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Decisions of the Nineteenth Century Tasmanian Superior Courts

R. v. Rowlands (No. 1) [1836]

assault - magistrate, assault on - duelling - self-incrimination, privilege against - horsewhipping

Supreme Court of Van Diemen's Land

Montagu J., 1 February 1836

Source: Tasmanian, 6 February 1836[1] [1]


            Great has been the interest which has for some time existed, in reference to the prosecution of Mr. Rowlands by Mr. Moore, for the well-known assault.  The trial took place on Monday. Notwithstanding the incessant rain, the Court was crowded with the respectable inhabitants to its utmost capacity. Mr. Horne made the most of the prosecutor's case, and Mr. Solicitor General McDowall exerted himself for the defendant most successfully. The verdict of Not Guilty, was received with the warmest demonstrations of satisfaction, not only by the large assemblage present, but by the whole community. Never was perhaps a case in which public opinion was so unanimous. We now present our readers with a carefully-taken detailed Report of this interesting trial: -



Before Mr. Justice Montagu, and a Military Jury.

            The King, on the prosecution of Joseph Henry Moore, against Thomas Woods Rowlands.

            Mr. Horne and Mr. Nicholson appeared for the prosecutor.

            The information consisting of two counts, charged that the defendant being a wicked, malicious, &c. person did on the 31st of October last make an assault upon the prosecutor, then being one of the King's Justices of the Peace, addressing him in the public street, you are a slanderer, a liar, and a coward, with intent to excite the prosecutor to fight a duel. The second count was nearly to the same effect as the first; the same intent charged, but some little variation in the words stated to have been used to that intent. The defendant pleaded Not Guilty.

            Mr. Horne addressed the Jury for the prosecutor very briefly. He stated that by the information, they would understand the nature of the offence complained of, and he should shew to the Jury the circumstances under which it was committed, as appeared by the evidence he should produce. He then called Mr. James Hackett.

            Mr. Solicitor General McDowall for Defendant. - What! Do you not call the prosecutor?

            Mr. Horne. - Certainly, but he is not yet in Court.

            Mr Hackett. - I remember seeing Mr. Moore and Mr. Rowlands in Davey-street, on the 31st October.

            Mr. Horne. - What took place?

            Mr. Hackett. - I do not know whether I should answer that question. I have no confidence in the prosecutor, and I am satisfied that I should by in peril if I answered that question.

Mr. Justice Montagu - Do you think your answer would tend to convict you of any offence?

            Mr. Hackett. - I do.

            Mr. Horne. - Did you see Mr. Rowlands strike Mr. Moore?

            Mr. Hackett. - I object to answer that question.

            Mr. Justice Montagu. - I do not think he is bound to answer. [Some discussion taking place here between Mr. Horne and the Solicitor General, Mr. Justice Montagu expressed his wish that it should cease, as it tended to no good purpose.]

            Mr. Horne. - Did you hear any conversation?

            Mr. Justice Montagu. - I think it right to caution you Mr. Hackett, that if you disclose any portion of what occurred, you must disclose the whole.

            Mr. Horne. - Will you answer that question?

            Mr. Hackett. - I will not.

            Mr. Horne. - Then I will not further examine Mr. Hackett.

            Cross-examined by the Solicitor General. - Do you know the parties?

            Mr. Hackett. - I know the defendant, I know the prosecutor by name. On the day in question, I had a conversation with Mr. Moore upon his premises. In the course of the conversation he denied first, but he afterwards admitted that he had used an expression grossly slanderous of Mrs. Rowlands.

            Mr. Horne. - I object to this line of evidence. To what does it tend? to a justification? of what? of an assault! I submit it cannot be received. This is not an indictment for slander, it is for an assault.

            Mr. Justice Montagu. - Is it not evidence to go to the Jury, to shew the object with which the expressions charged were used?

            Mr. Solicitor General. - I should be wanting in candour to the Court, if I did not avow the object of my examination. It is what I apprehend I am entitled to; in order to enable the Jury, should they consider the assault to have been proved, that the circumstances under which it took place, were such as to enable them to recommend the defendant strongly to mitigation of punishment.

            Mr. Justice Montagu. - Can you shew me any authority - any dictum to the effect of your argument?

            Mr. Solicitor General. - I cannot beyond the usual practice of the Courts at home.

            Mr. Justice Montagu. - I cannot agree with you. I think that the only evidence you can give, is such as must be relevant to the assault itself.

            Mr. Solicitor General. - I submit to your Honor, that this is the only opportunity we shall have to offer evidence of the circumstances which provoked whatever occurred.

            Mr. Justice Montagu. - No, after the case is concluded you can offer any mitigatory circumstances upon affidavit, which the Court will not fail to duly consider. But I think it is admissible evidence if offered, in order to enable the Jury to ascertain whether or not the words were spoken with the intent to provoke to a duel, as charged in the information. But Mr. Hackett cannot state a part and keep the rest back. He must state the whole or none.

            Mr. Hackett. - Well then, knowing as I do the risk I run, I will nevertheless incur it even at that risk.

            The Solicitor General continues the examination. - I have heard the information read. I swear positively it was not Mr. Rowlands's intention in speaking the words, to provoke Mr. Moore to fight a duel. I know from my experience in such matters, that this was not Mr. Rowland's intention, because after Mr. Moore had been horsewhipped, he never could fight him. I had done all I could to induce Mr. Moore to make Mr. Rowlands reparation, or to give him satisfaction, both of which he had refused. He would neither fight nor apologise. He said he preferred going to law. Mr. Rowlands then proceeded to what I considered the necessary ulterior proceeding. The manner in which this affair originated was this. On the 30th October I dined at Mr. Rowlands's, and I found Mrs. Rowlands very much agitated, and in tears. Upon learning the cause, I went in the first instance to Mr. Moore, not from Mr. Rowlands, but from Mrs. Rowlands. I met him on his own ground. I asked him if he had not slandered a lady in Hobart Town. He said no; he never had slandered even a convicts wife, much less a lady. He said he took my coming to him very kind. He talked of his chivalry as to ladies, and after something more of that sort I said to him Mr. Moore, your answer is very good as a general one, but I want a particular one; did you never slander Mrs. Rowlands? He said No, never. I said very well. I am glad to see you are not so base as you are represented to be; but, I added, perhaps it will be as well for me to refresh your memory a little. Did you never slander her to Mr. Loane? Oh! said Mr. Moore, I believe I did tell Mr. Loane that Mrs. Rowlands had been drunk. I said, do you not call that slander? He said no; that Mr. Rowlands had sworn so himself at the Police Office. What then, said I, do you consider you have the same right to speak of my wife that I have? He said he had never slandered Mrs. Rowlands. I then left, in order to ascertain from Mr. Loane, what he had said of Mrs. Rowlands. Having seen Mr. Loane, I returned to Mr. Moore, and told him that Mr. Loane had stated to me, he (Mr. Moore) had said more of Mrs. Rowlands than he dared to repeat. I then demanded of him an ample apology, or that he should name his friend. He said he would do neither the one nor the other. I then beckoned Mr. Rowlands, who was in attendance, and Mr. Moore then seeing him approach with a horsewhip. I do not know whether the dread of the whip made him courageous, but he then requested me to call upon him at twelve o'clock, at his office. I understood of course, it was to name his friend; I went there, and saw him. I said I have called according to appointment, I require you to name your friend. He said he had sent for Mr. Pitcairn. I said I am quite satisfied, because I know Mr. Pitcairn to be a gentleman. He said, oh! I want Mr. Pitcairn as a lawyer, not as a second. I said you are a most contemptible fellow, and I used other words, much worse than Mr. Rowlands is now charged with doing. I then said there is but one course open to Mr. Rowlands, which is to horsewhip you. I went out to Mr. Rowlands who was waiting for me in the street, and I handed to him the horsewhip. We had abandoned all idea of fighting. We went back to the office, but we found he had escaped through the back door. We followed him, and had some difficulty in overtaking him. Mr. Rowlands was out of breath; he said, Mr. Moore you are a scoundrel - a coward, slanderer, and I think he added, a liar, and you must consider yourself horsewhipped. Mr. Moore said, that is all I want. Mr. Rowlands said, oh! then to prevent mistakes take that. He then hit him a sharp blow with the whip over the shoulder, the brand of which, for the whip was dirty, remained on him for an hour afterwards. I never saw it better done. We then went to the Police-office, and were bound over to keep the peace. I think Mr. Moore swore he was not actually horsewhipped, that the whip was only shook over his shoulder.

            Re-examined by Mr. Horne. - I recollect Mr. Rowlands throwing a bullet either at Mr. Pitcairn or Dr, Scott, after we came out of Mr. Moore's office. There was no use for a bullet then, you know. I did not hear him say to Dr. Scott, you see what we are about. I never spoke to Mr. Moore of the alternative the first time I met him on his ground, unless it was that he said, you shall not bring me to what you want. I said I will try very hard for it. On the second occasion, I overtook him in Macquarie-street. I said it is of no use further conversation. I have seen Mr. Loane, and he confirms all I have heard, and therefore you must now either make an ample apology, or name your friend.

            Mr. Horne. - Now, Mr. Hackett, as I understood you to say that you had had much experience in these matters, do you not consider that a blow is the first step towards a meeting?

            Mr. Hackett. - Certainly not a horsewhipping. It takes the man out of the pale of society and he cannot be fought afterwards. After the horsewhipping, Mr. Rowlands rather preceded than followed Mr. Moore to all who passed, as a liar, a scoundrel, and a coward, and that he had just horsewhipped him. He did this repeatedly, and I aided and abetted him as much as I could.

            Mr. Solicitor General. - Is not Mrs. Rowland's health in a very precarious state, and was not Mr. Rowlands on the point of taking her to Sydney, and is he not kept here by Mr. Moore! [Some explanation as to this took place, Mr. Horne stated, that he should have consented to respite the recognizance under those circumstances, had application been made to him.]

            Mr. Moore. - I am a Justice of the Pease, and have acted as such. I am also Collector of Internal Revenue. I received a hostile message from Mr. Rowlands on the 31st October, by Mr. Hackett. I refused to meet him, because I considered his previous conduct to have disentitled him to a meeting. I was applied to a second time. The first message was delivered to me at my outside gate - the second was in Macquarie-street. I refused again. I told Mr. Hackett, I would neither name a friend, nor grant a meeting. I did not make an appointment to meet Mr. Hackett at my office when he pressed me to do so, I said only that I had to be at my office at 12 o'clock. It was Saturday, and I had to be there on money matters. I had seen Mr. Hackett in the mean-time, and I called upon Mr. Pitcairn, and requested him to be at my office at 12 o'clock professionally. I went into my office at 12, and Mr. Hackett followed me in. He said he wanted a final answer. I then repeated to him what I had before said, and added that I would not communicate with him, except in presence of a third person, who would be my Solicitor, as I was determined to put down, by the strong arm of the law, the manner in which they had attacked me in the newspapers for a year past; I thought Mr. Pitcairn's presence would so awe him, as to prevent the conduct which I thought possible to take place. He made use of very intemperate language and went away; I have the key of the entrance to the office from Davey-street; I went down Davey-street; I was followed by Mr. Hackett and Mr. Rowlands. Mr. Hackett could hardly keep up with him. When they came up, Mr. Rowlands called me a slanderer - a liar, and a coward, and to consider myself horsewhipped. I said, nothing you can say can provoke me to a breach of the peace. He then repeated the words and struck me with his horsewhip, but he did not repeat the blow. After this they followed me down the street, and pointed me out to several persons passing, using the same language. On no occasion was any apology ever demanded from me. All that Mr. Hackett required was, that I should name a friend, which I positively refused to do.

            Re-examined by Mr. Solicitor General. - I stated that I refused to meet Mr. Rowlands, considering him disentitled to a meeting; I never altered my opinion; I did not state at the Police-office, that perhaps I might meet him. A gentleman at the Police-office did not say, what is there in Mr. Rowlands, which should disentitle him to a meeting; nor did I reply, that if he (the gentleman) thought so, that I would meet Mr. Rowlands, or anything to that effect. The gentleman did not then say, do not suppose that I wish you meet Mr. Rowlands, because it would be highly improper for me as a magistrate to do so. Nothing to that effect was said. On no occasion whatever was an apology ever required, or even mentioned. All that Mr. Hackett required was to effect a meeting, and that I should name a friend. I did not offer to make an apology, because I was charged with slander, and I considered I had not committed slander, having only repeated an entry in the Police-office. If Mr. Hackett had exhibited by conduct, language, or intimation, anything which could have fairly called upon me to make an apology, I do not know what I should have done, and this I stated in my correspondence -

            Mr. Solicitor General. - I do not want your correspondence. We have nothing to do with what you may have written, for what I know for the benefit of posterity, who, I hope, will duly appreciate your lucubrations. But I want a plain answer to a plain question. Would you have made an apology if it had been demanded of you?

            Mr. Justice Montagu. - I really cannot see what this has to do with the assault.

            The Solicitor General stated that he should bow with respect to the Court.

            Mr. Moore continues. - Mr. Hackett asked me if I had slandered Mrs. Rowlands. I said no, I had not. He then said, not to Mr. Loane? I said no, I had only repeated to Mr. Loane what had been sworn to by Mr. Rowlands himself at the Police Office, and that therefore it was no slander of mine, for that Mr. Rowlands himself was the author of it. What I did state to Mr. Loane was what I stated to Mr. Hackett. I said expressly to Mr. Loane that I had no opportunity of knowing the truth of what was stated, because I did not visit there. I did not consider that slander. I said to Mr. Loane, when Mr. Loane said he blew up Mr. Rowlands for abusing me in the newspapers, I supposed he did so because I bore hard upon Mr. Lachlan Reynolds for beating his wife, and I supposed as he (Mr. Rowlands) had done the same, he was angry. I went to Mr. Holland, the clerk at the Police Office, in consequence of what Mr. Mulgrave had told me of the entry on the Police Office Books. I had it from Mr. Mulgrave.

            Mr. Solicitor General. - Now, Mr. Moore, I wish to ask of you, in reference to what you have thought proper to set forth in your information, as to Mr. Rowlands's turbulent disposition, did you not yourself call out at one blow, the whole 63rd regiment, colonel and all?

            Mr. Justice Montagu. - I really do not see what this tends to.

            Mr. Moore. - What Mr. Solicitor General has stated is not true. I do not mean this offensively to him.

            Mr. Solicitor General. - You are quite at liberty Mr. Moore to say what you please of me. You can do so with the most perfect impunity.

            Dr. Scott. - I recollect the 31st October, I saw Mr. Rowlands and Mr. Hackett in Macquarie-street. I saw a bullet. Mr. Rowlands threw it after me down the street. It was thrown in a jocular manner. Mr. Hackett and Mr. Rowlands had told me what they were stationed there for - that Mr. Moore had behaved towards Mr. Rowlands very badly, and that it was their intension to horsewhip him. I advised Mr. Rowlands to be careful what he was about. He said Mr. Moore had traduced the character of Mrs. Rowlands to that extent, that he was determined to have satisfaction.

            Cross-examined. - The bullet was thrown at me in a jocular way. Mr. Rowlands intimated that the bullet was of no further use, for that Mr. Moore would not give him satisfaction in that manner, and that he therefore intended to horsewhip him.

            Mr. Butler was then called, but he knew nothing of the matter. This was the case for the prosecution.

            Mr. Solicitor General. - So then after bringing Mr. Butler from the Western Tier, drenched to the skin with rain - after the solemn manner in which my learned friend Mr. Horne introduced his questions, Mr. Butler knows nothing of the matter! Thus then the only two witnesses who have given any account of the affair - for Dr. Scott's evidence goes only to prove the salutary advice he gave the defendant, the only evidence you have is, that of the prosecutor and Mr. Hackett. Now, by both of these it is clearly proved that no such intention ever existed; as is charged in the information, and which forms the very gist of the whole case. If anything was wanting to prove this, Dr. Scott's last answer does so conclusively, that all idea of fighting being at an end, Mr. Rowlands actually threw away the bullet! The two witnesses for the prosecution, Mr. Hackett and Mr. Moore, have clearly proved this. Mr. Hackett in his candour has stated that which I very much apprehend he will have cause to regret; for, although he may consider himself quite secure to day, yet there was a time when Mr. Rrowlands considered himself equally so. I may probably consider it necessary to call a gentleman, to prove that Mr. Rowlands had at one time good reason to consider himself quite as secure, for that it was distinctly stated to him that this prosecution was abandoned; instead of which, he now stands here to answer for occurrences so long passed as in October last. Mr. Moore in his information, for it is his own as much as if he himself had prepared it, and I understand Mr. Moore to be very eminent literary character in that information, Mr. Moore has thought fit to introduce himself as a Justice of the Peace, and he added that he acted as such. Now, my friend Mr. Horne has not even insinuated one word to connect, in the very remotest degree, this alleged assault with Mr. Moore's magisterial functions; his insertion therefore in his information of the Justice of the Peace, and the addition in his evidence of his having acted as such, is in keeping with that extraordinary self-importance which Mr. Moore takes upon himself, and which induces me in my extreme regard for you gentlemen, to offer you very humbly a few words of caution. I beg of you Gentlemen to take care of yourselves, lest you should fall into an error which had nearly proved fatal to the whole 63rd Regiment. It may, perhaps, be known to you that it was the custom of that corps, to occasionally entertain large parties at their mess, and to invite what are called the Heads of Departments, and certainly some very extraordinary heads there are amongst them. Upon one of these occasions, the dreadful offence was committed of omitting Mr. Moore! Gentlemen, dreadful was the consequence. What! said Mr. Moore, have you ventured to pass me by, me - a man of my grade, I believe is the word considered for these self-applications - Mr. Moore, full of the vastness of his importance, actually called upon Colonel Logan and the whole of his officers, to account to him for their conduct in not inviting him to their mess!

            Mr. Justice Montagu - I am sorry to interrupt you, Mr. Solicitor, but really I think you will see that this is quite foreign to the matter before us.

            Mr. Solicitor General. - I assure your Honor I only refer to this circumstance out of regard to the Gentlemen of the Jury; I have an especial esteem for the 21st regiment, and I had many intimate friends in the 63rd but I bow to the Court, and as I hope the Gentlemen of the Jury will reflect upon the danger they may incur, if they do not pay proper respect to this important person, that what I stated may not be without due effect. But who is this Mr. Moore, who thus ventures to assume to himself such mighty consequence? You have it in evidence, that he refused to give satisfaction to Mr. Rowlands for the deepest possible injury and affront which one man can inflict upon another, because he considers him disintitled, as he calls it, to a meeting. Who is this Mr. Moore, that he should thus set himself up as so vastly superior of a respectable solicitor of this Court? Who is this great man who is determined to force himself upon society? What is there in him, or in his situation which entitles him thus to elevate himself above his fellow man? Is it because he is the holder of an office, which perhaps the Secretary of State has long ago considered might be abolished, in which sentiment the people here are so entirely of accord, that it is matter of wonder, how he is permitted to retain it? Is it this Revenue Collection which induces him to swagger with such port and consequence, and to exhibit that effrontery which he has had the assurance this day to display before you? Or is it his Justiceship of the Peace which he chooses to place so prominently in his information, and to tell you in the first words of his evidence, unasked and uncalled for, that he acts? Why, even in England, we know that few qualities are required for the appointment, that are of extreme value, not even that excellence in literary lore, which Mr. Moore seems so proudly to rejoice in! What is there in this person or his offices either, which should entitle him to place himself, in his own estimate, so far beyond a respectable solicitor of this Court, that having put upon him the deepest injuries and insults, he refuses to grant him a meeting.

            [Here Mr. Moore who had been hitherto in Court, was induced by his Counsel to retire]

            What then gentlemen could be the result of such conduct; such injuries in the first place, such insolence afterwards, but what followed? and what would not have been Mr. Rowlands had he not acted as he did? A more unprovoked wicked slander could not be. Mr. Moore has admitted, that he stated to Mr. Loane those slanders. Are slanders such as these to stalk abroad, swelling in self-importance unpunished! We have heard of the slanderous Press, but what is it that causes it? the morbid appetite of such persons as Mr. Moore, who themselves indulging in the basest, give encouragement and demand for a large circulation of a slanderous Press, and then loudly complain of it licentiousness! If the circulation of the Press is encreased by its pandaring to a vicious taste, it is the existence of that taste, generated by the slanderous propensities of such persons as Mr. Moore, which is to blame! There would by no slanderous Press if the state of society here was not unhappily rotten at the core! When Mr. Moore talked of his refusal to meet Mr. Rowlands, because of his having written against him in the newspaper, I thought that presuming upon the aristocratic grade which he chuses to assume, he considered writing for newspapers to carry with it a disqualification for his high society. I remember, Gentlemen, when a similar aristocratic feeling was indulged in by the Benchers of Lincoln's Inn, who reused to call to the Bar, gentlemen who wrote for the newspapers. This matter having been brought under the consideration of Parliament, a gentleman, one of the ablest - the most honourable - and I will add, most philanthropic who ever lived, I mean the late Mr. James Stephen, exhibited to the House picture of a young man studying for the Bar, and adding to his slender means, by employing his leisure hours in writing for the newspaper Press - thereby adding to his professional attainments by literary occupation, which daily giving him additional means of advancement, at length placed him not only high in his profession, but even to attain the honors of the Senate. This, said Mr. Stephen is not an imaginary picture, it is that of the humble individual who has now the honor to address you. This little circumstance is related in the Percy Anecdotes, and it is well worthy of consideration by those who would wish to undervalue the writers of the Newspaper Press. Mr. Moore may assert of Mr. Rowlands the basest falsehoods - destroy his domestic happiness - injure him in the cruellest manner, and when he demands reparation, tell him that he is disentitled to it, for that he is a contributor to the Newspaper! But will you afford your countenance to such conduct - will you by a verdict of guilty against Mr. Rowlands, sanction such conduct as this of Mr. Moore? But even if you do - even if you find yourselves compelled, as you possibly may, to find Mr. Rowlands guilty of the assault, I am convinced you will accompany your verdict with such a recommendation to His Honor, as shall render whatever sentence may be passed merely nominal.

            Mr. Justice Montagu. - Do you not consider that the Jury cannot find the defendant guilty, unless the intent with which the assault is charged in both counts of the information is fully proved? There is no count for a common assault.

            The Solicitor General. - No doubt, sir, the Jury cannot find Mr. Rowlands guilty, unless the intent charged is fully proved in evidence, the very contrary of which is the fact. There is not a particle of evidence to prove that the defendant, by his conduct to the prosecutor, was exciting him to fight a duel. It is true that my friend Mr. Horne seems to consider horsewhipping a necessary preliminary to a duel. I believe there is only one instance of the numerous which are within memory, in which a hostile meeting was ever the consequence of such a proceeding. It was when a ruffian had the brutality to strike with a whip a British officer, not only one of the most gallant and honourable in the service, (Sir Henry Hardinge) but who was also maimed by the loss of his arm. It is true that a meeting did afterwards take place, but it is a rare, I believe a solitary instance, and is the exception rather than the rule. But in the present case, Mr. Moore himself admits that he not only intend to fight, but that he expressly so declared to Mr. Hackett. Now, gentlemen, looking at the only evidence before you on this point, that of Mr. Hackett and that of the prosecutor, which do you consider entitled to credit? Mr. Hackett's was plain and straight-forward, natural in all its parts, and carrying with it every appearance of correctness. But even admitting the prosecutor's to be true, it is impossible that the intent he charges Mr. Rowlands to have assaulted him with, to be true, for he expressly swears that Mr. Rowlands told him he made use of the language stated in the information, because he would not afford him a meeting. Gentlemen, I shall not trouble you farther. I shall again press upon you, that as the special intent charged in the information is not only proved, but a very opposite intent proved by even the prosecutor himself, it is impossible for you to do otherwise than acquit Mr. Rowlands.

            Mr. Justice Montagu. - I am certainly of opinion that unless the special intent is proved, the defendant cannot be for guilty.

            Mr. Horne. - I submit to your Honor the contrary; I submit that the assault itself is not necessarily consequent upon the special intent, and that is the assault is proved to have been committed, the special intent is not so connected with it, as to render it absolutely necessary to be proved.

            Mr. Justice Montagu. - I differ with you. Can you shew any precedent for your opinion?

            Mr. Horne. - I think I can do so in Chitty.

            Mr. Solicitor General. - In all the cases which I have ever heard of, the information always contains a count for a common assault.

            Mr. Justice Montagu. - If you think Mr. Horne that you can find authorities for your opinion, I will wait a short time, to give you an opportunity of producing them.

            Mr. Horne, after some little delay, stated he could not then lay his hand upon the cases, which he was convinced could be found to bear out his opinion.

            Mr. Justice Montagu then proceeded to sum up the evidence. He commenced with commenting upon the impropriety of inserting in the information, the references to the malicious disposition of defendant, and to the prosecutor being a Justice of the Peace, both of which His Honor was of opinion were unnecessarily introduced. His Honor continued, "As I read the information, I am of opinion you cannot find the defendant guilty of an assault unless accompanied with the special intent charged. Unless you find both those proved, you must acquit the defendant. The prosecutor may again prefer a fresh information for an assault, and then if I am in error in my opinion, the question can be again brought under consideration. Unless, therefore, you are of opinion that the assault was committed with intent to excite Mr. Moore to fight a duel, you must acquit Mr. Rowlands. The case rests entirely upon the testimony of Mr. Hackett and Mr. Moore. There can be no doubt of the assault having been committed, and the only question is the special intent. That intent is certainly not proved as charged, indeed M. Hackett's evidence is quite to the opposite; and if you have any doubts upon the subject, you will of course acquit the defendant. - The Jury retired for a few minutes. Verdict - NOT GUILTY.


[1]              See also True Colonist, 5 February 1836, which also listed the jurors; Courier, 5 February 1836 (pointing out that both the defendant and the complainant were magistrates).


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