Skip to Content

Decisions of the Nineteenth Century Tasmanian Superior Courts

Mason v. Lascelles [1836]

appeals - new trial - magistrate, allegation of cruelty against - legal profession, separation of

Supreme Court of Van Diemen's Land;

Pedder C.J. and Montagu J., 5 April 1836;

Source: Hobart Town Courier, 8 April 1836

            In Mason v. Lascelles, the Attorney General moved for a New Trial and explained that he appeared as plaintiff's counsel on this occasion in consequence of his having been consulted in the cause in Mr. Gellibrand's absence at Port Philip, and because Mr. Gellibrand now wished him to continue to act as counsel.

            The motion was made to continue to act on the ground that the words proved were not the words used in the plea, and that the verdict was contrary to evidence - that there was no evidence of a wicked mind intention.;

            The Attorney General enforced the fact of its being the verdict of 9 only of 12 juror, that after 6 hours deliberation, and the words used by the plaintiff and imputed to him as perjury, viz: "I could not have said so, because the capital charge was not before me," conveyed merely an agumentative [sic] denial and were uttered five months after the speaking of the words which he was said to have used in Greenwood's case, and that after that lapse of time it was but fair to suppose that the plaintiff really believed that he had not used the expression to Greenwood.;

            Mr. Justice Montagu. - Is the denial before the magistrate the only evidence that went to the jury on that point?

            The Attorney General. - Yes, I think I may say the only evidence.

            Mr Justice Montagu. - I think it very strange that a jury should come to such a conclusion upon such evidence.

            His Honor however afterwards said, that it was in his opinion perfectly within the province of the jury to come to a conclusion on the point according to their view of the evidence before them.;

            Rule granted upon the first point that the words proved were not the words used in the plea.;

            His Honor the Chief Justice. - Adverted to some observations which had met his eye in a newspaper shortly after the trial of this case, imputing to His Honor that he had stopped Mr. Lascelles the defendant in his defence in a particular point.

            Mr. LascellesMr. Gellibrand (who was then the plaintiff's counsel,) and the Solicitor General, (the counsel for the defendant Mr. Lascelles) all entirely agreed that His Honor had not done as the newspaper imputed to him he had, but quite the contrary. - In fact that His Honor had taken pains in the manner which he called to their memory, he had done to secure Mr. Lascelles strict justice throughout, and had in fact called the defendant's attention to the very point in which he was accused of having stopped him.

Source: True Colonist, 8 April 1836

On Tuesday the Attorney General moved for a Rule to shew cause why the verdict for the defendant should not be set aside, and a new trial granted on the following grounds:-;

            First. - That the words pleaded were not the words proved.

            Second. - That there was no evidence to justify the finding on the second special plea.

            The Court granted a first Rule upon the first ground, but over-ruled the second.;

            This day the Court gave judgment, making the rule absolute; it apdearing[sic], from, the notes of the Chief Justice, that the witness swore that Mr. Mason had said to Greenwood - "you shall receive 100 lashes; then I will hand you over to Captain Fortes, who will commit you for cutting and maiming, and I have no doubt you will be hanged," - whereas, Mr. Lascelles in plea, averred that Mr. Mason had said, you shall receive 100 lashed, and you shall afterwards be hanged."

            The Judges drew a nice critical distinction between the two expressions, but we perfectly concur with Mr. McDowall, that they were really and substantially the same. The charge against Mr. Mason in the first instance being for cruelty, in having sentence to corporal punishment, a man whose capital punishment, he, at the moment contemplated. We think Mr. Mason ought to have been quiet - even the great acknowledged talent, and assurance of his present Counsel, can avail him nothing in clearing his character. "Here's the smell of BLOOD still - all the perfumes of Arabia will not sweeten this little handOh! Oh! Oh!"

            All the new trials in the world will never alter the public conviction, that Mr. Mason did pass the horrid sentence on Greenwood, and that he told a bushel full of lies afterwards to clear himself when he became aware of the view which the Secretary of State took of his conduct. We would advise Mr. Mason to be off.;

Montagu J., 16 May 1836;

Source: True Colonist, 20 May 1836[1] 

MASON; versus LASCELLES - NEW TRIAL

Before Mr. Justice Montagu, and the following;

Special Jury:-;

Richard Armstrong, Esq., Foreman; John Bog's, Peter Roberts, Charles Arthur, James Ross, John Boy's, Francis Smith, John Hunt Butcher, Michael Steel, George White, John Walker, and Henry Thomson, Esquires, Jurors.;

            The Attorney General appeared for the plaintiff, and was answered by the defendant, in person, with whom however was Edward McDowall, Esq., the Solicitor General. The Jury having been sworn, the Attorney General rose, and in a very low, but distinct voice, spoke as follows:-;

            GENTLEMEN OF THE JURY,

            Never, during the whole period which I have been at the Bar, did I rise to address a Jury, with feelings of such painful and deep interest as on the present occasion. My long acquaintance with the plaintiff, and other circumstances, make me feel a degree of interest in this case superior to that excited on ordinary occasions. The result of to-day, whatever it may be, is of vital importance to the plaintiff, (for he in reality, Gentlemen, is on his trial here to-day), and involves all that is dear or, valuable in this world, to him, his wife, and infant child. And what [?] the painful interest on my mind is, the circumstance of Mr. Mason coming here under the additional disadvantage of unpopularity. He is unfortunately possessed of abrupt, apparently uncourteous, and unpleasant manners, and there are other circumstances particularly connected with this case which have tended to create a general prejudice against him. Mr. Lascelles, the defendant, on the other hand, has the advantage of being a gentleman remarkable for his affability and urbanity of manners, so that I may say, they do not meet on equal terms. This case has been the subject of great discussion out of doors, and I need not tell you, has been before tried here. On that occasion, the Jury, or rather the majority (for it was the verdict of a majority only) returned a verdict in favour of Mr. Lascelles, on the most material plea, (a verdict, however, which bore on the face of it the character of a mistake). I cannot request you to forget this circumstance, or what you may have heard or read elsewhere; but I conjure you to erase every previously formed opinion - every previously received impression from your minds to-day, let your minds, Gentlemen, be as a sheet of white paper, on which something has to be written, but which is, as yet unsullied by a single stroke. It is absolutely necessary that you should do this, for by the verdict which you shall give from that box, you are to decide whether Mr. Mason is to leave this Court with his character restored, or whether he is to be sent home to his wife and child, disgraded[sic], degraged[sic], irretrievably ruined. Gentlemen, you will, I am sure, pause to pronounce a verdict which shall do this - you will not hastily decide where the alternative is so serious - so truly appalling.;

            In opening this case to you, Gentlemen, I shall call your attention to the particular complaints on which you are to decide, and I shall next lay before you a plain narrative of facts, which will be disclosed in evidence. The defendant will then adduce evidence in support of his own case, to which I shall call witness in reply. I make this declaration of the course I intend to pursue, because I think it but fair to Mr. Lascelles to do so. He is an able, talented, and eloquent gentleman, fully competent to the task of defending himself, but (I say it without intending the least offence to Mr. Lascelles) he is nevertheless an unpractised man, and therefore ought to be apprised of the course which I shall adopt, in order that he may judge the most proper for his defence. I am not bound to make this declaration, but I do it in order that Mr. Lascelles may have every facility in making out his case; but, Gentlemen, I am sure of being able to shew you that it must fail.;

            The Learned Advocate then read the declaration, which stated in the usual jargon of special pleading, (now happily exploded in Van Diemen's Land) that Mr. Mason complained, that Mr. Lascelles, with intent to bring him into scandal and disrepute, and to cause it to be believed that he (Mr. M.) had been guilty of wilful and corrupt perjury, and to bring upon him the penalties of that crime, did on the 15th July, 1834, say to him, (Mr. M.) "You have been guilty of corrupt and wilful perjury." A second count charged Mr. Lascelles with saying of the plaintiff, on the 17th July, 1834, "He is, and I will prove him a wilful and corrupt perjurer." A third count charged the slander to be, "Mr. Mason committed wilful perjury and corrupt perjury." The fourth and last count charged the words to be "Mr. Mason committed wilful perjury in Greenwoods case." To this the defendant pleaded the general issue, "Not Guilty," and put in three special pleas of justification, to the effect, that on the 25th of August, the plaintiff, Mr. Mason, preferred a charge against Mr. Gilbert Robertson, for an alleged libel on the plaintiff, published in the Colonist newspaper of 26th May, on which occasion Mr. Mason asked, he being on his oath, whether he did not on the occasion of Greenwood's trial and sentence sat, "You (meaning Greenwood) shall receive 100 lashes, and be afterwards hanged," and that he (Mr. M) did then and there, on his oath, deny having used those words, by which denial, he (Mr. M) did wantonly, wilfully and corruptly commit perjury, &c." After some few technicalities (which we believe were only understood, if at all, by the lawyers), had been discussed, the Attorney General continued-

            Gentlemen, the only issue of the least importance which you have to try is whether Mr. Mason has or has not been guilty of wilful and corrupt perjury; and this is, indeed, an issue to him of vital importance. It is a death struggle! If life itself depended, it could not be more dear than the issue raise by the first plea. Did Mr. Mason, on the prosecution of Mr. Gilbert Robertson, commit wilful and corrupt perjury. [Here His Honor observed, that it could not, even if the words were proved, be perjury, as the Magistrates had no justification in case on libels. Some desultory conversation ensued, and the learned Gentlemen resumed.] Can you believe this? Do you believe that, Mr. Mason has been guilty of the foul, the horrible crime, of perjury? If you do not believe that, your verdict must pass for the plaintiff. (Mr. Lascelles having admitted, in order to save time and trouble, having spoken the words mentioned in the first count of the declaration.) You are not to try whether Mr. Lascelles was excusable or justifiable in suspecting or believing Mr. Mason had perjured himself - you are not to estimate the degree of culpability, the extent of error of which Mr. Lascelles has been guilty in using words which he admitted to have used - you are to try this simple fact:- Did Mr. Mason commit perjury on the occasion stated in the first plea? - and, if you do not find that, the defendant's case falls to the ground. Evidence will be adduced before you to-day, to prove that Mr. Mason did use the words on the trial and sentence of Greenwood, which he is stated to have denied on the examination of Robertson; but you will find that the words really used by Mr. Mason, according to the testimony of the witnesses who will be brought before you by the defendant, are not only dissimilar, but of totally and different import. Mr. Mason is stated to have denied say to Greenwood, "You shall receive 100 lashes, and afterwards he hanged;" had he said such words, he would have been assuming a power which he did not possess - in fact, he could not have used them, and, if even he did deny them, but he denies the denial, there is no doubt that he truly denied. But what will the defendant's witnesses prove? - they will not state to you that Mr. Mason used the words he is said to have denied - they will not tell you that he used even words to the same effect - they will tell you that Mr. Mason said to Greenwood, "I sentence you to receive 100 lashes - you will be committed for trial at the Supreme Court, and I have no doubt you will be hanged;" or "you will be had up, and I have no doubt," &c; or, "I sentence you to receive 100 lashes, and shall hand you over to Captain Forster on the capital charge, and make no doubt you will be hanged;" or, "I sentence you to receive 100 lashes, and shall commit you for trial for cutting the constable, and; if you are convicted, I have no doubt you will be hanged." Gentlemen, you will perceive that these words are of very different import to those charged by Mr. Lascelles as having been denied. And let me here impress upon your minds that you are not now trying a common contract question between one man and another to the issue of which any apparently immaterial difference in words is of no importance - you are trying a question where you are necessitated to exercise the powers of Omniscience to a certain degree - to dive into the hidden and secret recesses of the heart to seek into motives. Did he deny the exact words he used, that is what you have to determine, and if we have not deep, clear, convincing proofs - proofs which will not admit of doubt or misrepresentation, shall we condemn a man to disgrace and infamy. Which is "WORSE THAN DEATH" - blast to eternity his prospects - destroy past redemption, his name and fame, and those who bear his name, for ever? Good God! Gentlemen, can such a thing be contemplated without horror? - shall we do this, uncharitable as the act might be, not have Omniscience? Suppose - mind. I do not by any means admit - that Mr. Mason denied the words imputed to him, although aware that he did use the other words something like them - suppose, that when asked, "Did you say to Greenwood 'You shall receive 100 lashes, and be afterwards hanged?'" that he said "No," although it be proved that he said other words - who, not having Omniscience, shall decide that this unhappy man was guilty of a foul, a wicked and deliberate lie? Or that he would not have said "Yes," had the correct words been put to him? I say that the two sentences are in substance so essentially different, that it would be impossible to confound them, and I shall shew you [with great vehemence] before the defendant's chief witness, to whom the plaintiff is indebted for his present painful situation [looking pointedly at Mr. Gilbert Robertson,] that it is the black hearted deed of a demon to turn the meaning of one for the other. And shall you be asked to destroy a man by a force and unnatural construction when ordinary charity requires the strictest and most liberal meaning - shall you be asked to twist and torture the meaning of words to charge a man with perjury? I beseech you not to entertain for one moment an appeal so consistent with charity. But when I say charity, I disclaim - I repudiate the idea of an appeal to your feelings - I scorn to do that - I cannot condescend to do it. I use the word charity in its highest sense - in the sense in which it is used by the first of the Apostles - I speak of the charity which thinketh no evil - that noble, generous Christian charity, which is the essence of Justice, and without which Justice itself it but a name. I say charity which thinketh not evil, where evil is not proved - which will believe no evil of another without the utmost proofs - proofs sufficient to satisfy the most sceptical. It is told you to-day, that in a certain named occasion, Mr. Mason made use of certain words which are set forth, and that having used those words, he did afterwards, on his oath, deny having done so, in which denial Mr. Lascelles says that Mr. Mason has committed the foul and hateful crime of perjury. Now, Mr. Mason denies having denied the words. Mr. Gilbert Robertson will be produced before you to swear that he did deny them. Well, and what then? Suppose you give implicit faith to what Mt. Robertson tells you, that Mr. Mason did deny the words put to him? - what did he deny? He denied using words that he never did use, and therefore he truly denied; and if this be all he did right. But he denies the denial, and I have no doubt of being able to shew that Mr. Robertson is in error; but although under this impression, I do not wish you to believe Mr. Robertson is guilty of perjury - he may labor under a mistake, and conscientiously persist in that mistake - he may swear to that mistake and yet not be guilty of perjury. A charge of perjury can only be supported by the concurrent testimony of two witnesses at least, otherwise there is only one oath against another oath, and it would in that case be necessary to determine which was the superior in point of credibility. Now you see that Mr. Gilbert Robertson asserts on oath a certain thing - Mr. Mason denies that Mr. Robertson is correct. Here is a direct contradiction, although Mr. Mason cannot give his evidence on oath; but if you reverse the case, place Mr. Robertson at the bar, and Mr. Mason in the witness box, you will then have oath against oath. Are you then to believe Robertson because Mason cannot be here, when at the same time he is not only unsupported, but contradictory by the direct assertion of Mason? Why are you to favour the supposition that Mr. Mason's denial is false, and believe Mr. Robertson's assertion to be true? Is it because Mr. Robertson is enabled to give his assertion on oath and Mr. Mason is not? Gentlemen, I am sure you will repudiate the idea, monstrous as it is, and inconsistent with that Justice which should alone emanate from that box.

            The case before you may be divided into three branches. 1st, - Whether Mr. Mason used the words he is said to have denied? If he did not use them there was no perjury in the denial. 2nd, - Do you believe Mr. Robertson's testimony - his single unsupported contradicted testimony? You may disbelieve his evidence without believing him guilty of perjury. I cannot account for it except by the weakness of our nature, but it is a fact well know to all who are conversant with the practice of Courts of Justice, that in every case where there are two trials, with all interval of six months or upwards, there will be found discrepancies between the evidence given by each witness on the two occasions, and for this are you to brand those as perjuries? Will experience - will common sense - will Law - will Justice warrant such allege here, and believe that he speaks truly when he says Mr. Mason denied these words, and yet he may be mistaken, although he may have good reason to fancy he is correct. He may be thus guilty of untruth, but not of intentional falsehood - there is a vast difference between the two. Untruth simply implies something which is not true, and may be uttered without a false motive. Falsehood implies a wicked deliberate untruth with a guilty and corrupt knowledge and purpose. Mr Robertson therefore may state an untruth, but yet not a wilful falsehood, and there is every reason to believe that he is mistaken. The denial is said to have been publicly made at the police office, and consequently in the presence and bearing of many persons, but it is singular that no other person expect Mr. Robertson can recollect any thing of the kind. I shall produce to you five persons who were present, none of whom heard it although they paid much attention to the proceedings. Again this is no record of the words in the minutes of the proceedings, which is a strong presumptive proof that they were never used. In such cases as the present it is usual to resort to a test which is the writing taken at the time. This I will produce before you, and you will find no allusion whatever to any words of the kind having been denied by Mr. Mason. Thus the whole of the defendant's case depends upon the credence you may give to the evidence of Mr. Robertson which is opposed by the direct assertion of Mr. Mason - the non-recollection of the other persons who were present - and the absence of any record in the minutes taken at the time; and if you do not (which I do not think you can) give exclusive credit to Mr. Robertson, the avowed foe of Mr. Mason, the defendant's case must break down. 3rd, - If you can be brought to believe that Mr. Mason used given words, (which he did not use, and if he denied, he denied truly) if you decide this against him, where is the perjury? You have evidence of the untruth, but not of the perjury, and we only confound words if we say that every untruth is a falsehood, and every falsehood is perjury; because a man may forget a fact, and therefore deny it nay, conscientiously persist in the denial, and will you say that such an act would be wilful perjury? Good God! Are we only to extract the bad parts of our nature, only to penetrate the bad feelings of the heart, and imagine nothing which is good, we not having the powers of Omniscience? Shall we, as we must on these occasions assume the mantle of divinity, and color it black, when it is, and should remain white as the drive snow? Are we to find nothing but what is bad, to act as the enemy of man, and not suffer ourselves to be guided by one of those feelings which obtain in that happy abode to which I incerely [sic] hope Mr. Robertson, and all other mistaken persons may yet go? Yes, you will do even this if you assume, without sufficient grounds is that the man is perjured because he may have been mistaken. If Mr. Mason must be destroyed; let it not be by any act of this Court. Destroy him if you will, but do it not by a verdict from that box hence pure unsullied Justice should alone emanate, without the clearest proofs. Do not find him guilty of perjury, even though you should believe that he used the words attributed to him, and believe also that having forgot he afterwards denied them. This he might have done without moral or intentional offence. Do therefore that Justice to him (for he is as much on his trial for perjury before you this day, as if he were standing in that dock charged with the crime,) as you would wish to have meted out to you. For my own part, I have no doubt that Mr. Mason has denied using the words attributed to him, consequently, thinking he could not have used them, he may have denied them to all mankind; and where would he a stronger presumption that he spoke truly. Believing that he never used the words of the sort at all, if it can be shewn that he has denied them to fifty persons, will you say that on every one of those occasions he was guilty of a foul and deliberate lie? You cannot; and I hope that the other side may bring evidence of this fact, I cannot, for then his conduct would be free from all suspicion. I stand not her Mr. Mason's panegyrist, I know the stubbornness of his disposition; if he once believed that he was correct, no power on earth could convince him he was wrong.

            I shall now proceed to lay before you a detail of the circumstances which gave rise to the present case:-;

            On the 17th March, 1834, a man named Greenwood who had absconded, and been absent in the bush for six weeks, was seen on the Race Course, at New-town. A constable endeavoured to apprehend him, when he drew a knife and stabbed him severely in several places; another constable came up to his assistance, and was also stabbed by Greenwood, who was at last ultimately secured, I believe by Mr. Cleburne. It was on the occasion of this man Greenwood being examined at the Police-office, that Mr. Mason is represented to have said to him, "You shall receive 100 lashes, and be afterwards hanged." The man is now dead, and I should be sorry to speak ill even of him without occasion, but I cannot refrain from saying that he was a man of great and fearful malignancy of character. The crime of bushranging, which some years back desolated this Island, is one of those dreadful scourges, that it is the duty, no less than the interest of every one, and especially those who have Magisterial authority, to strain every nerve to prevent a recurrence of those outrages which so long devastated the face of the country, and were only put down at the expense of much labor - much money - and much loss of human life. Whence did these lawless bands originate? why, in the crime of which this man Greenwood was guilty. The bushrangers were for the most part absconded transports, men who had thrown off the authority of the Government, and absconded into the woods, there to lead a life of outrage, plunder, and bloodshed. The evils experienced in those times were of a nature not to be submitted to - property was insecure, and life almost valueless. It became a matter of the most vital importance to the interests of the whole Colony, that those crimes should be put down in the outset, without waiting for the horrors of the last awful punishment of the law to deter other persons from their commission. To strike at the root of the evil, and put a stop to the offence of absconding into the bush, it became necessary to attach to that offence a punishment more severe than might seem proportionate to the offence, which is one of such tearful moment and productive of awful consequences, that it becomes the duty of the Magistrate to be firm and severe, and not allow any false idea of lenity to lead them to overlook an offence so dreadful. Of this offence Greenwood had been guilty, and when an attempt was made to apprehend him he resisted the constables, and by his outrageous and sanguinary conduct in stabbing them, he fully evinced the malignancy of his disposition. God forbid, that in this Court vindictive feelings or excited anger should ever operate upon those appointed to administer justice, but I believe there are few who could have witnessed the scene on the Race Course (as Mr. Mason did) without sympathy and excitement. Let us not lose sight of this fact, that while some of us are Judges, we are always men, and liable to the common feelings and failings of our nature. However wrong it may have been in Mr. Mason to feel excited against this unhappy man, I do not pretend to say, but it was only natural having seen the work of his hands that he should feel so, I do not defend that feeling - I do not justify his threatening the man, at any time that would have been improper - at such a moment particularly so. But what passed in his mind when he said to the wretched culprit, "I sentence you to receive 100 lashes for absconding, (the only offence which was then before him) you will afterwards be committed for trial for cutting and wounding constables, and if you are convicted, I make no doubt you will be hanged." I repeat, what passed in the mind of Mr. Mason, when he uttered those words, is known only to the Almighty - to him "unto whom all hearts are open - and from whom no secrets are hid." The words might have been said with or without an excited feeling - they might have been intended as a warning. Do not understand that I justify or attempt to excuse their being used at all; as I said before, on any occasion they were improper - they indicated a want of feeling - a gross want of judgment - such words ought not to have been used at all, much less from that place, (alluding to the Magisterial Bench.) If you blame Mr. Mason for this, blame him to the utmost, and you cannot blame him more than I do in this respect, but do not think him guilty of perjury, any more than of murder, without the clearest proof. Would you condemn the worst man on earth without evidence? Because he has done this one thing wrong, is he never to have the opportunity of retrieving his good name? Is the last dreadful power which we possess the power to inflict to be exerted for this reason? But the sentence pronounced on Greenwood was not Mr. Mason's sentence alone; there were two Magistrates - Mr. Spode sat with Mr. Mason, and concurred in it. Why then is the one to be singled out and made to bear all the obloquy, while the other is entirely absolved from blame? It is true Mr. Mason pronounced the sentence, but Mr. Spode concurred in it, and I here declare, on my honor, regardless of the consequences, that had I sat there, I should have concurred in the sentence! It is a fact, that runaways dreading the awful corporal punishment attached to the offence of absconding frequently commit some other offence subjecting them to transportation for life, in order to avoid it! Greenwood was subsequently committed for the capital offence, tried, convicted, and ultimately executed; and every species of excitement, exaggeration, and painted horrors (for there were pictures painted and circulated of the sufferings of this man) have been used to the prejudice of Mr. Mason, who -

            His Honor. - I am really sorry, Mr Attorney General, to stop you in your address to the Jury, as I should regret depriving the plaintiff of the advantage of so much eloquence, but you are certainly going too far; I have no prejudice, and I am sure the Jury have none.;

            Attorney General. - I assure your Honor, that endeavours have been made to create a prejudice.;

            His Honor. - I have no prejudice, Mr. Attorney, and I am sure the Jury have none.;

            Attorney General. - I am only doing what I consider to be my duty to my client; and I submit that I am perfectly right in alluding to prejudices which might --;

            His Honor. - I have no prejudice, and I am sure the Jury have none; besides, these facts which you have been stating may be all unfounded, and you cannot be allowed to prove them, as they are not in the record.;

            Attorney General. - I beg your Honor's pardon, these facts are all contained in the defendant's pleas.;

            His Honor. - Oh, if they are to be proved, I did wrong to interrupt you, and if you have given me a defective one, I cannot help it.;

            Attorney General. - I submit, your Honor, that if the Jury consider that Mr. Mason has acted like a cold-blooded man, they will send him out of Court with small damages; therefore, I have a right to go into those details in order to remove such an impression from their minds; and even if it were travelling out of the record, it is a practice in which I am supported by the usage of counsel, and the example of Lord Erakine, Brougham and Plunket, and many others, who, if they thought it expedient, would travel into details which had apparently no possible connection with the case. On one occasion I recollect one of these noble barristers introduced into his address a long and eloquent eulogy upon the character of King William, [His Honor, apparently not feeling desirous for a specimen of Mr. Stephen's abilities in that line, bowed assent, and proceeded.] Although, Gentlemen, you may suppose it may be a gratification to me to address you at this length, I assure you that it is productive of considerable pain to me, the result of a great effort. I have this evening to attend the Legislative Council, and for the last several weeks have had sixteen hours work every day; so that I am not in a humour to make a longer speech than I consider is necessary for the interest of my client. If any prejudice is likely to be entertained against Mr. Mason, I demand it of you as an act of justice - as your duty, to ask yourselves this question, and be guided by the answer - "Is Mr. Thomas Mason responsible for the trial and execution of Greenwood?" I stand here, however [unworthy], the Chief Law Officer of the Crown, and it is not for me to condemn the Acts of the Government - the execution of that man may have been wrong; if so, Mr. Mason is not blameable. It may have been right, and Mr. Mason has no credit; and, whatever Mr. Mason may have said in passing the sentence the absconding, the only part of the affair where he had any jurisdiction, I have yet to learn how he caused the ulterior result, or is in the slightest degree answerable for it.;

            Some desultory conversation occurred here as to certain admissions, &c., which, however, amounted to nothing in the end except that Mr Lascelles admitted speaking the words charged in the first count. Mr. Stephen the called -;

            Captain Alexander Gardiner, who deposed that he knows the parties in this case; that some time between the 17th and 20th, of July last. Mr. Lascelles met him in the street fifty or 100 yards from the Police-office, when, speaking of Mr. Mason, Mr. Lascelles said, that "he was a wilful and corrupt perjurer, and he (Lascelles) would prove him to be so." On his cross-examination, he stated that on a subsequent occasion Mr. Lascelles reiterated the charge against Mr. Mason, and then said, "Doctor Ross told me, and he had it from Doctor Turnbull."

            Doctor Robert Officer examined. - Know the paries In the month of July last some time subsequently to the 17th, Mr. Lascelles, in a conversation which he had with me, said that Mr. Mason had been guilty of wilful and corrupt perjury; do not recollect the exact day, but it was a few days subsequent to the 17th.;

            Cross-examined by Solicitor General. - Mr. Lascelles attended at the Police-office on the 17th; this was about a week after, I am an intimate acquaintance of the plaintiff, and have frequently had conversations with him on the subject of this trial. If I remember right, soon after Mr. Mason came to New Norfolk, he spoke to me on the subject of Greenwood's trial, this was many months before the 17th of July; no particular words were mentioned. Mr. Mason said that the words attributed to him by Mr. Lascelles, in the newspaper he had never used. I have heard Mr. Mason say that he "might have used similar words, and probably did."

            Arthur Davis, Esq., examined. - Know the parties; never had any conversation with Mr. Lascelles respecting Mr, Mason, except at the Police-office on the 17th of July; Mr. Lascelles seemed to imply that Mr. Mason had charged him with falsehood, and in return said, "I will prove him guilty of perjury in Greenwood's case." To the best of my recollection, the words "wilful[sic] and corrupt" were not used. Mr. Lascelles was charged with an assault on Mr. Mason, and this was urged in the defence; never had any conversation with the plaintiff on the subject of this trial;

            This closed the case for the prosecution.;

            Mr. McDowall. - Gentlemen of the Jury, - In the opening address of the Attorney General, he professed to feel what I have no doubt he did feel - a more than ordinary degree of interest in the issue of the present trial, and I claim, with equal sincerity, to feel as much anxiety myself. On no occasion did I ever address a Jury with feelings more intensely excited. If your verdict pass against the plaintiff all those prospects which in such an admirable manner the Attorney General has described, must be to him dark and gloomy. His recent matrimonial alliance, which has just led to such results as are generally and fondly anticipated, adds peculiar interest to his present situation. At such a moment and under such circumstance, for him to be hurled from his station in society, and to become an outcast upon the world, is, indeed, a most painful reflection. The Attorney General has told you, that by finding a verdict for the defendant you will pronounce the plaintiff guilty of perjury, and, if guilty, unfit for the station which he holds in society, and of being actuated by the most unworthy feelings. I go much further than this admission; and I say, that if you find for the plaintiff, and do not give him large and exemplary damages, you send him out of Court no less disgraced. But I apprehend that your verdict (that is, your [?]) cannot be for the plaintiff, since I have no doubt that I shall be able to shew that at your hands the plaintiff deserves nothing. I shall produce before you a body of evidence resistible in its nature, and, if you give [?]ence to it. I tremble at the contemplation of its effects upon the plaintiff's case; and whatever therefore he has a small claim to consideration or no claim whatever, is a point perfectly immaterial. You have two questions to decide - 1st., whether, on the occasion on which the words were spoken by Mr. Lascelles, the conduct of the plaintiff  was not such as to mitigate their character, if entirely to justify their use; and 2nd., whether the plaintiff did not use the words attributed to him, and on a subsequent occasion deny them? Knowing, as I do, the extent of the Attorney General's abilities, and the "common sense" which characterises his every action, I could not help feeling greatly surprised that he should call upon you to exercise that "charity which thinketh no evil," and put forward as a topic to weigh with you, that although the plaintiff might have known that he used other similar words, he was guilty of no offence in denying those imputed to him. And no less was I surprised to hear the learn Gentlemen declare, that if the plaintiff did use the words, and afterwards deny them, he might have done so innocently, because he might have forgotten them. Gentlemen, were the words of a nature likely to be forgotten - were they so common place as to escape his recollection, at a time when you cannot but believe he had all, his faculties in exercise, and prepared the going before a Magistrate to complain of a libel upon him, when these words were the chief point of the libel? And if he did not use the exact words attributed to him, but other similar ones, is it not what you would have expected from a gentleman under such circumstances, that he would have stated the words he did use? "I did not sat so and so; but I said so and so." Is not this the course you would have expected from a man whose motives were as pure as pure as Mr. Mason's are said to be by the Attorney General to be so little liable to imputation. I here take the opportunity of entering my complaint against the course which the Attorney General has thought proper to adopt in opening this case; I do complain - I have a just right to complain of that course. It was only [?] minutes before I rose to address you that I had the least idea of doing so up to that time I believe that Mr. Lascelles would have defended himself, as he could have done successfully, but for the dexterity of the pleader on the other side, whose management, in this case, notwithstanding his liberal professions in the outset, I never saw exceeded. The defendant, in his pleas, tells the plaintiff the occasion on which the perjury was committed; yet the Learned Attorney General stops short in his case and reserves himself for the reply which he has to make to the defendant's case - a singular mode of conducting a gentlemen's case who comes into this Court to justify his character. This cause, as you know, has been tried before - on the form occasion, witnesses were called to prove that the pleas were not sustained, but now the Attorney General, by a species of management peculiarly his own, thinks proper to adopt a different course, for which, I confess, I can see no pretext except a desire to embarrass the defendant, and perplex the case. Having done so, we must endeavour to make the best of it, and I shall first prove to you that when Mr. Lascelles spoke the words which he has justified, he was in a great measure compelled to do so. He had received that from the plaintiff which, from the imperfect manners of Mr. Mason, as the Attorney General has portrayed them to you, he was very likely to receive - a great affront and a deep insult - Mr. Lascelles, you have been already told, is a gentleman remarkable for his courtesy and gentleness of manners, and with a candour for which I was not quite proficient. You have been also told, that the character of the plaintiff distinguished by peculiarly unpleasant manners.

             Attorney General (pettishly) I did no such thing; I am misquoted - grossly misquoted.;

            Mr. McDowall. - Well, then, I will take it the manners of the plaintiff are the reverse of those of Mr. Lascelles, who, receiving the gross insult of which I have spoken, thought himself entitled to require an explanation, when Mr. Mason replied that "he could not see Mr. Lascelles on any subject, except in his own office." Annoyed at this, the defendant stated what is contained in the first count, and [???] of the dexterity played off on the other, he admitted that he used those words, knowing they could not prove them. Now, if this had been wholly unfounded, which I shall prove to your entire satisfaction it is not, is a single deviation from the usual courtesy, in the course of a long life, to be deemed a malicious slander, when uttered too under circumstances of such excitement. The Attorney General has entertained you with a most logical discussion upon the meaning of the words denied by Mr. Mason, and those used by him on the occasion of sentencing Greenwood. He is stated to have then said, "You shall receive 100 lashes, and be afterwards hanged," and you will hear from all the witnesses, (I have no doubt the Attorney General has accurately quoted them) that he did say "You shall receive 100 lashes, and you will be afterwards hanged." This is what he must have said, because his power terminated with the infliction of the lashes; and yet you are told that the words proved are essentially and substantially different from those denied by Mr. Mason. Why, common sense repudiates such as attempt to impose upon you. If I prove the words of Mr. Lascelles, and afterwards that Mr. Mason denied them, I am entitled to your verdict. All men are not lawyers, and therefore cannot comprehend that special pleading, which, like the new logic of the Attorney General, serves only to bewilder common sense. I shall prove those words by Mr. McLachlan, Mr. H[i]ddleston, and Harris, the clerk, and if I do that what damages will you give even if this distinction without a difference should induce you to find a verdict for the plaintiff. My learned friend, after a most glowing description of the evils of bushranging, tells you that Mr. Mason is not responsible for the execution of Greenwood. Why he is not charged with it. He is stated to have sentenced a man to be flogged with 100 lashes, and told him at the time that he would afterwards be hanged. You have heard the opinion of the learned counsel on this expression, and I must do him the justice to say that I believe it is the general opinion that such language, at such a time, was unseemly and indicated a want of feeling, and a want of judgment. It is important in the highest degree that the public feeling should go with the administration of justice, but can the public feeling approve such language being used from the judgment seat, before which unhappy man Greenwood was brought, charged with what? - absconding. But had he not committed a capital offence? - was he not charged on the oath of the wounded man, who must have presented an awful spectacle; - did not Mr. Mason see the transaction in all its horrors on the race course? - was it right, was it meet, was it becoming, that the sentence pronounced by Mr. Mason should have been passed at all? The Attorney General has declared on his honor, that had he been present, he should, for one, have concurred in the sentence. Now, I declare upon my honor, that had I been present, I would have been torn in pieces first! Was that a fit preparation for death! - was it a becoming "weeks preparation" for eternity. The man deserved death, but why send him to meet it with lacerated feelings, and lacerated flesh? If you find that the plaintiff did pass this cruel sentence, that it was carried into effect, and that he accompanied it by the heartless language attributed to him, I call upon you to give the smallest coin of the realm, as ample recompence for whatever injury Mr. Mason's character may have sustained. If this dreadful deed was perpetrated, and the word substantially, used, what can we think of the mind - the feelings - the morals - the charity - the character - the heart of the plaintiff? Did he use the words? I think I shall be able to prove that he did, in substance at least. Did he deny those words on oath? I think I shall be able to prove that he did. I am fully sensible of the solemnity of an oath, connecting as it does our civil with our religious of piety. But would any gentleman assert seriously that which he would hesitate to swear to? The defendant has pleaded that the words were spoken and that they were denied on oath; but if they were not denied on oath, but on his word, where is the difference in point or moral guilt? The Attorney General's mental vision is in general so very [?] that I wonder he does not see the dilemma in which he places his client, when he speaks of the words being by possibility forgotten. Of what materials must the heart of a man be composed who thought those dreadful words "such holiday and lady terms," that the sentence could escape recollection? It seems, however, that they are utterly clean gone from the memory of Mr. Mason - that a trace of them does not exist. But look at the sentence. Was it not the duty of Mr. Mason, when the man Greenwood was brought before him, to have said, "you charge this man with absconding? - why, has he not committed a capital offence? - I cannot hear the minor charge until the capital is deposed of." But the Attorney General on this point, has favored you with an historical account of the bushrangers, and a most interesting sketch it was, as every other is in the hands of the Attorney General; but instead he had presented you with a classical account of the first [?], or as distance is said to confer a species of enchantment - had he gone father back still, and recalled to your memories the achievements of "the pious Edeas," his flight from his own, and his adoption of another country - his second marriage - the fate of his opponent Turnus - the formation of Longu Albe, or any other event which some call history, and others more sceptical deem fable, but which, be they authentic or imaginary, are just as opposite, and have exactly as much to do with the matter in hand to-day at the learned and facetious [?] with which the Attorney General has entertained you. Mr. McDowall concluded, by asserting his anxiety once more to place before the Jury the true issue which they hail to try, which was not whether with the exactness of verbal criticism, the words pleaded could be proved, but whether they were not satisfied they had in substance been [used] by the plaintiff, is coldness and deliberation; and whether afterwards he had not denied their use, on his word, as a gentleman, and on his oath as an accuser. If to that conclusion they came, their sense of duty to the public and themselves would, however painful that [re]sult might prove to others, compel them by their verdict to declare that the smallest compensation was more than proportionate to any injury which the plaintiff's character could sustain from the terms applied to him by the defendant.

            Attorney General. - I never said that I knew, but that it was known.

            Mr McDowall. - The distinction is a nice one and worthy of the Attorney General. Gentlemen, the conduct of the plaintiff has been such as to disentitle him to damages, and although no man can more deeply deplore the consequences to Mr. Mason than I do, yet it is a standing principle in law, that when a man comes into Court to ask for reparation of a wounded character, he must come with clean hands, and failing in this, he fails entirely.;

            Charles McLachlan, Esq., examined. - Was present at the Police-office on the 18th of March, 1834; saw Mr. Mason there; there was a person at the Bar, who I was afterwards told bore the name of Greenwood. Upon my going into the Office, Mr. Mason was in the act of addressing this person; I heard him say "You will be committed for trial, and I doubt not but that you will be hanged." I left the Office almost immediately after; Mr. Mason was in the act of speaking as I went in.;

            Thomas Giblin examined. - Was at the Police-office on the 18th of March, 1834; saw Mr. Mason, the Assistant Police Magistrate, and Mr. Spode; saw a man who I understood was Greenwood; I heard Mr. Mason pass the sentence in these words - "I shall sentence you to receive 100 lashes, I shall then hand you over to Captain Forster on the capital charge, and I have no doubt you will be hanged."

            William George Harris examined. - Was clerk in the Police-office in March, 1834; recollect a man named Greenwood being tried for absconding I heard Mr. Mason pass sentence; he said, "You shall receive 100 lashes, I will afterwards commit you for trial on the charges of cutting and maiming the constables, and if you are convicted, I have no doubt you will be hanged." I think Thomas Smith was one of the constables; there was another; Smith was not wounded; one of them was; the wounded man was examined.;

            Cross-examined. - There was another Magistrate, Mr. Spode; the sentence was the joint one of Messrs Mason and Spode; Mr. Mason pronounced it. Thomas Smith was one witness; cannot recollect the other without referring to the book. [The Attorney General desired this witness to refer to the book, and he would recall him.];

            T. W. Rowlands, Esq., examined. - Was on the Race-course at New Town on the 17th of March, 1834; saw the plaintiff there; saw a man named Terry cut by a man named Greenwood, and I afterwards took Mr. Mason to shew him what a state the man was in, and explained who had done it and how it was done.;

            Gilbert Robertson examined. - I recollect being charged at the Police-office, by the plaintiff, with publishing a libel upon him; Captain Forster was the presiding Magistrate. [Paper handed to witness.] This is the article I was charged with being the author; the plaintiff was a witness; it was on his information, I was summoned to attend. I put some questions to him, but in my belief they were not taken down. I questioned him as to two passages in that libel, one respecting Mrs. Turnley, the other respecting Greenwood. I cannot recollect the precise words of my question respecting Greenwood, but the substance was, whether the statement in that article was true or false; it was out of that passage that the question arose. I asked him whether it was true or false that in passing sentence upon Greenwood to receive 100 lashes, he had told he would be subsequently tried for the capital offence and hanged. Mr Mason said, "I did not, I could not; for how could I, when the capital charge was not before me?" Captain Forster said, that the truth or falsehood had nothing to do with the case, all he had to enquire was, whether I was the author of the article in question, and therefore my question, and Mr. Mason's answer were not taken down; the clerk was about to take it down, when Captain Forster stopped him.;

            Cross-examined. - There has been for some time past a strong feeling between Mr. Mason and myself. I had a very bad opinion of him; but no wish to do him injury. I have imputed to him that it was to him I owed an unceasing persecution for three years. I think this article in the Horn Boy, of 29th August, 1834, is from my pen. Mr. Mason is the Assistant Police Magistrate referred to - it refers to me as the Editor; I did not charge Mr. Mason with perjury, because I was afraid of the Attorney General. I did not publish every thing bad that I knew or heard of against Mr. Mason, or any other person.

            The cross-examination of this witness, which was carried to considerable length, afforded nothing bearing upon the case, and was characterised by the peculiar feeling displayed in the Attorney General's questions, and the candour of the witness's replies. There were two or three questions relating to certain newspaper articles; which Mr. Robertson declined answering, unless the Attorney General would pledge his word that no criminal informations should be grounded thereon, to which Mr. Stephen replied, "that Mr. Stephen would pledge himself as required, but that the Attorney General could not give any pledge of the kind."

            Dr. Henry Thomas. - I was at the Police-office when Mr. Gilbert Robertson was charges with a libel in Greenwood's case; Captain Forster presided. Recollect Mr. Robertson asking Mr. Mason if he did or did not, in passing sentence upon Greenwood, "use those words," referring to the article headed "the wretched Greenwood." Mr. Robertson read the words from the paper - they were to the effect that Mr. Mason sentenced Greenwood to 100 lashes, and told him he would afterwards by hanged (looking at the paper.) I can scarcely say I am confident those are the words. Mr. Robertson said, "Did you, or did you not sentence Greenwood to receive 100 lashes, and tell his, that he would be then tried and hanged?" The answer was "I did not - how could I when the capital charge was not before me?" I do not think those words were taken down - there were more than one or two questions and answers not taken down, which I thought were material to Mr. Robertson's case.;

            Cross-examined - I am not aware that my memory is improved since the last trial, but I recollect the question better now than I did then. When I left the Police-office, I was impressed with the idea that Mr. Robertson had no justice done him, but without thinking I should ever be called upon as a witness. On the former trial, I was taken by surprise, and had in the period elapsed almost forgotten the circumstances, but on going out of the Court, I reflected on the subject, and then the facts came fresh upon my memory. I have not heard the evidence of Gilbert Robertson; I believe on the former trial, I swore that I did not recollect the substance of any question. My firm impression is, that I then said I believed Mr. Mason denied the truth of the whole article charged as libellous. I think these words (in the paper) served Mr. Robertson as a text when he put the question.;

            [This witness, like the preceding, was severely, and we think unfairly handled by the Attorney General, but he gave his testimony in a clear and candid manner; and in referedce [sic] to one remark of the learned counsel, said, "Never mind my feelings, do not let them interfere with the due course of justice.];

            William Champ, Esq. Examined. - Knew Mr. Mason shortly after the enquiry at the Police-office, New Norfolk, in which Mr Lascelles was concerned. I met Mr. Mason on the township; he stopped me, and spoke to me in reference to an affidavit which he had made at Hobart Town. Mr Mason denied having said to Greenwood the words imputed to him in the Colonistist Newspaper, by which I understood him to deny the words said to have been used by him in sentencing Greenwood.;

            This closed the case for the defence, and the court rose for a few minutes to enable the Jury to take some refreshment. On the return of the Jury, the Attorney General, in reply, called -;

            Captain Matthew Forster examined. - I am Chief Police Magistrate; I recollect taking an information from Mr. Mason in the case of libel against Mr Lascelles in August 1834; this is the information, and the libel to which it refers; there were several depositions taken for the prosecutions, and some for the defence; Mr. Giblin and Mr. Hiddleston were called by Mr. Lascelles, to prove the truth of the charge; I remember another prosecution being instituted by Mr. Mason against Mr. Robertson; the  information was laid on the 25th or 26th, and heard on the 30th August 1834; this is Mr. Mason's information on the second case; Mr. Robertson attended; the information was read and sworn to in his presence; he objected to me sitting to hear the case, and much desultory conversation ensued therefore; I however did sit, and went on with the case; I did not see any questions on these papers as put by Mr. Robertson to Mr. Mason ; my impression, which amounts to a belief in my own mind, that he did not put any questions, but I will not swear to my belief, although in my own mind I have no doubt, still I cannot swear that such questions as I have heard mentioned in Court to-day were not put; I have a reason for thinking they were not on the former occasion the merits of the case were fully gone into, and on the latter the mere fact of authorship was the only consideration? I therefore think I must have recollected it if there had been such a discussion; Mr. Boyd took the depositions; I do not recollect any other persons who was present; I have known Mr. Mason upwards of four years and a half; I have been four years in office with him; his character is that of strict integrity and honor.;

            Cross-examined. - When Mr. Lascelles was brought before me for the libel, the merits of the case were gone into, and I believe Mr. Mason did not then deny having used the expressions imputed to him; it is my impression that the question was not put by Mr. Lascelles; it might have been, but if it was is [sic] was not answered by Mr. Mason - of that I am confident; I recollect this deposition of Mr. Giblins' I cannot say why he was called; I had my own reasons for allowing the mode of defence resorted to; I wished to make myself master of all the circumstances of the case; I knew nothing of the motives of the defendant; Thomas; I have already said that I have strong impressions that the question was not put.

            Ambrose Boyd examined. - I was the clerk in the Police Office employed in taking the depositions in a case of libel, preferred by Mr. Mason against; on Mr. Robertson appearing to the summons, there were several persons present in the office besides the parties to the case; I cannot recollect whether any questions were put by Mr. Robertson to Mr. Mason; my impression is that there were none - none were taken down; I do not believe that I should have forgotten it if any such question had been put and denied; I have no recollection that anything of that kind passed.;

            Charles Rocher examined. - In August 1834 I was clerk of the Supreme Court; I was present at the Police office on the last occasion spoken of; Mr Robertson was present; Mr. Mason was sworn; I do not recollect any questions being put by Mr. Robertson to Mr. Mason; if Mr. Robertson had asked Mr. Mason whether he used the words imputed to him, and Mr. Mason had replied "How could I when the charge was not before me." I think I should not have forgotten it; I took particular notice of what passed; I have no doubt that this guestion [sic] did not pass.;

            Cross-examined. - Because I do not recollect I will not swear that no such question was put or answered, but I have a full recollection of the other evidence though none of Mr. Mason's.;

            John Fletcher examined. - Am District Constable. I was present on the occasion of Mr. Mason's prosecution of Robertson for libel; I do not recollect the precise date, nor do I recollect the whole of what passed; I paid particular attention of it, which was that Mr. Robertson made no objections to Captain Forster sitting to try the case; the case, however, went on, and the complaint was read; this is all I recollect; Mr. Mason left the Office in a minute or two after; I do not think Mr. Robertson asked Mr. Mason any questions, from an observation made by Mr. Mason afterwards in his private room, I am impressed with a belief that no such think took place.;

            Cross-examined. - I never take notes of what passes in the Office; I did not stay in the Office all the time, but was in and out. The deposition of Mr. Mason was handed to Mr. Boyd, who read it, but I do not think any questions were asked by Mr. Robertson.;

            Philip Stanley Tomlins, examined. - Was present at the Police-office, on the last occasion, which has been mentioned here to-day. I paid very particular attention to what passed; I took notes of the proceedings - I referred to those notes the following day, but never since. I have a distinct recollection, without referring to notes - indeed, I have no notes to refer to. Mr. Robertson objected to Captain Forest's proceeding with the case, on the ground that he was his personal enemy; but the objection was partially overruled (a laugh.) Mr. Mason's information was read and sworn to in the prosence [sic] of Mr. Robertson, and it is my firm conviction that he did not ask any questions. Immediately after the deposition had been read, the discussion of Mr. Robertson's objection was renewed, in the midst of which Mr. Mason packed up his papers, and hastily quitted the office. I no not know that a report of the proceedings was published in the Colonial Times of the 9th September, (paper handed.) This I believe to state truly what passed; I have read the report before - a few days ago. I do not know whether there was any reporter for the Colonial Times present.

            Cross-examined. - I was not examined as a witness on the former trial; I hardly remember whether the proceedings had terminated when I left the Police Office; I heard no questions put by Mr. Robertson to Mr. Mason; Mr. Robertson has been at the Police Office an immense number of times. [Here the following question was put by the Solicitor General.] "Did you ever know Mr. Robertson to omit asking a question if had an opportunity?" [Not answered by direction of the Court.];

            The Rev. W. Bedford, George Cartwriget, John Montagu, Joseph Hone, John Robertson, William Gunn, (this witness, on his cross-examination, deposed to the punishment of Greenwood under Mr. Mason's warrant, the day following the sentence, and to his being subsequently executed in about a month afterward) Edward Bedford, Charles Swanston, William Sorell, and Charles McLachlan, Esquires, were then severally called to character, and all concurred in stating that they would believe Mr. Mason on his word or oath. When Mr. McLachlan was called it was found that he had left the Court, when Mr. Robertson, who sat in the reporter's box, whispered to his neighbour, "Charlie has bolted, he does not like it." This remark was heard by the Attorney General, who, in a great passion, complained to the Court of Mr. Robertson interfering. After some observations, His Honor desired Mr. Robertson to leave the reporter's box which he did.;

            The Solicitor General here rose and said that as Mr. Stephen, in his evidence in reply had thought proper to go into new matter, by examining Captain Forster as to the proceedings on the prosecution of Mr. Lascelles for a libel, and had also put in the deposition on that occasion, he was entitled to call witnesses on that evidence, and should there hope the Court would allow him to put Mr. Horne into the box. Much discussion followed, which ended in His Honor deciding in favour of the Solicitor General's right to adduce evidence.;

            Thomas Horne, Esq. - I recollect being, in the latter end of May, 1834, present at the Police Office at an examination on a charge of libel brought by Mr. Mason against Mr. Lascelles; I was counsel for defendant. I beg to state here that I have been taken completely by surprise in being called upon to give evidence, as I had not the slightest idea that I should be required to do so, until my name was called. I recollect MR. Hiddleston and Mr. Giblin being examined, Mr. Mason was also examined; to the best of my belief, the only question was whether he had said to Greenwood after having sentenced his to receive 100 lashes, that he would afterwards be hanged; from the best recollection I have, I think he denied it on the ground that the charge was not before him; after Mr. Mason left the room, Mr. Spode expressed himself as being very much struck with the evidence of Mr. Giblin and Mr. Hiddlestone, and from a remark he made I am the more confident as to the accuracy of my recollection; Mr. Mason denied having used the words, and assigned a reason; I attended as counsel for Mr. Lascelles, and from the evidence adduced considered there was an end to it; Giblin and Hiddlestone were called to prove that Mr. Mason had used the words which he denied, and which had been attributed to him.

            Cross-examined. - I have a great doubt whether this is the libel (Colonist, 27th May), which was complained of. Yes, it is - I see now; Mrs. Turnley's name is mentioned, and I know she was examined. I recollect this evidence, (paper handed) but afterwards the question was asked of Mr. Mason. The libel was attributing to Mr. Mason certain words as having been spoken by him to Greenwood, and this evidence (Giblin and Hiddlestone) was given to prove the truth. I do not know why the question is not put down; I thought it was taken down; I do not see to every thing being taken down when I attend the Police-office. When I ask questions, I presume that the clerk puts them down; I do not recollect having any conversation with you, (Attorney General) on this subject, as to an impression entertained by you. I have said to many persons that I would not swear positively; and had I not seen these depositions, which serve to refresh my memory, I could not have stated what I have. It is very possible that I might have said to the Attorney General, that my impression was so weak that I could not swear one way or the other; but since I have been in Court now I have seen two depositions, which have refreshed my memory. Mr. Spode's remark did not apply to his own denialof the words; he was much surprised at the evidence, and said that he did not recollect the words being used. His observation referred to his own non-recollection of the words; I recollect Mr. Spode being cross-examined, and this paper contains the substance of what passed.

            The Attorney General here put in evidence the following papers, viz:-;

            Deposition of Messrs. Thomas Giblin, John Hiddleston, and Josiah Spode, together with the two informations exhibited at the Police-office by Mr. Mason, and the evidence taken at the same time in each case - the one against Mr. Lascelles, the other against Mr. Robertson; and also several newspapers containing the libel; police reports, &c. &c. &c., after which the learned gentleman, with the expression of very powerful feelings, tendered his own evidence, on oath as follows:-;

            The Attorney General. - At the time of the last trial of this cause, I had a conversation with Mr. Horne, who, in reply to an observation of mine to him said, "Why, Stephen, I have an impression that he did use the words, but it is so very slight, I could not swear one way or the other."

            This closed the evidence on both sides, after which the Solicitor General rose and addressed the Jury to the following effect:-;

            Gentlemen of the Jury. - At this stage of the proceedings, it becomes my duty to address you somewhat at large, in reference to the evidence. The questions which you have to decide are these:- Did Mr. Mason use the words literally or substantially in addressing the man Greenwood; and did he afterwards, on his oath deny it. If satisfied of this, as satisfied you must be, even by the plaintiff's own shewing, his case must fall to the ground. Mr. Mason may not have committed that perjury which the pleas attribute to him. But the body of evidence produced by the plaintiff is so conclusive - so convincing - so complete an illustration of one case, that if it stood alone, without the corroboration of the unquestionable testimony which I have produced before you, it would be sufficiently proved that the conduct and motives of the plaintiff were such as to entitle him to damages, at your hands, even thought he be falsely charged. What can we think of the man, if in the course of a libel his dearest point is attacked - his character for humanity is attacked, which it clearly was by attributing to him such atrocious remark addressed to an unhappy fellow creature, who he knew must shortly die - I repeat, what shall we think of the man, who under such circumstances complains - not that the libel attributes to him that he used those words - words that he did not then deny - not that his humanity impugned, but complains that he has been charged with discourtesy to a lady. Here in Mr. Mason's esfimation, [sic] was the "head and front of the offending." He passes over the dreadful remark which would stamp him with cruelty of his reputation that his character for gallantry should not be questioned, he prosecutes because he is charged with rudeness to a lady! What shew of Justice then has he for demanding reparation at your hands? But the way in which, that demand has been attempted to be justified is exceedingly infelicitious [sic]. Why was not Harris called back, as the Attorney General said was his intension: The management which has been exercised in other respects, gives me reason to assume that this also was management, I have a right to assume it, and I have a right to call this circumstance to your recollection again. Has he not attempted to cast obloquy on another gentleman - to bring his disgrace upon the gentlemen who had the misfortune to sit on the bench with him? [?] contrast the contrast the conduct of Mr. Spode with that of Mr. Mason, Mr. Spode, deeply engaged in other matters, was called from his other duties to sit on a charge of absconding - he knew not that a capital offence had been committed, and did not see the wounded man; Mr. Mason knew of the whole transaction, and if not actually a witness, was present immediately after - he knew of the capital charge, and yet tells you that he did not know what power he possessed of pardoning the offender of the minor offence, because he had been guilty of a greater. Much has been said about Mr. Spode concurring in the sentence, but had Mr. Spode known the circumstances as Mr. Mason knew them, he would have contrived some means of sending the man to trial for the capital offence - at all events he would not have had the malignity or mind to address such a speech to the unhappy man before him. The brutality of that speech must disentitle the plaintiff to damages for his injured character. His character! - What can injure his character more than he has himself done by the evidence he has brought forward to-day? He has not disproved one single material point - his case is destroyed by his own witnesses, and whether you give him a farthing damages, or give a verdict for the defendant, the result must be the same to the plaintiff. In either case he is ruined, irretrievably ruined. And I must claim sincerely, when I declare that I regret the case has been so clearly proved against him.;

            The Attorney General was most anxious to do his duty without giving offence, but he must object to the course the learned Advocate was pursuing - he was certainly entitled to address the Jury on the evidence adduced in reply, but here he was going into an animated address upon the whole case. The privilege was never given to him for such a purpose.;

            The Solicitor General insisted that he was right in pursing the course he adopted. The Attorney General had adduced evidence in reply, upon which the whole case rested, and as he had chosen to do so instead of bringing it forward in the first instance, the defendant's counsel had a right to go into it.;

            His Honor thought the Solicitor General was entitled, as the evidence given in reply threw open the whole case to him, and the Attorney General had still the right of following him if he chose.;

            The Attorney General. - Certainly, your Honor, the Attorney General has the privilege of following after me, and the plaintiff has nothing to fear from any thing I can say when he is to follow. Gentlemen, I conceive the case to be completely established on the part of the defendant, and if this be not a justification, I know not to what extent a justification can go. If you are of opinion that the words pleaded are substantially correct, you have a right to find as they please. If you were trying a question of moral evidence, I should be entitled to your verdict - the plaintiff is in this position on the moral question. In point of law, you cannot convict him of perjury, but one farthing damaged will be amply sufficient, I am most anxious that nothing of a prejudiced feeling should exist; I never referred to Mr. Mason's unpopularity, or to any circumstance unconnected with him - my wish is, that your minds should remain as blank as a sheet of paper, in order that you may give, what I am sure you will give, a conscientious verdict. I shall shew you, by a review of the evidence, that he is entitled to very small damages; and then you have his own estimate of his own character - he shews you his tender points by his prosecution of the libel - he cares not what may be thought of his humanity, so that his gallantry suffer not. After such an estimate of his own character, if you think he deserves damages, give them. I believe that His Honor will tell you that the defendant has made out no justification in law - your verdict must pass against Mr. Lascelles, but if the question were untrammelled by law, I am sure your verdict would be for the defendant, for, morally speaking, no justification can ever be established if this is not. The evidence which I have produced is clear, positive and decided - that which my learned friend has offered in reply to that evidence, is loose, uncertain, and confused. Not one of his witnesses affirmed that Mr. Mason did not deny the words - no, they do not go so far as that; but all from Captain Forster down to Chief District Constable Fletcher, "have no recollection" of the occurrence, which three other persons positively swear to have taken place a remarkable instance of defective memory. What security would there be then of life, of property, of character, if Juries are to receive evidence in opposition to mime. But, Gentlemen let us look at the probabilities of the case. Mr. Robertson and Mr. Lascelles were charged with the same identical offence, and if Mr. Horne's evidence is to be believed, and he was no volunteer evidence, but, as he has told you, was taken quite by surprise, you will at once see through the whole case. The moment the Attorney General put in the depositions in Mr. Lascelles's case, as if by interference, a miraculous production of Mr. Horne, to supply the only little wanting in the chain of evidence for the defendant. For what purpose those depositions were put in, I cannot conceive, for from that moment I was convinced that the plaintiff's case was gone from under his feet. Mr. Horne was counsel in the case - he remembers the question being put and the denial, and although at first uncertain, from the refreshment his memory has received in Court, the remark of Mr. Spode and other things, he now entertains no doubt. If Mr. Mason had intended to deny the words, would he not have done so, instead of denying the affair of Mrs. Turnley's? His motives can only be known by the searcher of all hearts; but where was the necessity of calling Giblin and Hiddlestone, had not Mr. Mason denied the words? Is it probable they were called for any purpose than that of contradicting what had been said before? In as far as probabilities are concerned, the case is complete as regards the first occasion, that he did deny the words when Mr. Lascelles was examined. Did he deny the words when Robertson was before the Police Magistrate? What reliance can be placed upon the loose testimony opposed to the positive assertion of Dr. Thomas? Has hr done anything to disentitle him to credit? If not, his evidence is conclusive. Here you have evidence that the words were put - that they were answered, but not taken down; and evidence, tells you that the reason was because of Captain Forster's opinion that it was not material. Captain Forster adduces as a reason why it did not take place, that it was not taken down; but Mr. Robertson tells you that Captain Forster stopped the clerk in taking it down, because it was not evidence in the case before him. [The learned Gentleman the proceeded to give a most masterly analysis of the evidence of all the witnesses, and having consented to withdraw the plea and go upon the general issue, he concluded his able and eloquent address in these words:] Contrast the evidence on both sides, and you will find that given in favour of the plaintiff to be but a feather in the scale compared with the body of evidence against the unfortunate Gentleman. The circumstances of unfeeling cruelty which appear throughout the case to have attached to the hard sentence pronounced by Mr. Mason on Greenwood - his treating that portion of the libel which alluded to this indifference, and selecting as his grounds of prosecution another passage which touched him in his respectful conduct to a lady, afford a safe clue by which you may come at the truth. I have no hesitation in saying, such a man is not entitled to exemplary damages. I shall not detain you longer, the plaintiff must stand or fall by your verdict; the result to him it is painful to consider, but, Gentlemen, you are sworn to do justice. Be not forgetful of your high duty, but whatever may be the consequence, as I am sure you will conscientiously, so fearlessly give your verdict.;

            The Attorney General then rose and addressed the Jury.;

            Gentlemen. - The Solicitor General has addressed you at some length, in that strain for which he is sufficiently distinguished - sarcasm. He has professed to give a review of the evidence, but he has not done so. He knows full well that he has failed to the most important points, and therefore he exhausts himself, if in that line he can be exhausted, in personal invective and pointless sarcasm. He retreats like a defeated General, with every house about his ears; because his pleas cannot be supported by the exercise of a most surprising magnanimity withdraws them, and so the charge of perjury falls to the ground. It is no longer contended that a man is to be found guilty for denying words which he never spoke, but because they cannot destroy Mr. Mason in that way, you are called upon to give small damages, because that will effectually ruin him as a verdict for the defendant. When I heard that declaration of the defendant's counsel, and heard you called upon to give small damages for such a reason, I was horror stricken. It is then not the justification of the defendant, but the destruction of Mr. Mason which they seek, and if they cannot effect it in one way, they tell you it is immaterial so long as they effect it in another. Had they not adopted so inhuman a course, I should never have condescended to ray one word on the subject of damages. I know that whatever damages you may give, Mr. Lascelles, will never be called upon to pay them. His means, I say it without the least desire to give offence, are not great - they are scanty, and his family is large, and I have no desire to deprive him of those few pounds which he can so ill spare. I solemnly declare that the object was not to mulct Mr. Lascelles of one farthing; but when it is deliberately stated that you will as effectually ruin Mr. Mason by one farthing damages in his favour, as by a verdict for the defendant, thus showing that their object is to ruin that unfortunate gentleman, I am bound to call upon you to consider what an aggravation such a declaration is of the original offence, Something has been said about my ingenuity in misquoting; it requites but little ingenuity to misquote, of which the speech of the defendant's counsel bears ample proof. He has laid great stress upon Mr. Mason complaining of the libel about Mrs. Turnley, and disregarding that portion which charged him with inhumanity, and this is a misquotation. Mr. Mason certainly does complain of the libel about Mrs. Turnley, but he does not stop here, for he says, "the former part of the article attributes to me great inhumanity in passing the sentence upon Greenwood, and makes it appear that I was guilty of cruelty to that wretched man." It was therefore not for speaking the words that he was charged with cruelty, but for passing the sentence. Why was the man termed "the wretched Greenwood?" because he was told he would be hanged for a crime, which I am convinced every gentleman who hears me will say merited death - no, but because he was flogged. Take away the lashes, and there is nothing more wretched in this man's fate than in that of the many others who have been condemned from that bench. His fate was wretched because he was punished, and then hanged. And what is Mr. Mason's answer? - in his information, he says that he was actuated by a desire to put a stop to the offence of absconding, and did not know what power he had to pardon that offence because the man was charged with a greater. The charges in the libel are that he is an upstart - his insolence to Mrs. Turnley - and his cruel sentence; and in this information he complains of all those charges, and answers them, by stating that the first is intended to bring him, and the Government through him into contempt. The second by Mrs. Turnley's own statement to be untrue, and the last by stating that he considered it necessary to put a stop to the offence of absconding. I do not attempt to palliate or excuse the manner in which that sentence was passed - I acknowledge that the words do indicate a want of feeling, but unless you can devise the motive, or shew in evidence that it was malignaet [sic], will you give a verdict sending him out of Court ruined? Yet that is what the defendant anticipates, for you are called upon to give small damages, in order to ruin him; and who is it that you are thus called upon to brand with eternal infamy and disgrace? I have shewn you a host of gentlemen, who hold office with the Government, surely you will not question the testimony of Mr. Bedford, Mr. Hone, Mr. Sorell, and Mr. Robertson? Good God, gentlemen, if the worst man in existence were to come to you for justice, would you heal them thus? Would you say to the hundreds who are sent to this Colony, many for a first offence, and that perhaps under circumstances of grrat [sic] temptation and palliation - would you reply to their appeal "you have no right to complain of any charge which may be preferred against you?" What! Though they come here under sentence, would you tell them they had no right to complain? God forbid, and if you would not say it to them, why say it to Mr. Mason, although he may have once done that of which he ought to have been ashamed? The Solicitor General, in his usual sarcastic manner, has turned into ridicule that part of Mr. Mason's information which charges him with insolence to Mr. Turnley, and endeavours to create a feeling against him in your minds for observing upon and refuting what he is pleased to term the trivial charge; but whatever may be the opinion of the Solicitor General, I do not consider it a small offence for any man especially a Magistrate, to be guilty of rudeness to a lady who comes before him on business. [The learned counsel then proceeded to comment on the evidence of Mr. Horne, Mr. Robertson, and Dr. Thomas, with great severity, but he began evidently to flag in his case, although he carried his observations to great length. They were however merely repetitions of what he had said before. At last, collecting all his powers, he wound up with a splendid burst of eloquence, to which it is impossible to do justice - the rapidity of his utterance precluding the possibility of following him with the pen, but which was pretty nearly to the following effect.] - Gentlemen, you have been requested to keep your minds as free from impression as a sheet of blank paper - and will you then receive invective in the place of argument - sarcasm in the place of fact? Will you allow a display of eloquence to blind your perceptions of justice? Will you allow the sheet of paper to be marred by empty and unmeaning trash? Shall the pencil of truth be denied access, while the daubing brush of Latin alone is permitted to operate? No, gentlemen, I am sure that no English Jury would so far forget the high duty which they had to perform. I am confident that the result will not be what is anticipated on the other side. The sarcastic nature of the Solicitor General's speech sufficiently marks what those anticipations are; but, notwithstanding the appeal, which has been thus made to your worst feelings. You will not, when a man of unblemished character and reputation comes for justice, send him back to his home, his wife, and child, disgraced, degraded, and ruined for life.

            The Learned Gentleman then sat down, and His Honor charged the Jury with much impartiality, by which his conduct through the day had been greatly distinguished, and they retired into the Jury Room at 10 minutes before 8 o'clock, and remained until a quarter past, when they returned with a verdict for the plaintiff - damages, "thirty-nine shillings," at the same time desiring to express their opinion that the charge of perjury was not proved.

Notes

[1]  See also a more informal report in Tasmanian, 20 May 1836.

Published by the Division of Law, Macquarie University and the School of History and Classics, University of Tasmania