that in consequence of having bribed Lord Glenelg with a loan of £10,000, at 2½ percent, he obtained extraordinary honours and promotion. Gentlemen, this is a specimen of the defence referring to 1839. This is one of the circumstances which you must believe aroused the young man’s indignation in May 1840. Yet what is it in itself? It says that if true, Sir George Arthur should be stript of those honours, and if false, the statement should be proved. It is given, gentlemen, merely as a rumour, and there cannot be a more even handed sword of justice than it seems to poise. That is a justification for the term slanderous. With respect to the assailant of female virtue, there is a plea put in with reference to an alleged attack upon a lady high in rank. Gentlemen, the introduction of this is mere clap-trap - are you to believe that the defendant was moved to the publication of this libel by statements which appeared before he arrived in this colony, and that he engages as the Gladiator or the victim, as the case may be, on account of any feeling which he may have had, either with reference to Sir George Arthur, or the exalted lady, or the Venerable the Archdeacon, whose name has been introduced into these pleas? I trust it will secure to him the support of the Church of England, and the support of the Arthur faction, of which I wish him every joy; and I trust the exalted lady will lavish on him all becoming honours for the indignant zeal which he has betrayed. But I am convinced that all these pleas - got up for this occasion - will fail with you. Gentlemen, we now come to the charge of hypocrisy; how think you that that libel is attempted to be justified? In this way, namely, that the plaintiff, professing to be a zealous promoter of the christian religion, did publish scandalous matters, reflecting upon the Archdeacon and the Episcopalian clergy. Gentlemen, I will not read the pleas to you. I will observe that only the Courier professes to be the champion of the Church of England, and is a member of that church. I only regret that it should be entrusted to such hands. I may say that the True Colonist is in like manner, the champion of the Church of Scotland, and such polemical writings are not generally remarkable for their serenity, and we are no strangers to what lengths these writings have prevailed. I have not found that the writings of 1640 are more moderate than these of 1840; but you must bear in mind, gentlemen, that the writers of those days were no hypocrites - they acted from honest zeal, and they fought and bled on the cause in which they wrote. But is that the case in 1840? Is there anything like honesty of intention - anything like feeling betrayed in the advocate who brings up these extracts, and says that he was moved to entertain such an opinion of Mr. Robertson, seeing those extracts in his paper? Does not the very introduction of those extracts indicate the absence of everything like sincerity, and are they not merely blurted forth in the plea to serve the occasion? But do not think that I am not dealing fairly with you in not dwelling at length upon every point. There are two distinct separate causes assigned for “the assailant of female virtue and the assaulter of old age.” I shall not enter upon these questions - they are given as two distinct and separate causes - I leave it to the other side to prove that the plaintiff did assault Dr. Ross - of which more anon. Gentlemen, this is a good comment on the feelings which could sanction such a justification, being in my mind an uncharitable act to rip up and wound the feelings of others, in reference to one who is now no more. It is only with a view to effect the same object - to which I have already adverted - that such an allusion has been introduced at all - the circumstances to which it refers took place years before the defendant arrived in this colony - I will not wound the feelings of some of the relatives of Dr. Ross by dwelling upon this subject, but I challenge my learned friend to produce a single matter which may reflect upon the character of my client in reference to that occurrence, or to rip open those circumstances which have been long since buried in oblivion. I shall be glad to have an opportunity of commenting upon that event, to expose no less the heartless professions of those who brought it forward, as a mere instrument of justification than to show that there is nothing in it which does not redound to the credit and honour of my client and prove the great forbearance which he exercised - but, gentlemen, it is all of a piece with the base slanderer, who would lead you to believe that the unfeeling attacks which he makes upon the motives of parties, and that the venom which he puts forth upon Friday, has been dictated by a remote cause not immediately connected with personal pique or feeling - and unless I am addressing twelve men utterly devoid of that common sense which I know to belong to the inhabitants of this country, you must be satisfied that the only effect was, to taint the moral and religious character of Mr. Gilbert Robertson, and that that is the cause, and no other, why the defendant has been reduced to such insinuations and recriminations. You have it in your power this day then to put an end for ever to the execution of such designs; and if you wish to purge the colony for ever of such foul slanders, you will do it by your verdict. Gentlemen, the allusion to a man as the assailant of female virtue, may excite horror and disgust in the feelings of any lady, and of us all - it is well calculated to create a feeling of abhorrence - but I ask you whether it is not answered in itself by a reference to the specimen of the justification put upon the record, wherein a want of modesty is imputed to the eccentric Lady Hester Stanhope and another. Is it because the defendant felt for, or thought of, Lady Hester Stanhope, that he wrote this slander? Undoubtedly there is another lady mentioned, and if I thought such terms as the defendant has used were merited, I should admire the writer who urged them, for his boldness; but you cannot believe that this emanated from any such feeling. It is thus the defendant sends forth empoisoned arrows against those whom he knows cannot descend into the same arena with him - that the poisoned asp attempts to sting his opponent, who comes before you this day, and who, through me, is a suppliant for justice. His weapon is the sword of justice, and a mighty weapon in his hand. There is no one to compete with him as a writer, and thus it is that in the fearless discharge of this duty he excites odium and malevolence; but you, gentlemen, will admire and protect the man - you will not see public oppression and public corruption, for much of both abounds in this colony, rise on his ruin. I pay a humble but well-merited compliment to Mr. Gilbert Robertson - there is no one who has earned it better - he would be the last man to compete with the sophistries of the defendant, interspersed with Latin quotations as it liberally was, and occasionally intermixed with a little Greek from a vocabulary which appears however to have been some time since exhausted, for the quotations have of late altogether disappeared. Mr. Robertson would take no heed of the defendant in his capacity of a writer, except when he found himself held up to the scorn of his family. He has already shown sufficient forbearance; and permit me to say that an incident recorded in the libel shows he exhibited a degree of forbearance in the teeth of insult which few could withstand. Gentlemen, there is a limit even to the feeling of conscious rectitude - here we find, according to the defendant’s own showing, that Mr. Robertson walked away, having been grossly insulted; for if we are to judge of the “measured terms” in which the defendant says he addressed Mr. Robertson in the street, by what had previously taken place, and by the epithets which he bestowed upon him, according to his own showing, in the Derwent Bank, they must have been insulting indeed. I say, gentlemen, that he walked away, without using that strength with which he is endowed  - without proceeding a verbis ad verbera - which the law has deemed so probable as to provide for - when he could at once have annihilated the soft pericranium of the defendant. (The earnest manner and tone with which the Solicitor-General delivered this phrenological lecture upon heads, unconscious as he appeared to be of perpetrating a joke, created considerable laughter when Mr. Robertson held up his pericranium to the admiring gaze of the Court.) Because he would not venture to chastise the boy who thus assailed him, and because he exercised a most praiseworthy forbearance, under circumstances of great provocation, he was to be denominated a coward and a bully. It was his duty to check this most unwarrantable species of slander, because if he does not regard the slander here, this vile paper is disseminated over the globe and the reputation of my client is destroyed - for the object for which the whole article is composed is to destroy his paper. It is because he retires him to his family, and finds that the slanderous paper has been there before him, therefore he feels called upon to vindicate himself from such vile aspersions. Had the defendant stood in a similar position how would he have evinced his feelings, how would he have borne that his family should view him as the assailant of female virtue and the violator not only of the ordinances of man, but of God? He would have been guilty of a dereliction of duty to his own family had he not brought the case before a jury of his country - for what imputation is it not upon them that they should be the offspring of such a man? But, gentlemen, you have been told that he is “poor.” I appeal to your feelings, as fathers of families, whether a base ruffian is thus to outrage every feeling of such a man? The damages “are confined” to £500, and what is that in atonement for such slander - why, £500,000 would be inadequate compensation for such wrong. I ask you only to estimate the compensation by the sense of that injury which any of you would sustain, had your feelings thus been harassed; for these injuries inflicted by the defendant the only remedy I ask, and I ask it with confidence, for the sum of £500 - so as to mark your sense of the aggravated character; and I am sure no jest, no sneer, will weigh against the evidence of your own senses, but that they will rather, as they have been already dealt in, tend to the aggravation of those injuries - and that you will recollect you are under the obligation of a solemn oath to discharge your duty. Gentlemen, I leave the case in your hands.

Mr. Hugh Murray called - Examined by Mr. Anstey. - Has resided nine years in Hobart Town, and eighteen in the colony; has read the sentences marked in black ink; “We have disturbed the serenity of the People’s Journal;” would understand by “we”, the Editor of the Courier, and by the People’s Journal, the True Colonist; saw the paragraph commencing - “We have pictured the sacramental cup, liquidating the week’s account of untruths,” &c.; understood at the time when it appeared, and when he read it, that it meant to say that Mr. Gilbert Robertson was charged with an act of hypocrisy, and with taking the sacrament, so as by that means to cloak over his misconduct; would call it sacrilege.

Cross-examined by the Attorney-General. - What do you mean by sacrilegious hypocrisy? Understands an act of that kind to be so; does not recollect having any conversation with Mr. Thomas Macdowell on the day when the circumstance detailed in the libel took place, except as to Dr. Turnbull’s speech; does not recollect Mr. Macdowell observe to him, in expressing his disinclination to give the manuscripts to Mr. Robertson, that it was a disgrace to the cause and character of this colony that such a man should even be supposed to be identified with it, who had congratulated Currie, a convicted murderer, on his pardon but a week before, and spoken of the administration of the sacrament in the same paper; does not recollect the name of Currie mentioned; does not recollect that he, Mr. Hugh Murray, said, that after all there appeared to be something strange about the evidence in that case; does not recollect that Mr. Hewitt was standing by.

James Thomson, Esq., examined by counsel for the plaintiff. - Understands by the paragraph read that it meant to convey although it appears loosely and incorrectly expressed, that Mr. Robertson affected to be a religious man to serve his own purpose; understands that the writer meant to represent Mr. Robertson as guilty of religious sacrilege; it alludes to Mr. Gilbert Robertson

By the Attorney-General – Has read both the articles in the True Colonist of the 8th of May, the one commencing – “We are happy to learn that Mr. Currie, who was convicted on most extraordinary evidence,” &c., and the other referring to the service of the Scotch Church and the administration of the sacrament; thinks that the sacramental cup, &c., might have some reference to these, but the impression to a reader is, that Mr. Gilbert Robertson himself must have taken the sacrament for an improper purpose.

The Attorney-General then proceeded to the jury - He said, gentlemen of the jury, I am extremely gratified at the caution administered to me by the Solicitor-General, in reference to this case, in which he was pleased to say that the position in which I was placed ought to induce me as far as possible to abstain from all observations calculated to irritate or be in any way prejudicial to a fair and impartial trial of the case, and I am willing and grateful for the spirit in which these observations have been made, but seeing how excellent the advice is, I cannot but regret that in his own proper person he [???] doceri - for I fearlessly put it to you, if in the course of that experience that you may have had of Courts of justice - as I put it to myself, who have had long experience - whether you have ever witnessed such an exhibition as has been this day made by the Solicitor-General, and if the low vocabulary of the English language has not been nearly exhausted by him in describing the defendant in so disinterested, so impartial a style, and in which personal feeling has been so completely absorbed by that gentleman’s abstract love of justice? I call to your attention, and claim your consideration, for the peculiar situation in which I stand, whilst I advert to some of those epithets bestowed upon the defendant - and whilst dwelling upon the observances of our common language - and seeing that it is barely possible for human nature for overcome a sense of that situation to which the Solicitor-General has with so much propriety, good feeling, and good taste, alluded - you will perhaps be of opinion, when you have heard my address, and before this case has terminated, that is just possible for the indiscretion of a too zealous friendship to inflict as great an injury upon a cause, as can arise to it from the advocacy of a relation; for he was pleased on more than one occasion, without satisfying himself with dwelling upon the integrity of his friend, to claim great credit for him - also for the strength of his pen - to which, at whatever risk of bad judgment, or want of those critical powers which belong to the Solicitor-General, I cannot subscribe - and to say, that with one fell swoop of his formidable quill he could put down the pigmy powers of the defendant, but such being the case, according to the Solicitor-General, you will at least come to the conclusion that it might have been more effectually - it could hardly have been more feebly - exercised to accomplish this end, than by the speech which you have just heard from the Solicitor-General, and the probable result of the verdict which you will return. He began by complaining of the extreme course adopted in this case, where two hours were taken up with what he pleases to term frivolous objections. With respect to the judgment of his Honor upon those objections, although it has not been to my satisfaction, I am convinced that it has been in accordance with his strict sense of right, according to the oath which he has taken; but I take the liberty of saying, that though that judgment be not satisfactory, or what I conceive to be in accordance with precedent or principle, the first objection was not an unimportant one, and I take it that his Honor so regarded it, for he decided not with certainty, but, as I understood him, according to the best lights which he had, saying, at the same time, that it was a case which would require legal research and investigation. Then I took an objection to four names, and I put it to your experience whether I was not right in so doing, as the result proved. I trust that in taking the objection it will not be understood as if I wished to raise the slightest imputation on the conduct of the Sheriff; I believe the Sheriff proceeded as is usual in such cases, but I never yet knew - and I defy the quotation of another similar instance - a plaintiff who is so exceedingly modest that when his own name was called, as a juror in his own case, as not to claim his exemption, on the score of his being plaintiff, or who answered with that becoming readiness and characteristic zeal of Mr. Gilbert Robertson - I ask you, if in the course of your experience you ever recollect such an instance of barefaced assurance, (which was possibly not unmixed with some personal and speculative motive), as that Mr. Robertson should leave his own name to be struck out by us; and if you do not think - knowing that gentleman as you do - whether it was not only right, but an act of duty to my client, to challenge the array which he was so anxious to adorn? The principle of the objection is such as cannot be mistaken, for by allowing the name of the plaintiff to stand upon the array, you thereby diminish, in some degree, the equitable chance of the defendant in a list of twenty-four names. Then again, as to the second objection, where I challenged the name of Mr. Nicholas, if I had wanted an argument in support of the policy of that objection, the circumstance of his applying to be examined as a witness, would have furnished me with no unreasonable grounds. I have resided in this colony long enough to know that those who get access to the sources of general and particular information, such as myself, and like any of you, gentlemen of the jury, who do not trouble yourselves with matters out of your own immediate observation, may have very material reasons for objecting to a juror, in any case, and if pressed for the reasons, I could give them. If it were competent for me to give those reasons in respect to Mr. Nicholas, I don’t think that you will require any after that afforded to you in his being brought forward as a witness - you will not think that the foundation of these objections arose from my client being only anxious to avoid a trial; he had but ten days to plead to this action, shortly after the appearance of the alleged libel, and forced to plead first within the space of four days, and then, by the courtesy of the judges, enlarged to ten days; he did so plead, because the plaintiff was eager to go to trial, and yet, until the present time, after the lapse of many months, the case has not been brought on. The learned counsel has omitted the introductory part of the declaration; I admit that, as a lawyer, there is nothing in it, still one cannot help asking why that introductory part is omitted. I am not to be told, gentlemen, that in this elaborate catalogue of the sorrows of Robertson, his sufferings have been detailed according to the ordinary form, and in the most approved fashion. I am not to be told that the pleader has pursued the hackneyed path - that he has attempted nothing new - but that he has modelled the lamentations of the much injured client in precise accordance with the prescriptions of a Starkie, an Archibold, or a Chitty; for if it be said that these eminent pleaders ever settled a declaration in libel for a plaintiff of Mr. Robertson’s character - I, until better informed, refuse my assent to such a statement, and therefore, gentlemen, I submit to you that with that strong feeling which results from early and long continued impressions - of purely an opposite character, and consequently with an opposite tendency to those which Pope and Burke felt and expressed - with such - call these prejudices if you will - implanted in us by Him whose wisdom and whose will we may not question - it seems to me in this instance to have been an oversight on the part of the pleader, in that he had not given him the man to suit the declaration, not to make the declaration suit the man. A document so framed would have novelty to recommend it. It would form an admirable illustration of the curiosities of pleading; whereas in its existing shape it looks as if Mr. Gilbert Robertson was “not by when his measure was taken.” Mr. Gilbert Robertson, then, gentlemen, you are told was - when the libels - as he terms them - of which he complains to-day were published by the defendant, a person of good name, credit, and reputation. Gentlemen, I am happy to furnish a precedent to the other side for such a declaration. I remember once a worthy personage of the name of Cleary, (whose name by the bye is mentioned at the end of the alleged libel in this case,) brought an action against Mr. Cobbett for libel, which was tried at Westminster before Lord Tenterden and a special jury. There was a very general impression that Cleary did business for Lord Castlereagh, but though the world believed him to be a spy, Major Cartwright looked upon him as a patriot. Mr. Cobbett in his defence - as I am now doing - referred to the declaration, wherein Cleary described himself, or was described - sketched his own likeness, or sat for his portrait, as a person of good name, credit and reputation. A person said Mr. Cobbett “of good name, fame, and reputation”? The devil he is! The dissimilarity between the cases is not striking. It may be said, however, and I am bound to own correctly, that although Mr. Gilbert Robertson is so minded to describe himself - that he likes this personification of his merits on paper - yet that he is not under the necessity - I admit it would be hard to impose such terms upon him - of proving one single syllable of the truth of this portion of his autobiography. Not one whit more than if, in the next paragraph, he had commenced - which however I must observe he has not - that he was a person of an extremely prepossessing appearance - of mild manners - of an education at first liberal, and subsequently invigorated and sustained by habits of gentlemanlike intercourse. All this he might have said - the marvel is that he has not done so - and yet the defendant could not question its correctness - it is simply a matter of taste; and if a man of Mr. Gilbert Robertson’s fair pretensions to such titles can find it in the gravity of his countenance to suppress a smile whilst this account of himself - which from its novelty can hardly fail to entertain him - is read, he performs all that on his part is necessary. You indeed may imagine that “to be grave” under such satire in disguise, exceeds “all powers of face” - you may be allowed to laugh at it – you may be of the opinion that he has “pitch’d it rather strong;” but there it stands on the record. The modest parchment blushes not at its reception, and sixteen thousand miles off, this declaration - this pleasing summary of the qualities of Mr. Robertson’s character - with which Mr. Robertson himself has favoured us - will look as well in print as though we were not indebted for it to the imagination of the plaintiff himself, or the fertile fancy of his friend and pleader. But as he proceeds - principal or agent, I care not which or whether, we regard it as a joint contribution - he lets us into the secret - as I must own it was to me - that before his sensibility was wounded by these libels - he enjoyed - nay more, he deservedly enjoyed the esteem and good opinion of divers persons. Well, that may be, and upon reflection with this account of himself and his friends I cannot quarrel. No doubt he is not without his friends; he may have eaten of the same bread and drank of the same cup with those kindred spirits - foes alike to good order and to good feeling - he may have communed with those who help about lame slander or love lies, and deservedly enjoyed their esteem and good opinion, and not wanting in those specious arts, or deficient in those designing means, which vulgar cunning never fails to supply to its possessors, he may have imposed upon the unwary and duped the generous, and degraded to his own level, by bringing into a temporary association with him those who now shrink from his touch, and avoid even his approach as a coming pestilence, and this may account for the true courage or unparalleled audacity with which the plaintiff has put it on these pleadings, that he deservedly enjoyed the esteem and good opinion of divers persons, for he has yet associated - in every way worthy of him - of whose esteem and good opinion he continues in - aye, and notwithstanding the result of this trial,  will still continue in the uninterrupted possession, but equivocal though the phrase may be, the meaning of the pleader evidently is, that Mr. Gilbert Robertson deservedly enjoys the esteem and good opinion of the community in which he lives. That is the design - the aim and end of this passage; and here again, though the pleader may have largely taxed his imagination, we are not permitted to question the accuracy of his statement. It is indeed the rather to be admired, that knowing how much his client needed that which the poets call “description taking the place of sense,” he did not in a more liberal expenditure of eloquence expatiate on the many subordinate graces of a character, the outline of which he has happily illustrated. Having however painted him in his personal merits, and framed him in the deserved enjoyment of the esteem and good opinion of divers persons, the pleader - who by this time has resumed his habitual gravity - proceeds to describe the plaintiff in that vocation for which he is so admirably adapted, as well by the moral excellence of his character, previously approved and settled - as by his intellectual attainments hereafter to be discovered and described. First of all, gentlemen, it must strike you, and you cannot help feeling, that this alleged libel has a reference to something that went before, which has been studiously kept out of your view. In so doing the address of the Solicitor-General is more an object of admiration than his candour, for he is not bound to admit it, and has accordingly felt the full force of the obligation. For ought that appears to the contrary, Mr. Gilbert Robertson appears to you one of the mildest, meekest of human beings, whose whole life, as it has been written or rather spoken, has been devoted to all that is amiable, beautiful, and good, and you are called upon to find damages for a wanton and unprovoked injury inflicted upon such a man, by what is alleged to be a libel upon his character, and above all, gentlemen, you are told that he is poor, and that one of the imputations raised against him by the defendant was his poverty. Gentlemen, in the whole of this article, I cannot find one single allusion to Mr. Gilbert Robertson’s poverty, and I unhesitatingly tell you to give damages if you can find the most distant allusion to anything of the kind. No, gentlemen, there is not; but had there been - which I do not think possible, you would agree that the good taste of the Solicitor-General in designating the defendant a hireling, and laying a very gentlemanlike emphasis upon the epithet, was a set-off to what would have been on the part of my client a wanton forgetfulness of all those principles of right in which he has been bred, had he descended to such an allusion. That there are passages from which it might be inferred that the plaintiff is open to a bribe I will not deny, but the two imputations are as distinct as light from darkness. I will admit that there is some allusion from which it might be gathered that he was open to a bribe or gratification, for the curious in these matters are wont to make nice distinctions, as for instance in any particular case, the complexion of which I was anxious to alter, and to send home the bane together with the antidote, and in order to do so ordered five hundred copies of Mr. Gilbert Robertson’s paper, it would, according to modern construction not be a bribe but a gratification. Am I charging Mr. Gilbert Robertson with poverty, because I assume that he may attach an extraordinary degree of importance to five hundred copies? I think, gentlemen, that you see the distinction. (The jury saw the distinction and smiled, while Mr. Gilbert Robertson held up his hands and chuckled with laughter, not at himself at all, but Mr. Jones, who seemed to put on a most uneasy aspect of indifference and appeared dreadfully disconcerted.) I say, gentlemen, that neither in this article nor any other of his writings, will you find a single allusion to Mr. Gilbert Robertson’s circumstances, neither will you find a single allusion to that which the Solicitor-General with appropriate good taste, after the fashion of the plaintiff, has dragged into this Court of Justice - I mean Mr. Robertson’s family. You will find no allusion to Mr. Robertson’s house, except from Mr. Robertson himself, and his advocate. The Editor of the Courier has not sought him there, and I only leave you to conjecture how little observant such a man must be of the delicate feelings of our nature, who scruples not thus to parade his own children, in weeds of woe before you, and thus endeavours to raise a fictitious interest in his behalf which he knows and feels he cannot command himself, Gentlemen, I am persuaded you will condemn such infamous attempts to trade upon your pity. This is a topic which usque ad nauseum even to the utmost disgust has been brought forward to Mr. Robertson’s own paper, and it is duly appreciated by every man who has the common feelings of a parent about him, and fails not to recognise in it the deliberate trickery of the impostor. I confess that I did not think that the Solicitor-General could have brought himself to make use of so pitiful a contrivance, with the view of awakening your interest, as if you were not men of the world, endowed with the feelings and sensations of sterling men, but the victims or the votaries of false and hypercritical sentiment, false to all paternal principle and feeling, and false to those hearts which beat against your sides. And now I ask you to read that newspaper which preceded the article that contains the alleged libel namely, the True Colonist of the 22d of May, and hearing from the lips of the Solicitor-General the account which you have heard of Mr. Gilbert Robertson, who appeared, according to his showing, to mingle the useful with the sweet, and taking care that I am not prepared from that description to assume that Mr. Gilbert Robertson has reached that pinnacle of falsehood, where he stands, in the estimation of this community, swayed by every breeze -

The Solicitor-General begged the Attorney-General would confine himself strictly to the libels set forth, and not travel through other matter.

The Attorney-General continued - I mean to confine my address to the matter strictly in hand. I mean to show that it is the preceding article which appeared in the True Colonist on the very week before - on the 22d May - which gave rise to the alleged libel, and, with the exception of what you have heard to day from the Solicitor-General - for I certainly yield to him the palm of surpassing his fellow-labourer in abuse and vituperative epithets, which tend in the most eminent degree to reflect lustre upon the cause which he advocates- I venture to say, that you have never heard stronger - no, that I will not say, unless strength be said to consist in gross personal abuse unrelieved by all power of illustration - but coarser and more vindictive language than appears throughout the previous article directed against my client. How then, having exhausted his powers of abuse by this effort, and been as it were defeated and overborne in that personal contest which he provoked, and struck down by this pigmy, how dares he ask you to become his allies in the same crusade - how dares he to call upon you for assistance and relief? It must be fresh in the recollection of all of you, that a public meeting was held nearly about the time of the publication of this alleged libel. It was thought necessary to make this demonstration of public feeling, in consequence of a meeting which had been held in Dublin, where the chaplain of Archbishop Whately, the Rev. Dr. Dickenson, proposed a resolution condemnatory of the moral and social character of this colony and New South Wales. All of you who had an interest in this colony - and which of you is there that has not? - felt called upon to stand forward in defence of your hearths and homes. Amongst the speeches made on that occasion, was one by Dr. Turnbull, which was highly thought of at the time, and it was thought also that its publication and general circulation through Great Britain would tend much to disabuse the public mind of the gross and unfounded prejudices which had been disseminated abroad, and which owed their existence to evidence of a one-sided and inquisitorial character, seeking for vice and not for virtue, on which the most moral country in the world would be condemned. The alleged libel refers to the part Mr. Robertson was anxious to take therein, and the opposition which he met with from the defendant, who thought that his being permitted to participate in such a meeting at all would give a handle to the enemies of this colony, and tend to confirm, rather than repudiate, these calumnies - inasmuch as it might be said we suffered the admixture of base alloy; and this is amongst the many sorrows depicted by his sentimental counsel, which you, gentleman, who bore a part in that meeting, and who sympathised with its objects, can best appreciate. The scene which took place in the street is recounted in the alleged libel - it is omitted altogether in the account of Mr. Robertson, I know not why. The Courier says, that Mr. Robertson retired from the scene in a way worthy of the assailant of female virtue and the assaulter of old age. It might be perfectly possible that Mr. Robertson restrained his hands from this boy in mercy; and, if you can believe it, not from any other fear than that of doing him some grievous bodily harm - and undoubtedly the defendant has to express his gratitude for such generous forbearance. I am no advocate for street brawls; yet, gentlemen, I cannot help thinking that this magnanimous forbearance on the part of the plaintiff might have arisen from a wholly different cause, for I have never yet known a bully in print, or otherwise, who was not a coward in heart. I can conceive the possibility of Mr. Robertson being acted upon by different causes altogether, and that he might have been somehow or another doubtful of the result of his prowess. I will prove to you, from the testimony of one of the most honourable young men in this colony, Mr. Nairne, that the occurrence is just as it is related in the Courier. Mr. Robertson, in his own account, has given himself a long speech in the Derwent Bank, of which the Courier says he never uttered one word in the presence of my client. At all events, it appears strange that out of doors a different cause should operate in so short a space of time over the nerves of Mr. Gilbert Robertson. In the article in the True Colonist which preceded the alleged libel, the defendant is denominated in such terms. “We never saw so complete a picture of a ruffian” - “this shameless impudent scamp.” Again, “who the devil is this drummer Tom?” (Laughter.) Now here is a publication coming from Mr. Gilbert Robertson, who, as you are told - whether you believe it or not is quite another matter - is a gentleman in every sense of the term, and withal a powerful writer, and certainly these are splendid specimens of his powers - and such is the man, even apart from every other consideration or association, with which no fancy but the experience of any man who has resided in this colony for any time might invest him, comes into Court to claim damages at your hands! I put it to you, whether such a man, who follows up the same system of powerful appeal to your feelings through his advocate and friend, by denominating the defendant as the hired Editor of Mr. Ellison, deserves anything but contempt at your hands? Gentlemen, I thought they would have called Mr. Elliston to prove before you that fact on which the Solicitor-General has laid such stress, but had he been called he would have proved to you that his engagement with my client was of such a nature as to subject him to no control whatever, and that he was, what I think you know him to be, the hireling writer of no man. Gentlemen, the Solicitor-General has thought proper to make a contrast between the plaintiff and defendant. He has not contrast between the plaintiff and defendant. He has not contented himself with speaking of him as a public writer, but has volunteered his own testimony - for I cannot call it by another name, in his favour. He says that he has suffered persecution for the sentiments which he entertains, and then he goes on to volunteer his own testimony in his favour and to question the character and position of the defendant. I think I may be allowed to give some account of him, particularly when I find this proceeding of the Solicitor-General to have so happy a concurrence with some of the very vilest productions of a vile portion of the press. I saw some time since, in an advertisement, some extraordinary allusion referring to the son of a lively Dublin pot house keeper. Gentlemen, I had some difficulty in accounting for this very extraordinary dissertation, until at length I ascertained upon inquiry, that it referred to a namesake who kept an inn and a large posting establishment at Howth, and who, I believe, died worth £18,000 or £20,000, leaving a son, a lieutenant in the navy, who is since dead, but to whom, as I understand, a nephew has succeeded, and now lives in Cork. Gentlemen, for myself, and I think for the defendant also, that I deeply regret that I was not the successor to, or even the immediate inheritor of, the property in question. I should indeed have felt not the most distant qualm on the score of the title whence I had derived my wealth. It never would have given me a moment’s uneasiness. (Laughter.) But, gentlemen, apart from such absurd and ridiculous considerations, which every man who has about him either the birth or breeding of a gentleman despises from his heart, and the boast and bare mention of which indicates something doubtful and uncertain in the party who makes it. I proceed to speak of the defendant alone. Gentlemen, at a very early age he left his native land - he went to school in Worcestershire for some time - he subsequently went to Merchant Tailors’ school, and some time after that he went to Germany and studied at the University of Bonn, where Prince Albert, as you may have heard, was brought up, and which I mention merely as indicating the character of the University itself. For the last few years before he came to this colony I am not aware that he pursued any very grave occupation. I have heard from him occasionally, and as far as I can learn from others, I believe his pursuits and conduct to have been strictly correct and honourable, but for ought I know to the contrary he may have been discounting bills. (A Swansea look of wincing indifference here agitated the countenance of Mr. Jones.) Then, gentlemen, he came to this colony; but surely his appearance here without a family was nothing against him. I don’t think, gentlemen of the jury, that you will be of that opinion. I should think that you would rather have an opposite opinion. Gentlemen, I have endeavoured to treat this subject as lightly as possible, and I am happy to say, in reference to these allusions and the character of my client, that I can afford to do so without assuming any gravity unbefitting the occasion or calculated to excite mirth. I now proceed to the libel itself.

(The unavoidable length to which this report has proceeded obliges us to continue it in our next number.)

Source: Hobart Town Courier, 22 December 1840

Trial of Robertson v Macdowell, continued.

The Attorney-General proceeded- Gentlemen, I take the liberty of stating, after what has fallen from the Solicitor-General on the other side, that the introductory mottoes have not that deadly meaning which he would have you believe, but are figuratively used to show that the True Colonist is as it were disposed of and defunct. “Habet” is a quotation from Juvenal, and was the expression used in the Gladiator’s arena, when one of the combatants received a blow - as much as to say - he’s done up - he’s floored. The other quotation “dead for a ducat,” is indicative of the same purpose, and if my client, gentlemen, by such an article, can have contributed to the accomplishment of an end so devoutly to be wished, so far from looking upon him as the assassin of reputation, you will commend him for it, and that good work which he has commenced you will this day perfect by your verdict, which will do more for the reputation of this colony than was ever achieved, aye, or ever can be achieved, by twenty public meetings; for I assert that the whole of the calumnies which have been disseminated in England to our prejudice, have arisen as much from its base press, as any evidence ever taken before a committee of parliament. You are told that my client has not had the advantage of that long residence in this colony which Mr. Robertson has enjoyed, but I think it says much for him, considering the infamous notoriety of the press of Van Diemen’s Land, that the Courier, which my client has conducted, stands alone the object of the combined hatred and odium of that press. You will show by your verdict to-day to one of the most eminent and honourable men of modern times - although sadly mistaken in his view of the character of these colonies - you will show to Archbishop Whately that you have no sympathy with the base portion of that press which is a libel upon your condition, and has tended to your damnification, but that you have some sympathy with the man who has achieved the good object of bringing it before the tribunal which will for ever brand it with scorn and deprive it of all power to do evil. I find that the practice in England has been such. I find that when a notorious miscreant of the name of Williams, commonly denominated Anthony Pasquin, came before a jury of his country to seek damages for the injury inflicted on him by a libel of Mr. Gifford’s, the well-known author of the Baviad and Maeviad, and some time Editor of the Quarterly Review, one of the most distinguished men of his day - I find that Lord Kenyon, who tried the cause, on hearing the production of this Williams read, turned to the jury, and indignantly asked what damages they would give to the author of such infamous productions, and whether they would not rather thank the man who had exposed the real character of such writings. I rest my case upon this argument of my Lord Kenyon’s, and nothing shall move me from it. If you believe Mr. Gilbert Robertson to be the ruffian which he has been depicted in the alleged libel, you will applaud my client for so denouncing and exposing him before the world. Far different indeed would it be had he been singled out, had he been a man who had kept the noiseless tenor of his way, and who unprovoked had been assailed; but if from the first period when curiosity tempted him to embark as author, his whole track had been one black line of libels - one series of the grossest and most infamous slanders, and upon woman too- I ask you in the name and reputation of this colony, what verdict  will you give? Gentlemen, it is all exceedingly fine - it is very imposing to say - that Mr. Robertson was so anxious to go to trial that he was unwilling to avail himself of his pleader’s advice, in demurring to the pleas. Bad or good, there the pleas are, and the Solicitor-General has no right whatever to attempt to make a handle of what he or his client might have done. Such observations, I am convinced, will have but little weight with you. Gentlemen, the first I have already submitted to you, and it is acknowledged that the libel was written and published by the defendant. How now does the defendant seek to make out his justification? If I show you the slanderous character of the plaintiff’s productions, I shall make out that part of the justification, for slander is still slander, whether true or not, and the parties on the other side have not attempted to deny but that the imputed slander is grossly false. Here it is put forward that Sir George Arthur bribed Lord Glenelg.

His Honor here interposed, and a long argument ensued, as to whether it was not the duty of the defendant to show the falsehood alleged in the pleas, which his Honor held to be incumbent upon him. The Attorney-General on the other hand contended that it was the duty of the plaintiff to have demurred or replied to these allegations. His Honor said that he would reserve the point.

The Attorney-General proceeded - By the decision of his Honor, I am placed in a position of the greatest difficulty - from the paper itself I find rather as insidious invitation to refute the calumny, than an open or direct charge, and the grossest falsehoods may thus be published of a person in his absence, with impunity - and which, upon the face of them, are scandalous false - the means not being at hand to disprove that which is broadly or covertly put forward. I am sure you will admire the elaborate manner in which the thing is worked out. We all receive letters from England, and it was only with a view of affording intelligence to the public that Mr. Gilbert Robertson published this communication, of course with the most charitable intention in the world, and with the most pious designs; but unfortunately Mr. Gilbert Robertson is the reverse of Goldsmith, of whom it was said that every subject he touched he adorned, for contrary to his good intentions, he disfigures them all, and when you look at the matter contained in this slander you will not be disposed to regard it as an exception. I repeat that a more infamous or more mock candour calumny was never put forth. Do you see, he says, that if there is no truth in it, it ought to be contradicted; and mark, we publish it in order that it may be put into the hands of Members of Parliament. A more perfect illustration of the Mrs. Candour vein of sincerity, it would be impossible to find. That lady was wont to call upon her neighbours and administer consolation after the following fashion - “Well, my dear, where is the sofa which used to be in this room? I happened to be passing by a pawnbroker’s and saw one extremely like it, but of course it could not be your sofa. I merely mention it on account of the extraordinary resemblance.” There is the model and here the exact illustration of the same vein. “We publish it on authority” - and “if that authority be good,” and “if true, Lord Glenelg and Sir George Arthur ought to be dismissed; but if false, it ought to be disproved.” Mark - “We publish it that it may get into the hands of Members of Parliament, so that they may make enquiry on the subject.” Now I appeal to you, if ever you heard a grosser or more cowardly libel? Passing over the intermediate pleas, which in consequence of the decision of his Honor I am precluded from commenting upon, I come to the libels of the 4th October, 1839, and the 24th January, 1840. I would first of all, gentlemen, reveal to your recollection the extraordinary definition which the Solicitor-General appeared to make in reference to the charge against the plaintiff, in that he was an assailant of female virtue. He put it to you as if it imputed to him some physical attack on virtue. Now no one would suppose that it ever could apply in that sense; the very context must have shown you the reverse - and I ask you, after taking this paper which I hold in my hand and reading it to yourselves - for whatever be the consequences to my client, I shall not willingly admit that the ears of this court should be polluted by such a slander - and I am fortified by authority to which I can refer your Honor, for I remember a case where a judge refused to hear indecent productions in open court -

His Honor Mr. Montagu interposed. - He said he had never seen or read the article in question before, headed Lady Franklin - but he saw nothing of that revolting character about it which should prevent its being read - he could see no harm in its being allowed to be read, for those who read such papers as these will only be the more induced to do so by the effort to conceal it, besides his Honor objected to such a proceeding as that on the part of the Attorney-General, as subversive of a standing principle of justice to which he was determined to adhere.

The Attorney-General continued. -I stand corrected by his Honor. Fortunately for the ends of justice I find under these pleas one which is admissible, and which, if you were seeking for one thing more infamous than another in the newspaper of Mr. Robertson, in all its gradations of baseness, you would possibly select and know how to estimate, as coming from one who has week by week, and even this very day, paraded the feelings of his family before you - you will appreciate the feelings of such a man when in the passage to which I refer there is a grossness of purpose and a degradation of mind expressed in the most baleful and blighting language, referring to an exalted lady, eminent no less for the intellectual endowments of her mind than the overflowing charity of her heart - at a time when engaged in advancing and unfolding the dawning energies of this sphere, aye, and I can conceive a miscreant like that who would dare to disparage one who, at the present moment, may be occupied in the pursuit of all that can interest not only the mind but the female heart - for you have heard of numerous emigrants having arrived at Launceston from Adelaide - that country, whose bubble blown prosperity has, I regret to say, become no longer a matter of doubt or suspicion - but amongst those emigrants I have not heard of the arrival of any females, and I can imagine, I say, that exalted lady, even when most anxious to relieve the forlorn and the destitute of her own sex, whose lot may have proved to be unpropitious upon those shores, and to provide for them a shelter and a home in this the land of your adoption, made the subject of that miscreant’s vile slanders. I can conceive such a woman, whose mind has been devoted to the good of this colony, grossly libelled by one who professes to have the feelings of a father and a husband about him - who coolly drags his children into Court before you - who would fain make a mart out of their sufferings, provided, like Iago, he could “put money in his purse.” (The Attorney-General threw into this part of his address an extraordinary degree of energy which startled the whole Court. The plaintiff endeavoured to conceal its effect upon himself by a sort of convulsive chuckle, but one could see the flesh quivering upon his jaws.) You, gentlemen, will disappoint him in his mercenary speculations upon your pity; you will know how to estimate the father and the husband who would wantonly wound the feelings of a woman who, gentlemen, if I know anything about her, would avoid nothing so much as the pestilential ordure of his approbation. If, then, he is that man which his productions prove him to be, and my client has depicted him, send him from the Court with such a verdict as shall properly mark your sense of his character, and free this colony for ever from the foul imputation that you sanction such a Press - let him give up his occupation, for he has told you that upon your verdict depends that occupation - let him not meddle with matters for which he has no commission, except the roving one of speculation which tempted him this day to make an experimental venture upon your pity. I have observed these men who, under the mask of public spirit, cover their own personal advantage, and who minister to the propagation of personal discontent, and rather than suffer their flame to want fuel, I have seen them fling into it the very cause they professed to love and to advocate. I have marked them certainly with patience, and I hope with charity, and I have observed that although they begin with calumniating and misrepresenting their avowed enemies, they invariably terminate in deceiving, betraying, and as far as the manufacture of their disposition can effect it - insulting their most disinterest benefactors. Nor is this, though at first singular, difficult to be accounted for; since such is the constitution of our moral being, that we cannot controul or dilate at our pleasure the pupil of that intellectual vision by which we distinguish right from wrong.  Once begin to darken this fine orb of universal justice, and it closes alike on the objects of our warmest affection and our most indifferent regard. It is the curse of such low ambition, that its deception is first practised on ourselves. When the incautious and unwary adventurer quits the scene for which his better nature and limited education fitted him - when he abandons the occupation, the respectable calling for which he was in every way qualified, to launch into the boisterous sea of political commotion, he soon wanders into the thick fogs of his own palpable delusion - he loses his reckoning - he miscalculates his longitude - the miserable victim of this strange insanity soon forgets the standard of his own real importance, and is no longer acquainted with his own proper dimensions. Whilst he is floundering in the lowest depths of political and literary bathos, he falsely conceives that he is soaring to the sublime in eloquence and patriotism - vainly imagines that it is reserved for him to alter and remodel our moral and social institutions, and to give his own tone to the society in which he lives. I can conceive such a misguided man so regarding, or I should rather say miscalculating, his own influence - but this is not a portrait of Mr. Gilbert Robertson’s figure. He, depend upon it, gentlemen, is not led astray by any misconception of his own character. He knows as much as any one of you his true value, and smiles inwardly at the simplicity of his learned advocate, who has, in the fertility of his fancy, represented his multitudinous perfections. Mr. Gilbert Robertson has so described himself; the Solicitor-General has taken up the wondrous tale, and has called him not only the ablest man in his vocation, but has borne willing testimony to his patriotism, his integrity, and his domestic virtues. Here you have an example of the pure and benevolent feelings which are supposed to govern Mr. Robertson’s nature, in reference to a lady to whom I have paid a willing although an imperfect tribute; and I put it to you as men of ordinary feelings, men of natural thoughts and affections, men of hearts which beat with true pulsation, whether such a man possesses any feeling at all - whether he has not debased the form of humanity - and if satisfied of that, I put it to your good sense if the defendant, in holding him up as the assailant of female virtue, and pointing him out to be the mark of scorn, does not rather deserve thanks than damages at your hands? There he sits with unblushing front and unmoved countenance, speculating upon monies numbered. He would have you believe he came into court with a character - do not undeceive him, gentlemen, but send him out with the same. It is stated in the alleged libel that he was the assaulter of old age. I shall have little difficulty in proving that when an aged and a respected man sought reparation from him for one of the foul slanders in which he deals, he was assaulted and cruelly beaten by the plaintiff. And with respect to Mr. Robertson’s complaining of being libelled at all, I could, if it were competent for me, show that up to the last week he has been heaping calumnies upon the defendant. I have a few observations in conclusion to make. Upon the plaintiff’s own showing, if he has been libelled at all, he has brought it upon himself; but if even that were not the case, I ask whether it will not be your bounden duty to show this day the sense you entertain of that vile portion of the press of which he is the representative? Will you suffer that such a man, having written a gross and wilful misstatement of facts, and enriched it with the coarsest abuse of the defendant, should then complain of the answer he receives, because, forsooth, he has been exhibited in his true colours? All that charges hypocrisy against Mr. Gilbert Robertson the defendant admits - he admits not that which is charged as sacrilegious hypocrisy, because he says the allusion was made in reference to the conjunction of sacred with profane things, in Mr. Robertson’s own paper, not to the fact of Mr. Robertson himself having taken the sacrament, but to an account of its administration side by side with what the defendant deemed to be a friendly greeting of guilt on its escape from justice. The whole of the other charges against the plaintiff my client has at once admitted - from the first to the last he has avowed the whole - he has never shrunk from this trial. First, then, you are to consider what compensation in damages a man like Mr. Gilbert Robertson is worthy of receiving, after having written the scandalous article in which he libelled the defendant and which called forth the reply that is now the subject of action; next, when you have the overpowering evidence of your own sense about you as to the character of Mr. Robertson’s writings, what damages, I ask you, can you give to such a man? Gentlemen, you will rather applaud the defendant that he has driven him from his own arena into this Court - you will rejoice that an opportunity has been afforded you of removing the moral imputation upon this colony that it tolerates such a Press. You will for ever deprive your enemies of such a fatal handle against your reputation, as you will also deprive that vile portion of the Press of all power to do harm, and your verdict will yield no less satisfaction to yourselves than to the whole community.

John Woodcock Graves examined. - Knew the late Dr. Ross; recollects in June, 1833, seeing him come to Mr. Robertson’s house; witness was reading a paper; there was a loud knocking at the door, which presently opened with violence; Mr. Robertson was in the interior room at breakfast; Dr. Ross opened the second and third doors violently, in which he was near knocking a child down. He looked very pale and exasperated, and witness did not know what about; saw his son standing with a thick stick; the Doctor cried out, “here Gilbert, I want you; stop that hellish engine of yours (the press was working at the time), and withdraw that diabolical article.” Mr. Robertson said he should not, as there was nothing in it he could not lay before his readers. Witness heard nothing more distinctly until Mr. Robertson said, “You beat me!” after which he saw him wrenching the stick from Dr. Ross, who thrust his hand into the mouth of Robertson, who got the stick in his hand and aimed a blow at his head, and on Dr. Ross, making a second attack Robertson struck another blow, which cut him on a part of his head; then both grappled and fell down. Two of Dr. Ross’s men separated them, on which he, Robertson, went into his own house and locked the door.

The several slanders of Mr. Gilbert Robertson admissible under the decision of his Honor, were put in.

The Solicitor-General replied. He said, at length it becomes my duty to address you, gentlemen of the jury, on the attempted justification to this libel, and to make some observations on what has fallen from the Attorney-General. You have the whole case before you, but before I proceed to remark upon the evidence, allow me to advert to the notes which I have made in reference to what has fallen from the Attorney-General. He had addressed a great many observations condemnatory of my language in the conducting this case, but I never make use of harsh observations, as all who hear me will bear me out, except I feel it my duty to do so, and that the occasion requires them. You have been asked if the low vocabulary of the English language has not been exhausted by me? If the subject demands and justifies the use of harsh terms, I am not to be blamed; but what occasion could have justified the Attorney-General this day, holding the station he does, in using the gross ter