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Decisions of the Nineteenth Century Tasmanian Superior Courts

The Queen on the prosecution of John MacDougall v. Elliston [1841]

criminal libel - insurance fraud

Supreme Court of Van Diemen's Land

Pedder C.J., 21 October 1841

Source: Hobart Town Courier and Van Diemen's Land Gazette, 26 October 1841 [1]

            The Queen on the prosecution of John MacDougall against William Gore Elliston

            The following Jurymen were called and took their seats:-

            ARTHUR CORBET, Mount Lewis, Esq., Foreman

            MICHAEL MANSFIELD, Brown's River, Farmer

            THOMAS MANLEY, Brown's River, Esq.

            RICHARD PYRUS, BrunĂ© Island, Farmer

            JAMES McGAUGHRAN, BrunĂ© Island, Farmer

            HENRY ALBURY, North West Bay, Farmer

            JOHN HENRY ALLEN, North West Bay, Farmer

            NATHANIEL LUCAS, North West Bay, Yeoman

            JOHN LYNCH, North West Bay, Farmer

            CHARLES MEREDITH, North West Bay, Yeoman

            THOMAS EVANS CHAPMAN, New Town, Esq.

            JAMES SADLER, New Town, Tailor.

This was an information filed at the last criminal sittings of this Court against the defendant for libel, to which he pleaded NOT GUILTY.

The information charged that the defendant, unlawfully and maliciously devising and intending to scandalise and defame one JOHN MACDOUGALL, of Hobart Town, aforesaid, Gentleman, and to bring him into public hatred, disgrace, and contempt, and to cause it to be suspected and believed that he, the said John Macdougall, had caused and procured some ship or vessel to be sunk with the intent to defraud some Insurance Company with force and arms at Hobart Town aforesaid, in Van Diemen's Land, on the 2nd of July, 1841, in a certain public newspaper, called the Courier, of which the defendant then was and still is the publisher and proprietor, unlawfully and maliciously did print and public, and cause to be printed and published, a certain false, scandalous, malicious, and defamatory libel, containing, amongst other things, the false, scandalous, malicious, defamatory, and libellous matter following of and concerning the said John Macdougall, (that is to say) - "The trial of the Wallaces for purposely sinking the Dryad, in order to defraud the Insurance offices, has been postponed to the March Sessions, on the motion of the Attorney-General, who required the presence of a witness who was then on board one of Her Majesty's ships in the Mediterranean, but who had been sent for through the Admiralty. Another charge had been brought home to them in the case of another ship. The case of Macdougall (meaning the said John,) tried many years since at Glasgow, is quoted as precisely similar, (meaning that the said John had been tried many years since at Glasgow, and thereby then and there insinuating and intending it to be believed that the said John had been guilty of causing some ship or vessel to sink, in order to defraud some Insurance Office;) and it affords, we believe as stated in Beck's Medical Jurisprudence, the last instance of the application of any mechanical force for the purpose of detecting assumed insanity, which this arch criminal (meaning the said John) affected." To the great damage, scandal, and disgrace of the said John Macdougall, to the evil example of all others in the like case offending, and against the peace of our Lady the Queen, her Crown and dignity.

Mr. Sidney Stephen, assisted by Mr. Thomas Nicholson, conducted the prosecution.

Mr. Macdowell and Mr. Pitcairn, appeared for the defence.

Mr. Stephen having read to the jury the information, said that they were now in possession of the libel, on the character of which they were to determine, and whether it applied to the gentleman who, through him, complained that day of its publication. You will, continued the learned gentleman, recollect that this is not an action for libel in which, as plaintiff, the complainant seeks to recover compensation in damages for an injury sustained by him in his reputation through the conduct of the defendant; but it is an information which charges the defendant with an act calculated to lead to a breach of the peace. It proceeds upon the assumption that such a publication as the present - be it true or be it false - imputes to the prosecutor such misconduct as tends naturally to provoke him to the commission of an act of aggression on the defendant; and it is to restrain this - the taking the redress into the hands of the party aggrieved - that the law provides that remedy to which, upon this occasion, the prosecutor has resorted. It matters little, therefore, whether the charge insinuated against the prosecutor be true or false; but still I say that, according to a well-known maxim of our law, he comes here before you to-day as a person of spotless reputation. Every man, as you know, is by our law presumed to be innocent until he is proved to be guilty; and therefore morally and legally you are bound so to regard the prosecutor of this information. If, however, any person were to address one of you, gentlemen, in the public streets, and say "you are a rogue," I submit to you that your annoyance would not in any case be diminished by the oath of the accusation; and that whether the person addressed here be a rogue or not, he would feel disposed to resent by personal chastisement the applying to him such an imputation. Your verdict then must depend upon this - whether or not the libel complained of bears the meaning ascribed to it, and not as to whether some yeas since some such circumstance as that described in the article complained of occurred to the prosecutor, or whether, on the other hand, he comes before you as a person of fair fame and reputation. Gentlemen, this is no new doctrine. - I have before me a work of authority - "Russell on Crimes" - in which there is contained the following passage: - "It is quite clear that upon an indictment or criminal prosecution for a libel the party cannot justify that its contents are true, or that the person upon whom it is made had a bad reputation. The ground of the criminal proceeding is the public mischiefwhich libels are calculated to create in [???] minds of the people from religion and good [???] them hostile to the government and magistracy of the country; and - as in the present case, gentlemen - where particular individuals are attacked, in causing such irritation in their minds as may induce them to commit a breach of the public peace. The law therefore does not permit the defendant to give the truth of the libellous matter in justification; any attempt at which, in the instances of libels against religion, morality, or the constitution, would be attended with consequences of the greatest absurdity; and, in the case of libels upon individuals, might be extremely unjust, and could never afford a substantial defence to the charge." I think it right to caution you, gentlemen of the jury, against suffering yourselves therefore to be led away by any insinuation to the effect that this libel is founded in truth, for the [???] which I have cited to you shows that such a line of defence - according to Mr. Russell, might be extremely unjust and could never afford to the charge a substantial [???]. The question which you now have to answer, and [???], you can have no difficulty in replying is - whether or not the libel of which the prosecutor complains is calculated to bring him into contempt. The article produces to give an account of a prosecution in which the public here could not feel the slightest interest. It is the assessment of the means putting off a trial on the ground of the absence of a material witness - an ordinary occurrence in which the people of this colony could feel no interest, and which therefore was inserted, you will naturally infer - not for the ostensible object of affording information, but to gratify the malignant feelings of the writer. Had the newspaper contained a report of the trial itself, it might have been read with advantage; but what possible advantage could arise to the Colonists of Van Diemen's Land from the communication that the trial of the Wallaces was postponed at the Admiralty Sessions inEngland I think you will consider it very difficult to determine. But, gentlemen, I shall suppose that some twenty or thirty years ago the prosecutor had been charged with such an offence as the Wallaces - according to this newspaper - were about to be tried for; is that a reason why a brother editor should take advantage of this passing intelligence to inflict upon his successful rival a wound of this description? Gentlemen, I have but one observation more to make before I call the witnesses whom I propose to examine, and it is this; that if a crime be committed and a conviction follow, there is still left to the Crown the opportunity of reversing that judgment, either by writ of error or by pardon, which pardon, according to the best authorities, is grounded on the presumption that the Court was in error, and that notwithstanding apparent guilty, upon more mature consideration, the Crown was satisfied there might be perfect innocence; and, if that position be correct, I shall show you, before I close this case, that even if you were satisfied that the prosecutor of this information had been guilty of sinking ships, still that there were good reason for inferring that of that offence he had been erroneously, if ever, convicted, if I am right - which will be hardly disputed - that the granting a pardon by the Crown implies that it was given "in consequence," as Mr. Phillips, in his work from which I cite, asserts, "of a presumption that the pardon was granted in consequence of the error of the Court which pronounced the conviction, because, as courts of justice at not infallible, there may be perfect innocence notwithstanding a [???] conviction of guilty." With these observations I commit this case to your decision, satisfied that you will - discarding all that you may have heard of it from your minds before you entered that box - find such a verdict as justice requires. In small communities such as these I am justified in thus cautioning you.

Nathaniel William Todd, sworn, saith. - I am a clerk in the Colonial Times office; this is my signature (showing a Courier paper;) I was requested to obtain a paper from the CourierOffice; I did so, and wrote my name upon it; the Courier Office is kept by Mr. William Gore Elliston; the defendant, Mr. Elliston carries on the business of a newspaper proprietor.

Here the paper in question was put in, and the Clerk of the Court read the alleged libel.

Esk Lovell, sworn, saith. - I see the name of Macdougall in the paragraph; I understand it to mean the prosecutor, John Macdougall; I consider the words "arch criminal" to apply to him; I should consider the paragraph charged him with sinking a vessel with intent to defraud the underwriters.

Cross-examined. - The paragraph charges him with sinking ships by implication; it is not possible to tell from that paragraph that it charges Mr. John Macdougall with sinking ships; I think the paragraph alludes to Mr. John Macdougall, because my view has been corroborated by the general sentiment throughout the town; others were applying it in the same way; there was a report of that kind afloat.

Mr. Macdowell. - Afloat; what, its not sunk yet? (Laughter.)

George Hill Anderson, sworn, saith. - I am a baker in town; I understand John Macdougall, the prosecutor, to be the person alluded to in the Courier, and the words "arch criminal" to allude to him; it insinuates that he has been guilty of a charge of sinking vessels similar to the Wallaces.

Cross-examined. - I never heard of any other Macdougall charged with a similar offence; I had heard a rumour of that kind respecting a John Macdougall; it made some noise in Scotland at the time; I was not present at the trial; I do not know when it was tried; I do not think, except by insinuation, there is any part of the paragraph which charges him with sinking ships.

Thomas Harbottle, sworn, saith. - I am a painter in town; I think the article in the Courierrefers to John Macdougall, the prosecutor; the words "arch criminal" I suppose relate to him; the article does not charge him with sinking a ship, but being connected with sinking a ship; it charges the Wallaces directly, and Macdougall indirectly.

The learned counsel here handed a remission of the prosecutor's sentence by the Lieutenant-Governor, dated 16th March, 1838.

Chief Justice. - Unless you go further, this piece of parchment amounts to nothing The statute authorises the Lieutenant-Governor to grant remissions, but to render them effective they must be approved of by the Queen, of which approval there is no evidence before the Court. His Honor sent for the statute, read it, and allowed that the remission was good for nothing without the approval.

Here the case for the prosecution closed.

Mr. Macdowell wished that the whole article, which was a summary of British news, should be read, which was accordingly done by the Clerk of the Court.

Mr. Macdowell then rose and addressed the jury for the defendant, and to the following effect:-

Gentlemen of the Jury:-

I appear before you to-day, gentlemen, as counsel for the defendant, Mr. William Gore Elliston, who is, by the information of which you are in possession, charged with having published a malicious libel upon the prosecutor, Mr. John Macdougall. You have seen in the concluding portion of the prosecutor's case a piece of parchment deliberately put forward, and which it suited the prosecutor's purpose to call a pardon: that attempt to impose upon you was unsuccessful; but thus much appears, that by a document presented by you by Mr. Macdougall himself - it seems that he was transported from Edinburgh some twenty years since for the period of his natural life; and further, that this, by his own showing, unpardoned delinquent has had the tenacity to enter a court of justice, and to make it matter of accusation against the gentleman whom I represent, that he had in his newspaper published that a namesake of the prosecutor's - an equally reputable personage in all probability - had been tried about the same period, not at Edinburgh indeed, but at Glasgow, for sinking ships with intent to defraud some Insurance Company. So that, gentlemen, one cannot but admire the free spirit of that happy constitution, under which it is our privilege here to live, which gives to a man so fallen, so degraded, and so disgraced, the opportunity of complaining, by a learned and able advocate, in a court of justice, that his feelings have been wounded, or his delicacy annoyed, by a publication reflecting upon the immaculacy of his reputation. It is indeed a subject of congratulation to us to know, that even to such a sufferer our Courts are open. We do not, it is quite true, expect to see him here; but if actuated by any infelicitous curiosity, or the love of fame, that "last infirmity of lofty minds," he chooses to enter, there is no barrier to oppose his progress. But, gentlemen, the prosecutor's love of notoriety is, I should think, unexampled. He not only announces to us, through his own advocate, that he is a prisoner for life in this colony, but he tells us further, that he is the editor of a newspaper; and I cannot but congratulate the people of this colony - its rising generation, as well as those amongst us who have arrived at mature years - that to so [???], so experienced, and so highly cultivated a personage [???] be consigned the civil, the social, and the moral education and information of the people of this island. Gentlemen, you all may remember to have heard, that when in a British House of Commons Sir William Molseworth asserted that the order and quiet, which abound in this colony, were mainly preserved to us through the instrumentality of a felon police, the observation of the honorable baronet was received with laughter. Such was the generous scepticism of a British House of Commons when that singular fact was announced. What, let me ask, gentlemen, would not have been the astonishment of the same assembly had the statement been made there, which has been recorded in this Court to-day, that the editor of a newspaper here stood confessed - as proved by the record - a prisoner of the Crown, "unhousel'd, unamel'd, with all his imperfections on his head?" The discretion of the prosecutor had hitherto contested the communication which through his [???] [???] he has ventured to [???] to-day. He had been advised, peradventure, by that evil [???] which had suggested to him the hazardous experiment of this prosecution, that there would be found on the jury, men who, because they arrived in this colony under circumstances somewhat similar to his own, might therefore forget their oaths - wrestling the law from its authority, and finding upon this occasion a verdict agreeably to the wishes of the prosecutor - but the adviser, as well as the dupe, calculated without their host; they forgot that all events no man could sit on that jury who had not received the Queen's sanction for the remission of his sentence; out here an attempt has been made to impose upon you by the production of an instrument, which they call, a pardon, issued by Sir John Franklin on the 16th March, 1838, but to which, up to this hour, they have failed to prove that the Queen's sanction has ever been obtained. Am I not, therefore, gentlemen, well warranted to treating this prosecutor, according to his own showing, as a mere impostor, who pretends to have obtained that which never yet has been granted to him? Is it not clear to almost demonstration, that had the Queen approved of that act of mercy or of clemency on the part of the Lieutenant-Governor of this Island, that three years and a half would not have elapsed without some notification of the Royal mind in reference to the act of the Lieutenant-Governor? They have proved, on the other side, that this prosecutor was transported for life. Have they - let me ask - offered a single particular of proof to show that that sentence has in any wise been remitted? It was on their part a work of supererogation to prove that the prosecutor had been transported; but they have done so effectually, whilst they have as completely failed in the accomplishment of that which, however, they resolutely attempted. - I mean in showing that up to this hour that sentence does not continue, in its original force and efficacy. They have failed in showing that up to this moment it is competent to this prosecutor to give evidence in a court of justice - pena potest tolli culpa perennis erit although it be not perhaps - yet Lord Coke thought it was - a maxim of our law, yet it is indisputably the doctrine of the civil law upon which the municipal law of Scotland is founded - and if this prosecutor, as appears by the record, was transported for life from Edinburgh - and if, as appears by the evidence of Mr. Esh Lovell, he was transported for sinking ships in order to defraud some Insurance Office - then I say that, according to the law of Scotland, his testimony, as a part of his sentence, could never be received in a court of justice; and I assert further, that to such competency not even a pardon under the Great Seal could restore him. Yet this is the man who, by his editorial lucubrations, is to instruct and inform our ignorance, improve our morals, administer to our religious necessities, advocate our civil rights, and brawl - seeing how admirably qualified we are for their enjoyment - for free institutions. I congratulate him and the gang - quorum pars magna fuit - that they have obtained (and that at my own recommendation they obtained) trial by a civil instead of a military jury; and your verdict to-day, gentlemen, will, I feel persuaded, teach the community at large that I was not mistaken in the estimate I formed of you. Your verdict will teach this man that he is not to calculate upon any sympathy from you; that you are men who "keep the noiseless tenor of your way;" and that you will not be led from your course by the designing miscreants who, under the mask of virtue, minister to public discontent, and who, rather than want fuel, would fling into the fire the very cause they profess to advocate. You will, I am persuaded, to-day consign this enlightened, but unfortunately unemancipated public instructor, to the fate which deservedly awaits him. And now, gentlemen, let me call your attention to the article itself which the over-sensitiveness of the prosecutor - or the opinions of his discreet advisers - deem to be a libel upon his character. What is the article itself - the whole of which, under His Honor's direction, has been read to you - but a summary of intelligence which had lately reached the colony. The forthcoming trial of Mr. McLeod, in America; the recent one of Lord Cardigan, by the House of Peers at home; the state of parties in France; and other matters to which I need not advert, are given to the public here as portions of the intelligence so received. My friend, Mr. Stephen, tells you, that if the trial of the Wallaces had been inserted at length, the public here might peradventure feel some interest in its perusal; but what gratification, he asks you, could it by possibility afford to that public to know that that trial had been postponed because a material witness happened to be absent? Gentlemen, I am not bound to answer that question. Mr. Stephen may know far better than Mr. Elliston what amount of interest the public is likely to take in the information communicated to them; but it is not, I submit to you, because Mr. Elliston publishes innocent matter - which, according to the criticism of Mr. Stephen, is not useful knowledge - that therefore he is to be convicted of publishing a malicious libel on the character of the prosecutor. But is not the subject, if we are to discuss the propriety of alluding to it of sinking ships in order to defraud Insurance Companies, one in which the public of Van Diemen's Land have a very considerable interest? Are there not companies here formed for the purpose of effecting insurance upon ships, in which, for aught I know, some of you, gentlemen, or the prosecutor himself - not, according to Mr. Esh Lovell, a mere theorist in such matters - may be shareholders? How, let me ask, does Sir William Scott, in charging the grand jury upon a trial to which I shall hereafter have occasion more particularly to refer, advert to the interest which the public have in such matters? In his own unrivalled language - in that style of finished composition by which his judgments are more particularly distinguished -Sir William Scott says:-

"One case will call for the most diligent application of your powers of inquiry - the offence of sinking a ship and cargo with intent to defraud the underwriters - an offence most justly rendered capital by statute. To all who are commercial men it is unnecessary to say much of its malignity; it strikes at the root of the maritime commerce, and consequently of the power and security of the country, so intimately connected with the prosperity of its maritime commerce. It is owing to the prosperity of that class of men, the insurers, who by dividing the risk increase the security of private individuals and give the benefit of large capitals to the adventurer of slender means, that our commerce has triumphed in its activity over all competition. But it is property that peculiarly requires the protecting vigilance of the law, for it is property out of the possession of those to whom it belongs, and in the possession of those for whose benefit it is intended to be employed, but who may have a corrupt interest in its destruction. The law is its protection. You will therefore grudge no time or labour in prosecuting your inquiry into the truth of such a charge if it occurs."

Such is the language of Sir William Scott on the trial of Codling, Read, Easterby, and Macfarlane, for sinking a ship with intent to defraud the underwriters. I have mentioned the names of these persons, whom I shall style, as this information designates Mr. Macdougall -gentlemen - and although I have mentioned their names here, yet I warn the reporters who hear me to be very cautious how they communicate these names in the report of these proceedings; otherwise, as far as Read, Easterby, and Macfarlane are concerned, we may have other informations for libel upon their characters to try. As to Codling, however, they need not be so cautious, for as far as he is concerned, I myself personally undertake to indemnify them against all consequences, and I do so because I find by the report of the trial that within a fortnight from its termination this gentleman was hanged at Execution Dock. Easterby and Macfarlane however were "honorably acquitted on a point of law," and they therefore are at least quite as much privileged as the other gentleman - I mean the prosecutor in this case - to proceed against any supposed libeller for not having had sufficient regard to the immaculacy of the "immortal part of them - their reputation."  The history of that case is curious and perhaps instructive - the first objection taken by Mr. Erskine was, that the Court over which that distinguished judge, Sir William Scott (to whom I have already alluded) presided, had no jurisdiction; that a Court of Admiralty could take no cognizance of the offence which the indictment imputed to Easterby and Macfarlane, inasmuch as that offence was committed on land. They were charged as accessaries before the fact, to the sinking of the ship by Codling and Read. By the general law the Court of Admiralty was restricted from trying such an offence; and the statute upon which the indictment was framed creating the offence and directing the mode of punishment, did not enlarge the jurisdiction of the Court of Admiralty, whatever might have been the intention of those by whom the Act was originally prepared. The case was twice argued before the twelve judges, and a pardon was issued to the prisoners, which recited, - that a doubt having arisen whether the procurement of the destruction of the ship by the prisoners was an offence committed by them on the high seas within the jurisdiction of the Admiralty, the question was referred to the judges, upon whose report the pardon issues. The defect in the law was shortly afterwards remedied by an Act introduced into the Legislature by Lord Ellenborough, which made it a capital offence to procure the destruction of a ship, whether the party who did so was on board the ship or on shore. Thus it will be seen that, had these men been subsequently tried, and instead of sharing the fate of Codling, that they had been as fortunate as the prosecutor in the present information - the mere reference to their names might be attended with the same inconvenience to the proprietor of a newspaper as Mr. Elliston has already sustained from a mere casual allusion to the case of Macdougall tried some time since at Glasgow, whom they have succeeded - for it has not been the defendant's act - in identifying with the prosecutor of this information. I will suppose a case, and I will suppose - it is not now a violent supposition - that the gentlemen predicated of - like Mr. Macdougall - were editors of a newspaper and that upon the occasion of the postponement of the trial of the Wallaces, "a rival editor" - to use Mr. Stephen's phrase - in alluding to that postponement, observed - that the case of Easterby and Macfarlane had been referred to as precisely similar - in which case he might have gone on to add, one would think, but for the present proceeding, harmlessly, enough - that the prisoners were equitted, because in the then state of the law, it was necessary that they should have been on board in order to bring them with the offence created by the statute under which they were tried. What, I would ask, under such circumstances, would there be to prevent those men from instituting legal proceedings, against their rival editor - and what to prevent their succeeding, save the honest indignation of such men as I am at present addressing? That case is reported in East's Pleas of the Crown, a work, His Honor will tell you, of undoubted authority. Of Scotch law, I know but little but I believe that there is no authentic report of reserved criminal cases. Sure I am that if there be - the case of Macdougall tried at Edinburgh for ship-sinking would find a place there. Gentlemen, you could not but observe the evident reluctance with which Mr. Esh Lovell gave his evidence; but at length it oozed out that he thought the observations complained of by the prosecutor referred to him, because long before he ever saw that article there were rumours afloat that the prosecutor had been connected with ship-sinking. Mr. Anderson told you at once, and without hesitation, his reason for believing to whom it referred, inasmuch as that he never heard but of one person of the name of Macdougall who had been charged with ship-sinking; of him he had heard in Scotland, where the case excited great interest and attention. Mr. Harbottle reads the article in a far more discriminating manner than either of the other witnesses; and he tells you that it charges the Wallaces with ship-sinking, but that it charges the prosecutor, not with the offence itself, but with being tried for it; and that, I apprehend, gentlemen, is the fair meaning of the passage; and that, unless to be tried for an offence means of necessity and ex vi terminorum that a party is therefore guilty of it, the inuendo in this information is as incorrect in fact as it is illogical in argument. It may be perfectly true - and indeed the record of the prosecutor's conviction, put in by Mr. Stephen, goes a long way to prove it - that this gentleman was convicted of sinking ships; but that is no statement of mine - non menus hic sermo - that is the language of his own advocate, the correctness of which he has this day supported by the production of a document which "in characters of living flame," consigns to undying infamy his client's character. I was at a loss to account for so unexpected a proceeding on the part of my learned friend Mr. Stephen; but I think I can account for it; he felt, with the most distinguished man of modern times - I mean Lord Brougham - the difficulty under which a defendant labours in cases of this description; he knew that I had to contend, not only against the ability and eloquence by which he is distinguished, but that, by the rules of law, I was precluded from giving evidence of the truth of the alleged libel, and with a generous devotion to the cause of truth and justice, he came forward prepared rather to sacrifice his client than defeat the administration of equity; and, inasmuch as there is no law by which a prosecutor is precluded from proving the truth of the charge against him, he determined to secure your verdict for my client, by indisputably substantiating that accusation of which his own complained. I freely own and gratefully acknowledge that without my friend's assistance I never could have succeeded in establishing the truth of this imputed libel; I should not have attempted it; for I should be endangering any credit I may have with the Court by attempting a line of defence from which by law I was excluded. Gentlemen, there is one passage in the paragraph submitted to you as libellous, the truth of which is not made manifest by the record; but I shall establish in evidence before you the correctness of that passage to which I refer. You will understand me as not asserting that that passage refers to the prosecutor. It is not improbable, however, that before this case closes, in the continuing exercise of that candour which in other parts of the case has distinguished my friend Mr. Stephen, that he will establish for me that this portion of the imputed libel also refers to his client, and is as correct as those charges against him of the truth of which he has given such indubitable testimony. I however offer this evidence to you, not as applying to the prosecutor of this information, but as applying to some person of his name who was either an inhabitant of or tried at Glasgow for sinking ships; and I shall prove this to you by the production of a work of the highest imaginable authority on the subjects upon which it treats - I mean "Beck's Medical Jurisprudence," - and I shall show you that that work has not been fabricated to meet this trial, but that it was procured in the ordinary way by Mr. Bedford from his medical bookseller in London.

Mr. Stephen interposed and objected to the reading of the passage.

The Chief Justice said the counsel may read it, he does not offer it as a justification.

Mr. Macdowell, said - Certainly not: I thought I had sufficiently guarded myself against any such supposition. The passage, gentlemen, to which I was about to refer is contained in the work to which I have alluded, and it is a note of one of the Editors, Dr. Dunlop, to page 410 of the fifth edition. It is as follows:-           

The best mode that has yet been discovered, for forcing a man who feigns madness to confess and desist, is by the use of the whirling chair, that is a chair placed upon a spindle which revolves upon its own axis and is turned by a wheel and crank, with the rapidity of the fly of a jack. It produces nausea, even to syncope; and after two minutes of such discipline few men can command spirits sufficient to act any part. It was by this means that Macdougall of Glasgow was rendered sane when he feigned madness to avoid being tried for sinking ships to defraud the underwriters; but he betrayed himself to the medical men by the common fault of imposture, not having "a method of his madness," but mixing up the two irreconcileable characters of

"The moping idiot and the madman gay." - Dunlop.

Now, gentlemen, I ask you what is there to connect this passage with the prosecutor of this information? They have not ventured to ask a single witness whom they have called before you if he believed that it referred to the prosecutor. They may, and I shall not be surprised at it, attach it as closely to him as they have fastened upon him the conviction for ship-sinking; but for that let not my client be made to answer. He announces a fact - an appalling and astounding assumption of that most mysterious and most melancholy of all human bereavements, and he suggests the remedy for the detection of arch delinquency - and this he does upon the best authority - and, I would ask, are the portals of knowledge to be closed for ever because, by opening them, you may chance to oppose an arch criminal's deformity? Is knowledge, "rich with the spoils of time," to dwindle into a legend of tradition because in its acquisition we may learn to appreciate at their proper estimation such men as this prosecutor? Arch criminal is applied to the imposter who assumed insanity; and I will thank you, gentlemen, to furnish me with a more accurate epithet for him. I leave therefore, gentlemen, this case in your hands; I submit to you, whatever in the management of this cause they may have made it, that originally the paragraph was, if not an instructive, at least an innocent communication. You can have no doubt - for it was a matter of notoriety - that the Wallaces were tried for ship-sinking - to refer therefore to the postponement of their trial you will hardly deem to have been criminal on the part of Mr. Elliston - that the case in; "Beck" is fairly and naturally quoted, is connected with that subject, and that there is no appearance of malice, still less any proof of it, to be inferred from the reference to that case and Macdougall's, quoted simply as an offence similar to that for which the Wallaces were to be tried. I leave the case in your hands, therefore, perfectly satisfied as to the result. I submit to His Honor that there is not sufficient proof of the publication; but upon that subject as well as upon all others upon which His Honor may be disposed to address you, you will be guided by his observations rather than by those which, in the discharge of my duty, I have addressed to you.

Mr. Macdowell then called.

Mr. Edward Bedford, who stated - this book is my property; I have had it two years or more; I ordered it from England, and received it in consequence of that order; it is of authority among medical men.

The libel was here pointed out to Mr. Bedford, who said - It does not impute ship-sinking, but trial for ship-sinking.

Examined by the Chief Justice. - The book is written by Beck and his brother - Americans - this is an English edition, with notes by Drs. Dunlop and Gardiner.

Cross-examined. - Persons must know that Macdougall was guilty, to make out from this passage that he was charged with ship-sinking.

By Chief Justice. - Taking the whole together the inference is, that Macdougall had been guilty of sinking ships - I did not take the last sentence when I answered Mr. Stephen's questions.

Mr. Stephen replied, He said. - I do not know whether, gentlemen, we are to regard the statement of the counsel for the defendant. - in which he has fairly endeavoured to contend that his client had never charged the prosecutor with sinking ships for the purpose of defrauding the underwriters - or to the general tenor of the speech itself, in which you have been referred to a document produced by me, by which it is contended that the prosecutor was found guilty of that offence. I shall show you, however, that that instrument proves the very reverse of what is attributed to it; for it proves that the Macdougall spoken of therein, the prosecutor in this information, was tried at Edinburgh, whereas the Macdougall spoken of in "Beck's Medical Jurisprudence," as it appears from that work, was tried at Glasgow.

The Chief Justice. - I beg your pardon; the words are, "It was by this means that Macdougall of Glasgow was rendered sane." It does not say, therefore, that he was tried atGlasgow.

Mr. Stephen continued. - I contend, gentlemen, before you, that although the passage be so worded, yet that it is clear from the context that the Macdougall of Glasgow was a different person from the Macdougall of Edinburgh, and that there is no evidence before you to show what crime was imputed to my client, the prosecutor in this information; I therefore claim for him your verdict; and I feel the most perfect assurance that the attack which has this day been made upon his character - alike revolting to fair conduct and Christian feeling - must carry with it its own antidote, and can require from me no observations to refute it.

The Chief Justice summed up the case to the jury. After reading the paragraph charged in the information as libellous, His Honor observed there were four points for the consideration of the jury. The first was, whether Mr. Elliston had published the paragraph, and upon that he thought the evidence of Mr. Todd good prima facie evidence, and such as (being uncontradicted) warranted them in finding a verdict against the defendant as to the publication. The next point was, whether the matter published referred to the prosecutor, John Macdougall; and upon this the jury were to consider whether the evidence of Mr. Lovell, Mr. Anderson, and Mr. Harbottle, proved that it did so apply. The third point was, whether the paragraph imputed to the prosecutor, as was averred in the information, that he had not only been tried, but had been found guilty of the crime of sinking a ship, with intent to defraud the insurers. Upon this various witness had been examined, Mr. Lovell says it implicates him in the same charge as the Wallaces; Mr. Anderson thinks it imputes to him that he was guilty of some charge similar to that of the Wallaces; that it insinuates he was guilty; Mr. Harbottle takes a rather subtle distinction, that the paragraph insinuates that the prosecutor was connected with sinking a ship. Mr. Bedford having his attention directed to the first part of the paragraph only, thought it imputed to the prosecutor that he had been tried, not that he had been guilty; but on reading the whole article he considered it imputed to the prosecutor that he had been guilty of sinking a ship Now it might be quite true that an innocent man, any man, might be tried and acquitted; but if it were published that he had been tried, and there were any insinuation, anything in the publication to induce a person reading it to believe he had been found guilty, undoubtedly that was libellous. The jury would therefore consider whether the article imputed that the prosecutor had been found guilty of ship-sinking. His Honor remarked, that the counsel for the prosecution had in his reply observed that the defendant's counsel disclaimed imputing guilt to the prosecutor, and yet had made use of the document produced (the remission) to show that the prosecutor had been transported for the crime in question. "But," says the prosecutor's counsel, "the defendant speaks of a person tried at Glasgow, whereas the remission shows that the prosecutor had been tried at Edinburgh." His Honor was afraid the counsel for the prosecution did not see the effect of this remark, because if there were two Macdougalls, one tried at Edinburgh, and the other at Glasgow, the document went to destroy the testimony of his own witnesses.

The last and material question for the jury remained, supposing they were satisfied upon the three previous points, namely, whether or not the publication was malicious - the jury forming their opinion from the publication itself, and from the circumstances under which it was published. The defendant's counsel insists that the paragraph is part of a summary of English news, in which we are all more or less interested, and the question is, whether this is done fairly or for the mere purpose of injuring the prosecutor. If it were done fairly andbona fide, and the jury could not collect from the publication itself that the intention of the defendant was to injure the prosecutor, then the publication was not malicious, and their verdict would be for the defendant. But if, on the other hands, under the cloak of giving English news, the defendant had vilified the prosecutor, then the publication was libellous. If the paragraph had stopped at the first part, which noticed the postponement of the trial of the Wallaces, and the similar case of a person of the name of Macdougall, their decision would have been comparatively easy. But the jury would consider whether the addition to the paragraph led them to the conviction that the defendant had taken advantage of the case of the Wallaces to hold up the prosecutor to the public as a person guilty of a similar crime. If the defendant had availed himself of the case of the Wallaces merely to attack the character of the prosecutor, the jury would find a verdict against him; but if, judging from the whole article, the paragraph consisted merely of English news, with the natural remarks that any one would make on cases of a similar description, then this was not a publication to be visited by a criminal prosecution.

The jury retired, and after an absence of ten minutes returned with a verdict of NOT GUILTY.

Notes

[1]              See also Hobart Town Advertiser, 26 October 1841.  For Macdougall see E. Flynn, 'John Campbell Macdougal (1805?-1848)', ADB, vol. 2, pp. 163-4 and for Elliston see J.N.D. Harrison, 'William Gore Elliston (1798-1872)', ADB, vol. 1, pp. 355-6.

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