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Decisions of the Nineteenth Century Tasmanian Superior Courts

Attorney General v. Jackson, Addison, Addison and McLaren [1841]

criminal libel, ex officio prosecution - Legislative Council, member of, bias by - Attorney General, abuse of  power for personal gain - reception of English law, land law - petition, against colonial legislation

 

Supreme Court of Van Diemen's Land

Pedder C.J., 30 January 1841

Source: Hobart Town Advertiser, 5 February 1841[1]

            The Attorney General stated that in this case in his capacity of public prosecutor, he had felt it his duty to file an information against the defendants for one of the grossest libels he ever read. He had held office a considerable time, and this was the second prosecution of the kind he had prosecuted, as he had ever deemed it right in all cases of loose libels, and even direct ones, not reflecting as this did seriously upon gentlemen in office, to abstain from using the power of his office to persecute the Press. Ex-officio prosecutions were not popular, and generally raised the public sympathy in favor of the parties prosecuted, by which the law was divested of its salutary effect, the delinquent in such cases being considered as a martyr, rather  than a offender justly punished for an outrage upon society. He had read in a certain newspaper then before him, a remark that this prosecution was "all bounce," but he was convinced the Jury would not be guided by anything they knew of the case, or had heard, or read of it elsewhere. The circumstances of the case were these:- In September last an act was passed by the Legislative Council of this colony, declaring that a certain Act of Parliament did not apply to this colony. The defendants were deeply interested in that Act not passing, on personal grounds, independent of whatever interest they might otherwise feel in the matter, and accordingly petitioned against it. Another party, Mr. David Lord, was as deeply interested personally that the Act should pass, and petitioned in favor of the Act, and in answer to the petition of the defendants. The Council having considered, both these petitions passed the Act, Captain Swanston, the gentleman of whom the libel now complained of was published voting with the majority. After the Act had passed, there appeared a petition addressed by the defendants to the Secretary of State, praying that the royal approval might be withheld from the Act, and purporting to be in reply to certain mis-statements alleged to be contained in the petition of Mr. Lord. The right of the parties to address such a petition to the Secretary of State was admitted. It was their undoubted right to petition even to the Queen herself, and to pray for all those gentlemen professed to seek; but they had no right in respect of such a petition to step out of their course to misrepresent the motives of any sentient being. A petitioner was bound to avoid libel, and great latitude being allowed in such documents, if a party, stepped out of the proper course he was answerable for the consequences. In this case the defendants had gone out of their course when they committed the petition to the printer's, and forwarded printed copies to the members of the Legislative Council, who had then nothing to do with the subject. They thus forfeited any privilege they might claim for the petition, as it became then, not an official document, but a published article. He was not aware what defence would be offered; but if it should be that the defendants were unaware of the nature of the document to which they had attached their signatures, he was convinced the jury would appreciate, and appreciating repudiate, such a defence. There could be no difference in the guilt of the parties whether they deliberately penned the libel, or so completely made themselves over to another party who might be interested in making as much as possible out of them as to put their names to whatever he chose to write. They could not shift the offence from themselves to another who might be willing to earn a cheap martyrdom by shielding the defendants.

The libel complained of was as follows:

"On the 17th September, [???] not repealing a British statute of great value to the subject, was passed by the votes of seven [???] of the Government sitting as Legislative Councillors, and one unofficial member, whose vote against British law may be accounted for by his being a near relation to the Attorney General, whose, character is so deeply interested in this matter and by his being implicated in another case in which the Statute of James would have the effect of defeating a grant which had been improperly obtained from the Crown."

The Attorney General would put it to the jury whether a more direct imputation of a direct offence could be possibly conceived than that conveyed in these few words - that because interest himself in repealing the Statute of James (the Attorney General would leave out all that regarded himself) Captain Swanston had violated his oath as a Legislative Councillor, and had given his vote from personal and interested motives. By a strange fatality, which Lord Bacon had called "left-handed wisdom," the defendants had, not four pages previously, in the broadest terms eulogised the very gentleman they had here so grossly libelled. It was known that in chemistry two opposite bodies neutralise each other, and perhaps it might be contended that the same effect existed in morals; if such a defence were set up, he was satisfied the jury would value it as it deserved.

[The learned counsel here cited a case, the King v Cobbett, as reported in the Register for 1803.]

Mr. Jones, who appeared for the defendants admitted the passing of the Act of Council, that Captain Swanston was a member of the Legislative Council, and that he voted for the Bill.

The following witnesses were then called:-

W.A. Broadrib. - Know defendants. I witnessed those gentlemen sign this document (copy of petition signed by them). I think it was at Mr. John Addison's house. I did not hear it read over before it was signed. Mr. Gilbert Robertson was present. I left the room, and did not see to whom it was given after it was signed.

Cross-examined. - I occasionally attended the proceedings of the Legislative Council. I was not present when a petition was presented from Mr. D Lord. I have not seen that petition. I have heard such a thing spoken of. I have seen comments upon it in print, but I never saw the document. I am aware that there had been a dispute between Messrs. Jackson and Addison, and Mr. Lord, respecting some premises in town. Am aware the claim has been contested for some years past - that it has been frequently agitated in this court - and that there has been a great deal of litigation between the parties for eighteen months. I always understood McLaren was a labouring man; he is a blacksmith; Mr. Lord is said to be very wealthy. I understood there were misrepresentations in Mr. Lord's petition and that this was partly intended to set them right. I have seen Jackson and Addison's petition; I cannot say that I understood the representations in Mr. Lord's petition reflected on the characters of the defendants. The Attorney-General was Mr. Lord's counsel, Mr. Ross his attorney; I have read the paragraph from which the passage complained of has been selected; from my perusal of it, I did not read it as a scandalous and malicious publication, nor did I understand it to be an attempt to vilify Captain Swanston, or bring him into hatred and contempt, or to cause it to be believed he had been guilty of misconduct in his office.

Re-examined. - (Passage read). I think the paragraph goes to show that Captain Swanston went a little way with the Attorney-General, and that Captain Swanston was interested in the passing of the Act in reference to an estate at New Town, leaving the public to judge whether he was influenced by such a motive or not. I consider it also went in connexion with other parts of the petition, to shew that a petition of 400 or 500 individuals, ought to have more weight than the votes of the gentlemen who passed the act; it does not say canbe accounted for, but may be accounted for; had my attention not been drawn to it, I should not have considered it reflected on Captain Swanston; my attention having been directed to it, I can only answer as I have.

Matthew Forster. - I am Colonial Secretary. (Petition handed in.) I have not seen this petition before, I think; I sent a petition so signed to the Attorney-General; I received it from Captain Swanston, officially; it was forwarded to me officially in an official complaint, begging protection from the Government. I remember the Saturday before the departure of the Emu; on that day I received a petition of this kind shortly afterwards I forwarded it to the Attorney-General, for his observations for the information of the Governor; I received that petition in a letter signed by three, if not four of the defendants at the bar; I received it from Corporal D. Boyle, the attendant on the Council; I did not see Mr. Robertson on that occasion; I have received, I think, three copies signed, and four unsigned; I may make a mistake in the number; I did not receive one as a member of the Council.

Mr. Jones admitted copies were sent to all the members of the Council besides the Colonial Secretary, and one addressed to Mr. D. Lord.

Mr. Forster cross-examined. - In the earlier part of the sessions of the Legislative Council, I believe a petition on the same subject, was presented by McLaren. Now you direct my attention to the observations it produced from the Attorney-General, respecting the party having laid himself open to perjury, I recollect it; I cannot say in what that perjury was alleged to be committed; I am aware of the existence of affidavits made by McLaren and Elizabeth his wife, and Blinkworth; my impression was that the perjury related to those affidavits. Another petition was presented, from Mr. D. Lord, I believe by the Attorney-General on the same subject; I have not in court the letter that accompanied the petition alluded to; I had it this morning, and did not bring it with me, because I did not know what it was I was wanted for; I was subpoenaed that is a usual thing; I do not know what you call it that was left at my house; I did not read it; my servant told me it was a subpoena; the following morning I asked the Attorney-General what it was for; he told me to produce one of these papers. I have not with me Captain Swanston's official complaint; I received it from the Governor, to whom it was addressed, for the purpose of forwarding it to the Attorney-General; I was in error when I said it was officially forwarded to me; I received it on the 8th December; I forwarded it in the usual manner to the law officers, and received their opinion; I do not recollect when it was; not long afterwards; it was before the 3lst; they were not unanimous in their opinion; there has been a recent change in the law officers; it took place on the 13th of the present month; the copies sent me by the defendants were addressed to me as Colonial Secretary; I have read parts, but have not read the whole through yet; my attention has been directed to part of the appendix; the letters signed Thomas Young I believe to be correct copies of those addressed to myself; I have read those letters; those purporting to be copies of letters from me are also correct to the best of my belief; there are general references to the Attorney-General, and also to Mr. McDowell by name, and the same to Mr. Ross, the late Crown-Solicitor; Mr. Ross is no longer Crown-Solicitor; his having absconded is the cause, I believe a defaulter to the public revenue; at present there is no doubt of it.

            Re-examined. - This prosecution was determined on by the Attorney-General long before the change in the law officers took place; he acted on his own responsibility, and had no instructions; his own opinion shews that he had seen that of the Solicitor-General; I do not recollect whether the perjury alluded to referred to a letter from Mr. Walker, apparently contradicting a statement of McLaren's.

A Turnbull. -  I am Colonial Treasurer, and a Member of the Legislative Council. (Petition handed in. Alleged libel read.) I believe the non-official member alluded to is intended to mean Captain Swanston; I believe the passage attributes to Capt. Swanston having noted in this legislative capacity from a private notice; I should think such conduct would amount to perjury; it would be acting against his oath, and certainly corruptly.

Cross-examined. - In literal construction, I believe the words admit of an interpretation such as I have heard this morning in court; but I cannot so interpret the spirit and intention of the passage; I have been in the colony since 1825, and employed under Government since 1829; I have already said what I believe to be the interpretation; in strict grammatical construction, it merely says that Captain Swanston's conduct is capable of being accounted for by his being a near relative of the Attorney General, and being interested in another case, in other words, that there might be two motives for his conduct. The one of consanguinity and our personal interests are likely to prejudice and predispose the mind; we have a general predisposition to believe anything we hear from one whom we love, respect or esteem. A man who was above such influence would be an exception to the general rule of human nature; I have not met with such a person; I have been a regular attendant at the Legislative Council for some years; I do not recollect ever hearing the Attorney-General say that "he knew too well the value of his place to vote against a government measure," or words to that effect; I have heard some such observation fall from him as a kind of joke, but by no means so broad; I think I have heard the Attorney-General make some observation of the kind, but not gravely; I considered it a joke merely; I have never stated that I considered myself bound to vote for all measures brought forward by the Government; I consider I am bound by my oath; if my opinion were adverse, I should either vote against the measure or not be present; I consider myself bound to support every measure of the Government, if I can do so conscientiously; if I had scruples, I should not try to overcome them; there is a distinction between cases; in some it is expected that a Government officer will not vote against a Government measure; in others he can vote as he pleases; I consider it would be the duty of a Government officer to absent himself, if opposed to a measure; if compelled to attend, they must vote against it, if they could not conscientiously support it; so far as I am conscious, the fact of holding a Government appointment had no influence on my vote upon this occasion; indeed, I considered it an open question; I never knew any inconvenience result from a Government officer refusing to vote for a Government measures; I knew the Attorney-General resigned his office fifteen months ago, because he could not support a measure brought forward by the Government; I knew another high Government officer dismissed for opposition, not for voting against; voting against a Government measure is not such an opposition as would produce as individual's removal from office; I have known cases where it was expressed that it was expected that a particular Government measure should receive the support of Government officers.

Re-examined. - In my opinion these words impute to Captain Swanston corruption and perjury; I was present within a few minutes of the Attorney-General tendering his resignation, about fifteen months ago; Mr. Jones was his successor. [His Honor would not allow further examination on this head.]

Charles McLachlan. - I am a Member of the Legislative Council; I hold in my hand a petition from defendants, not signed. (Libel read.) I consider this imputes that the vote of Captain Swanston was swayed by circumstances, in fact corruption as a M.L.C.

Cross-examined. - The object of the writer appears to show that the opinions of 400 or 500 persons were superior to the votes of the members of Council. So far as the estimates and questions relating to the Government money are concerned, it is the general opinion that the Government officers will vote for the Lieutenant Governor's estimates, but I am not aware that any acts brought forward are expected to be supported contrary to their own opinions. The bill in question was not a government measure. I understand the judges differed upon the point, and the object of the Bill was to obtain the decision of the law officers at home. It was stated at the time that the government was indifferent which way the vote went, as if that Bill was thrown out, another would be introduced declaring the statute of James did apply to the colony, and having a suspending clause till the pleasure of her Majesty should be made known.

W. M. Orr. - I am a merchant, and have read the 39th paragraph of this petition - I consider the paragraph imputes to Captain Swanston, that he voted on the occasion alluded to from interested motives.

This was the case.

Mr. Jones, (last Solicitor General) for the defence, said that the Jury would have to consider the whole of the documents from which the alleged libel had been selected. The boast of the Attorney General that this was only the second instance in which he had resorted to the power of his office, was anything but a matter of gratulation to the learned gentleman, as the reservation of his right of reply evinced in the clearest manner the spirit in which this prosecution had been commenced, and would in all probability be proceeded with. He volunteers the assurance that no stone should be left unturned to secure a conviction. It was possible that his (Mr. 'Js) duty to his client might be done by simply requesting the Jury to consider the whole of the petition from which the alleged libel was taken; but it would be more satisfactory for him to go rather more into detail. The defendants, though not in actual custody, were then in the light of malefactors, arraigned on a criminal charge, and they looked to the jury to acquit them from the stain thus attempted to be cast upon their character. The Attorney General had represented the passage, charged as libellous, to be a most atrocious outrage - it was necessary for him to do so, in order to account for having recourse to a proceeding rarely resorted to in modern times. The power of proceeding by ex-officio information, was given to enable the Attorney General to act in cases where the State was threatened with immediate danger; but it was not usual for that officer to interfere where a libel affected a private individual only, as such a person had his own remedies, either by civil action, or criminal proceeding, as he might call upon the Attorney General to prosecute; but here the law provided for the accused the safeguard of a previous oath. Captain Swanston was in fact a private individual. He was the great Managing Director of the great Derwent Bank - the father-in-law of the Attorney General, and a Member of the Legislative Council,. This was the mighty personage for whose reputation the Attorney General had to tender a regard, that he could not bear to hear a charge, an insinuation even breathed against him without horror and dismay. All the terrors of an ex officio proceeding must be levelled at any one who could think of hinting, anything, however remotely to his prejudice, while at the same time the Press was teeming with the foulest slanders and grossest attacks upon private character, and upon public officers - attacks calculated to alarm, and which had had the effect of frightening people from coming to the colony. Here was a fair field for the powers of the Attorney General to be exercised for the public good; but no; there were suffered to pass with impunity; but the manager of the Derwent Bank must not even be insinuated against. He should be able to show before he sat down, that this "gross and atrocious libel" was not of the complexion attributed to it. The defendants had suffered the most grievous wrongs at the hands of the Government, and of the Attorney General; and in the petition were only seeking that investigation which had hitherto been withheld from them. It was an inherent principle of the British constitution, that where a subject was damnified or injured by the wrongful issue of a grant or other patent, that the injured party had a right to demand the issue of a writ of Scire Facias, to cause that patent to be brought up, and the propriety of its issue investigated. If found correct - it was confirmed, and no wrong done; but if incorrect, it was repealed, the injured party redressed, and justice satisfied. This right the defendants had claimed, repeatedly claimed, and been refused; and generally the government appeared to entertain doubts as to the propriety of the issue of a scire facias in this colony. It was in the course of a remonstrance against the cruel wrongs they had endured, that the alleged libel occurred; and what did it impute - merely that Captain Swanston, all great as he is in the estimation of the Attorney-General, was not an exception to human nature - that he was "liable" to be swayed, not that he "was" swayed by personal interest, and a deference or leaning to the opinion of a relative. Dr. Turnbull, the most metaphysical of all metaphysicians he had ever met with, admitted that during his long experience, and official experience too, which was infinitely valuable, he had never met with such an exception. Were the defendants to suppose Captain Swanston to be free not only from the infirmities, but the very nature of humanity - he whose daily associations were calculated to render him keenly alive to a sense of his own interest. He was a banker - a money lender - a money maker. Such persons, by the force of habit alone, were absorbed in the one object of their own interest, a feeling which would influence them in spite of themselves. He was moreover (unfortunately for him) possessed of an estate at New Town, to which he had not the shadow of a title, which would be affected by the statute of James. Would it have been surprising - would it have been even culpable if the consideration of his own interest did influence not merely his vote, but his judgment on the occasion, and induce him to lean to the opinion of his relative, the highest law authority in the colony (whether advantageously so or otherwise he would not enquire) which opinion was favorable to that interest? He must have been more than man if he could have divested himself from such an predisposing influence. The defendants impute that he was predisposed by his own interest to leave to the opinion of one he loved. - Dr. Turnbull's own expression.

[The learned advocate then went through the whole of the petition to the Secretary of State, commenting as he went on upon the several allegations, and animadverting in the most severe and unmeasured terms upon the crown law officers being all retained against the defendants for Mr. Lord, in a case where they had to advise the Crown - upon the Attorney General - the private counsel of Mr. Lord advising against the issue of a scire facias - upon the conduct of the government - and the wrongs and injuries of the defendants, with a degree of eloquence and volubility that rendered it impossible for any reporter to follow him, and concluded his brilliant address by expressing his conviction that the jury would, without leaving the box, mark their sense of the proceedings by acquitting the defendants.]

The Attorney-General briefly replied that he felt it his duty to the government, the learned Counsel had thought proper to vilify, to say that it was undeserving of that censure, although he feared the government would not exist one week after the opinions of Mr. Jones were made known. As to himself he would merely observe that the right of reply was never waived by the Attorney General in cases of information. The learned Counsel had taken the liberty to submit a course for his (the Attorney General's adoption; and to say that he should rather have commanded the Solicitor General to come down and prosecute for a libel on himself, but he was not to be guided by any extraordinary deference which he paid to the opinion of Mr. Jones. He would add that all the charges against himself, upon which the learned Counsel for the defence had dwelt so eloquently and discreetly, had been forwarded to the Secretary of State, pending whose decision it would be unbecoming in him to take any measures on his own account. He had yet to learn what the jury had in this case to do with the conduct of the government, or the Attorney General, or the Crown Solicitor, or Mr. Lord, with the Colonial Secretary, treating a sentimental Solicitor (whose productions were scarcely more classic than the speech he had just heard) "with less courtesy than one dog usually extends to another." This expression was Mr. Jones's, but he (the Attorney General) being unaware of the extent of canine courtesy, was unable to attach a value to the comparison. Three-fourths of the learned gentleman's speech was the petition of the defendants, and the remainder appeared to be borrowed from the columns of a newspaper, which no doubt the learned Counsel wished him to prosecute, as he had so charitably prescribed all newspapers, which was exceedingly ungrateful in him, as he had borrowed the essence of his speech from one of them. As to the reproaches of that polite correspondent, Mr. Young - the lachrymose sentimental Solicitor, full of tears at the amount of his client's bill of costs, he (the Attorney General) hoped he should survive them. Mr. Young had before threatened him with the Secretary of State, and the House of Commons; but he was still alive. As to the extraordinary burst of pathos and eloquence in which Mr. Jones had indulged, and with which he had gratified the Jury on the evidence of Mr. McLachlan, he would merely observe that it reminded him of little Keely in one of his characters, "I have been a small tailor all my life, but now you're roused a lion." With these observations he would leave the case to the common sense and right feeling of the Jury.

His Honor, in summing up, told the jury that the only question they had to try was, whether the words charged as libellous imputed improper motives to Captain Swanston, as a member of Council, or not. The words were to be taken in their plain and ordinary sense, and not wrested one way or the other. If they impute misconduct, the law implies the intention to do so. If they do not, and merely impute the liability to the temptation, and not the yielding to that temptation, they were not libellous.

The Jury retired shortly after five o'clock, and at 6 returned with the following verdict: - "Guilty of publishing the libel, but we are of opinion the defendants were not aware of the extent of the imputations."

His Honor said he could not receive such a verdict - the question for their decision was, did the words impute any thing, and what, to Captain Swanston. It was of no consequence whether the defendants were aware or not. The jury hereupon retired again, but were recalled shortly after by the Judge, who told them that if they were not satisfied, the words charged as libellous imputed dishonest motives of action to Captain Swanston, there was an end of the case; but if they were of opinion that the words in their ordinary acceptation did impute such motives, the law implied that the defendants intended to impute them. The jury then retired a third time, and in a few minutes returned with a verdict of Guilty.

Court adjourned - defendants continuing on the same bail.

MONDAY, FEB. 1.

Messrs. Jackson, Addison and McLaren appeared this day at 4 o'clock, when Mr. Jones moved for an arrest of judgment on the ground of general uncertainty in the information, and several technical objections to the record.

A long and dry argument ensued, and his Honor adjourned the Court till Thursday at 12 o'clock, for the purpose of considering the objections taken.

THURSDAY, FEB. 4.

At 12 o'clock Messrs. Jackson, Addison, and McLaren, having appeared as directed, his Honor the Chief Justice said he had now to give judgment which was, that the objections taken by defendants Counsel were not tenable and having no doubt on the subject, had not thought it necessary to consult Mr. Montagu. The cases cited, his Honor considered, did not apply to the present case. The groundwork of the objections appeared to be that the words complained of were not libellous without reference to some "extrinsic" circumstances; but this was not true - no circumstances were necessary to the understanding of the passage other than those contained in the averments, and the matter charged as libellous itself - therefore there was nothing "extrinsic" which it was necessary to refer to. On the 2d point, that the particular occasion in reference to which the libel was written, was not identified by inuendo; his Honor, on the authority of several cases cited by him, ruled that it was unnecessary. The 3rd objection was the absence of prefatory averment applying to the inuendo, respecting the Attorney-General - here the inuendo went beyond its office. It was mere surplusage, and mere surplusage could not vitiate the information. The fact was immaterial to the case, and ought to be struck out altogether. The words in his Honor's opinion were as clearly libellous as words could be according to the natural interpretation of every [???] of plain sense and understanding.

            The Attorney-General said that he had the right of now addressing the Court in aggravation, [???] not seeking to add to the punishment of the defendants, he would merely express the satisfaction felt on his own opinion of the libellous nature of the words being so completely confirmed by the verdict of the Jury, and the opinion of his Honor.

            Mr. Jones rose to address the Court in mitigation of punishment, and stated that he hoped he should shew the defendants were in a positive frame which a very different import might have to be drawn from the words.

            His Honor observed that it was not the privilege of counsel to repeat what he had said on the trial.

            Mr. Jones was thankful for the hint, but hoped it was unnecessary, as he knew his duty too well to address ad captandum to a learned Judge such arguments as he might consider liable to tell with the jury. The learned gentleman then urged that the petition of the defendants was not a gratuitous and voluntary act of their own, but drawn from their reply to a petition from Mr. D. Lord, the individuals with whom they had been so long at issue, and inferred to the other passages in the petition, where Captain Swanston was favorably spoken of, to show that there was no malus animus on their part. The object of the petition was not to reflect upon Captain Swanston, but to obtain redress from the Secretary of State for injuries they were suffering. Those wrongs were calculated to excite their [???] , and one of the parties complained of had now fallen past redemption. The language of the passage complained of was particularly mild, and he would ask whether from the general tenor of the petition, and the violent observations which dare emanate from the Press, and are suffered to p[???] unnoticed, if the intention of the defendants has been what the jury have found it, they would not have used much stronger terms. The learned advocate then feelingly deprecated the addition of any imprisonment being added to the punishment as that would be to the defendants destruction, and begged his Honor, while administering justice, temper it with mercy.

His Honor at considerable length went through the several points urged in mitigation, but could not see the least palliation, and passed the following sentence:- "That Mr. Jackson and the two Messrs. Addison should be severally imprisoned in Her Majesty's Gaol at Hobart Town for seven weeks and pay a fine of £100 each, and that Mr. McLaren should be imprisoned for three weeks and pay a fee of £10, (in consequence of his being in a different sphere of life) the imprisonment to be calculated from the first day of the sessions, and to be continued till the fines are paid..

           

Pedder C.J., 4 February 1841

Source: The Hobart Town Courier and Van Diemen's Land Gazette, 5 February 1841

LIBEL CASE. - Yesterday, pursuant to adjournment, Messrs. Jackson, Addisons, and McLaren appeared in the Supreme Court, to receive judgment. His Honor the Chief Justice observed at some length upon the cases cited by Mr. Jones, especially that of Horne (Tooke) and the King's troops, over-ruling the objections taken by the learned counsel on Monday, in arrest of judgment. His Honor also stated, that having no doubt upon the subject, he had not deemed it necessary to consult Mr. Justice Montagu. In his opinion, the matter was as libellous as matter could be; and having taken the whole subject into mature consideration, it only remained for him, consistently with the duty he had to perform, to pass judgment upon the defendants.

The Attorney-General said, that he did not desire to avail himself of the privilege of replying, as he was quite satisfied to leave the case as it stood, in his Honor's hands; he felt much gratified to find that the jury, by their verdict, had sanctioned the course he had considered it his duty to take, by filing the information in the present case; and he was quite convinced that nothing which he could say, would have any influence upon his Honor's decision.

Mr. Jones, in mitigation, spoke generally in the tenor and condition of the libel, which, he contended, was extremely equivocal and ambiguous, and that consequently the case of the defendants was a very hard one. The learned counsel submitted that the libel complained of was not uncalled for, as in fact, it was part of a petition drawn up in answer to another petition, which contained misrepresentations prejudicial to the defendants, and for the purpose of obtaining redress for most grievous wrongs. The defendants had already been put to very great expense and had submitted to no less than three trials on this very subject, and it would have been the more natural and regular course to have adopted, had the prosecutor brought a civil action, and not availed himself of the power which the Attorney-General possessed as grand juror for the colony. Mr. Jones concluded a brief, but animated address, by contending that the defendants, in petitioning as they had done, had only exercised the right of a free subject, and that there was no proof of any predetermined malice on their parts.

The Chief Justice, after observing in detail upon the remarks of the defendants' council, and animadverting upon the nature of the libel, stated, that he had taken every matter connected with the case into the most attentive consideration. His Honor then passed the following sentences upon the defendants; - Messrs. Jackson and H. and J. E. Addison to a fine of £100 each to the Queen, and to be imprisoned for seven weeks, to commence from the first day of the present sessions; and McLaren fined £10, and to be imprisoned for three weeks. The defendants were then committed to the Sheriff, who removed them to the gaol. The Court was exceedingly crowded throughout the whole proceedings.

Notes

[1]              See also Austral-Asiatic Review, 2 February 1841; The True Colonist, VanDiemen's Land Political Dispatch, and Agricultural and Commercial Advertiser, 5 February 1841 and 12 February 1841.  According to AOT SC41/5, p. 68 the parties are John Jackson, John Elliott Addison, Hugh Addison and William Mclaren who libelledCharles Swanston.  Jackson and Addison were well known builders, see A. Gerrard, 'The Reverend Archibald Macarthur', THRAPP, vol. 33, 1986, p. 115.  See also R. Snell, 'The Caveat Board: An Overview of a Key Colonial Tribunal 1835-1859', THRAPP, vol. 42, no. 4, 1995, p. 211.

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