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Decisions of the Nineteenth Century Tasmanian Superior Courts

R. v. Rowlands (No. 2) [1836]

criminal libel - libel, assessment of damages - reception of English law, criminal procedure - Montagu J., anger in court - Montagu J., allegation of madness - Montagu J., allegation of bias - Stephen, Alfred, clash with judge

Supreme Court of Van Diemen's Land

Pedder C.J. and Montagu J., tues before 17 June 1836

Source: True Colonist, 17 June 1836[1]

The proceedings in the Supreme Court, on Tuesday last, afford subject for awfully serious consideration to every lover of justice, and a convincing proof of the necessity that exists, for the appointment of a third Judge to regulate the balances of justices. The matter before the Court was an application on behalf of Mr. Joseph Henry Moore, for a rule nisi to shew cause why a criminal information should not be filed by order of the Court against Mr. T. W. Rowlands, an attorney of the Court, for a libel on Mr. Moore, the Collector of Internal Revenue, contained in a letter on profession business, addressed by Mr. Rowlands to the Attorney General. Mr. Horne, with whom Mr. Hesse was acting as attorney, rose to make the motion. As soon as he stated theobject of the motion, and the names of the parties, he was suddenly interrupted by Mr. Justice Montagu, who said that he would never grant a criminal information while it could be avoided. From the manner in which this was spoken, Mr. Horne turned round to Mr. Hesse, and proposed to withdraw the motion, saying it was useless to proceed; but on Mr. Hesse urging him, he proceeded to read the alleged libel, and the affidavits on which he founded the motion. The facts were these:- Mr. Loane had retained the Attorney General as his counsel, in a case where Mr. Rowlands is his solicitor, for a writ of scirie facias, to eject Mademoiselle D'Hottman from her possession of Bellevue. The Attorney General wished Mr. Loane to take the opinion of Mr. Hesse also, and appointed to meet Mr. Rowlands at Mr. Stephen's office, after the rising of the Court, on a certain day, calculating that to be after noon. The Court did not sit for many minutes, and Mr. Stephen, on finding this, and being engaged at his private residence on official duty with the Solicitor General, sent his clerk to request that Mr. Rowlands would put off the appointment until after one o'Clock; this, Mr. Rowlands, in a very cavalier manner, refused to do. Mr. Stephen continued engaged at home; in the interim, Mr. Moore called at the Attorney General's office on public business, and Mr. Inkersole sent a messenger to inform Mr. Stephen that Mr. Moore waited for him. While this messenger was gone, Mr. Rowlands entered the office, where Mr. Moore was sitting with Mr. Inkersole; he complained of Mr. Stephen not being present. Mr. Inkersole told him he had sent a messenger for Mr. Stephen, and begged Mr. Rowlands to remain. This he declined, and asking for the loan of some law books, he left the office. Mr. Inkersole thought he had gone home, but he remained in the outer office looking over cases for a considerable time, during which Mr. Stephen did not arrive, Mr. Rowlands went away a short time before Mr. Stephen came; the latter, on hearing that Mr. Rowlands had been waiting for him, wrote a letter of apology, addressed to Mr. Loane, and sent open under cover to Mr. Rowlands, to explain to him also the cause of this not keeping their appointment. In this letter, Mr. Stephen (we presume) as a proof of the importance of his engagement with the Solicitor General, stated that Mr. Moore had also been detained, although he came on public business with the Attorney General. Mr. Rowlands returned the letter to Mr. Stephen, accompanied with a letter from himself, charging Mr. Stephen with "misrepresentation," and refusing to forward the letter to Mr. Loane. With reference to Mr. Moore, the letter contained a paragraph of the most wantonly, insulting, opprobrious, and slandering matter. Mr. Stephen sent for Mr. Moore, and shewed him the letter; the result was, an application to the Attorney General to sign a criminal information against Mr. Rowlands, at the suit of Mr. Moore. This he refused to do, on the grounds of his own connection with the affair, it being his intention to move the Court for an information at his own suit, as an individual, for matter contained in the same letter. Mr. Horne proceeded to state these facts to the Court, and Mr. Justice Montagu still objected, that the Attorney General was not at all concerned personally in Mr. Moore's case. After some discussion, Mr. Moore's case was dropped, and Mr. Stephen rose to state the nature and grounds of his application to the Court, stating that he did not appear there as Attorney General, or as a Barrister of the Court, but simply as a private individual, seeking from the Court redress for a wrong which could not be otherwise rationally and satisfactorily redressed. He explained the various modes by which redress might be sought for such wrongs, viz; action at law, indictment, and criminal information granted by the Court; and lastly, an appeal to arms. He shewed that the first was inefficient, because, although it might rebut the slander by evidence, still that a Jury would only give damages equal to the actual injury sustained, which would be nominal, and ridiculous to sue for, without awarding any punishment for the insult and outrage on the feelings of the party insulted; that, although the second might, if attainable, procure the punishment of the offender, that it would not afford the injured party an opportunity of clearing his wounded character by proving the slander to be false. But that mode was not even attainable by him, because he could not, as Attorney General, sign an information for an offence committed against him in his individual capacity, and could only get an information on indictment by the very troublesome and objectionable course of resigning his office for a period, and getting another person appointed for the purpose of proceeding in the case. He then shewed the superior advantages of the present mode of proceeding, the sole object of which was to vindicate the character of the prosecutor, who must first of all negative the imputation, on oath, before the Court would hear his application, while it afforded the defendant an opportunity of stopping the proceedings by making a proper concession. Mr. Stephen then referred to what Justice Montagu had stated, as to his determination never to grant a criminal information, and shewed what the practice was in England, quoting several cases, particularly that of Lord Lyndhurst against Westmascott, the Editor of the "Age" he added, in a very firm but respectful tone (after several interruptions from Justice Montagu) "we are here under the law of England, which your Honors are, by your oaths, bound to administer, and (speaking with great submission) this Court has not the power to refuse a criminal information in any case where it would be granted by the Judges in England."

Chief Justice. - "I fear, Mr. Attorney, there is another law that bids us to do it where the Judges in England are not bound."

Attorney General. - Your Honor, I come to that presently.

He then read a clause in the Colonial Jury Act, which provides for the granting of criminal informations on the application of any individual, whether the Attorney General had or had not refused to prosecute in any case where the Court of King's Bench would have granted an information. And, added he, "I submit to your Honors that this is a case where the Judges in England would grant an information, and therefore this Court is bound to grant it, if it appears to your Honors that the matter complained of is libellous, or slanderous, or calculated to provoke to a breach of the peace, Justice Montagu (interrupting) "What four Judges in England would do with great propriety, would be improper for two Judges to do in Van Diemen's Land. It is most improper for a Judge in this Court to be asked to pronounce, first as grand jury, that a person has committed an offence which ought to go to a jury for trial, and then sit and try that which he has already pronounced to be an offence." The Attorney General then shewed that informations were frequently tried in England by the same Judges who granted the rule for filing them - and for the purpose of replying to it, repeated what Judge Montagu had said about acting by a different rule in administering justice in Van Diemen's Land from what he would were he a Judge in England, when he was violently interrupted by His Honor, and a scene ensued which it is impossible to imagine as occurring in a Court of Justice, and much less possible to describe. The Judge getting into the most violent rage, and the Attorney General remaining perfectly placid, and to all appearance, undisturbed. The audience stared with perfect astonishment, and not a breath, or any wound or motion was in the Court, excepting the enraged voice of the Judge. The Chief Justice sat immovable and silent, with horror and astonishment strongly stamped on his countenance. It is impossible to give any thing like a correct report of what fell from Justice Montagu, but we will endeavour to give such expressions as we can recollect as a specimen of the whole. He commenced, you are misquoting me, Sir! - you have often done so! You charge me with saying that I would administer justice here on different principles to what Judges do in England. I did not say so - I said that the application of those principles was, and ought to be different in England, where there are twelve Judges; yes, a great many more. No Attorney General in England would dare! I say would DARE! to treat a Judge as you have dared to treat me. No!! Sir, not the most Puisne  Judge of the most puny Court in England. An Attorney General!!! and I, because I am a Puisne Judge, to be insulted on the Bench by anAttorney General? No, Sir, nor by any other man; you have dared to remind the Judges of this Court of their oaths - yes, Sir, we are sworn to administer the law, and I will administer the law and justice too as far as my judgment can direct me, and I will protect this Bench from being insulted even by an Attorney General! I do not care for your smile, however you may intend to express your contempt by it. You have often treated me with disrespect both in Court and elsewhere, and charged me with acting improperly. I now, Sir, call upon you to state where you stand what you have said of me in public elsewhere, and not to stab in the dark."

Here His Honor became absolutely furious, and talked so incoherently that we could not comprehend the meaning of what he said. We recollect him saying, that if the Attorney General dared to treat him as he had done, he would throw off his gown, and go to England, and see if an Attorney General was allowed in Van Diemen's Land to treat a Judge as he had been treated. He said, that neither as Attorney General, an Advocate in the Court, nor as an individual, would he allow Mr. Stephen dare to misquote or insult him. "I wish" said he, "to treat you, end every individual with courtesy, but neither as an advocate nor as a gentleman will I allow you to treat me with disrespect - nor as Attorney General - as Attorney General indeed! I do not care for an Attorney General, nor do I care for you any more that I do for the humblest free man in the Colony. I consider every free man a gentleman!! And I dare you Sir, to repeat now in Court what I understand, although I never read newspapers (casting an expressive look at the reporter's box, where we were sitting) has been generally said of me elsewhere." His Honor having fairly exhausted himself with rage, became quiet. The Chief Justice, who had sat in mute horror, listening to the wild display of judicial rage, ventured to offer a remark that he thought there was some misconception on both sides, and he endeavoured to explain it, but His Honor could hardly obtain a hearing. At length he left the bench for a few moments, and on his return Justice Montagu resumed in a more rational tone. Mr. Stephen urged that he was left without protection against any person that chose to insult or libel him, while the Court refused to grant a criminal information. The Chief Justice said, that under these circumstances the Court could not refuse to grant the rule. Nisi and every one thought it was granted, when lo! Justice Montagu resumed the case on the merits, and shewed that in his opinion, there were not grounds for a prosecution before the Court, Mr. Stephen having rested a portion of the statements in his affidavit, as to the fact that Rowlands had made it his boast that he would write an insolent letter to the Attorney General, and also told several persons that he was determined to horsewhip the Attorney General. When he had finished, every one thought that the rule was granted, and Mr. Stephen asked the Court for what day; but to the astonishment of every person present, the Chief Justice said it was refused, thus reversing the decision which he had come to before Judge Montagu delivered his opinion on the merits.

Mr. Horne then prayed the decision of their Honors on Mr. Moore's case, and the Chief Justice replied, the rule is granted for Wednesday next. Judge Montagu said nothing . Mr. Stephen then asked if their Honors would allow him to renew his motion on producing the affidavits of the parties from whom he derived the information contained in his affidavit; this was granted at cone for Friday (this day.) Mr. Stephen, when his motion was disposed of took occasion to refer to the personal attack made upon him from the Bench, and said, "if I have said any thing disrespectful of His Honor, in public, there must be witnesses of the fact; and when I am informed what I am charged with having said, and on what authority I am so charged, then will I be ready to admit, or deny, or explain, or defend anything that I may have said; but I submit, that if His Honor thinks I have, done him wrong, this is not the time, nor the place, nor the mode of calling upon me to avow or deny it; and whatever may have been said against His Honor, I can refer him to the records of the Legislative Council, and shew that I vindicated the honor and integrity of his conduct against one charge, at least; and as to my havingsmiled, I may have done so unconsciously; but I assure your Honors, I did not do it from any disrespect to the Court, and while I will at all times firmly and fearlessly maintain my rights and my opinions in this Court or elsewhere. I trust I will never so far forget what is due to my own character as to be guilty of insult or disrespect, particularly to the Court in which I have the honor to be an officer."

There are three points in this case which merit particular attention. - First, the very opposite views which Judge Montagu had of a criminal information against Mr. Rowlands, to what he entertained of a similar proceeding against Mr. Robertson, when the rule was granted and made absolute against him without his being permitted to shew cause, he being at the time in custody of the Court. Do their Honors think that that case, and the frightful proceedings attending it are forgotten, and will never be heard of again!

Second. - Who was guilty of contempt of Court in the present case; and if Judge Montagu was - pray who will issue an attachment against him? What a scene it would have been, had Mr. Stephen complied with Mr. Montagu's demand, and proceeded from the Bar to tell him all his faults? Had he done so to us we would have gratified him instantly; but Mr. Stephen acted the more prudent and dignified part.

Third. - When the two Judges disagree in opinion, as in the present case, who is to decide, or is justice to remain, like Mahemet's coffin, suspended in air. We will thank the official Courier, and courtly Tasmanian, to reply to these questions they are each very important.

Source: True Colonist, 15 July 1836[2]

The administration of justice in any country is, of all other causes, affecting the welfare of its subjects - that which demands to be most strictly watched and most zealously guarded from all contamination on the one hand and insult on the other. It is impossible for any people to continue in a sound, moral, or political condition, when the Courts, or the individual Judges to whom are entrusted the administration and guardianship of the laws and the rights of society, become themselves objects either of suspicion or contempt; and when such a calamity does defal any people, it becomes the duty of the Executive promptly to step forward and arrest the progress of the evil, by taking away the cause. It has been our painful duty again and again to declare openly to the whole world, that the Supreme Court of Van Diemen's Land had, by the conduct of the Judges, forfeited the confidence and respect of the community, and become an object of mixed terror, contempt, and derision. The extortion which the Judges not only permitted, but encouraged the lawyers to practice against the suitors in the Court was of itself sufficient to bring a curse upon any country - and this cause has contributed, more than any other, to produce the ruin and misery which now covers the land. To complain against the lawyers was useless - the sufferers were only visited with fresh injury, aggravated by insult, where they sought and expected to obtainjustice. To this both Judges have proved themselves accessaries, but we believe from very different causes; - the Chief Justice was fettered by his inveterate regard to precedent, and dread of the trouble of cleansing his Augean stable, by framing rules of practice suited to the condition of the people, over whose dearest interests he presided. As for Mr. Justice Montagu, no man can venture to guess at any motive for the eccentricities by which he has alternately amused and shocked the public mind. The Chief Justice has, in most of his decisions, betrayed a want of confidence in himself, and a rigid adherence to forms and principles that are now exploded by the universal consent of society; and he has frequently suffered himself to be betrayed into a most painful exposure of human infirmity on the sacred seat of Justice. Still, we must say for him that we have never heard, that in his public or private capacity, he on any occasion forgot what was due to his station and character as a gentleman.

His colleague on many occasions when not under the influence of the malady which appears too frequently to inflict time, has evinced great ability, and given much satisfaction in laying down the law according to its spirit, and no one has on these occasions admired his conduct more that we have done; but the inconsistency - the caprice - the outrageous violence of demeanour and language amounting to a disregard of all the restraints which regulate the conduct of individuals in the ordinary intercourse of decent society, and the indecent expression of personal feelings which Mr. Montagu has so very frequently exhibited on the bend, has contributed greatly to bring the administration of justice into contempt, and ought long ago, to have shewn the Executive Authorities that the interests of society demanded his removal from the Bench, where he either could not or would not restrain himself within the bounds of common decency. The conduct of Mr. Montagu in the trial of Mr. Lewis, and of both Judges, in the case of Mr. William Bryan, destroyed all public confidence in the administration of justice and without enumerating other glaring acts, by which the Court became farther degraded in the public estimation; we would merely refer to the conduct of the Judges in the case of Luck's motion against Rowlands, and again to the Proprietor of this Journal, when he was prosecuted by Captain Montagu. And again in the case of Mr. Melville, and more recently in our case against Haldane, which has been so properly characterized by the Sydney Journals. It was our painful duty lately to record the outrageous conduct of Judge Montagu to the Attorney General, when the latter, in his private capacity, moved the Court for a rule against Rowlands. Nothing could be more disgraceful than the conduct of Mr. Montagu on that occasion, mixing up as he did, his private animosity with his judicial proceeding. When we reported that scene, we thought that it was impossible for any thing to exceed what then occurred; but the scene last Friday, on the trial of Rowlands, out Herod's Herold. Our readers are aware that the Court refused a rule for a criminal information, both in the case of Mr. Stephen and Mr. Moore against Rowlands on the grounds that there were other modes of prosecuting the charge, as regarded Mr. Moore, although Mr. Stephen was left without remedy. The conduct of Rowlands was so flagrant, and his slander of Mr. Moore so perfectly gratuitous and unprovoked, that the Attorney General felt it his duty to proceed against his, ex-officio, and presented an information, with the other informations, to be tried at the Sessions. The other informations were received as usual by the Judge, but the information against Rowlands he would only receive at the hands of a Barrister. The Attorney General then sent Mr. Ross to present the information, but His Honor would then only take it from the Attorney General himself. These facts merit particular attention, as indicative of the animus which appears to have marked the whole of the Judge's conduct through the case. Why did he refuse to receive this information? Was it because the information was ex-officio? Or was it because it was an information against Mr. Rowlands? We should like to have this answered, for the Judge said afterwards that he did not know it was an ex-officio-information. However, Mr. Rowlands came into Court, and pleaded, and the Attorney General wrote to him to say that he did not intend to have him tried this sessions. Next day, Rowlands was running about town, boasting that he had made it "all right" with the Judge, and that Mr. Stephen would find himself in the wrong box; and he invited several people to come into Court, and hear the dressing that "Montague would give Stephen," anticipating a triumph in place of the punishment he deserved. Relying on the arrangement of which he boasted, he came in full of confidence, while the public prosecutor had no thought of bringing on the case. It is very remarkable, that in an ex[officio prosecution by the Attorney General, the second Law Officer of the Crown, who conducts all the criminal prosecutions, was conducting the defence, and suffered the case to be called and the Jury sworn, in the absence of the public prosecutor, as whose substitute he (the Solicitor General) had been acting in all the other cases - surely this will meet with attention in some quarter. We cannot but remark the extreme sensitiveness of the Judge in treating as an insult the mere mention by the Attorney General of the fact that His Honor had signed a subpoena on the preceding night, requiring his attendance on Rowlands's trial. Surely there was nothing insulting in the mention of this, unless His Honor was conscious of something that Mr. Stephen could neither know or suspect. Why is the Judge so very jealous of people being deficient in respect to him as a "private gentleman?" Is he conscious of having done anything to deprive him of his claim to that respect? - for it is impossible that the respect which he claims as a Judge, can have any reference to the respect which may or may not be due to him as a private gentleman. He accuses the Attorney General of treating him with vulgarity and insult. Every man who knows Mr. Stephen will acquit him of the former charge, however he may in many instances, and to ourselves in particular, have been guilty of the latter in his official or professional capacity in Court; but every man who heard Mr. Montagu, gave Mr. Stephen the greatest credit for his temperate forbearance under the unprovoked abuse heaped upon himself and his office by the Judge. It is true that the strong tincture of insanity which runs through the whole of Mr. Montagu's Billinsgate harangue, takes the sting out of the vulgarity and insult which characterized it throughout. No doubt the "Correspondents" of the Colonial Times were greatly edified by the very dignified intimation of the Judge, that elsewhere he would treat the King's Attorney General with less courtesy than a dog or a cur. We truly pity the poor man who, sitting on the Judicial Bench, could talk all the nonsense meant for insult, and only worthy of a great school girl, about the Attorney General's "Royal Pleasure," and about his dining late, or not getting up early. We understand that ex-officio informations were the prosecutions of the King; and however objectionable they may be in point of principle, that the King's officer, the Attorney General, had a great latitude both of privilege and discretion, not only in instituting, but in prosecuting such cases. Verily, he has experienced small courtesy in this matter from the Judge; but suppose the Attorney General had availed himself of the latitude afforded to him by Mr. Montagu, and retorted that it would have been as well that the defendant has not boasted of his social intercourse with the Jude on the eve of his trial, hurried on as that trial was by the Judge and the accused, without the knowledge or consent of the public prosecutor. What would have been the result had Mr. Stephen, in the same temper as Judge Montagu evinced, indulged in the remarks which every other person was making concerning Rowlands' indecent boasts of his intimacy and influence with the Judge, and his promising his friends a treat in hearing the Judge abuse the Attorney General? - and we are certain, that such allusions would have been equally dignified, and more relevant to the case, than Mr. Montagu's observations about Mr. Stephen's time of taking his meals or entertaining his friends. We regret that it is not in our power to give a full report of the proceedings, except by copying it from the Colonial Times, which does not fully shew the points which most strongly marked the animus of the Judge. The Attorney General coming into Court after the Jury were sworn, was compelled to proceed with the trial, unprepared as he was, and proceeded to detail to the Jury the circumstances of the case, when he was stopped by the Judge, who would not allow him to shew anything except what was necessary to prove the publication. A long argument ensued, in which the Attorney General named several cases as precedents to warrant the course he was pursuing; but the Judge said that he would not receive those cases, unless the authorities were produced. The Attorney General contended that the cases being familiar to the whole profession, he did not consider it necessary to produce the authorities unless the other party questioned his accuracy. The Solicitor General for defendant assented, but the Judge would have the books; at last he finished by saying, "IU decide, Sir, that you are not to remark on any circumstance but such as will tend to prove or disprove the general issue:" by which we understood the fact of publication and writing, thus taking out of the hands of the Jury the opportunity of being judges of the law as well as the fact, and depriving the Judge of the best evidence to ascertain the degree of punishment appropriate for the offence; for if report speaks true, the conduct of the defendant in this case is marked by a degree of callous depravity, which, if allowed to be established, and followed as an example, will go far to destroy society. If, on the other hand, the statement of the defendant be credited, he could shew provocation which might operate as an alleviation of his offence, and the knowledge of these facts, so necessary to guide the Judges, in passing sentence, can now only be obtained from the most objectionable sort of evidence, viz: the affidavits prepared by the interested parties. In the course of the trial, the Solicitor General alluded to the Attorney General, as the counsel of Mr. Moore, and the Attorney General with great warmth retorted, "That is not true" Mac, then threw down his brief and walked out, as was generally supposed for the purpose of preparing to prove by pistol balls the truth of his mistaken assertion, for what he asserted was totally untrue, and evidently a mistake in words. We do not attempt to defend Mr. Stephen for his hasty and uncourteous mode of correcting the error of his learned friend - indeed, we once had occasion to take him up pretty sharply for addressing a similar expression to ourselves, when defending a similar charge against him in the same place, but we did not run out of Court, nor did the Judge interfere to protect us; we had to defend ourselves, and we certainly got the best of it on that point. But when the Judge tells the Attorney General that he would not shew him as much courtesy as he would to a dog or cur, who can wonder at hearing one of the Crown Lawyers call another a liar? for such appears to be the language proper for the degraded place. These matters are a source of amusement to thoughtless and evil disposed persons, but to men who have a serious regard to the interests of society, they form a subject of very grave and distressing reflection. It is high time that an end should be put to these proceedings, and we hope that the Executive Government will see the necessity of interfering without delay - if not, the people ought to address a strong remonstrance to the Governor, and a memorial at the same time to the Secretary of State. The Attorney General has very properly intimated his determination never to appear in Court voluntarily, while Mr. Montagu sits upon the Bench. A similar resolution had been previously taken by Mr. Gellibrand. If the lawyers in our Supreme Court had any regard for their professional character, they would publicly resent in a proper manner, the insult offered both to the bar and the Bench, by the language which Mr. Montagu addressed to the Attorney General last Friday. But although there are some individuals of character amongst them, as a body they have no character to lose but a very bad one, which cannot be much degraded, and the sooner they lose it the better.

Rowlands was of course found guilty, and is to be brought up for judgment tomorrow. When we were found guilty of telling the truth for the good of society, and dragged from our family to prison, the Chief Justice, as a great favor, gave us a respite of two days between trial and sentence; and when we were again dragged from prison, without form or colour of law to be tried a second time for the same offence, Judge Montagu would not give us one clear day to prepare our affidavits. We shall see what sentence their Honors will pass in the present case.

In the meantime, the Public have a right to expect that Judge Montagu will call Rowlands to account for boasting publicly at the Club that he had been in private communication with the Judge, who was to try him, and had arranged the matter so as to put the Attorney General "in the wrong box". Now, we do not pretend to quote the exact words used by Rowlands, but we state, that it is currently reported, and generally believed that "Little Rowlands" did asser6t at the Club that he had seen the Judge on the subject of his trial, and spent with him part of the evening previous to his trial, and that from what Rowlands told them, several persons went to Court, expecting to hear Judge Montagu abuse the Attorney General, as he did. If no notice is taken of this, it will confirm the impression which Rowland's story had made on the public mind, combined with his often repeated previous boast that he could twist Judge Montagu round his thumbs.

Source: True Colonist, 30 September 1836[3]

In the pending enquiry before the Executive Council, the evidence hitherto adduced had tended to affix upon the "plaintiff in this cause" the imputation of discourtesy towards the Bench, by not bowing with becoming humility in his taking his seat in Court; and in partaking of refreshment in that awful presence, without leave had first been obtained.

In consequence of this "contempt of Court," the following has been prepared, with the sanction of the Council, to be submitted on the first day of next Term for the future government of the profession:-

Regulae Generales, Ann. Bul: Sep.

Every barrister, solicitor, or attorney, on entering the Supreme Court, must take off his hat and his gloves; and on approaching the Bench, must advances slowly and with the utmost respect, keeping his eyes fixed on the Bench, bend his body until his head approaches to within one inch of the bar table; he may then place his nether extremity on the seat appropriated for its use, and remain in that position until he has occasion to rise, paying the most submissive attention to the learned Bench. Upon no occasion will a smile be permitted without censure, the Bench reserving to itself the exclusive right of grinning at pleasure. Sandwiches, cheesecakes, and buns, are prohibited, and all liquids will be committed to the custody of the Sheriff. Clean linen, decent coats and tidy inexpressibles, are peremptorily commanded as no professional gentleman, with a dirty shirt, patched boat, or trowsers without braces, will be allowed to address the Bench.

                                                               Given &c. &c.

                                                               God Save the King

In consequence of the above important rule of Court, Mr. Charles Rocher, who has taken lessons from Mr. Montagu and the Little Particular, is about to announce himself as Posture Master, and will give lessons in gymnastics and graceful attitudes to all members of the profession, daily, between the hours of five and six o'clock, p.m. that perfect gentleman having been appointed Colonial Master of the Ceremonies.

N.B. Grinning and quill-munching taught in private to particular gentlemen of the profession, under the personal direction of His Honor.

Source: True Colonist, 14 October 1836

The Council has at length decided that they have no power over the Judge or Attorney General, to suspend or punish either the one or the other, except for official corruption, of which both are acquitted. The "Bear Garden" exhibitions in the Supreme Court are to be referred to the Secretary of State, the Supreme Court remaining in the meantime a subject of ridicule, or an object of terror to all the sober-minded inhabitants. - What becomes of Mr. Gellibrand's suspension after this decision of the Council?


[1]       The Attorney General was Alfred Stephen, later Chief Justice of New South Wales.

                Later in the same edition of the True Colonist, 17 June 1836, the newspaper reported the following:

                "His Honor, to-day, was evidently affected by his old malady; we never recollect to have seen him more under the influence of the moon.  His Honor threatened again to leave the Colony, and told the Court that he had sold all his books, except two, but that he had quite sufficient to carry conviction to the mind of any man that his law was correct and that Mr. Attorney General had acted very improperly in bringing so petty a case before the Court.  "What are you laughing at, Mr. Allport - laughing at me, Sir?"  Mr. Allport, whose risible faculties had been sufficiently excited by "Little Rowlands," said "No, your Honor, I am not laughing at you."  "Very well," replied the Judge, "in that case I shall go on."  His Honor then proceeded in such an incoherent manner, that our reporter could not make any sense of what he said.

                "Their Honors differed in opinion as usual, and the case of Stephen v. Rowlands was suspended till next Tuesday."

[2]      See also True Colonist on the Supreme Court, 1836.

[3]      There were further attacks on Montagu J., later in the same issue of the True Colonist, 30 September 1836, referring to his "bedlamite ravings".



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