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Decisions of the Nineteenth Century Tasmanian Superior Courts

McDowell v. Robertson [1841]

libel - abuse of power - Attorney General - freedom of political communication

Supreme Court of Van Diemen's Land

Montagu J., 9 June 1841

Source: Austral-Asiatic Review, 29 June 1841[1]

            This was an action brought by Edward McDowell, Esq., Attorney-General of the colony, against Mr. Gilbert Robertson, Proprietor of the True Colonist newspaper. Mr. Sidney Stephen was counsel and Mr. R. Pitcairn solicitor for the plaintiff; the defendant conducted his own case in person.

            The case was tried before Mr. Justice Montagu, and a Jury of four special jurors, viz., John Hiddlestone, Esq. (Foreman), John Beamont, Esq., John George Briggs, Esq., and George Hunt, Esq.,

Mr. Stephen then opened the pleadings, reading the following declaration:-

            In the Supreme Court of

            Van Deimen's Land.

On the nineteenth day of February in the year of our Lord one thousand eight hundred and forty-one.

            Edward Macdowell by Robert Pitcairn his attorney complains of Gilbert Robertsonwho has been summoned to answer the plaintiff in an action of trespass on the case - For that whereas the plaintiff before and at the time of committing of the several grievances by the defendant hereinafter mentioned had been and was and still is the Attorney-General of our Sovereign Lady Queen Victoria in and for the Island of Van Diemen's Land. - And whereas the plaintiff is the elder brother of Thomas Macdowell of Hobart Town in the said Island Esquire - And whereas the plaintiff before the committing of the said grievances had contributed towards the expense of bringing his said brother from England to the saidIsland of Van Diemen's Land. - And whereas the said Thomas Macdowell before and at the time of the committing of the several grievances by the defendant as hereinafter sanctioned had been and was and still is the Editor of a certain public newspaper called theCourier. Yet the defendant well knowing the premises but contriving and wickedly and maliciously intending to injure the plaintiff in his good name fame and credit and to bring him into public scandal infamy and disgrace with and amongst all his neighbours and other good and worthy subjects of Her said Majesty and to cause it to be suspected and believed by those neighbours and subjects that he the plaintiff had been and was guilty of the offences and misconduct hereinafter sanction to have been charged upon and imputed to him by the defendant and to vex, harrass and oppress the plaintiff on the fifth day of February in the year of our Lord one thousand eight hundred and forty-one in a certain public newspaper called the True Colonist Van Diemen's Land Political Dispatch andAgricultural and Commercial Advertiser falsely wickedly and maliciously did print and publish and cause and procure to be published of and concerning the plaintiff a false scandalous malicious and defamatory libel containing in one part thereof amongst other things the false scandalous malicious defamatory and libellous matter following of and concerning the plaintiff that is to say - "The two Brothers Macdowell" (meaning the plaintiff and his said Brother the said Thomas Macdowell) "in the Courier (meaning the said newspaper so edited by the said Thomas Macdowell as aforesaid) "of Tuesday the 25th January these two worthies (meaning the said plaintiff and the said Thomas Macdowell) "who are one as regards the slanders and misrepresentations put forth by them in the Courier" (meaning the said newspaper so edited by the said Thomas Macdowell as aforesaid) "to cloak the official delinquencies of the elder" (meaning delinquencies committed by the plaintiff as Attorney-General as aforesaid) "and to turn public attention from these delinquencies by inventing falsehoods with a view to degrade until they can crush the man who has the courage to bring those delinquencies under the notice of his superiors elsewhere have with this view put forth a falsehood relating to the pecuniary affairs of the conductor of this journal." And in another part of the said Libel the false scandalous and malicious defamatory and libellous matter following of and concerning the plaintiff, and of and concerning the plaintiff in his office of Attorney General as aforesaid, that is to say "Had we not on the contrary every legitimate reason to bring the pecuniary transactions of the Macdowells under the immediate notice of the authorities both here and at home with reference to the recent malversations in office committed by another public officer the alder and abettor of the Attorney General" (meaning the plaintiff) "in a course of conduct for which he" (meaning the plaintiff) "now stands accused before the Secretary of State with abusing the powers of his office" thereby intending and wishing it to be believed that the plaintiff had abused the powers of his said office of Attorney General). And in another part of the said Libel the false scandalous malicious defamatory and libellous matter following of and concerning the plaintiff, that is to say "Did we in the discharge of a public duty to bring down the arrogant tone of the Attorney General's 'cat's paw' brother make any reference to the means by which the Attorney General" (meaning the plaintiff) "was enabled to effect the importation of that instrument for the defence and propping up of official incapacity and dishonesty" (meaning the said Thomas Macdowell, and thereby imputing to the plaintiff that he had used dishonourable means to effect the arrival of his said brother in the said island and also thereby imputing to the plaintiff incapacity for and dishonesty in the discharge of his duties as Attorney General as aforesaid). And in another part of the said Libel the false scandalous malicious defamatory and libellous matter following of and concerning the plaintiff, that is to say "Did we ever bring forward the pecuniary affairs of the Attorney General (meaning the plaintiff) "in his transactions in the "Jobbings" affair, nor the declarations which we heard from Mr McDermott of Sydney, when he had occasion to visit this colony to enforce payment of a pecuniary claim, the origin of which if appointed out to 'the discrimination' of the Secretary of State would have prevented Mr. Edward Macdowell from ever possessing the power of carrying into effect his threat that he will "never let us alone until he has crushed us" (thereby insinuating and wishing and intending it to be believed that the plaintiff had been guilty of conduct so dishonourable and dishonest that he was unworthy of filling his said office of Attorney-General) By means of the committing of which said grievances by the defendant as a aforesaid the plaintiff hath been and is greatly injured in his good name fame and credit and brought into public scandal infamy and disgrace with and amongst all his neighbours and other good and worthy subjects of Her said Majesty and is suspected to have been guilty of the misconduct so as aforesaid mentioned to have been charged upon and imputed to him and the plaintiff hath been and is by means of the promises otherwise greatly injured to the damage of the plaintiff of Five Hundred Pounds and thereupon he brings suit &c.

Mr. Stephen then addressed the Jury to the following effect:- "To this declaration the defendant has pleaded the general issue, thereby admitting the falsehood of the libel, by not daring to attempt a justification. By the plea which he has put upon the record, he denies that he did publish this libel, or if he did, that he published it with the intent, or that the language has the tendency and effect imputed in the declaration. And you will have to try -First, whether he is guilty of publishing - and Second, whether the inuendoes in the declaration are borne out. You will then have to determine what amount of damages the plaintiff is entitled to receive at your hands, for having been made the subject of such a false, malicious, wicked, and injurious attack upon his character, in the column of a newspaper circulated over the whole globe. Gentlemen, this is not one of those [???] cases of libel, where it is difficult for a jury to arrive at the true meaning and effect of the language; and where they are compelled to put a construction on the words possibly different from that which the writer intended they should bear. The language used by the writer is too plain and bold to admit of any doubt as to its meaning and effect, or of the intent. It will be sufficient for you, or for any man, to read the libel, to satisfy you that it is one of the most injurious tendency that could be possibly published against any man, particularly against a gentleman of the high character and official rank of the Attorney-General. And the malice of the writer is even more apparent than the injurious effect of the writing. This libel, as the declaration states, was published in the True Colonist of the 5th February last, in an article headed "The two Brothers McDowell", meaning the plaintiff in this action, and his brother, Mr. Thomas McDowell, who is Editor of the Couriernewspaper. (The learned counsel then read, and commented separately on each passage selected from the article, and set forth in the declaration, as grounds of actions.) On the first, (he observed) I ask, who would question the injurious effect of these words? Is not this charging the Attorney-General with delinquency in his office? And what is delinquency? The word has but one unequivocal meaning in common parlance; Johnson's dictionary may give it a more limited signification; but you are to take it in that signification to which it would be taken by any newspaper reader, without looking at it as Johnson would. And do you not understand delinquency to mean an offence, or a series of offences - and by a delinquent, do you not understand an offender? You cannot believe that the defendant meant anything else but to describe the Attorney-General as a person guilty of offences against the duties of his office. And recollect, that in the same libel, he says, that the Attorney-General is unfit for his office, and unworthy to fill it. Such language would be libellous and injurious, if applied to any man; how much more so, when a gentleman holding the high office of Attorney-General is described as having been guilty of crimes which he sought to cloak. The more respectable the character, and the higher the rank of the person assailed, the more injurious the libel. But what I have read is nothing to be compared to the language used by the defendant in other portions of the same libel. (The learned counsel then read the second passage as set forth in the declaration.) What can you possibly understand from this, but that the Attorney-General is by the defendant  charged with having abused the powers of his office, and been guilty of official dishonesty, and malveration in his office. What the writer has not the courage plainly to assert to but the malice to insinuate. But in this colony, and I am sorry to say, in Britain also, where the libel is calculated to do the greatest injury to the plaintiff, people are too ready to take insinuations for assertion, and to receive assertion as fact. And, if a high dignitary of the church, at home, has been induced to adopt insinuations against the moral condition of this community as facts, and [???] upon those assumed facts, which had no other [???]than mere insinuation, the offering of malice or ignorance, or of jealousy, has inflicted [???] irreparable injury upon a whole community. What may not be the effect of the false and malicious insinuations contained in this libel, to the injury of the plaintiff? If the high dignitary who adopted, and acted upon insinuations against the colony, held the office of Secretary of State, might he not, on the malicious insinuations of defendant, decide that the plaintiff was really an official delinquent, guilty of dishonesty and malversation in office, and deprive him of that office? To speak of an Attorney-General as an official delinquent, is to say that he is unfit for his office. What can you understand by this - 'a course of conduct for which he now stands accused before the Secretary of State with abusing the powers of his office?' Does not that insinuate and attempt to cause it to be believed, that the Attorney-General did abuse the powers of his office? Does it not assert that he is accused to the Secretary of State, of having been guilty of official delinquency in that abuse? But not content with that, the defendant in his malice wishes to make it appear, that the Attorney-General is implicated as the aider and abettor of another public officer in embezzling the public money. I need scarcely tell you, that the public officer here referred to, is Mr. Hugh Ross, the late Crown Solicitor, who was charged with embezzlement of the public money. Here is malversation charged, and connected with pecuniary transactions. True the defendant has not the courage to assert, what he has the malico and dishonesty to insinuate. But what is more calculated to do the Attorney-General an injury than such an insinuation? What connexion could exist between the Attorney-General and the Crown Solicitor in the pecuniary malversations charged against the latter? You know that the Attorney-General has nothing whatever to do with the public monies which pass through the hands of the Crown Solicitor. But this is not known in Britain, and there, where such a strong prejudice has been created against this community, and where everything that is bad is readily believed against the best men amongst us, people do not know that a newspaper is not here the echo of the public opinion, but the mere expression of the sentiments of one man, and with this print in their hand, they will believe that the Attorney-General is guilty of all that is here insinuated against him. But there are other insinuations of the same nature, charging the plaintiff with fraudulent and dishonest conduct, which defendant says, ought to deprive him of his high office. (The learned gentleman then read the next passage.) Now, Gentlemen, here you have another reference to the pecuniary affairs of the Attorney-General, with an insinuation that he had recourse to dishonourable means to effect the importation of his brother, Mr. Thomas McDowell, and a direct charge of official incapacity and dishonesty against the Attorney-General. What can the defendant mean by his insinuation about the means by which the plaintiff had been able to effect the importation of his brother, but that they were dishonourable 'means?' And for what purpose? To prop up official incapacity and dishonesty. You can find no difficulty in making out the inuendo applied to this passage. (Mr. Stephen then read the last passage in the declaration.) Does not this insinuate, and seek to cause people to believe, that the Attorney-General had been guilty of conduct so highly dishonourable in some pecuniary transactions, that the Secretary of State would deprive him of his office, if he was made acquainted with such conduct? Indeed the defendant himself puts the meaning, beyond all doubt, for he says - 'If pointed out to the discrimination of the Secretary of State, would have prevented Mr. Edward McDowell from ever possessing the power of carrying into effect his threat, that he will never let us alone until he has crushed us." Does not that mean that the Secretary of State, if made acquainted with the grounds of these insinuations, would deprive the plaintiff of the high office which he holds? Gentlemen, such is the libel which you have to try, and you will no doubt be surprised to find, that for a libel so malicious, so mischievous in its tendency, and at the same time so utterly false and unfounded, we have asked only £500 damages, when we might with equal justice and equal certainty of success, have asked £5000 or even £10000. And this, I am confident you will give my client, as a very inadequate compensation for the damage he has sustained. For I am sure the defendant himself would not thank you for reducing the damages on the ground that his writing was not capable of doing injury to the plaintiff, or to any man against whom it was directed. I am sure he would feel offended and hurt by any man making such an assertion. I can imagine him the day after this publication, meeting some one and saying, 'have you seen the Colonist? I have given it to the McDowell's - I think I have done for them this time.' And so he has, Gentlemen, unless your verdict, by a heavy amount of damages, to the utmost extent that the defendant is able to pay, does not vindicate the injured character and feelings of my client, and mark your detestation of the malice and falsehood by which he has been assailed. For if you do not consider the Attorney-General's character worth £500, I would not ask you to give him one farthing. But, Gentlemen, the character of the Attorney-General stands too high in your estimation, to allow me to doubt the result of your verdict. Gentlemen, the high attainments of that gentleman - his honourable principles - his integrity - the zeal and ability with which he discharges the duty of his high office - his natural talents and professional attainments, and matchless eloquence, are too well known and appreciated in this community, to allow me to suppose, that he can, by your verdict, be allowed to suffer under the malicious and unfounded insinuations, or aspersions of the defendant. But recollect, Gentlemen, that the higher the station, the greater the injury, the more poignant the wounds inflicted by such imputations. I would not have you suppose, that I wish to impress upon you that elevated rank should protect any man, least of all a public officer, from merited censure; but that censure should be open, straightforward comment on his official conduct, exposing what was really wrong and censurable on public grounds. But not for the gratification of malice, arising out of a trifling difference of opinion, probably on some absolute statute of James, or some other point of public policy. It is possible that the defendant, in mitigation of the penalty which he has incurred, in the name of damages, will tell you, that being at present removed from the Editorship of a newspaper, and retired to a farm, he is removed from doing farther mischief, and that he ought to escape punishment; but is that a reason why he should not be punished for the mischief which he has already committed - or is it any compensation to the person whom he has so grossly injured? As well might an incendiary plead, when brought to justice for his crime, that he was now removed from the country where he had committed that crime, and had no opportunity of burning any more houses. Would such a plan avail him? No! Neither will you allow the defendant to escape the consequences of his offence, because he has now betaken himself to another occupation. You must look at the loss which the plaintiff would sustain, if his malicious insinuations had produced the effect which they are calculated, and intended to produce, by causing the Secretary of State to deprive the plaintiff of his high office. The Attorney-General is known to many persons in England, by whom his worth and talents are highly appreciated. What must they think, when they read this paper, and find that he, whom they had formerly known and esteemed, is the subject of such accusations as are conveyed in this libel. Will they not exclaim - 'What a change must have taken place in his character? - How is Babylon the great fallen?' Gentlemen, you cannot give the plaintiff more than £500, and I am sure you will think it far below what he is entitled to receive at your hands; for I know I am speaking to men who know him. Look at his character and conduct for the last ten years that he has held high office amongst you - look at the efficient manner in which he has discharged his duties, and I am confident it has not fallen to your lot to find a person of greater talent and respectability amongst you. If the defendant believed in the truth of his aspersions, why did he not address a complaint to the Secretary of State, which the plaintiff could have met, and which his character would have answered and silenced, for it would have given the lie to such aspersions? Or why did not the defendant dare to justify his aspirations, by proving their truth before you? By not attempting this, he admits their falsehood, as an aggravation of their malice, and mischievous tendency. I will now proceed to call witnesses.

On the first witness being called, to prove the publication, Mr. Robertson said - "I will save you the trouble by admitting that I am Proprietor of that newspaper, and the Printer, Publisher, and Writer of the article complained of."

Rev. John Lillie examined by Mr. Stephen - Has read the passage referred to in the declaration; the article is in the True Colonist; it is headed "The Two Brothers McDowell;" the passage commencing "these two worthies," and ending "conductor of this journal," imputes to the Attorney-General, that he had been guilty of something bad in his official capacity, which has been brought under the notice of some supreme authority; "official delinquencies" means that the Attorney-General had abused the powers of his office; thinks that the defendant in the next passage intended to insinuate that the Attorney-General had been accused to the Secretary of State of having abused the powers of his office - indeed the meaning is unequivocal, for it is so stated in plain language; in the next passage, the expression - "means by which he was enabled to effect,' &c., imputes that he made use of dishonorable means, at least something discreditable or questionable; the conclusion of that passage imputes to the Attorney-General official incapacity and dishonesty; the last passage imputes that the Attorney-General had been guilty of conduct, which, if brought under the notice of the Secretary of State, would lead to a forfeiture of his office; the whole seems to impute to the Attorney-General incapacity for his office and dishonorable conduct, if not dishonesty; will not say that it imputes dishonesty, cannot go that length as to the meaning of the whole article; it certainly imputes something bad and discreditable.

            Cross-examined by Mr. Robertson. - Is an unwilling witness; has great objections to be called upon in such cases; has stated so to defendant, who abstained, on that occasion, from sending witness a subpoena in a case where defendant wanted his evidence; plaintiff did not force a guinea upon him with his subpoena; never saw plaintiff on the subject; a guinea was laid upon his table with his subpoena by a gentleman whom he never saw before; he did not understand the meaning of it, but on inquiry was told that it was always customary.

            Defendant. - I hope, Sir, you will not suppose that I had any unworthy motive in asking you that question (to the Court) I wish, your Honor, to shew the jury that every means have been taken to swell the costs in this case, in anticipation of a verdict for the plaintiff. Guineas have been pressed upon all the witnesses - upon such gentlemen as Mr. Lillie, Mr. William Orr, and Mr. John Robertson, and I do not know how many more in the name of "conduct money."

            His Honor. - What is that? I never heard of such a thing before - (to the Sheriff) - have you? - is it customary?

            The Sheriff said it was sometimes given to witnesses to bear their expenses.

Defendant - I hope the jury will bear it in mind.

Cross-examination then proceeded. - Has not lately read the whole article nor does he recollect it; has formed the opinions which he has stated, from reading the detached passages to which his attention had been directed.

Mr. Robertson. - Then, Sir, will you do me the favour to read the whole article, and see whether the meaning and intent of these isolated passages are not materially altered or modified by being taken in connection with the other parts, and by the explanation afforded by the context.

Witness then read the article, and the cross-examination continued. - Has said that the terms official delinquencies applied to the Attorney-General - imputed to him abuse of the powers of his offices; witness understands it so; the word delinquency is more correctly applied to negative than to positive offences (that is to neglect of duty rather than to abuse of power), but understands by a delinquent an offender, a wrong doer; charging the Attorney-General with official delinquency does not necessarily impute abuse of the powers of his office; it imputes some offence which may be negligent performance of his duty; would say that it insinuates or rather accuses him with some offence or official misconduct; the second passage does not accuse him with abusing the powers of his office, it asserts that he had been accused by some person; on reading the whole of the article observes that it purports to be an answer to an article previously published in the Courier; has not seen that article that he can recollect; sees by the article which he has just read in the Colonist that the writer imputes to the writer in the Courier, that he had unwarrantably dragged forward the private affairs of the editor of the Colonist, which provoked the latter to retaliate - (defendant handed the Courier, of 26th March, to the witness.)

Mr. Stephen objected to the witness being examined as to the contents of the Courier, as defendant has not proved the connection of plaintiff with the Courier, nor even if he had, could he plead one libel in justification of another, as he had put no justification on the file.

His Honor. - Mr. Robertson is entitled to shew the witness the article in the Courier, and to ask him whether on reading that article he still adheres to the opinion which he has already given of the language in the alleged libel. But let me first look at the article which you wish to shew him (Courier handed to His Honor, who, after looking at the passage, said) - you can ask the witness to read it, and then proceed with your questions.

Cross-examination resumed. -

Mr. Robertson. - Now, Sir, having read that passage in the Courier, do you perceive the connection between that and the article in the Colonist, on which you have been examined?

Witness. - It has considerably altered my opinion.

Mr. Robertson. - Do you observe in the Courier any reference to my private or pecuniary affairs, and what?

Witness. - It states that Mr. Currie at Sorell paid your expenses in an action which you brought for libel.

Mr. Robertson. - Do you think that there is any disgraceful or dishonorable imputation in that?

Witness. - No

Mr. Robertson. - Does it not convey the imputation or reproach of poverty?

Witness. - I think it does.

Mr. Robertson. - Do you not observe that in the article on which you have been examined I state that to have been the cause which provoked me to the publication of that article?

Witness. - You say so in the article itself.

Mr. Robertson. - Then taking the whole of that article in connection with the article in theCourier, do you think that the reference to the means by which he was enabled to effect the importation of his brother did not mean an insinuation of poverty and not dishonesty?

Witness. - The expression about means has certainly reference to poverty, not to dishonest means.

Mr. Stephen re-examined Mr. Lillie, and endeavoured to get him to alter his opinion as to the meaning of those passages regarding which the reading of the whole article had altered the opinion formed by him on reading the isolated passages to which his examination in chief referred.

His Honor then examined Mr. Lillie, asking him with respect to each whether it bore the meaning alleged in the innuendo - to all of which, except the last, the witness answered in the negative.

Mr. McLachlan and Mr. W. M Orr were next called, but neither of them answered.

Mr. Rowlands examined by Mr. Stephen. - Recollects having some conversation with defendant relating to the article headed "The Two Brothers McDowell" previous to its publication in the True Colonist; defendant shewed witness a manuscript.

His Honor. - Are you going to tell us the contents of that manuscript?

Witness. - Yes, your Honor.

Judge. - Do you produce it?

Witness. - No.

Judge. - Has the defendant had notice to produce it?

Mr. Stephen. - No, your Honor.

Judge. - Then I cannot receive any evidence relating to it. Defendant shews you some paper which you do not produce, nor call upon him to produce, how can I consistent with the rules of evidence, allow you to give any evidence relating to it?

Mr. Rowlands then left the box.

Dr. Bedford. - Understood by delinquencies, faults committed, or neglect of duty; the second passage quoted in the declaration means that the Attorney-General had abused the powers of his office; means by which he had been enabled to effect means discreditable; means -

Mr. Justice Montagu, expressed his surprise at seeing witnesses put in the box to instruct the jury in the meaning of the Queen's English. The libel or alleged libel was written in plain English, and it was for the jury to decide upon the meaning of it according to their own understanding. He could not understand how the practice had crept in here of calling witnesses to tell the jury the meaning of words used in a writing charged as libellous; such a practice was unknown in England. Here we have a jury of twelve or of four sworn to try a case and return a verdict, but according to this practice each party brings another jury to try it in the witness-box, and the jury in the jury-box are to return their verdict, not according to their own judgment and conscience, but according to the opinion of such men as either party or both may call to the witness-box.

Mr. Stephen said that he followed the practice only because he understood it to be the practice here. He never heard of it in England. With that the case for the plaintiff closed.

Mr. Robertson then addressed the jury. -

Gentlemen. - I am placed before you now to undergo the final operation of crushing! which the plaintiff in this case, the Queen's Attorney-General, has, so much to his credit, publicly pledged himself to inflict upon me. When I last had the pleasure of meeting that gentleman on the floor of this Court, where he then appeared as advocate in defence of his brother, (who is referred to in the article for which I am brought here), who had published against me one of most atrocious libels that ever disgraced a newspaper, and in addressing a jury where you sit, he called upon them, with reference to me the plaintiff in that case, to "crush the wretch". But not content with this display of his amiable feelings and sentiments, (so worthy of his high station of which you have heard so much from his learned counsel), he went outside the Court, and boastingly declared to the crowd - "I will never let him alone until I have crushed him!" This, gentlemen, is an awful threat against any humble member of society, when uttered by a man of such wonderful abilities, high attainments, and resplendent character, as the plaintiff has been described to you, and as you must hold him to be, if you are to be persuaded by the eloquence of his counsel, to believe what he says. But if such denunciation, coming from a man possessing such high inherent attributes, is awful to the poor "wretch" whose "crushing" is to occupy the unceasing energies of so great a mind, what must be the unhappy condition of the wretch who is so doomed to be "crushed" when you contemplate the fearful powers which the "crusher" derives from the adventitious circumstances in which he stands, as holding, for the present, the office of Attorney-General of this colony. Need I saw the word to impress upon your minds the fearful power which the Attorney-General of this colony possesses of carrying into effect, by means of his office, his threat to crush me or any other man, who has the misfortune to become the wretched object of his destructive hatred. He can place me or any other man in this colony, at the bar of his Court, for any offence with which he may chase to charge him, of his own mere volition, without complaint or information, on oath or without oath. That he possesses this power, I can prove under his own hand, when in reply to an inquiry of mine as to the grounds on which he had filed a criminal information against myself, he said that he was not bound to state the grounds on which he filed any criminal information! So that if he cannot find juries to crush by "convictions" the man whom he doomed to destruction as the victim of his undisguised hatred, he has it in his power to ruin his victim by the expense of vexatious and unfounded persecution. And the man who could dare to make such a threat, and call upon a jury, before the sacred seat of justice, to be his instruments in carrying it into effect, would not hesitate about applying to that object the accomplishment of any means that he could command. But you have heard His Honor the Judge, who now presides, when he filled the office of Attorney-General, and you have heard Mr. Justice Stephen, when filling that office, declare that he could get witnesses in this colony to convict any man of any offence with which he chose to charge him. I believe the present Attorney-General has said the same thing, and I know what sort of evidence, he did make use of to obtain a conviction in a very memorable case, and you know it too, gentlemen. Experience may have justly led him to calculate that he could always find juries to carry into effect his crushing purposes. He very confidently calculates that you will be his instruments in applying to me the last turn of the screw which is to complete the crushing. But, gentlemen, he is mistaken. I am satisfied, and so is every man who hears me outside the bar, that to-day Mr. Attorney-General has no crushing instruments in his hands, and that not only will "the wretch" whom he has doomed escape unscratched, but that he will receive a lesson that will put an end to all hopes of making use of juries for crushing purposes. I have been described to you as a most atrocious offender, guilty of falsehood, and for the gratification of malice, of slandering by insinuation a high and immaculate character whom I dared not openly accuse. I have been described to you, and to my fellow-colonists, and to all the world, by the authorities of this colony, as something worse than a cannibal, as a sort of monster, whom it was a duty to society to hunt down and destroy, and I have been pretty closely hunted down, and what I have suffered would have destroyed most men. You have heard much said against the virulence of the press of this colony. I was as much disgusted with it as any man could be, and as anxious to put an end to the personal vituperation which disgraced it, and to effect this I refrained from retaliating or noticing the most atrocious personal attacks that were directed against myself, and although I felt perfectly equal to the contest, I was silent until I was at last compelled to appeal to this Court for protection, with what success you know. In one case my appeal was met by a justification, alleging that I had libelled sundry public characters, some of whom were dead many years before. I got a verdict, and damages of one farthing, without costs. I did not complain of the jury, I allowed them credit for doing what they thought to be justice. But I had the verdict of the public which was of more consequence. But out of this case arose fresh grounds of abuse and slander against me in the Courier, which called forth the reply for which the Attorney-General seeks to recover damages. He had succeeded, by the dread of his "rushing" powers, to intimidate my friends so far, that I was compelled to abandon the calling by which I maintained my family, to retire from politics to the plough; and the Colonist, which has been for so many years the dread of official delinquents, is silent, until I learn how these crushing proceedings are viewed by the authorities in Britain. I did hope that having succeeded in silencing theColonist, the Attorney-General would have been satisfied with the triumph of this successful effort of his power, and that he would have allowed me to live in peace and obscurity. But I entreat you, gentlemen, not to suppose that I bring this under your notice with any reference to the purpose anticipated by the learned counsel with whom I have to carry on such an unequal contest. I am neither so ignorant nor so meanly selfish, nor so destitute of self-respect, nor so forgetful of the respect due to your common sense, as to set up such a plea before you, I bring it under your notice to shew you the crushing perseverance of the man who charges me with malice. Although I then denied, as I now deny, the truth of the inuendoes which he has applied for the exposition of my meaning, I justified all that I had said, and he shrunk from it by demurring to my justification. I am no special pleader, and the gentleman to whom I trusted to correct my pleas was unfortunately for me and for the colony on the eve of a sudden departure for England.

Here Mr. Stephen called upon the Judge to stop Mr. Robertson from referring to pleas which were not now on the record.

His Honor. - As these pleas are not on the record you cannot prove them, and you must not say anything about them to the jury.

Mr. Robertson. - I will not, your Honor.

To the Jury, Gentlemen, - I must not tell you what was in these pleas, but I did dare to justify; and when the Court decided they were not good in law; I sought leave to amend them, and was refused; I was anxious and able to prove the truth of every word I had written, but unfortunately I am not a special pleader; nevertheless I will shew you that there is nothing to support the innuendos on which they rely for their verdict. The Judge has told you that you are to try and decide upon the meaning of the words, and not the jury that plaintiff may select to try his case in the witness box. You will therefore dismiss from your minds the opinions which you have heard from Mr. Lillie and Dr. Bedford, and let your own judgment guide you; although I should be very well satisfied with a verdict founded on the whole of Mr. Lillie's evidence. Now, before proceeding to offer observations on the so-called libel, permit me to read to you the article in the Courier which has so greatly altered Mr. Lillie's opinion of the meaning of the article before you (Mr. Stephen interrupted and objected. His Honor overruled the objection. "Although", said His Honor, "that may not be evidence, and the defendant may not attempt to prove the connection of the plaintiff with the Courier, yet, as the alleged libel refers to that article, and your own witness says that the reading of it has considerably altered his opinion of the meaning which he first attached to the language used by the defendant, he is surely entitled to put it to the jury for the same purpose as he put it before the witness, and the jury will form their own opinion of it, as it goes before them with or without proof of the connection of the plaintiff with it. Mr. Robertson, you may read it."] Defendant then read the article from theCourier; when he came to the passage "brought under the discrimination of Mr. Justice Montagu", he paused, and said, "Gentlemen, can you possibly conceive what His Honor could have had to do with my pecuniary affairs, or those of Mr. Currie, or for what earthly purpose the writer could have dragged forward the name of Mr. Justice Montagu in connection with his low and pitiful scurrility? [When defendant proceeded to read on His Honor said, "It is very hard that my name should be dragged forward in this way, in connexion with squabbles with which I have nothing earthly to do; so man can have endeavoured more than I have done to avoid mixing in party or individual quarrels: I have lived like a hermit in Van Diemen's Land, yet I am not to be let alone. I must say it is a most unwarrantable liberty for a newspaper editor to take with any man who neither courts nor provokes his notice - surely no man will say that this is a case where politics or reference to public affairs can be an excuse for using such freedom with an individual." Mr. Robertson. - Although I am perfectly aware that your Honor does not apply these observations to me, yet many persons who hear you will think that I am the offender. I hope your Honor will pardon me for disavowing it. His Honor. - I do not mean you, Mr. Robertson; I mean the writer of that article in the Courier.] Defendant continued. - Gentlemen, you will observe that this article contains a pitiful, contemptible, and insulting insinuation respecting my private pecuniary affairs, with which a newspaper writer surely had nothing to do, and I know that the writer was the last man in the colony who ought (if he looked at home) to have provoked the public discussion of such private matters: I did not consider it a libel upon me, nor did I consider it any disgrace if it had been true that any friend or well-wisher had assisted me on such an occasion; but I felt that it was intended as an insult, and the moment I saw it I wrote the retaliation to which I will now direct your attention, to reprove the arrogant insolence of the writer. [He then proceeded to read the libel with a running comment, calling the particular attention of the jury to the cause stated in the introductory paragraph by which he had incurred the abuse and persecution of the parties whose names headed the article, that cause being the exposure which, as a public journalist, he had made of the conduct of the Attorney-General as a public officer, and the Editor of the Courier as a public writer, and the accusations which, as the friend of an injured man, he had forwarded to the Secretary of State against the Attorney-General "For", said he, "Gentlemen, it is perfectly true that I have accused the Attorney-General of gross perversion and abuse of his office, but not in this article which is called a libel. You will observe that the whole of this article has reference to pecuniary affairs, in connection with insolent remarks about my pecuniary affairs. You must have been amused, gentlemen, to hear the learned counsel for the plaintiff tell you that I might have complained to the Secretary of State - how liberal! - how generous! - how compassionate to my ignorance of the privileges of a British subject! But if the learned, the immaculate Attorney-General wanted to have punished any man for having charged him with abuse of the powers of his office, or if he wanted to get £500 for such a charge having been made, or if he wanted to put the fact in issue before a jury, and to put himself on his trial, why did he not bring an action against the authors of the many accusations that have been published against him, containing, not questionable insinuations, but plain unequivocal charges with the names of the authors attached to them? To such an action he would have a plea that would admit of no demurrer. Observe, gentlemen, I do not accuse him in this article with having abused the powers of his office; I say he has been accused by others, and if he can make anything of that, I admit that he has been accused by me, but not in that article. I will now read to you a few of the many accusations of which his conduct has been the subject. [Defendant was proceeding to read part of the petition of Messrs. Jackson and Addisons, when the Judge stopped him, saying "I do not think you can be allowed to read it; they will admit that there have been such a petition and such charges, that is all that is necessary for your purpose." Defendant to Mr. Stephen - "Will you admit it?" Mr. Stephen shook his head, and said something that appeared to be in the negative. Defendant. - They won't admit it, but it is easily proved; besides it is matter of notoriety. The people of this colony will never forget it, nor its consequences; you know it as well as you know that I am addressing you.] The learned counsel has attempted to mystify your understandings by making it appear that insinuate that the Attorney-General was the aider and abetter of the Crown-Solicitor in the embezzlement of the public money. This, gentlemen, is quite in keeping with the otherinnuendos by which plain language is perverted into a meaning which it does not bear, for the purpose of bringing the writer under the crushing effects of heavy damages; but you are not to be so deceived; you must see that there is no such insinuation. Has the Attorney-General ever been accused to the Secretary of State for being accessory to the embezzlement committed by the Crown-Solicitor? Was not the Attorney-General the aider and abettor of Mr. Ross in the case of Lord and McLaren, for which the Attorney-General has been accused? Observe, gentlemen, the allusion to the "ruling faction"; I beg your attention to this, for it will shew you that the official incapacity and dishonesty referred to is general, and not particular - it does not mean the Attorney-General more than any other officer of the Government who may choose to apply it to himself. Observe the article purports to be written in reply to an insulting notice upbraiding me with poverty. I hope poverty is no disgraceful offence, the imputation of which would be a libel, except probably on a banker, or some such commercial character, which the Attorney-General is not; so it is no libel to impute poverty to him. Now it so happened that these reproachers of poverty had not the means to pay for the passage of the "arrogant" editor of the Courier. The Attorney-General applied to a merchant in this town for a bill upon England, not topurchase a bill, but for a letter of credit on his correspondent, in plain English a loan to pay for the passage of his brother, who reckons the imputation of poverty disgraceful and degrading to a man whom they wish to crush. Is this libel on the Attorney-General? It may be a painful exposure of his affairs, and of transactions which these fortunate brothers wish to be forgotten by the public which they insult. But is that exposure uncalled for? Is it unprovoked? Is it inexcusable in me after the provocation by both the brothers which I have detailed to you? And will you give them one farthing, or assist them in " crushing" me as a salve to their wounded pride? Next comes the Jobbins affair. Is there any charge of dishonesty in that? Dismiss from your minds everything which you may happen to know about that affair - look at the article before you, and say could any person who knew nothing of the facts suspect that any dishonesty is imputed or insinuated? - would you not suppose that Mr. Jobbins had generously ministered to the necessities of the brothers, as theCourier says Mr. Currie assisted me in my distress? Now, with respect to Mr. McDermott, take that as it stands, and say, will it bear out the inuendo in the declaration? Is "the power to carry into effect his threat to crush us a necessary and inseparable appendage to the office of Attorney-General? If it be, the people of this colony are in a most pitiable condition. Look at the scope of the whole article and say, does it convey that meaning to any person who forms his opinion from the article itself, and not from an acquaintance with the facts relating to that case referred to? I will pass over the next passage, for it is not referred to in the declaration, and I have no wish to travel out of the record for the mere purpose of hurting the feelings of the Attorney-General. Read the conclusion of the article - take it in connection with the introduction and with the article in the Courier, and thepublished threats of the Attorney-General and his attempts to degrade me; and while I am confident that you will not find that one of the inuendos are made out, I am equally confident that if you think they are all made out that in place of £500 you will give him one farthing, for I am certain you will consider that I had ample excuse and occasion for publishing what I did. If you think that I had not, and that I maliciously and without occasion published that which is false - if, in short, you think that I did publish it in manner and form set forth in the declaration, give him all that he asks, if the effect of your verdict should be to consign me to prison for life; for though in awarding damages for an injury, if you give it as a penalty on the offender, it may be necessary to bear in mind his ability to pay, and thus ascertain the measure of punishment that you are inflicting; but I am certain that you would never adopt the very creditable calculation of the plaintiff as your guide, and award as a penalty against any fellow subject the last farthing he can possibly pay, leaving him destitute, and turning his family as houseless wanderers into the bush. But, gentlemen, the Attorney-General knows that Messrs. Jackson and Addison are my sureties. They, like myself, are his accusers to the Secretary of State, and he no doubt wishes (he can hardly hope) that your verdict may enable him to give them a touch of the crushingmachine. But if you are to give damages to the plaintiff for injuries he has sustained, give him the utmost farthing to which he is entitled, keeping in view his own conduct, in his official capacity, in which he complains that I have libelled him. And although you are sworn to return a verdict according to the evidence, yet you are not therefore to dismiss the evidence of your own senses - you are not to expunge from your memories, or shut out from your consideration, because I may not bring witnesses to prove them to you, those facts which are so notorious, that to offer proof of them, would be as absurd as it would be to bring witnesses to prove to you that the sun rose this morning. We are 16,000 miles from the fountain of justice - it is like a life-time to look for an answer to a complaint sent to England, even if the authorities there were able to form their judgment on a fair representation of the case. In the meantime the complainer is subject to all the consequences of the very powers against whom he has complained, while his complaint has marked him as a "wretch" whom it becomes a duty of self preservation "to cush". His complaints are met by representations of which he is kept in ignorance, by parties who have one common interest in perverting the course of justice, for complaints are not sent home until justice is supposed to be denied by the local authorities - and if tardy justice is awarded him it comes too late, he is crushed and broken down in purse and in spirit, or may be, had sunk under oppression and ceased to exist, or he is more unfortunate in being degraded into an object of the charity of his oppressors; but it is not by what he dare to publish in a colony like this that an honest and independent public writer restrains corruption and oppression and invokes justice against official delinquents. I have, as conductor of the True Colonistbrought many cases under the notice of the authorities in England, which I dared not publish here, and which the public have not heard of. My representations have been directed to Members of Parliament who knew nothing of me but as a newspaper editor, and they had been attended to by the Secretary of State who has promised to redress the wrong rather than have to answer and defend it in Parliament, and orders have been issued to the authorities here on these cases often when they did not know to whom they were indebted for the issuing of those orders, and when they would not acknowledge although they did know; and although the Attorney-General has crushed the True Colonist for a time, he has not stopped my pen. The defendant then commented at some length on the intricacy of the law of libel, which, he said none [???] Judge could explain, and which hardly one [???] thousand, even of the Judges, understood. Judge Montagu - "Then I am in a very small minority."] The defendant assured His Honor that he did not mean this offensively, the remark had been repeatedly made in Parliament. He concluded by thanking the Judge and the jury for the patience and attention with which they had heard him.

His Honor charged the jury with the utmost clearness and impartiality. He put to them - lst. Did the defendant publish the alleged libel. 2d. If he did, did he so as charged in the declaration, that is, do the passage convey what the plaintiff imputes to them in the inuendoes. 3d. Is the article as the defendant asserts merely an answer to an article in another newspaper. 4th. If you find the inuendoes made out, what damages do you consider the plaintiff entitled to. Upon each of these points His Honor dilated at considerable length, and with the utmost fairness and precision. The jury retired for a short time, and returned - verdict for defendant.

Montagu J., 9 June 1841

Source: Hobart Town Advertiser, 11 June 1841

            This was an action to recover damages to the amount of £500 for an alledged libel contained in the True Colonist of the 5th February, written, printed, and published by defendant.

Mr. Stephen, as counsel for the plaintiff, opened the case by addressing the jury in a forcible manner, but too fluently to be taken down verbatim. The following is an outline:-

            "Gentlemen -

            The present is an action to recover damages for a libel published in the True Colonist of date February 5th. The matter you will have to try, will be whether this paper was published by defendant, and in the second place, whether the inuendos it contains are sufficiently borne out. This is not one of those numerous cases of libel which it is difficult to prove except by construction. I think it will be sufficient to read over the libellous matter to show that it is one of the most injurious, nay, one of the most malicious productions, ever penned. The portions selected are the strongest, though the whole heaves with a bad mind. In September, 1840, defendant falsely, wickedly, and maliciously published respecting the two brothers McDowell, one of whom Mr. Thomas McDowell, is editor of the Courier.

"Those two withies, who are one as regards the slanders and misrepresentations put forth by them in the Courier to cloak the official delinquencies of the elder, and to turn public attention from those delinquencies, by inventing falsehoods with a view to degrade, until he can crush the man who has the courage to bring those delinquencies under the notice of his superiors elsewhere, have with this view put forth a falsehood relating to the pecuniary affairs of the conductor of this journal."

            I ask who could question the injurious effect of these words? What is meant by delinquency? I dare say Johnson would afford meanings sufficient to subvert a great portion of the tendency here shown, but it is always understood to imply crime of some description, especially when, as in this instance, coupled with the assertion that the Attorney General is unfit for his office. The more respectable the person assailed, the more injurious the libel. But in other parts the language is even more strong:-

"Had we not, on the contrary, every legitimate reason to bring the pecuniary transactions of the McDowells under the immediate notice of the authorities both here and at home, with reference to the recent malversations in office, committed by another public officer, the aider and abettor of the Attorney General, in a course of conduct, for which he now stands accused before the Secretary of State with abusing the powers of his office.

From such language what can possibly be understood, but that the Attorney General has been guilty of dishonesty in his office? What, may I ask, but that the individual who has penned it, not daring to assert has dared to insinuate. We all know how prone persons are in this colony to mistake insinuations for assertions; and even in England, where every one is but too much inclined to believe that the most influential of our community is unworthy of being received into respectable society, when this publication has been circulated, what injury will not be done to the person thus slandered! for I feel convinced the defendant himself would, at the time it was written, have considered it a very bad compliment, had any one said that it was a perfectly harmless production, not in the least calculated to effect the intended injury. Can we not fancy him the day after these remarks were made public, asking his acquaintances whether they had seen his article on the two McDowells, to whom he had "given a clencher this time?" These papers, once dispersed, may, for all we know to the contrary, extend all over the globe, so that the harm thus wantonly inflicted, is infinite. Again, what connexion is there between the Attorney General and Mr. Ross, the late Crown Solicitor, who is the person referred to as "aider and abettor?" Such he was in the Court, but beyond that, nothing. You are, no doubt, aware that the monies vested in the hands of the Crown Solicitor, are so independently of the Attorney General, but uninformed persons in this colony are ignorant of the fact, and the people of England, without giving themselves the trouble of enquiring further, once having this print in their hands would (as they are already but too prone to do, where this colony is concerned,) take insinuations for assertions, ignorant as they are that every newspaper here, instead of being, as it ought to be, the opinion of the mass is the single opinion of one individual. It is not, as at home, where a newspaper is supposed to be the echo of the public voice. But there are other parts:-

            "Did we, in the discharge of a public duty, to bring down the arrogant tone of the Attorney General's 'cat's paw' brother, make any reference to the means by which the Attorney General was enabled to effect the importation of that instrument for the defence and propping up of official incapacity and dishonesty?"

            And again:-

            "Did we ever bring forward the pecuniary affairs of the Attorney General, in his transactions in the 'Jobbin's affair,' or the declarations which we heard from Mr. McDermott, of Sydney, when he had occasion to visit this colony to enforce payment of a pecuniary claim, the origin of which, if pointed out to the discrimination of the Secretary of State, would have prevented Mr. Edward McDowell from ever possessing the power of carrying into effect his threat, that he will never let us alone till he has crushed us."

            Notwithstanding such slanderous expressions, instead of laying damages, as is usually done in these cases, at £10,000 or £20,000 having duly considered and calculated what defendant has it in his power to pay; we have been so moderate as to name only £500; but at the same time I must say not one fraction less ought to be awarded; for, if you do not suppose the Attorney General's character worth £500, I can only say, I hope you will not give him 500 farthings. The higher the station, the greater the suffering from such imputations; I am also aware that the more elevated the rank, the more open to censure - but it should be that straight-forward comment on the conduct of the individual, exposing any thing wrong in his conduct, or holding him up to censure, if he deserve it - not on a trifling difference of opinion, perhaps on some statute of James, to have his character thus detracted from. - It is possible that defendant may, in his defence state that being at present removed from the editorship of the paper, he is not put out of the way of doing further mischief, and anticipating that remark, as I may not again have an opportunity to do so, I ask, is that a valid reason or compensation for the injury already done to plaintiff's character. If an incendiary has been known to burn down a number of houses, and is after excluded from the possibility of doing further harm, would he be held guiltless of that already committed, because he cannot accomplish more? I ask, were a high clerical dignitary who is already prejudiced against us (no doubt in a great measure by the public prints,) to have the one in question placed before his eyes, might he not take this assertion for proof, and without further investigation, deprive the plaintiff of his high office? What loss, then, would he not sustain? You cannot estimate his character at less than £500. I know I am speaking to men who know him. Look at his character for the last 9 or 10 years; has it fallen to your lot in these Colonies to find a person of greater talent and respectability? Had the defendant be [???] his assertions, he would have addressed a petition [???] informing him of the facts, tho' the character of the Attorney General would have given the lie to any such aspersions. I now proceed to call witnesses.

            Rev. Mr. Lillie, questioned by Mr. Stephen. - said, he understood the phrase beginning "These two worthies" to convey an accusation to the Attorney-General of having abused the powers of his office, and believed it to have been intended and written in that sense. That was the meaning he would attach to the words "official delinquencies." In the second phrase quoted, he thought by the word "means" was implied something questionable. The whole seems to impute to the plaintiff incapacity for his office, as well as he would not saydishonesty, but dishonourable conduct. In a further part he would understand that the Attorney-General had been guilty of conduct which if laid before the Secretary of State, would lead to the forfeiture of his office.

            Witness questioned by defendant. - The import I have applied to these passages, came from a partial perusal of these passages, but on reading it through now, I should be inclined to modify my opinion.

[Here Mr. Robertson explained, that what had been quoted as libellous, had been called forth by the Courier, which he could show by the heading, "Did we ever taunt the Macdowells with their pecuniary transactions?"]

            The Courier was produced and from parts shown, Mr. Lillie was led to believe the word "means" applied rather to pecuniary means than to improper ones. On the whole, witness's former opinion seemed greatly altered, after the perusal of the writings put into his hands.

            Mr. Rowlands and Dr. Bedford were called to the bar, but his Honor expressed his surprise at persons being brought forward simply to explain what they understood by a paper written in plain English, which after all, the jurors who had to decide the case, could weigh as well as any one. Such a method is never adopted in England.

            Mr. Stephen said, he had followed the course more in deference to what had been done in the colonies than anything he had witnessed in England.

Mr. Robertson thought, that as each witness received a guinea for attendance they had been called to increase expenses.

Mr. Robertson defended his case in person. He began by stating that on a former occasion when he had the pleasure of appearing in this Court, with the Attorney General, the latter had said, addressing the Jury, and speaking of himself (Mr. R.).

"Gentlemen, I call on you to [???] the wretch," and proceeding to depict him as the "nuisance" of Van Diemen's Land, assured them that while he, as Attorney General, had power, he would strive to do so; and continued, Mr. Robertson, this he has endeavoured, and is now [???] to effect. The damages have with extreme moderation, been rated at £500; that being the case after their most minute calculation, that can be extracted without at once sending me to that building over the way (the jail); after which I am to be turned a beggar into the bush with a family in a state of starvation; (though to speak of a family in a disgrace with "certain" gentlemen, as, perhaps well it may, since disagreeable recollections are brought by the word) - £500, I say, is the sum that can, according to their calculation, be drained from me; see him weighing, calculating what flesh can be minced from a man's body without drawing blood! But I should feel extremely obliged if the learned Counsel would instruct me where to find £500, or even 500 farthings. If your verdict goes against me, the jail must be my abode. Here Mr. Robertson, quoting a passage in the Courierwhich, exciting his ire, had called forth certain warmth on his part when implying in theTrue Colonist, repeated a passage in which mention had been made of Mr. Justice Montagu.

His Honor, in a style not to be mistaken, expressed his disgust at being thus dragged by theCourier into every petty squabble in which he was not concerned, and which no person can make it more his study to avoid than he does.

Mr. Robertson, in continuation. - So satisfied have I always been of the impropriety of the Attorney General's conduct that I have thought it my duty to expose it to the Local Government, the Secretary of State, and the Parliament, and I know that his power "to crush" in this Colony, will be of short duration indeed.

With reference to the words "aider and abetter" used against the Attorney General in conjunction with Mr. Ross, I alluded to his official capacity, but did not extend to the embezzlement. You are required to put the extinguisher on the flickering liberty of the press in this colony, in which, while a man is deprived of it, he is driven a beggar, absolutely ruined, before he has time to seek redress from whence he may obtain it. Having now left the press and retired to a farm (which I hope I may manage with as much care as I have always wished to devote to the welfare of the inhabitants of this colony, though I own I may understand the one better than the other) it is my aim to avoid entering on politics; but on this occasion I will say, that when Editor of a Paper I devoted my strongest energies for one common good, exposing the defects of some, and the sufferings of others. I have listened to the tales of persons in distress, and I have sympathised with them; finding I could not obtain redress from the Local Government, I applied to head quarters; and while editors thus labour, oppression is kept down.

Gentlemen, in protecting the press, protect me now. What do they say here? That no man shall be at liberty to scrutinize one in power! I know you too well to think that you will lend yourself as instruments for such a purpose. I say that it was through provocation that I have been made write what I have done; besides I contend that the words contained in the declaration are not actionable in themselves, which, I am sure, his Honor will explain to you. Most Juries listen to little to what the Judge says, they look upon it as dry incomprehensible law, which not one in a thousand can boast of understanding.

            His Honor, after joakingly observing in what a dreadful minority he was made to stand, one in a thousand, observed that a great deal of time had been wasted in the case, the entire matter of which could be got at in very few words.

            Mr. Robertson, in assent, said he would not trouble the Court with further remarks, and thanking his Honor and the Jury for their indulgence, left the case in their hands.

His Honor explained to the Jury that the points for their consideration would be -

1st - Did Mr. Robertson publish the paper?

2nd - Did he publish it with libellous intention?

3rd - Did he publish the passages referred to in refutation of remarks made by another paper?

As to what damages should be assessed, since nothing improper has been traced to the Attorney General, it is very hard that he should be dragged before the public, and his affairs talked over as they have been to day, for things written by his brother. That the matter is quite false is clear. There is no justification in the record, and if there had been, defendant must have proved the truth of the assertion. The matter imputed to the Attorney General as to the discharge of the duties of his office must be extremely distressing to any one of feeling. Another point on which you must be satisfied is; were dishonourable means imputed to the plaintiff? You must find out whether defendant meant it in that sense. If you think it was written in malice, you will give a verdict for plaintiff, but if otherwise, for defendant. It is often painful to be picked to pieces as the Attorney General has been, and in assessing damages regard must be had to the trouble and anxiety attendant on bringing the case before you, with the possibility of the paper alluded to being circulated all over the globe, what amount of damages do you consider the plaintiff entitled to at your hands? Look at the article, at the kind of article, the character of the plaintiff, and that of the man who dares to appear in Court, saying it is all true; and however much he appears carried away by patriotism, and talks of the freedom of the press, at my time of life (nearly two score years) I must say I am thoroughly disgusted with the sole name.

            The Jury retired, and after twenty minutes deliberation brought in a verdict "for Defendant."

Notes

[1]              See also Hobart Town Courier and Van Diemen's Land Gazette, 11 June 1841;Launceston Courier, 14 June 1841.  This dispute became 'a public scandal', L. Green, 'Edward Macdowell (1798-1860)', ADB, vol. 2, pp. 164-5 and for Robertson, M. Godfrey, 'Gilbert Robertson (1794-1851)', ADB, vol. 2, pp. 384-5.

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