SUPREME COURT.—Civil Sittings.

New Zealander, Volume 9, Issue 772, 7 September 1853, Page 1 (Supplement)

SUPREME COURT.—Civil Sittings.

U*-'* , J AUCKLAND, WEDNESDAY, SEPT 7, 1853. Before His Honor Chief Justice Martin. Br'OWN V. WILUAMSON A WlLSOvi - A Special Jury Was summoned to try thisfease, the ||ll iwing gentlemen were sworn,— iVlessrs. \Vro. Connell (foreman), John Rout, Robert' .Tnhn Watson Bain, David Nat Lao, Sampson. borne, James Macky, Thomas Weston, John; jfgi.nd, Ed via Davy, Robert Lisle, anil Edward We »»bjoin a copy of the pleadings. This action w brought ifor One Thousand Pounds, •■damages for the publication by the defendants of ISlJibeJe hereinafter mentioned. The plaintiff saitb T.jteWng thß months of April and May, 1853, the lainWwas a Candidate for the office of Superintendent oftheprovince of Auckland in New Zealand. That daring the said time the defendants published in a certain newspaper, printed and published ;at - Auckland, «lled*the Zea'ander , of which newspaper the V®: printers, proprietors, and publishers ; the fpljoWS scandaloua and malicious libels, concerning the plaintiff and concerning the office of Spriotentendent, and concerning the plaintiffs a candidate for - -uchoffiqe, at the times hereinafter respectively menr tjoned, (that \* to say,) On the 23rd day of April, 1853, the paisago following;-- ■ , . “Sale pf Horses! Mr. Gammon has been favoured with instructions w. Sell by Public the ‘' *Saib’ Inn the undermentioned Horses —‘ Malice’— Xbis famous Steeple Chaser, by Mr. Tom Paine’s out of Egotism, has frequently been know to clear tbs Turnpike Gate&of Decency, Truth, and Fair p. _ aching 1* too high forliina—he has been entered for the . 1 Supenntendency’ Steeple Chase, or, lather be bps entered himself—a circumstance never Ttc prded of any other, horse, but accounted for by ‘ the unusual development of hit organ of self-esteem.’,* On the SOth April, 1853, the passage following “Soman can justly bo indifferent whether Robespierre or Wilberforoe, Paine or As-bley, be aspiring to the Chief. Rule.’’ On, the Mth May. 1853, the passage following; “And suppose be d d reach it. on what book would ha te s«orn into office? A correspondent of the New Zealander states, ‘when the census was taken, Mr. Brown, did. not classify himself under any sect or of Christians ; at least so I understood the 1 fetter signed Spectator. It this be the case what oath 1 will bind.him?” . ... And the plaintiff further saitb that plaintiff having be«o such Candidate as aforesaid, did after the termi- 1 nation of .the polling for the said office of Superintendent, arid before the state. of the poll was declared,- 1 apply to ib« Supreme Court of New Zealand for a 1 mandamus ordering the Returning Officer of the City 1 of Auckland, the Suburbs ol Auckland, and the j* Northern Decision, to make a return on the Writ to j 1 him directed that the election for the said office of 1’ Superintendent had fallen on the plantiff, and in support of such application the piantiff did duly make and swear ; so affidavit upon the Holy Evangelists, before Thomas. j Outhwaife, Esq., a Solicitor of the said Supreme Court } of New Zealand having power and authority, to admin- • iiter an Oath on that behalf. And that, the defendants 1 onlhelfilb day of July, in the year aforesaid, did falsely, wickedly, and maliciously publish and | cause to bo published in tbe said New Zealander 1 newspaper,,of and concerning the plaintiff, and concern- I ing tbe said.office of Superintendent, and of and con— 1 earning the said application for a mandamus, and. of and 1 concerning the affidavit made and sworn os .aforesaid,, the false, scandalous l , malicious and defamatqry and 1 libellous ma ter following, that ia to any, f‘ We are, far. 1 from believing that there are not,, amongst those who , 1 voted for Mr. .Brown mmy who iu thejr inmost < souls,” and ending in tbe second column of the, said 1 Supplement with the words •• Without, equivocation,.. ! mental reservati n,or latiiudinarian laxity, or subterfuge 1 of’kay'jkjud,’’ /", , 1 Whereby, and by tbe publication of the said libels tbe pJa»ati(f hath sustained damage to the amount pf " ■, ■ The defendants for pier say,—that as to the pu.bli. cation on the 23rd day of April, and as to the .publi-. cation qu the 30tb of April, it ia not admitted that they rdl||a,tc the piantiff. . The defendants further say as to tbe passage published on the 14th May, that before, the time of publishing the same, and on or about V ,J r" a Government census was taken of the J European-population of the Province of New Ulster \ and that the plaintiff in a return made to i under the said census, did not classify, himself j under any sect or denomination of Religion. And, as to | tbe passage published on the 16th of July, the defen- ( the proceedings as to the demand of ,a poll, j dififlf of Lieu tenant-Colonel Wynyard on the day . 1 Jpiiwßon for the office of Superintendent, were t < (imm and correct in all respects. And as to all .tfc® I passages fn the declaration set forth the defendants say J tffiß they are not nor is any of them scandalous or mail- , cipus. Upon all which allegitions in the, defend- » •fits’ pleas contained issue is joined. .. : P „ ■ J ‘Mr. Bartley opened tbe case for the Plaintiff, saying f that be bad the honor to appear before the jury m the , preaent case on behalf of the plaintiff—that he was well « aware that the proceedings out of which this case arose,; ] bad given rise to very great prejudice, but be would , admonish, exhort, and adjure the Jury by every sacred < tfe, by the duty that they owed to society, by their; « doty to £>od, and to man, to, divest themselves of any , prejudice either against the Plaintiff or Defendants that i might exist in their minds. He did not imagine, Jo- < deed he could not conceive it possible, that there was | 1 any man in the box who could go into it with the de- , termination to do wrong ; but he must beg them em- i phalically to guard themselves against allowing their « passions to influence them either on the one side or the , other. He made these observations more particularly t with reference to a motion that they were dpubtlesg ' •iratp bad been made to this Court (or tbe purpose of J obtaining a trial of this cause elsewhere. He was . aware that the tendency of that motion was to increase the feeling of prejudice against bis client, but hj« 1 remind them that it was their duty as be was sure it ( was th«r will and pleasure to control those feelings if , they did exist, and to throw overboard all prejudice ip tba matter. That the motion was in itself a fair j motion, was a usual motion, one not uncommon in England, and one that tbe circumstances of the cpse . bod tendered necessary; that no disrespect was in- j tendad to the jury by that motion, and that be should , not have alluded to it except for tbe object of setting j himself right with them. And having set himself right I with them, be again cautioned them to guard against j prejudice, and reminded them that they were entrusted | not with the rights of persons alone, but with the pro- j tection of society at large. That he trusted.,for the • honour of the town and ail the parlies concerned that they;would enter upon tbe consideration of the case j without reference to whether Mr. Brown was popular l or unpopular. But whether or not, Mr. Brown wan entitled to protection at their hands. That Mr, Brown was, as they were probably aware, a merchant in this Town,—a map of eminence, and bad announced himself as a Candidate for the office of Superintendent of the Province of Auckland, aa be bad a most perfect right to do. Immediately upon his announcement of himself as,a Candidate, an article was published in the New Zealander which would be laid before them, and which was mcrely tbe commencement of a series , of. attack ß upon life Plaintiffs character. Infidelity bad been charged againat him, and this alone was a grievous charge; there was also a crime charged against him, and it waa endeavoured to most grievously fasten on him the crime of Perjury,—not that the Plaintiff; was in the dock for trial for the crime, but if he bad been guilty of the conduct imputed, he most richly deserved to be so. That the tendency of these articles was tb*t • no less grave charge rested on tbe Plaintiff than these two,—lnfidelity, and Perjury. Tbe charge of Perjury is assigned in distinct and unmistak- able language •hat it was no part of his duty to anticipate tbe def ace; but be would remark that no justification had been pleaded, that the charge of Infilelity had been brought on several occasions, and the natiral tendency of snob a charge, was to render the Plaintiff ridiculous aid odious among men, and it is more stlroiigly endevoured to fix upon him the charge of Perjury. It might npt.be sufficient to justify the jury in finding him guilty- he should taiher say in giving a verdict •gainst him. But he must say that if, be failed in getting.]) verdict Mr, Brown would be irretrievably damnified, that in point of lact tbe character, the exigence, the more than life of Mr. Brown was in their bands Tbe first count was then read. On the 23rd of April, 1853,—” Sale of horses! Mr. Oitnmon has been favoured with instructions to sell by public auction, si tbe Squib Inn,” the undermentioned W»es i—Malice—This famous steeple-chaser, by Mr. fotn Pai n „' # out of Egotistu : Las frequently 1 teen known to clear the turnpike gates of Decency, I/uth, and Fair Play, indeed nothing is too high for “J®! be has been entered for (be • Superiniendency* •wpla-chase, or, rather, he has entered himself—a cir “instance never recorded of any other horse, but ac-

counted for by the unusual development of bis organ 1 of self-ssteetii.”

No doubt Defendants would plead an election 1

cense, but the question was whether the jury would that plea countenance calling a man Malicious, followed u|> a» it was by an assertion that be bad set at naug it Decency, Truth, and Fair-Play; accusations which bad a natural tendency td lower Mr. Brown in the estimation of his fellow townsmen. Second count read :

On the 301 b April, (855,—“N0 man can justly be indifferent whether Robespierre or Wilberforce, Paine or Ashley be aspiring to the Chief Rule.” Itis not my duty to point out to you to whom tbia article alludes ; I shall call before you witnesses for that purpose, built is evident that if it refers to the Plaintiff, that coupling his name with Tom Paine, during? the tame of the contest for the Suprrintendency, woulff •have the effect of prejudicing him in attaining bij' object. : J ‘ : , 1 Third count read : ! ■i On the 14th May, 1853, —“ And suppose he did reach ilp ouwbat book would he be sworn into office? A correspbndent- of tbe New-Zealander states, ‘ when the census was taken, Mr. Brown did not classify him* self under any sect or denomination of Criatians; at least so I understood the letter signed Spectator. If this be the case what oath will bind him ? ’ This is a distinct reference to Mr. Brown in bis religious or ratber irreligious character, and it is for you to form a judgment upon the tendency of this article. Fourth count read : • *Ar.d ontbe 16th of July, 1853, commencing in tbe first column of tbe Supplement, with the words “ We are'far from believing that there are not amongst those who voted for Mr. Brown many who in their inmost souls,”a'id ending in the second column o ( the said Supplement with the words “ Without equivocation, mental n serration, or latitudinanan' laxity, or subterfuge of any kind.’* - This was said with reference to Mr. Brown, who had moved amongst us for so many years, and had never yet been charged with any improper conduct. It would bo the- duty of the jury to hear evidence on this count ; but it was perfectly self-evident that it was intended to charge Mr. Brown with perjury. The reference to Mr Brown was not denied, and, if itmeans anything, it means that he is either peijured or nothing.' It fastens on him the charge of Perjury, be may not, strictly •peaking, be indictable, but it either means that or nothing, and be would stand or fall by that. Ihe defendants have neither justified nor apologised and he relied ou these facts that no justification bad been pleaded nor apology offered. The question was whether he swore j falsely or not; if he was only mistaken in what he swore, it was not ior any man to brand him as a perjurer and an inti iel. Did Mr. Brown design to trepan, deceive, and chouse the Court ? But he was quite sure they would deal with tbe question as it deserved. The plaintiff is charged with infidelity, a charge which renders a man odious in society, and lj® •• charged with tbe grevious crime of perjury ; it was not whether they were for Wynyard or Brown, for A. or 8., but was Mr. Brown to bold up bis head again in the town or not ? Was he to be admitted into society ? His learned friend the Attorney-General would douptless display bis usual ingenuity, but let him if he could ‘ rail tbe seat from off the bond,** and if ho can, he, Mr. ioy. prayed God to send the defendants a good deliverance. George Vaile, having been sworn, stated that he had seen a number of the New-Zealander of the 13th April; that bo had read the advertisement headed “Sale of horses” and believed part of it applied to Mr. Brown the plaintiff; conceived that Mr. Bro«n Was there referred to as an infidel; by the term “ Malice ’ he 'innerstood the plaintiff to be represented as a very malicious person, and that he was “ entered” for the Supermtendency ; the terms “ decency, truth, and fair play’ he conceived had reference to the plaintiff, as being a candidate for the office of Superintendent and bis unfitness for that office because he was opposed to truth and fair-play —that he was not a man of truth ; witness had read the passage in tbe letter signed “one ol the assailed ministers,” in which the names of “ Robespierre and Wilberforce, Paine and Ashley” were mentioned The Attorney General submitted that tbe whole letter in which tbe passage occurred should he read. The Court so decided, and the following letter from the Netv-Zealander o tbe 30ih April was read by tbe Registrar:

To the Editor of the Nbvv-Zeala.vder

Sir,— The ministers of Christianity have not been unused to public criticism, nor need ihey shrink from it ho long as they can cover themselves with the shield of truth. Three letters have appeared in the Southern Cross of April 26th, animadverting upon the “ Protestant Evangelical clergymen” who signed ihe Requisition to Colonel Wynyard, and I beg the privilege of making some remarks upon them. They are all anonymous,— but we shall take it for granted that they were written in good faith by professing Christians, a* they claim to be. 1 henspirit indeed that of persons professing Very superior scrupulousness and spirituality though they have an acrid flavour not .June .reconcileOlo —fib such virtues. Hut let u. o,j«nthe fountain is cleare- than the stream, and that some little feculency has been acquired with meandering over the columns of the Southern Cross, It would therefore have been a nor trial lo their humility at any time to rebuke even one reputable and blameless Christian Minister, much more must they have felt it so to censure nearly the entire clerical body of the Settlement. But that trial would be augmented in this instance by another, —tbe necessity which they felt to appear in punt to reprimand so many “elders,” of the various Christian societies. And then we may picture them to ourselves when, with downcast eyes and Sad hearts, they step over some day after “ family worship” or •• prayer meeling,” 'o drop their communication Into!— Ihe office*box of the Southern Cross. The transition must have been something from the one atmosphere into the other! Now truly we are not writing satire, but sketching what every good man must have felt in the circumstances. Nor will we intimate that the writers dirt not feel thus, for we suppose them to : be good men, and frame oar argument* to them as such. We utterly distrust their judgment, but would speak temperately of their errors and even of their unchar’tableness. And there is great oncharitableness discolouring the whole series, but especially the production signed *' Citizen.® Tills writer has seen good to speak of the Christian Ministers of Auckland and its vicinity as “ turbulent priests;” by no means a gentle epithet, nor other than villifying and angry. With this bitter phrase rankling in his heart he proceeds to record as a thing lamentable but undeniable that “ they love to see their names paraded ' in the public journals,” “an untoward circumstance” “occurring with frequency;’’ that they have a “thirst for notoriety,” ami now, with “unprecedented meddling, *’ —*• while their fldeks are calmly deliberating as to what measures they shall adopt” they ( “ rush into the field of action with all the political fury of the veriest worldlings.” Now how many grains of Christian love could the cunningest chemistry extract from this mass of acrimony? Where is that generous judgment of others which marks the elevated Christian character which it may be presumed this Critic would uot demand from others if not possessed by himsell 1 But we regret lo say that those letters proceed upon untruthful assumptions, though we hope not designedly. Yet surely in such a Ca_se a< this, more than ordinary precaution should have been taken against misconception. Some misgiving might fitly have been encouraged lest the conclusions should be inordinately wider than the premises. Now what are the facts? Some respectable fellow-citizens brought to the houses of many and perhaps ol all fhe Ministers a requisition which they were invited to sign, if agreeable to their views. I doubt whether one of them had beard of the Requisition until he was asked to sign, or was afterwards in any way concerned in gathering the names which filled it. No such act has been adduced by their accusers. Can it be truthful then or just, upon the ground of this one fact, that they itgned a requisition when asked, forthwith to publish in Ihe Southern Cross a sweeping censure against no less than ten of (he Clergymen of the neighbourhood, and against the Evangelical Alliance and Colonel Wynyard, expressed too in the violent language quoted above ? Is there no eagerness lo attack manifested fiere? Can •' Citizen” indeed be a Christian, aad withnold an apology for having converted such a thing into a “furious rash into the field ’ while “ their flocks were deliberating .” But, Indeed, who can “Citizen” be? He loltily tenders his forgiveness to the Clergy “ for the exhumation from the tombs of Egypt, the mouldering ashes of its departed monarch* ” As “ Citizen” may be of the proud lineage of the ancient Pharoahs, bis forgiveness may mean something; but we did not before ' k a ow that the “ turbulent priests’ hart been invading these sepulchres. With some further forgiveness to these disturbers, J Citizen*’winds up his climax wilh the following appeal to the Editor of the Southern Cross! “ May we not, sir, with great propriety, question their fitness for the high office of spiritual guides.” Surely “ Cilizen” cannot be a very wise or a very modest personage even though he should be of royal descent. And how long has the Editor of the Southern Cross been his authority in seeking “spiritual guides?” Of the other two writer* it is but just lo say that they are far less biller than “ Citizen” —but we cannot help thinking them all liable to heavy rebuke in that that they have not only published exaggerated statements and severe reflections, but that they have closed so anonymously and without seeking first any explanation from the parties assailed. Anonymous correspondence is sometimes the cloud behind which the orb of Genius half conceals its tuitre- sometimes the veil of modest worth, but quite as often it is the covert from behind which some mean assailant shoots his Parthian arrow. Surely men assuming such hieh principles as these writers do, cannot be of the latter class. But why bad they not the courage to sign their work with their own name? It would at least have been satislactory to know that Ihe letters do not derive their influence from their namclessncss alone. It could not be that men *o confident in their own superior information—and of the support of the “ more lober part of the community” and “ many sensible and serious persons” would shrink from (be censure which their candour might bring upon them. We are willing to acquit even “Citizen” of a malign intention—but we ask is not the aspect of the letters malign? Judging from their appearance only would not lliey be liable to be considered the device of a chagrined partisan—or the unadvised utterance of censorious young men of Utile occupation rather than the solemn and regretlul testimony of high-minded and venerable “ Fathers in Christ.” Wc owe (he writers no ill-will, they have not injured us at ail, and probably their own calmer judgment will whisper lo them some deep-toned misgivings that they have erred. Such, we are persuaded, will be the conclusion of many who can think seriously and speak honestly upon such question* without any itch to exhibit their thinkings in the newspaper. But we cannot lor a moment bow to the principles so imperiously laid down in these letter* for the guidance of Christian Ministers. They assume that there is great impropriety in Ihe part which they have taken—that it is an exceedingly mischievous thing for them to sign a requisition. They will not, we suppose, also demand that Ministers should at their bidding refrain from the use of Ihe franchise. As Mis- • siouaries they are closely connected with the civil condition of the Natives-but. apart from this, they have not ceased lo be citizens when they become Ministers, If they have political 1 rights like other men how can they not have also political duties, > ' No man can justly be indifferent whether Robespierre or Wil-

berforce, Paine or Ashley, be aspiring to the chief rule. But in , truth, ‘•Elector” is inconsistent with himself. He would have the ministers teach their congregrations their duty in the choice; of “ political rulers,” and this as “ part of the council of God, and yet when they sign 'i requisition along with many of those whom they may properly Cnodgh have advised, “Elector’’ writes of this in a newspaper as black, “and striving unto blood 1” The Minister may then, according to him, do the greater thing of directing a hundred or a thousand persona as to how they should, choose, but when he'does the lesser thing of choosing for himself he hag “ descended into the arena of strife!for a parliamentary representative® and may expect to be well baited with texts of Holy Writ, arid without them from the pages of the Southern Cross! “ Elector” forgets, tool, that srippbsing his own strictures on Colonel Wynyard true, we db-not believe that a requisition oovrhiict mure than that the person addressed hj comparatively the best man. it woum oE mejewma iv **—«-■■ ■ J “ Elector” purposes to vote. Seeing that he has availed himself of Mr. Brown’s newspaper,-it may be supposed that.he ‘Will i support that gentleman. Will he then have- acted in the spirit of his texts, or will he not? Nothing can excuse .apy , eager -partisanship in Christian Ministers or any -uiiseemjy- with .political bustle. But only let it be understood that they be found guilty before they qre bsssiledinjhe newspapers. The miry ways ol electioneering ambition arid chicanery do not indeed befit any man who values or professes' Christian disciplesbip, and it were infinitely to be desired 'that the'foot-marks of such might never be-found in thenr. also require the utmost vigilance of all parties to keep, asunder "the-ire theological and the ire but should that Vigilance Jbe baffled—the writers of whom we have been speaking will - certainly incur the blame of having been the first to bring’ their, iiltvusities mischievously together. ,v. . . .. One of tub Assailed Ministers. April 291h, 1853.'

Examination, resumed.—Witness was of opinion that the writer of the passage wished to make ibe impression that Mr; Brown, Robespierre, and Paine were all alike in iniquity; that Mr. Brown was a- similar character to them ; he believed the word “ Paine” to mean Tom Paine ; believed that Paine did a great deal of mischief in society against religion ; did not believe Mr. Brown to be a parallel; Paine was an infidel, and witni-ss believed that in associating Mr. Brown with Paine, it was meant to-be conveyed that Mi. Brown was an infidel; believed that Robespierre was the contrary to an amiable man ; ns to the passage “ on what book would he be sworn” &c. — The Attorney-General said that the whole passage had better be read.

This was agreed to and the following ex’ract from a letter signed “ James Geldard” in the New Zealander of the 14-th May was read And suppose he did reach it—on what book, would he be sworn into office? A correspondent of the New Zealander states,when the census was taken, Mr. Brown did not classify himself under any sector denomination of Christians, at least so I understood the letter signed Spectator. If this be the case, what oath will bind him ? Perhaps Mr. Paterson would enlighten rue on this subject. _ ’ •' • Examination resumed : The inference witness would draw from that passage was that the plaintiff would not be believed by his oath on the Bible ; witness had read tbe article in the New Zealander of the 16th July.

At the request of the Attorney General the article was read from tbe commencement: In returning to a subjeor which we bad hoped the Public and Official Declaration of the Poll on Tuesday would have set at rest, and of which many of our readers are by this time no doubt heartily weary, we have to offer as our justification the fact that Mr. Brown is at the present hour a Candidate for the Superintendency, so far as it is possible for him to make himself one. He is trying, by all means that unscrupulous craft can devise, lo eject Crons tbe office tbe gentleman wbo ha been elevated to it by ihe votes of tbe majority of th<» electors, and to thrust himself into his seat. He is therefore still open to all that “ sifting” to which, according to his own doctrine on a former occasion; every candidate for a representative office is fairly amenable; and to such additional scrutiny as may naturally be provoked by his attempt lo over-ride and over turn tbe popular choice by pettifogging technicalities of tbe genuine Old Hailey stamp. And let us recall attention to the consideration that it is in this aspect of the case that we have deemed it our duty to dwell so much as we have done on Mr. Brown’s personal demerits. The position in which he voluntarily placed himself before the Province notmerely justified but warranted such scrutiny into his fitness for the high office to which he aspired, as that which we and our correspondents have from time to lime instituted. For him to prate about " assults upo private character ” must appear an instance of effrontery, in which “ none but himself can be his parallel,” to all who have read the attacks he has issued even within the last month ou the private character of individuals with whom he had nothing whatever to do except on the ground that they were opposed to his pretensions to the Superintendency. Had Mr. Brown “ known when he was beaten,*'—hail he received the decision of the constituency against him in a becoming deference, and retired into the privacy which a majority of the Electors had »>y their votes declared to be his proper place, then, there might have been some show of reason in his looking for the mercy of silence so far as public animadversion is concerned,— attbnuul. 01. I it would obviously remiin for those whom lie had assailed to determine for themselves individually what course it’might bj right for them to pursue. - A few further observations than we had room for in our last, seemed called for witii respect to Air. Brown's recent appearance before the Supreme Court. We are far from believing that there are not amongst those who voted for Mr. Brown may who, in their inmost souls, so vener te the sanctity of an oath, as to shrink with abhorrence from anv thing that has even the appearance of trifling with its obligation ; and many who, apart from their religious convictions and feelings as to its sic edness would yet he rigidly governed by th-ir sense of that honour and truth between man and man, without which society would, for all good purposes, be but as a rope of sand, and must soon crumble into disorder and ruin. Such persons will, ou a searching review of this transaction, find themselves forced to a conclusion which will be only the more painful because it is so inevitable. For, the plea that when Mr Brown made his affidavit be only swore that he did not “ hear” any elector but one audibly demand the poll, is a selfevident quibble. It deserves lo be classed with the prac ice of bar l-swetring witnesses in some of the Assize courts, who think that if they can manage to kiss their thumbs instead of the book, they escape the obligation of the oatb. In is undeniable that the point sought to be established was, that the poll had not been demanded by six electors. Mr. Brown swears (and, so far most truly), that he stood close to tbe Returning Officer, and that it was impossible that be should not be cognisant of what took place. It follows that he must necessarily have seen a number of electors (twice the required six, or more) grouped round the Returning Officer at the moment when he heard Mr. Connell who, as the mover of Col. Wynyard, was properly their spokesman—in a distinct voice demand the poll; and he must have seen the Returning Officer’s outstretched finger, as he deliberately counted six from the group, and have heard the Reterning Officer say, “ You demand a poll?” before be, on their assent being signified, turned round to tbe assembly to declare that thepoll would take place. Yet Mr. Brown comes before the Court to make an affidavit which, if it means anything whatever to the purpose, must mean that the poll was not demanded by tha six electors. It may suit Air. Brown’s purpose now to quibble upon this point, and even to admit that there were “ technical errors” in the mode of bringing forward his case to amend which —were it not for something—be would renew his application to the Court, —and to concede that the Elector who first demanded the poll possibly” did so “ in the name of the other five.” It is necessary for him to shift his ground in order to make out a door of escape which his more unscrupulous partisans may exhibit to tbe class of persons who are willing to subordinate their own minds to Mr. Brown’s mind and will, but who require, notwithstanding, just for “ the look of the thing” to have some verbiage at hand that, among t the unreflecting, may pass current for argument, and reason. But what was written, sworn, and recorded in the Supreme Court-remains: and it will remain in all future time as an additional portraiture of the infolleciual and moral features of tbe man who feels himself" injured,” as bis Counsel expressed it, because he is not placed at tbe be id of tbe civilized and professedly Christian community of the Province! It is in relation to his pretensions to this office that the press and the pub iq, have directly to do with the matter. Had he been contented to remain plain William Brown,— merchant, shipping-agent, land speculator, grazier, brewer, —or whatever else he may be in bis wide-sp ead money-making schemes —then his views respecting the obligation of an oath (so long as they were not developed in some, overt acts) might be exempted from scrutiny or comment, equally with the “ peculiar views” he may entertain respecting Miracles, the Inspiration of the Scriptures, the duty and propriety of attendance on Divine Worship, and kindred subjects. But when he aspires to be—not merely a representative of the people in the previously usual sense of that expression—but to occupy a nevv post which stands pre-eminent,—-indeed alone, —in its importance amongst those places lo which, under tbe British Constitution, the voles of the people can elevate a representative, 1 then, a searching investigation of such qualifications ■ in a candidate as are here indicated, becomes not only

allowable, buf, if reasonable doubts exist, indispensable. There could scarcely be a more pertinent enquiry, than whether a candidate for the Superintendency could, or could not, he relied upou to take his oath of office in the fullest and strictest sense of its meaning, as understood by honest and honourable men,—-without equivocation, mental reservation, or latitudinariaa laxity or subterfuge of any kind. Examination resumed: Witness considered this article to go to the extent that Mr. Brown might take his oath on the Bible, and still have a mental reservation on his own mind not to feel himself bound by that oath; such was the impression left on witness’s The Attorney-General said the affi lavit To Mr, Brown,,ought to be put in. Mr. Bartley was not referring specifically to Mr. Brown's affidavit, but wished to get from the witness what be understood the article commenting oh the affidavit to imply. Resumed: The article went to suggest that Mr. Brown swore contrary to his knowledge ; if witness had no knowledge of Mr. Brown beyond what the .article conveyed he Would think him the worst of men; lie knew him to be the contrary. ; By the Attorney-General ; Believed the squib applied to the plantiff by virtue of Mr. Brown having voluntarily offered himself to the community as Superintendent; the word “entered himself” &c., would apply to him putting himself forward ; had no' other reason for believing that the squib applied to the plaintiff beyond Ilia imputation of infidelity and the mention of the name of Paine ; thought it applied to him because be had been charged with infidelity before; believed the names of Robespierre, Wilberforce, Paine and Ashley, applied to the two CandidatfiSL;.gj|ppQßed that Robespierre and Paine were intended to apply to Mr. Brown; did not think that Wilberforce or Ashley were intended to apply to Mr. Biown because he had not been accustomed to be associated with such characters. (Laughter.)

By Mr. Bartley: Plaintiff had been charged before with infidelity through the medium of the New Zealander which is the defendants’ paper ; it was by reason of something of the New Zealander that he had applied the terra to Mr. Brown—from the manner in which tbe paper had spoken of Mr. Brown. By the Attorney-General: Witness could not charge his memory with the time or date at which the New Zealander had done so.

Alexander Kennedy, being sworn, stated that he thought the passage in the sale of horses advertisement applied to Mr. Brown ; it was his belief that it imputed infidelity, indecency, and want of truth to the plaintiff; it also imputed maliciousness to the plaintiff; it applied to the plaintiff as a candidite for ihe Superinlendency; plaintiff was a merchant and magistrate of tbe first standing; from tbe second passage he inferred .that an attenpt was made to associate tbe plaintiff with Robespierre and Paine ; he believed that the name of Robespierre conveyed the idea ol all that is bad in human nature; Paine was notorious for his infidelity; witness considered that the passage was intended to convey an impression to the v public mind that the plaintiff was a similar character, — that was his impression of it; the third passage he thought clearly implied that if Mr. Brown were sworn on tbe Bible be would not be bound by an oath; be thought the latter article attributed to the plaintiff infidelity and perjury ; if applied t» liinaself he would tbiak tbe same; witness was on the hustings on the day of polling ; there was a call for a show of bauds ; he was behind and could see nothing himself, but the show of hands was declared in favour of Mr. Brown ; witness was behind the people on the stage, and could not hear what took place ; he ■did not hear anything at all that was said—scarcely beard a single word that was spoken there. Robert Schultz, being sworn stated that he was on the huifings on the 20th June last, when there was a demand for a poll, and a show of hands; the Returning Officer declared that by the show of hands the election had fallen on Mr. Brown; immediately after this Mr, Connell stepped forward and demanded a poll on behalf of Robert Henry Wynward; as far as witness could recollect the words used were “ Now, sir, I demand a poll on behalf of Robert Henry Wynyard;’’ heard nothing further than the Returning Officer declaring that a poll had been demanded and that the polling would take place on a day named ; he was immediately behind the Returning Officer, one party intervening; did not hear Anything farther; believed that in the position he was in if anything further bad takeu place he must have heard it; left the hustings on that day under tbe impression that nothing else had been said; he was so placed behind the Returning officer that hj« cVrritft onf auo «njr of naiiono, noif ' iiid not hear him deliberately count six from the g oup on the hustings ; had the Returning Officer spoken in an audible voice he, the witness, must have heard him ; had he spoken in a low voice, he might not have heard him, but if be had spoken deliberately be certainly thought he ought to have heard him; Mr. Brown was in the front, and witness behind, he was close to him ; Mr. Brown was immediately on tbe left of the Returning Officer, one person only intervening between him and the witness.

By the Attorney-General: Witness huff already made an affidavit of what took place on the 20th June, and in the affidavit stated what was said by the Returning Officer as lo the shew of hands and the election ; the Returning Officer said that by the shew of hands William Brown was elected ; what witness bad now stated was to the intent of what was said ; could not say as to particular words ; it was very natural that when be made the affidavit he could bo more precise than now ; when be made that affidavit he read tbe particular clause relating to tbe demand of the poll more attentively then the other—ho had read over that part of bis affidavit where it was stated what the Returning Officer bad said, and saw it was to the intent; he believed lie bad never expressed any misgivings as to tbe correctness of tbe affidavit ; witness had a communication, or conversation, not relating to the trial, with Mr. Brown, offering him a place ; it was stated by one of the firm, Dr. Campbell, that as be might feel uncomfortably placed with his present employer on account of tbe part he had taken in the election, there was a situation open for him in their firm. Of course he understood it to mean the situation of a clerk.

Bv Mr. Bartley : He did not understand that it was in consequence of the affidavit he had taken that the offer had been made to him . it was the week following the making of his affidavit that he had the conversation with Dr. Campbell; he did not accept the offer nor go into the service of Brown & Campbell ; he is still in the same employ he was in when the offer was made; the situation he believed was offered to him in consequence of a person named Magee having left the service of the firm; the offer had nothing to do with his affidavit so far as he, tbe witness, was concerned ; the evidence he had given now was in substance what he had sworn in his affidavit.

John Makepeace, being a Separatist, went through a form of affirmation, and stated that he was present at the nomination for Superintendent and *aw the Return* ing Officer ; he was on the street immediately opposite the Returning Officer, had an opportunity of seeing every thing he did, and hearing to ; he stood about four yards distant from the Returning Officer who was above the witness ; after the proceedings had gone ora a certain length the Returning Officer called fora shew of hands and then said “The election baa fallen on Air. Brown by a show of binds?” Air. Connell then said 1 * I demand a poll on behalf of Robert Henry Wynyard,” immediately after this, without the delay of a second, Mr. Beckha n said “ A poll having been demanded On tbe behalf of Colonel Wynyard by Air. Connell the polling will take place on the 30th;” did not see the Returning Officer’s outstretched fisger as he deliberately counted six from the group ; did not think it possibly that he could have do so without Lis seeing it; no one could obstruct his view, the Returning Officer being higher than where he stood. By the Attorney-General: Witness had already made an affirmative on the subject; has now said ho was not on the hustings at the time, (the affirmation made by this witness in the Supreme Court to support Air. Brown’s application fora Blandamlis, was handed to him, and on being acknowledged, was read) John Makepeace, of Auckland, Sri New Zealand, general dealer, jolemnly and sincerely declare* and affirms that he attended the meeting, held on the 20lh day of June last, at Auckland, aforesaid, for the purpose of nominating candidates for the office of Superintendent of the Province of Auckland. That William Brown, Eaq., merchant, was proposed for the said office. That Lieutenant-Colonel Robert Henry Wynyard Was also proposed at the said meeting. That the shtiw-of-hands taken thereat was in favour of tlie said William Brown, and lie , was declared by the Returning Officer, Thomas Btckham, E*q-, to be the person on whom the election had fallen. That Wiliam Connell, Esq,, demanded a potion be half of, the said Robert Henry Wynyard; but this affirmant did not hear any other person make such a demand, although this affirmant was close to Ihe said Returning Officer during the whole of the proceedings, and verily believes that it was impossible such demand could have been made without this alfirillaiq. fco.rawjhfi of the same. And this affirmant verify believes that no, other elector than the said William Connell did demand a poll at the said meeting after the said candidates had been piOposed and the proceedings at the said meeting had terminated. T ■ , John Makepeace.; ; Affirmed at Auckland, aforesaid, this ninth day of July,, One Thousand. Eight Hundred and Fifty-three, before me, Thomas Oiithwaite, Solicitor, Supreme Court.

Examination resumed: Tbe affirmation just read is witness's ho now says he was not on the hu>t’ngs, but

below in tbe crowd at tbe tripe; does not believe there was tbe slightest noise at the Jtjine. , ( _ - ‘. s , v > By Mr, Bartley; Witness meant in the affirmation that be was within a little distance of, if not close to tbe Returning Officer ; about three or four yards off—tbe Returning Officer abovt ; witness should suppose be could see better than those on the hustings as qo* thing could intervene'.;. jibe crowd was very qoiet then ; there bad been a noise before; the words used by Mr, Beckham were distinct enough, did not think it possible that other words could have been used without bis hearing them. Walter Lee, being sworn, state 1 that be was a medical practitioner in Auckland; he was on the bastings at IUB uu>r~v>ruoiitiaaiu/.., frnm j{, e flg. turning Officer, there was something said about a shew of hands, the Returning Officer declared the sbow of hands to be in favor of Mr. Brown; Mr. Connell demanded a poll, tbe Returning Officer declared that a poll would take place, beard nothing between the time of the demanding of the poll and the announcement that a poll would take place, did hot pay attention to the same, if anything had been said it was more likely that be witness might not have beard it than otherwise; be did not hear anything said, he saw Mr. Beckham but did not see his outstretched finger, it might have been so but be did not see r. 1

Joseph Wright, being sworn, stated that he is in the employ of Messrs, Brown and^Campbell; be was on the hustings at the nomination, very near the Returning Officer; there was a shew of hands and a declaration in favor of Mr. Brown ; Mr. Connell stepped forward and demanded a poll saying “I demand a poll,” Captain Beckham declared tbe day and place of polling; did not hear Mr.. Bec.H»«»». «ivt>ea uiigift, ueauerately count one to six; he must have heard it if it bad taken place, be was not more than half a yard from Mr. Beckham ; be stood between him and Dr. Bennett, and was certainly not more than halt a yard from him. By the Attorney-General: Mr. Connell said *‘l demand a poll for Colonel Wynyard,’’ wished the Jury to understand that these were the words used by Mr. Connell; thought he said “ Colonel Wynyard,” witness was on the hustings until the end, almost to tbe last, there was a vote of thanks moved by somebody to the Returning Officer, cannot say by whom, but knew it was moved by somebody. By Mr. Bartley : Indeed he was not prepared to saj whether Mr. Connell said “ Robert Henry Wynyard,” or “ Colonel Wynyard," Lia meaning was that it was for Colonel Wynyard he heard tbe poll demanded. Thomas Beckham, having been sworn, stated that he was the Returning Officer who officiated at the election for Superintendent; Mr. Brown and Colonel Wynyard were Candidates; tbe show of bands taken at the nomination was in favour of Mr. Brown, witness announced the show of bands in favour of Mr. Brown; then after that Mr. Connell demanded a poll on behalf of the other candidate, cannot recollect tbe exact words he used ; whatever the words were, they drew from witness the reply “ It requires six electors to demand a poll,”or words to that effect; though he then said, “ here we ere,” or something like that, witness turned promptly round and saw a number of gentlemen there, and, after counting six, asked if they demanded a poll, when either Mr. Connell or Mr, Forsaith (witness thought it was Mr. Forsaith) said “ we demand a poll,” and be then turned to tbe front and said a'poll would take place ten days after at tbe market place; he made the announcement of a poll having been demanded, but could not now take upon himself to name the six who demanded it.—-when spoken to on the subject some time after, he was under the impression that Mr. Grahame, Mr. Salmon, Mr. Connell, Mr. Forsaith, and be thought at that time the other two were Dr. Bennett and Mr. Williamson, but be believes that was a mistake ; of the former lour he believes be was correct, be counted those who presented themselves to demand a poll, and when satisfied there were six, be announced that a poll had been demanded, he rather thought be counted with bis band extended, it might have been with his finger (Mr. Beckham here described to the manner in which he had counted the six persons who demanded the poll) he might have counted as quickly jas others would do it; he never thought he would have to give evidence on tbe subject, and did not take particular notice of the manner m which he counted tbe six ; urile.'a be had been satisfied at the time that there were six to demand a poll, he would have declared the election to have fallen on Mr. Brown, he was quite satisfied as to the names of four of tbe persons, but be could not call to mind who the other two were ; be could not say that the other of the six did not speak, riould not say that they made any expression whatever; .tfJuHI-atilnaaii pall *\.,j were associated, as he unders’ood, for the purpose, and one of them, he thought Mr. Forsaith, said we demand a poll ; could not tax his mind as to what was said by tbe other parties. By the Attorney-General Witness was quite satisfied in his own mind that six persons demanded a poll ; Mr. Forsaith offered at the time to give it to him in writing, saying either “J” or “ we will give it you in writing,” witness declared the show of bands to be in favor of the plaintiff; did not say anything about the election having fallen upon any one ; if any person has said that “this deponent was then declared by tbe said Thomas Beckham to be the person on whom tbe election for Superintendent bad fallen,” that would not bo correct ; he was not aware that he bad said anything of the kind as that the election had fallen on the plaintiff; afler tbc poll had been demanded witness declared when the polling was to take place, the plaintiff was near him on the hustings when he made this announcement; the plaintiff did not make any protest when witness declared that a poll was to take place. By Mr. Bartley: In case of no poll haring been demanded the proclamation requires that the Election should bo declared to have fallen on the person in whose favour the show of hands appeared ; witness’s declaration was that the show of bands was in favour of Mr. Brown, not that the election had fallen on Mr. Brown.

Here Mr. B irtley enquired for the Gazette containing the Proclamation, and referring to the 42nd clause, read to witness as follows

“ In the event of there being more candidates than the number to be elected, the Returning Officer shall call for a show of hands separately, in favour of each candidate, and after such show of bands shall declare the person or persons on whom tbe Election has fallen, and shall return the same accordingly.” The Attorney-GeneralGo onto the end of the clause.

Air. Bartley : (To the Attorney-General)—Allow me to do so— “ unless a poll be demanded by some one of the Candidates, or by not less than six electors on his behall.”

John Russell, being sworn sated that he was present on the hustings at the nomination be was standing close to the Returning Officer, on his left band ; Capt. Beckham declared Air. Brown elected by a show of hands ; after a short lime Mr. Connell came forward and demanded a poll for Col. Wynyard ; when Mr. Connell demanded the poll there wa* some consultation between the Returning Officer, Mr. Connell, and one or two gentlemen on his right hand ; did not know what that was about ; Alt. Beckham turned round and stated the day on which tha election would take place ; between the time of Air. Connell’s demanding a poll to the announcement by Air. Beckham that a poll would take place, a few minutes elapsed *, witness did not see Mr. Beckham with his finger out nor hear him speaking, but it might have been so, as witness was speaking to Mr. Brown at the time.

Air. Bartley here wished to put in a number of the New Zealander, published in August, 1852, in which a letter of Mr. Brown’s had been p«bli»hed containing Air. Brown’s views on the subject ot education. The Attorney-General objected to the admission of the paper as it was issued long before the matter out of which this action arose had been published. Air. Bartley said he wished to put it in to show that tjhe defendants published tbe libels with the knowledge of the plaintiff’s views contained in that letter, i Thte Attorney-General said if it went to prove anytbing, it would be to prove the defendants’ fairness to Mr. Brown by their publishing his letter in their paper. Mr. Bartley said That the letter contained expressions of the plaintiff’s admiration of tbe Christian Religion and he was sure that he (iMr. Bartley) admired it also. The Chief Justice said, that the presumption of that was in favour of the plaintiff, for every man would be presumed to adniire the .Christian Religion unless.it was showu'to the'ebrittary 1 . Mr. Bartley ttienbffrifed to defendant* counsel for admission a New Zcalaiider of the iSth July last, which thie Attori ey-Genbiral .declined to admit. The Chief Justice said tha( v all tendered for admission at the making up of the issue —werfe admitted. Anbther copy of the New Zealander published on the 13th August, ihe day after the commencement of the action having beeh admitted, ivaS put in and read.

It may surprise some, of our .readers—although probably it will not at all surprise oihers-to be informed that Mr. Wm. Brown, the rejected candidate at the late election of riupermleudcnt of the Province, has actually commenced legal proceedings. against the Proprietor of the New-Zealander, am seeks to recover One Thousand Pounds damages for the injury which he alleges himself to have sustained from the investigation of his fitness for that high office, which has been conducted m this Journal. Those who ar« unacquainted with tha true

character of that person and of the little clique of which he Is the centre may Very natnrally feel surprised at the step- That •a man t*ho ttilWeStt' defehlgd at the pollrag>laces, and more than defeated in n;subsequent application to and who, moreover, has almost certainly f tld f d di»com6turc awaiting Wm'fh the result of his “Petition”. asking Sir George Grey 10-make hlm Shperinteiflent Jn spite.of the majority ot the electors,.should have such a morbidly ravenous appetite for being overthrown as tq encpnnhSf.Joch a .nsk as he now dares ; —that one who would, f^jUaregarded, as champion of liberty of' thought and speech, and who is bimsnf responsible for attacks upon*personal and private reputation in every -class of. society :in the colony, item downwards, wbjch have rendered the newspaper of which, be is the proprietor and “ teal Editor” a fool ®“ d -£? e “*. ,T f which respectable persons-alive to the credit and fair fame of the Settlement, -have been avowedly ashamed to sendto their friends in other places, and which (although some h»ye treated them with sileot contempt or lofly "u» >me wvurpa.autciy nuknown, feel It necessaryto sees out proofs which would convince their neighbours and acquaintances of the, falsehood of .the assertions, not knowing «Im, n. calumnies, if unrefnted, might, ipjoriouslv meet them or their children,—one who was himself, published to the, world as bis creed that *• there can be no more wholesome rule than that every one who puts .himself forward in a political and public capacity should be ready -to have his conduct mfte4>u,J/c to the ' very bottom, that judgment ot worthiness or unwortMicss maybe passeil upon him and whose newspaper practically followed out this theory of liberty into gross licentiousness with regard to one of the very individuals whom he .is now endeavouring to mulct, because they are the publishers of articles, letters, » r advertisements, iu which the principle has been inconveniently brought to bear upon his own eligibility for office:—that he, of ail men,- should strive to repress—or falling in that, vindictively to punish,—scrutiny into the eligibility of a candidate for the highest elective position that it is in the power of the people to bestow must, to those imperfectly acquainted with the man as he has gradually developed himself in the history of our colonial affairs seem truly marvellous. But like various other marvels it becomes intelligible in the light of superior knowledge; and those who know Mr. Brown, as very many here have been -forced by bin own jpubHc Wensve iii this, movement a fuller manifestation of what was intended by the ominous “ Beware” put forth with all typographical emphasis in Mr, Brown’s newspaper to intimidate his opponents in,the late contest. It meant more than a threat of attacks on. individual character, (such as the libellous onslaught on one of Colonel Wynyard’s Committee distorted from scraps of domestic history pumped out of a “ discarded servant, |n Mr. Browns private office,.by himself and a friend). It meaut more than even the threat against the Government Officers who voted against Mr. Brown, that they would be treated as 11 servants combining against their masters (Mr. Brown s party!),. and that no people “ having the slightest control over their own purse-strings, would forget at forgive such a combination.” It looked forward as would now appear, to the present attempt by an action at law to extract from the Proprietors of a Journal which gave embodiment and expression to the Judgment and feeling of a large portion of the public, a sum of One Thousand-Pounds, as a solatium to Mr. Brown’s disappointed ambition and mortified vanity, and as a help towards defraying the expenses of bis futile struggle for a mastery over the Province. He has resolved on the attempt, but it rests with a Jury to say whether he shall obtain the damages be seeks, or any part of them. . , , We 'subjoin a Copy of the legal document which has been served on Messrs. Wiliiamson and Wilson. It is worth being placed on record, if it were only from the novelty (in this country at least) of the attempt to wreak vengeance upon a journal, because it echoed and enforced views of a candidate's fitness for office in which it spoke the minds of many electors who, like ourselves, approved Mr, Brown conscientiously, and on exclusively public grounds—or indeed (as in three instances out of the four included in the list of “ Particulars”) permitted electors to speak their own mind through its columns, A Notice which had been served by plaintiffs attorney on defendants attorney calling for farther production of the original manuscripts of the four articles complained of was then read by the Registrar. The Defendants declined producing the desired manuscripts. John Boyle Bennett being sworn stated be was Editor of the betv Zealander , he had be;n Registrar of Births, &c., for several months, had held the appointment since the middle of June, he had not entered warmly into the election con'est; —he was generally very deliberate in what be had to do with the contest be vvas earnest and conscientious.

Here Mr. Bartley enquired of the witness if the articles complained of in this action had been submitted to defendant’s revision before publication. The Attorney-General objected to the question. The Chief Justice said that defendants were sued as printers and publishers, aad were accountable for what appeared in their paper, but Mr. Bartley might put the question whether articles were generally submitted to them.

By Mr. Bartley : Yes, generally. Witness was present in the Supreme Court when Mr. Brown applied for a Mandamus—Mr. Williamson was present, and had full opportunity of hearing everything that occurred—cannot recollect that there was any remonstrance made with him as to the publication of the article commenting on the affidavits, was not aware of anything having been said to defendants that any of the articles were so severe that they were not fit to be published ; witness was not present when any such conversation took place concerning the parties are not cognizant of articles before publication, so far as he was aware it was a universal rule that only the writers, the proprietors, ana the persons engaged in the mechanical part of the work were acquainted wun articles berore publication. Witness was aware of the grounds on which plaintiff's application for a Mandamus was made and bedeved defendants were also aware.

Mr. Bartley then put several questions to witness with a view of eliciting the manner in which the articles of the 16th July, &c., had been prepared—whether by the Editor in the ordinary way or whether defendants bad deposed the Editor and bad written the articles themselves, contending that if they had dons so it would be evidence of malice.

The Attorney-General did not think that the Editor had a right to commit himself or bis employers. Tne defendants admitted that they had published the articles with a full consciousness of their meaning and purport. The Chief Justice then said that Mr. Bartley could not go any further; defendants were sued as printers and publishers and they now admit having published the articles with a consciousness of their meaning—and thus had adopted the whole. Cross-examined by the Attorney-General. Witness was present on the occasion of application for Mandamus and was also present on the hustings at ' the nomination, and had a knowledge of what took place there. Mr. Brown’s affid<vit would have produced a false impression on hj s mind of what had occurred.

By Mr. Bartley: An impression might4e'erroaeous or false according to circumstances; in Mr. Beckham’s case, erroneous would clearly be the word; witness knew that it was a point made by Mr. Brown, that one, not six, demanded the poll. This was the end of the plaintiff’s case. The Attorney-General, for defendants, called

John Anderson Gilfillan, who, being sworn, stated be was a merchant at Auckland, and Justice of the Peace—he was on the bastings on the 20th Jane last at the nomination for Superintendent be went as one of Colonel . Wynyard’a committee to be present as one of six to demand a poll —be recollected where be stood when the poll was demanded—be was within one of the Returning Officer, was quite near enough to see and bear what he did and said, the Returning Officer after taking the shew of bands declared it to be in favour of the plaintiff— to the best of his recollection the Returning Officer said “ the shew -of bands, appears infavohr of Mr. Brown” or “ William Brown,” be did hot hear him say anything of the kind as that the election bad fallen, on any one ; if anything of the kind had been Said be thought be should bare beard it. Mr. Connell then drew near to the Returning Officer and said “ Then, sir, I demand a poll on behalf of Robert Henry Wynyard.” Witness believed that a second:time Mr. Connell raised bis voice and said he demanded a poll. Witness heard the Returning Officer say “there must be six,” or words to that effect, several with . himself, he believed ten or twelve, then gathered round the Returning Officer' this was by design for the necessary number to demand & poll ; Mr. Forsaith said, “ Will you have the names in writing ?” or “ Will you take down the names in writing?” the Returning Officer said “It is not necessary.” The Returning Officer then ratsed his ngat baud and counted six from the number using the words “ one—two—three—four —five—six ;*’at the conclusion ol the proceedings there was a vote of thanks moved Jo the Returning Officer. Witness saw Mr. Brown at that time take bis bat off and go forward but could not tell who moved the vote of thanks. By Mr. Bartley: He believed it did take minutes for what he had now described—it must have taken more than seconds—more than a minute—did not bear Mr. Brown move a vote of thanks—did not take down the words at the time, but to the best of bis judgment and recollection the words of the Retarding Officer were “the shew of bands appears to be in favour of Mr. Brown” or ** William Brown.'* Mr. Connell demanded a poll. William Smellie Graham, being sworn, stated he was a Merchant and a Justice of the Peace, he recollected the moving of the nomination for Superintendent, w?a da the hustings, and stood close to the Returning Officer behind either Mr. Connell, or Mr. Forsaith ; when the Returning Officer declared the show of hands to be in favour of Mr. Brown Mr. Connell immediately demanded a poll on behalf of Robert Henry Wynyard the Returning Officer turned round in the direction of Mr. Connell and said something to him when Mr. Connell replied “ I demand a poll en behalf of RpbeiC Henry Wynyard,” witness repeated ** And I,”—Mr. Connell turned round and said “ We demand a noil,’* when the Returning Officer counted six from our nun - her, thus, with his right hand (witness* here deacribid the manner in which the Returning Officer counted tl a six) the Returning Officer said nothing more in tie hearingof witness—to the best of his knowledge aid

belief he did not say on whom the election had fallen; did not say the election bad fallen on Air. Brown. By Air Bartley: To the best of witness's knowledge and belief the Returning Officer did*ot say the election had fallen on Air. Brown-he could hardly have said it without witness hearing it, the proceedings were deliberately gone through-witness and the party who demanded the poll were standing on the right hand of Air. Brown, the Returning Officer turned from Air. Brown, who was on his left, when he spoke to those who demanded the poll,-Mr. Brown might have heard what passed if be bad been anxious to hear it; there was difficulty in hearing what passed-witness joined with Mr. Connell in demanding a poll, and said‘‘And 1” cannot tell the particular six the Returning Officer fixed upon, there were more than six presented themselves to him-Mr. Brown might not have heard them as witness did not hear them ; witness would be very sorry to say the plaintiff was perjured if he did not hear. , , William Powditch being sworn, stated-he was a farmer at Epsom, and for a show of hands, witness was close by him Air. Williamson (one of the defendants), was standing beside him; the Returning Officer declared the show of hands in favour of Mr- Brown ; witness called out, “ demand a poll, Mr. Connell, ’ and Air. Williamson said so too; Air. Grahame as witness thought, said, “We demand a poll, Mr. Salmon said, “ Come forward some of you,’ the Returning officer said something to Mr. Connell witness did not hear what he said, Mr. Connell, then said, “We d f“ a " d * poll for Colonel Wynyard.”and then for •‘Robert Henry Wynyard,” the Returning Officer then counted in this way, (the witness described the manner) six ele Ky r Mr- Bartley Captain Salmon said, “ Come forward some of you, and demand a poll/’ heard Mr. Council demand it, and heard Mr. Forsaitb ask -imcvnontr *■- *- — l -’-» when the Returning Officer said, ‘‘Do you demand a poll? Air. W lbam3 said “Of course we do, we demand a poll,”—he believed this to be addressed towards the Returning Officer be spoke forward towards the Returning Officer’; believed he addressed himself to the Roturning Officer ’ those before witness demanding the poll, were Messrs’ Connel’, Grahame, Salmon, Burl, Williamson, Alacky and Forsaitb; these were all in the front rank. Witness supposed the Returning Officer was satisfied that the law was satisfied—witness supposed as the Returnin'* Officer’s finger when he took notice of those he counted-and ho presumed satisfied himself. Air. Connell said, “ We demand a poll,” and Air. Salmon said “We demand a poll.” Witness was standing taking notice of what passed ; Air. Brown might have heard or not. ... , , ~ Thomas Spencer Forsaitb, being sworn, staled he was in the Commission of the Peace, was on the hustings on the 20th June last, seconded the nomination of Colonel Wynyard, after the show of bands Mr. Connell demanded a poll; some one replied there must be six , the Returning Officer counted six ; witness offered to the Returning Officer to give it in writing if necessary, but did not give i: in writing; the Returning Officer had a book in his hand at the time ha counted. By Air. BartleyWitness saw Returning Officer deliberately with hand outstretched count one, two, three, four, five, six, could not tell whether his finger was out —saw some one with outstretched arm saying “ here we are” when the poll was demanded—there was quite a press at the time he counted the six, witness remembered the Returning Officer afterwards in a conversation with him repeating the names of the six correctly except one. Albert William Hansard, being sworn, stated he was a Commission Agent residing in Auckland, was standing on the west end of the hustings on the day of nomination, could not remember the exact words used by the Returning Officer, could not say whether the words used were ‘‘ the show of hands is in favor of Mr. Brown,’’ or “ the show of hands appears to bo in favor of Mr. Brown” but he said nothing about the election having fallen on any one, (the following passage from the plaintiff’s affidavit was then read to witness by the Attorney-General—“ and this deponent was declared by the said Thomas Beckham to be the peison on whom"the election of Superintendent had fallen”) witness swore positively that the Returning Officer did not use these words, and he was in a position to have heard if such words bad been used, the plaintiff was standing next the Returning Officer; witness knew that a vote of thanks was moved, by whom he could not say, John Salmon, being sworn, stated he was a Merchant in Auckland ; was present on the hustings on the 20th June last, the Returning Officer declared the show of hands in favor of Air. Brown, be did not say the election had fallen on Air. Brown, —witness was near the Returning Officer all the time and requested Air. Connell to demand a poll on behalf of LieutenantColonel Robert Henry Wynyard, witness called out to tfatrregcto- cornu up aou demand a poll, as six were requiredflie laid hold of Air, Gilfillan by the arm and brought him up beside him, witness said “ come up here six of you and show yourselves,” Air. Connell demanded a poll on behalf of Robert Henry Wynyard, witness said to the Returning Officer, “ here are six of us,” —be then turned round and counted them, he went on and counted six of them deliberately. By Air. Bartley : He counted as loudly as I have done—(the witness described Captain Beckham’s manner in counting the six), witness would not say what others beard—he could say what be heard himself—perhaps Mr, Bartley might have heard it himself if be were there; witness could only answer lor himself, some might be dull of bearing, and could not hear it, others might have heaid it or not—the Returning Officer counted with his finger or bis hand—the book waa in his hand—iu his left hand five of us demanded a poll. Alessrs. Connell, Forsaitb, Grahame, Gilfillan, and myself, they said “Wo demand a poll,” and Air. Forsaitb said, “We will give it you in writing,” they all spoke so as to be distinctly intelligible—they had no occasion to tell their names as the Returning Officer knew them well enough. Witness was not watching Captain Beckham’s eye all the time, he said the show of hands waa in favor of Mr. Brown, did not say anything about the election having fallen on Air. Brown.

Air. Brown’s affidavit made on the Alandarous application was then put in and read by the Registrar:

William Brown, of Auckland, in New Zealand, Merchant, makeih Oath, and saitli, that the Nomination of Candidates for the office of Superintendent of the Province of Auckland, was held at Auckland aforesaid, on the 20th day of June last, and ihat Thomas Beckham, Esq., the Returning Officer for the Districts o( the City of Auckland, the Suburbs of Auckland, and the Northern Division, presided ai the Meeting held for the purpose of such Nomination. That at the said Meeting this deponent was duly proposed and seconded as a Candidate for the said office. And that Lieutenant-Colonel Robert Henry Wynyard was also duly proposed and seconded as Candidate for the same office; and that no other Candidate was proposed; that the show of hands taken after the said Robert Hcury Wynyard and this deponent had been proposed and seconded as aforesaid, wan declared by the said Thomas Beckham to be in favour of this deponent, and this deponent was then declared by the said Thomas Beckham to be the person on whom the election for Superintendent had fallen. And this deponent farther saitb, that no poll was thereafter demarded by either of the said Candidates, but that William Connell, Esq., who had proposed the said Robert Henry Wynyard, demanded a poll on his behalf, but as this deponent verily believes no other elector demanded a poll on his behalf. And this deponent fnrlher saith that he stood close by the said Returning Officer during the whole of the proceedings at the said Nomination, and did not hear any other person than the said William Connell demand a poll, and verily believes that it was impossible any person could demand a poll after the said Candidates had been proposed and seconded, and the show of hands taken, and before the close of the proceedings at the said Meeting without this deponent hearing tire same. And this deponent further saith, that on Friday the eighth day of July instant, he, this deponent, requested the said Thomas Beckham as such Returning Officer as aforesaid, to make a return declaring that he, this deponent, was the person upon whom the election at the said Nomination had fallen, hut that the said Thomas Beckham refused to make such return.

William Brown. Sworn at Auckland aforesaid, this ninth day of July, One Thousand, Eight Hundred and Fifty-three, before me, Thomas Out hi watte. Solicitor, Supreme Court. Tho next witness was Michael Hartnett, who, being sworn, stated that he had the census papers in his possession, and had a return now in Court made by the plaintiff; he was well acquainted with plaintiff’s Land writing—believed the return to be in bis hand writing. The census return was then handed in and read, from which it appeared that under the head “ Religious Sect” the plaintiff had written “ No.” Air. Bartley then wished to know from the witness whether be had not other returns of a similar character. The Attorney-General objected to the returns of other individuals being produced in Court, they Laving nothing to do with this case.

Air, Bartley wished to show that two eminent divines, Bishops Selwyn and Pompallicr, had sent in similar returns.

The Attorney-Geneial said bo was mistaken as to one of them.

The Chief Justice could not allow the production of tho returns of other individuals, but Air. Bartley might ask generally. Air. Bartley then asked witness if other returns Lad been filled up in a similar way, witness replied that there were.

ibis closed the case for the defendants. Mr. Bartley then addressed tho.jury -After an examination ot considerable length of the number of witnesses that had been called before them, it was his duty o olfer a few observations on the character of theevit ence, and the nature of the charge made against the p aintnt. It was a charge of the most grievous character, infidelity and perjury. He was convinced that the jury bad given their serious attention to the case, and . trusted that they would meet it with unbiassed nuntlj there had undoubtedly been considerable prejudice excited, but he trusted that if any existed in

their minds they would divest themselves of it, an remember that with the defendants it was a matter of costs, but witjb the plaintiff it was a matter of character, the dearest of all possessions; that the charges were certainly of a most grievous character, involving as they did, a charge of infidelity, and also involving a charge of perjury. That there was no justification attempted, although the defendants had certainly gone to agieat length in the evidence which they had given, yet he had not objected because the plaintiff did not wish to keep anything back, but wished the whole affair to be sifted to the bottom. That the plaintiff was clearly entitled to a verdict in his favour, and he (Mr. Bartley) could see no reason to doubt that he would obtain it. The next question was restitution of character, and he implored the jury to give such damages as would shew that the plaintiff was not guilty. If the articles complained of were a libel, they were a grievous libel; and the amount sought to be recovered by the plaintiff was not a largo amount. That he was convinced there was no man in that box who_KOiild-like-to haun f K.* .u.. S v upon Bun ; and there was no moro wholesome rule than to do unto others as you wouid be done unto. It was quite clear that the plaintiff must have a verdict, as there was no justification pleaded. The defendants LaJ pleaded to the first charge, that they do not relate to the plaintiff; upon this point be had given evidence clear and conclusive, and no evidence had been given to countervail that evidence, their verdict then must be for the plaintiff, that evidence not having been countervailed. In the first libel the defendants charge the plaintiff with malice and infidelity, in the second with infidelity, and in the third with infidelity in the most grievous form, and in support of this charge they have put in a return made by Mr. Brown to the Government when faking the census, which docs not say that he is of no religion, but simply that be is of no “ Religious Sect,” and it is even admitted by the defendants that a many other persons have so returned themselves. That if they believed that the statement in the third count was a libel, there was nothing iu evidence 10 overturn the conclusion ihat it applied to the plaintiff, and nothing to mitigate the charge, the return does not support the charge ofirreligion, and he (Mr, Bartley) had a perfect right to say that the charge was indefensible, because it had not been defended. That the two first charges alone had the defendants contradicted, and say that they do not apply to the plaintiff. Upon that point, the plaintiff had offered clear evidence that they do, and the defendants had not attempted to contradict that evidence. That he now came to a charge of a most grievous character, and the jury could not do otherwise than infer malice from the beginning, for, from the first moment that the plaintiff appeared as a candidate for the office of Superintendent, he had been charged with irreligion ; had been told that he was a disgrace to the society. But bo would ask how was he a disgrace ? Is he bad as a merchant, as a husband, as a father ? Was it a taint or a blast to his character, to be classed with bishops and with clergy, because be returned himself as belonging to no sect ? He might be of a church and not of a sect. It was well known that there had been discussion, much discussion, as to the meaning of the word sect, and the plaintiff might belong to neither. He might belong to no sect, or he might belong to the Church of Scotland, of Horae, of England. There was one gentleman then on the jury, Mr. Nathan, —if he returned himself as belonging to no sect, was he to be held up to infamy, deprived of the Superintendency, or any other office. Another charge was a distinct charge of perjury. The jury must have remarked that out of the whole number of witnesses called before them, there were hardly two whose evidence was alike ; but, he would draw their attention more immediately to the evidence on behalf of the plaintiff, Mr. Beckham says, that he does not know who were the parties who demanded the poll, and that he himself had a mis-impres-sion : for that is Mr. Beckham to be branded with perjury ? error is human, all men are liable to it. Mr. Brown might be, perhaps was, mistaken ; is he therefore perjured ? Had the defendants a right to brand him as he bad been in this article, as a perjurer? It was a remarkable fact that, throughout the whole of that article, the word election was not used. The jury were of course aware that an application was made to this court for a writ to command the Returning Officer to return Mr. Brown as elected to the office of Superintendent. Upon that application affidavits were made and sworn to by Mr. Brown, Mr. Schullx. and Mr. Makepeace, and he (Mr. Bartley), saw at once by the turn given to the affair by the Attorney-General, the stress that it was intended to lay on the word election. Mr. Brown undoubtedly did use the word election, and Mr, Beckham has sworn that he did not use the words that Mr. Brown was elected, that be only said the shew of hands was in favour of Mr. Brown. Now this was perfectly tantamount to declaring Mr. Brown elected, and he was de facto elected, the show of hands having been in his favor, and had a poll not been demanded, be, the Returning Officer, must have returned Mr. Brown. iue (Jeienclants say a poll was 'demanded; the whole gravamen, the whole strain of Air. Brown’s case was how the poll had been demanded. The defendants were in Court, and heard those affidavits read, and yet wiih a full knowledge of the circumstances, they deliberately published this charge ; he was well acquaiuted with the feeling that existed, and regretted that it was so called forth, and denounced it as wrong. Mr. Brown might conceive that he was elected, and that a poll had not been demanded; Mr. Brown may have been in error, but shall he go forth to hide his bead as a perjurer? Will you so brand him that he shall go forth as unfit to consort with his fellow men. Using the word election now is a mere trick, a play upon words ; in point ot fact Mr. Brown was elected by the voice of the people at the busting-. The Attorney-general would doubtless address you with his usual clearness and lucidness? he well knows the perils his clients stand in. It would be well for them if Christian feelings had dictated to them to display a kinder disposition in the manner in which they administered their chiding. The jury must have remarked the manner in which the evidence was given, one witness had used the word “false” iu describing Air. Brown’s statement, when,at the most, it was only erroneous. Was Air. Brown then perjured? deserves he to be so branded, that he is not only unfit for Superintendent, but a criminal. Will you say he deserves so,—Air. Brown says that the poll was not properly demanded, and be it as it may. it is merely a matter of opinion,—many of the profession labour under mistakes on points of law. Is Air. Brown then to be branded as a perjurer if he mis conceives ? Air. Brown laboured under the impression that six should demand a poll, not by ranging themselves round the Returning Officer, hut by individually making the demand, and it is quite possible that Air. Brown’s head may have been turned away during the time when the circumstances detailed by the witnesses occurred. It is not to be presumed that because eight or ten of the higher ranks of society give evidence in opposition to those in a humbler sphere, that theirs must necessarily be correct—the jury have no right to conclude that they must be right, and the humbler individual wrong. Would he (Air. Bartley) contrast the conduct of the humblest individual who had given evidence before them that day with the conduct of Captain Salmon, and say which conveys the best impression to their minds. Captain Salmon goes a great length, in fact a greater length than any other witness—that there was a great discrepancy in the testimony, a great dissimilarity in the statements, a great discrepancy in some — slight in others. A person unacquainted with the facts would hardly suppose that they were speaking of the same subject, yet Ire would not say that the witnesses were perjured—it was not a question of who spoke truly, but who spoke correctly ; conceding this privilege to them, lie claimed the same for Air. Brown. Air, Brown may have used a term that is equivocal, hut if the term “ election,” was prominent and leading, why was it never used before? Every thing is stated in the article strongly ; if a libel it was enormously wicked. Nothing could be too strong if Air. Brown was perjured. But why was not the word election used on that occasion. It was a new thought, one lately taken up. It was specific charges that they Lad come there to meet, and the question, was, could they answer those charges; the law was open to the defendants to justify, and they had not thought proper to do so. If the jury believed the charges calumnious, and libellous, they must say so, unless they believed that Air. Brown was a perjurer, and unless it was shewn he was of the class of men that kiss their thumbs. If they believed that he is mistaken or suppose that he was mistaken, they could not but give a verdict in his favour—that he (Mr. Bartley) spoke earnestly, but he could assure them it was no affectation. Nobody could more regret that such a state of things had arisen ; that his sole object was to set bis client right before men ; there might be some apology, for the excitement caused by election feelings, but that could not justify the imputations brought against bis client—but there was no justification and no apology offered, in fact no apology could be offered for that which was in reality the coinage of defendants’ own brains. It might be said that Air. Brown Lad in the Southern Crash- used strong language ; it might have happened that he had offended many, that be had been the grossest maligner; he might Lave maligned, and injured, and calumniated, every body in the Court, and blasted right and left.—Still, Mr. Brown was not the Editor, but the Proprietor. He (Mr. Bartley) would not say that Air. Brown did not occasionally write in the Cross, he had no wish to screen him, btft this would be to set off, the question was not whether Air. Brown had done wrong, but whether the defendants had libelled him. No doubt Laid language Lad been used on both sides; he spoke as a man, and implored them to give heavy damages, for it would be ruinous and destructive to society if they did not do so ; Mr. Brown did not want damages to establish his character, he did not want to put money into bis pocket, but ho prayed them not to send him forth with Rifling damages, either to

give a verdict against him or else substantial damages, either a full verdict or none. Mr, Brown bad no right to lose hiacharaoter, and he besought thejury as strongly as ho could do, to do bis cljent justice and not to let anything in him or his Editor, or anything that had appeared in his paper operate to influence them ; that if tbe facts that bad been laid before them were of tbe character be described, lie called upon them lo give bis client ample damages. The defendants were wealthy men, and well able to pay them, and they would save us from a state of society in which it would be impossible to live.—Trusting and believing that they would do so he left the case in their hands reminding them that the defendants’ paper hud been spreading these libels right and left, whilst Mr. Brown’s hands had been tied, that they had done so before he was a candidate, during the election, and since tho election, and even since the commencement of this action.—He left his defence with the jury—there bad been gross libels published, and he besought the jury to place themselves in Mr. Brown’s nnutfinn. n-J-- rjo, .i.cmacires as Tiffing been libelled in the same way ; to imagine themselves blasted and ruined as tbe defendants had endeavoured to blast and ruin his client, and to bear in mind the precept of doing unto others as they would wish to he done unto.

The Attorney-General then addressed the Court as follows;

May it please Your Honor : Gentlemen of the Jury, —This is the first attempt I believe, gentlemen, which has been made in New Zealand to bring the law into operation against the liberty of the Press. During tho period for which 1 have had the honor to hold the office of Her Majesty’s Attorney-General for the Colony, in no single instance have legal proceedings been taken on the part of tho Government against the Press for the publication of a libel; —not, gentlemen, that gross libels have not appeared in the public prints; but because it has been thought more for the advantage of Her Majesty’s subjects in these Islands that there should be an occasional excess on the part of tbe Press rather than continual restraint, and that, so long at least as tho people of New Zealand had no direct voice in the government of the country, they should enjoy, without limitation or restraint, that true liberty, that “Free-born men, having to advise the public, might speak free.” It would appear, however, gentlemen, that the plaintiff in this action has taken a different course; and I am willing to admit that if good advocacy could always gam a cause—-if zeal, ability, and eloquence could make “ the worse appear the better reason,” my learned friend might well hope to obtain at your hands a verdict for his client. But, happily for myself, gentlemen, “ the race is not always to the swift, nor tho battle to the strong;” and, happily for the people of New Zealand, the cause of freedom has never yet been pleaded in vain before a British Jury, In touching language my learned friend has placed before you a moving picture of the damaged condition of his client; and tbe plaintiff’s remains, like the dead body of the murdered Cottar, have furnished the subject of a most eloquent discourse. “ He was ambitious and they slew him.” “There is the wound that villain printer gave!” “ Here is the rent the envious Wilson made.” I admit to the fullest extent the damage alleged to have been sustained by the plaintiff in this action ; if need be, I am willing to admit that he has been totally destroyed : the only difference between my learned friend and myself is this: he contends that the plaintiff has been destroyed, while I, on the other hand, maintain that he has in fact destroyed himself, and that this action should have been, not “ Brown against Williamson & Wilson,” but “ Brown v. Brown,” and that if Brown the merchant had brought an action for damages against Brown the ex candidate, that the plaintiff in that action would have been entitled lo your verdict. As it is, however, gentlemen, tbe case of “ Brown v. Williamson & Wilson” lies in a nutshell: the principle involved in it has long been settled, the facts are few, and the point is simple: the case in short cannot fail to remind you of tbe old story of the Pan and tbe Kettle, This is, in fact, an action by the Pan against the Kettle. It would seem, gentlemen, that in this case “ the Pan” is a Sauce pan it would also appear that the Pan and Kettle were both heated on the same fire. The Pan complains that tbe Kettle boiled over and damaged it ; and now it sues at your bands for damages for the injuries alleged to have been sustained. The Kettle admits that it boiled, but denies that it boiled over, and maintains that even if it did boil over it was the business of the Pan to keep out of the way, and that if it sustained any damage, it had nobody to blame but itself. Now you are aware, gentlemen, that it has long been settled law amongst Englishmen that, as a general rule, a pan cannot complain of a kettle for being black. The question for your consideration then will be, whether, under the circumstances of this case, the Pan can on that account complain of the Kettle. If upon examination you find the “ Saucepan” itself to be black, then, gentlemen, your verdict must be for tbe Kettle,. Such. then, brief! v stated, is tho case you are now assembled to decide, and if I were to speak on the subject for a week, 1 feel that I could not place the case more accurately, truly, or pointedly before you. Not being in the secrets of the other side, gentlemen, 1 am unable to inform you what advice may have been given to tho plaintiff, or on wbat advice he has acted in coming into Court as plaintiff in this action: but this 1 know, gentlemen, that my learned friend would advise his client wisely and well; and of this I am equally certain that in coming into Court as plaintiff in such an action as this the plaintiff has not acted wisely and well. I think, therefore, we may conclude that the plaintiff affords an illustration of the truth of the adage that “ when a man acts as his own lawyer he Las a fool for hia client.” But though I cannot tell you what advice may havo been given to the plaintiff, I may without any breach of confidence tell you what advice I should myself have given him if I had been consulted on the occasion, I should have dissuaded him. by every consideration, from coming into Court as plaintiff in such an action, —on general grounds, on special grounds, on public grounds, and on private grounds. I should have advised him that, as a general rule it is not expediect for any man, under any circumstances, to take proceedings as plaintiffin an action for libel—and particularly against the Press. 1 should have told him that if he were conscious that the libels complained of had no foundation in fact, and that if he were conscious that he stood w-ell in the estimation of his fellow-men, that no verdict could improve Lis position ; and that, on the other band, if lie were conscious that the libels were not without foundation, and if he were also conscious that he did not stand well in the estimation of his fellow-men, be could not expect to gain any verdict but such as would make bis last state worse than his first. On special grounds I would have endeavoured to dissuade him; for I should have reminded him that no action had ever yet been brought in New Zealand against the Press; that under any circumstances it is exceedingly difficult to induce a jury of Englishmen to return a verdict which is calculated to encroach on the liberty of the Press ; and that it would be difficult indeed to find in New Zealand any twelve men who would desire to attain the unenviable distinction of being the first jury to return the first verdict against the freedom of tho Press. On public grounds—l should have dissuaded him, for I should have warned him that, having been a candidate for public office, he would, by taking such a course, he affording his political opponents a ground of triumph, for it would enable them to say “ if such things are done in the green tree, what would be done in the dry?” If a man before he gets into the saddle begins by attempting to gag the Press, what chance would there be for liberty if that man were in office and in power? I should also have dissuaded him on personal and private grounds from coming into this Court as him plaintiff in such an action. I should have reminded of that ancient and salutary rule, —a rule as ancient as the law of England itself, that tbe man who comes into a Court of Justice, should come in with clean bands—that he who would have justice, must do justice—and that if ho himself had been the publisher of libels, or ifhe werogenerally believed to be the publisher of libels; that ifhe himself was the editor, proprietor, conductor, controller, director, manager, or had a potential voice in the management of a newspaper which had scattered scandalous libels throughout the community, he would appeal in vain to a jury of hia countrymen to give him redress as in the character of plaintiff in an action for libel—for he would have to contend against two of the strongest feelings which animate the breasts of a British j ur y_the love of freedom, and the love of fair play. 1 should have warned him too that if he did bring such a case into Court, it would be treated as a laughingstock —that for years to come it would be referred with derision—that by the name of “ Brown’s Case,” —or, “ the Rule in Brown’s Case,’’ it would be cited but to prove that “ What is sauce for the goose is sauce for the gander.’’ And as a final argument to dissuade him from coming into Court, 1 would have reminded him of the adage—that if a goose will put himself upon a spit before a fire, ho must expect to be roasted. Having told you, gentlemen, wbat advice 1 should have given to the plaintiff, it may now bo proper to tell you what advice I gave, or what was tbe inclination of my advice, to my own clients the defendants. Looking then to the grounds of tho action, seeing the ridiculous nature of the case—considering that it was impossible (or the plaintiff under any circumstances to obtain a substantial verdict, the first inclination of my advice was that tho defendants should not so much as even appear to the action ; that they should leave the plaintiff - to come into Court by himself, and to go through tbe processor trying to satisfy a jury of his country that these things were libels, and that they were intended for hiraselt—to exhibit himself to the public in tbe ridiculous attitude of fitting on tbe cap —and thus to offer to the people of Auckland about as amusing a spectacle as a blackamoor attempting to wash himself white. But there was another consideration, gentlemen, to be taken into ao-

count, and which prevailed to turn the scale. As the question at issue was really,-whether “sauce for the goose is sauce for the gander,” it seemed lo be necessary, in order that you gentlemen, might come to a fair decision upon the subject, that the goose should be properly cooked, and with that view it was ultimately determined that the defendants should appear in order to assist in the roasting. You may probably remember, gentlemen, that by some moans or other, or for some reason or another, that for sometime before proceedings were actually commenced, it was rumoured that the plaintiff was about to bring an action against the New Zealander for publishing a libel. After a protracted, and I believe a very painful, labor of twelve days, the Mountain, with the assistance of the most skilful practitioners in the province, brought forth four of the most “ridiculous mice” that probably over saw the light. It would seem as if the plaintiff himself doubted whether any one of them alone would make a libel ; bo, in order -ni»k» «aro no has clubbed four of them together, and a more curious collection of libels was never classed together. They must, I should think, remind you, gentlemen, of what is called “ an odd lot,” at an auction sale of books—say ''the Racing Calendar,” “ Life of Wilberforce,” “ the Art of Swearing,” and “ A Treatise on Affidavits.” Now to take them in order—First then as to wbat may be termed the socalled libel No. I—that electioneering squib—the “Sale of Horses.” Before you can give the plaintiff a verdict for this, you must be satisfied on three points, that it has been proved to apply to plaintiff—that it is a libel, —and that is false. As to its application to the plaintiff, the evidence is very slight. But where is the libel? It is no libel to compare a man to a horse, and give him the name of Malice. Then as to “ Infidelity,” the squib does not term the horse an infidel, but simply gives bis pedigree “ by Mr. Tom Paine’s Infidelity” out of “ Egotism.” Then supposing it to be a libel to say of a man that be has been “ known to clear the turnpike gates of Decency, Truth, and Fairplay, you will have to consider, if this was intended to apply to the plaintiff, what was the point of the application S that if it was intended to apply to bis manner of conducting a newspaper, whether or not is is true that the plaintiff has violated Decency, Truth , and Fairplay, for, if true, you cannot give him a verdict against the defendants for saying so. And now, gentlemen, for libel No. i?. This I have always looked upon as the gem of the collection. Why, if this is a libel it will (it, not only the plaintiff, but any one. “ No man can justly be indifferent whether Robespierre or Wtlberforoe, Paine or Ashley, be aspiring to the chief rule.” Who ever heard of such a libel ? Why, I will venture to say that the defendants may not only print and publish it once, but they may adopt it as the motto of the New-Zealuuder for a twelve month, and not a single member of the community shall gain a verdict against them for the publication. But where is the libel? and why should the plaintiff take it all to himself? to whom is the resemblance? is it Robespierre? is it Wilberforce? is it Paine? or, is it Ashley ? As to Robespierre, the most remarkable point connected with him, at present, is this, that modern historians have recently arrived at the conclusion that, bad as he was, he was not so black as he has been painted. Now is that the opinion recently ertertained of the plaintiff ? And, if not, how can it be said that Robespierre was the person with whom the comparison was intended to be made? Neither, if Robespierre be the person with whom the comparison was made, be intended to cast a doubt on the plaintiff's religious belief; for who, but Robespierre, in the midst of the madness of the French Revolution, when all idea of religion had been almost banished from men’s minds, himself moved in the Convention, “ That the French people recognize the existence of the Supreme Being, and the immortality of the soul,” and 2nd, “ They acknowledge that the worship worthy ofibe Supreme Being is the practice of the duties of men.” “ Citizens” said he, in moving these resolutions, “ Every doctrine which consoles and elevates the mind ought to be received , reject those which tend to degrade it and corrupt it. Reanimate, exalt, every generous sentiment and every great moral idea which some have desired to extinguish. Who has bestowed upon you the mission of announcing to the people that the Divinity exists not ? Oh! you who are impassioned for this barren doctrine, and who have no passion for your country! What advantage do you find in persuading man that a blind force presides over his destiny, and strikes at hazard, vice and virtue; and that his soul is but a light breath which vanishes at the portal of the tomb? Will the idea of his annihilation inspire him with purer or more elevated sentiments than that of his immortality? Will it inspire him with more respect for his fellow creatures or for himself, more devotion for his country, more boldness to brave tyranny, or, more contempt for death?’’ These, gentlemen, are sentiments of which the plaintiff need not be ashamed If he had been in the habit of expressing such sentiments as these he would scarcely now have been ohoreed with want of faith in matters of religion. Is it Wilberforce then with whom the plaintiff is compared ? if so, what Wilberforce is it? Probably the celebrated William Wilberfore. But it is not Wilberforce or Ashley, says the plaintiff’s witness, —and why? because, says Mr, Yaile, the plaintiff has not been accustomed to be associated with such characters as tbeSC. And HOW for the third libel —"On hook would he be sworn ? What oath will bind him? Why, gentlemen, if this is a libel every Court of Justice is guilty of a libel; what so common a question when a witness comes into the box who does not look like a Christian, as to ask him this very question, “How will you be sworn?” “ What form of oath do you consider most binding?” Some swear on the Old Testament, others on the New, some in one way, and some in another, and some not at all. This se called libel, too, you will observe, gentlemen, does not form part of the original matter of the newspaper, but is a portion of a letter of one James Geldard, and, as far as I know, a genuine letter. Now, this James Geldard may be an old soldier, he may have served in countries where there are various races and castes, and may have, nay, probably has, again and again beard these very questions put to witnesses when called to give evidence in our Courts. I repeat, then, that this is no libel at all. We now come, gentlemen, to the consideration of libel No. 4, and I think I cannot introduce it to your notice more fittingly than in the opening paragraph of a recent number of the “ Cautions for the Times.”—“A sm irt-looking lad about town,” says th e writer, “ who sometimes wrote letters to the newspapers to abuse bis betters, and sometimes gained his livelihood by even more questionable means, was once charged by a country squire with having picked his pockets ; upon which the culprit retorted by expressing his astonishment that any one with the garb of a gentleman, should descend to such vulgar personalities, Now, to be sure,” adds the writer, “ it is always painful to a right-minded man to be obliged to throw out what are called personal imputations against anyone. But, it is often quite impossible to perform our duty to the public without exposing not merely men’s errors, but their faults. And when such is a man’s duty, he should not be deterred from discharging it by the clamours of those very persons whom he is dragging to justice.” Now, the conduct of the plaintiff gentlemen, is precisely in point. On the llih of July he applied to this Court for a mandamus to compel the Returning Officer to return him as the person on whom the election had fallen, to fill the office of Superintendent. The application was founded on hia own affidavit to the effect that only one eketor had demanded a poll. The moment the contents of that affidavit became known, the plaintiff’s conduct was condemned by public acclamation. Five days after tbe appearance of the plaintiff’s affidavit, public opinion found expression in the lending arlie'e of the New-Zealander, and the conduct of the plaintiff was severely commented upon in seeking to obtain a selfish object by means of a misrepresentation of facts. Now, what did the accused do ? Why, like the lad in the story, on being charged with the delinquency, lie turns round upon his accusers, and charges them with publishing a false, scandalous, and malicious libel. The question then for your consideration is whether this is a false, scandalous, and malicious libel, or whether it is not rather, a melancholy truth. It is unnecessary for me to remind you, gentlemen, that an untruth may he conveyed in various ways ; and that a falsehood may in fact be told in words which themselves are true. “ The nature of a lie,” says South, “consists in this, that it is a false signification, knowingly and voluntarily made”—“and,” says Paley, “we wil'ully deceive when our expressions «re not true in the sense in which we believe the hearer to apprehend them." Now, a misrepresentation may be effected in at least three different ways—by a direct fa'sehood—by an equivocation—and, by a suppression of the truth. If the plaintiff in this action were to say that the Returning Officer on the day of nomination had declared that “ the plaintiff was the person on whom the election for Superintendent had fallen ,” and if it should appear that the Returning Officer had made no such declaration, that would be an example of a “ direct falsehood.” But a false impression may also be conveyed by an equivocation, by words which themselves were true. A certain Dr, Shebboar, gentlemen, was once sentenced to the pillory. The under-sheriff, whose duty it was to s. j e the sentence carried into effect, showed the prisoner some indulgence; and, tbe Dr. instead of having his brad put through the collar-hole of the pillory in the usual way, was merely placed upon the pilloiy, with his face opposite the hole • proceedings were afterwards taken against the undersheriff, who was charged with neglect of duiy in not executing the sentence in the proper and accustomed maimer. Now, what de ence, gentlemen, do you suppose the under-sheriff’ made, why, he too made an affidavit, or an oath, staling that he was present at the execution, which was quite true;—that he was neat-

the prisoner all the time, and must have seen wbat took place, which was quite trueand that be himself bad seen Dr. Shebbear’s bead through the pillory, which in one sense, was also quite true. But said Lord Mansfield, who presided afythe trial ? gentlemen, that it was the most ingenious evasion of perjury he had ever met with. Now, I need hard.y remind you, gentlemen, that when a witness comes into a Court of Justice, although it may be to depose only to a single fact, be is sworn not only to tell the truth, but the whole (ruth, and nothing but the truth. It is equally incumbent on a suitor, who would seek for some advantage to himself from a Court of Justice, when the Court has no other evidence before it than the suitor’s own statement of the case, to tell not only the truth but the whole truth. “ For," says Paley, •* the designed concealment of any'truth which relates to the matter invitation, is as much*a violation of the an 10 testify a positive falsehood.’' Wbat then are the facts of the case ? Why the plaintiff is charged with having sought to make use of a Court of Justice to obtain some advantage for himself by a misrepresentation of the truth ; and you have now to determine whether or not that charge is true. Looking at the plaintiff’s affidavit, and at the facts proved in evidence—not by men picked out of the crowd, but by men whose names will carry weight wherever they are known—you can arrive at no other conclusion than that that affidavit contains]a statement that is false, or, if my learned friend prefers it, “ erroneous”—that it is so framed in its language as to convey a false impression ; and, that by a suppression of facts, it is also calculated to convey an erroneous impression of the truth. The plaintiff, you will observe, gentlemen, has stated in bis affidavit that the Returning Officer declared the “ plaintiff to be the person on whom the election, had fallen.” Now, gentlemen, what says the Returning Officer himself ? Why, that he made no such declaration, And what say the other gentlemen who were* present at the hustings ? Why, that the evidence given by the Returning Officer is true. If, then, you believe that these gentlemen are trustworthy, and that their evidence is tiue, you can arrive at no other conclusion than that the plaintiff has, in the affidavit in question, sworn to that which is not true. Again, gentlemen, compare the account given by the plaintiff in his affidavit of the proceedings at the Nomination as to the demand of a poll, with the evidence of the Returning Officer and others of what actually took place, and say on your conscience, if you can, that the plaintiff’s affidavit contains a plain, truthful, and unequivocal statement of the case. The plaintiff, you will find, has sworn in his affidavit that William Connell demanded a poll, but that he verily believes that no other elector demanded a poll. Now, gentlemen, let me ask you wbat you believe ? Do you believe that if one elector had demanded a poll—and this is what the plaintiff has sworn—and that if the Returning Officer, as the plaintiff has also sworn, declared the plaintiff to be the person on whom the election only for Superintendent had fallen, do you, I say, believe that the plaintiff is a person who would have allowed the Returning Officer to declare that there would be a poll without protesting against it? Do you believe that if a poll had been demanded by one person only, as stated by the plaintiff, and that upon such an illegal demand, the Returning Officer had declared that a poll should nevertheless take place—do you, I say, believe.that under such circumstances the plaintiff would, at the close of the proceedings, himself have moved a vote of thanks to the Returning Officer for his conduct in the chair ? And, lastly, as to suppression of the truth, was it open and straightforward to conceal from the Court that the Returning Officer had declared that a poll would take place—that a poll bad taken place—that without a protest of any kind the plaintiff himself bad polled his men, and that it was not until the majority of the electors had declared against him, that he bad alleged an informality in the proceedings ? Is it true then, or.is it false, as charged in the article of the ICth July, that the plaintiff sought for some advantage to himself by statements contained in his affidavit calculated to mislead the Court ? Whether the plaintiff made these statements knowingly and wilfully, or only inadvertently, I am myself unwilling to judge. I should be most unwilling to say, or even think, that he had made these statements knowing them to be false; sufficient is it for my clients that I should satisfy you that the defendants themselves have not published of the plaintiff that which was false. The answer, then, to libel No. 4,1 maintain is triumphant and complete. It rests upon three several grounds, any one of which would itself be sufficient and conclusive. If you are satisfied that the plaintiff’s affidavit did not give a fair and truthful account of the proceedings on the hustings on the day of nomination, jou cannot find a verdict against the defendants, as public journalists, for publishing what was true. Again, gentlemen, even if the character of the plaintiff’s affidavit had been doubtful, yet, seeing that its accuracy had been questioned almost by public acclamation : that it was not until public opinion had condemned it, can you say that the defendants were not, at all events, justified in acting on the evidence betore them, yea, even though that evidence might afterwards hare turned out erroneous. And, lastly, gentlemen, I might have claimed your acquittal for the dufondanti?, ir defence bad been needed, by challenging attention to the tone, style, and character, of the article itself as a commentary on the conduct of a man who had put himself before the public. As the liability of persons before the public to public criticism, it is laid down in the law of England, gentlemen, that “ Wherever it appears on the plaintiff’s own showing, or on evidence on the part of the defendant, that the publication was made upon an occasion and under circumstances which afford a prima facie presumption that, notwithstanding the tendency of the words to defame or disparage the plaintiff, they were not spoken or published with that view, but, on the contrary, in the bona-fide discharge of some legal or moral duty to society. * * * Tbe plaintiff - will fail, unless his case establish the malicious intention by extrinsic evidence, and show that the defendant used the occasion as a mere colour and pre ext for venting his malice. * * * And where the publication arises in the course of dischargin' any duty the performance of which is required by the ordinary exigencies of society, although the party was under no absolute legal obligation to perform if, the occasion operates in the nature of evidence, and supplies a prima facie justification.’’ In the “ case of a Minister of the Crown, of a Judge, or any other public functionary, comments, bona-fide and honestly made, upon the conduct of individuals thus before the public are perfectly Justifiable ; and if any injury be sustained in consequence of such criticism, it is an injury for which the law affords no redress by damages. You are aware it has been decided by wbat may be called the Lex Loci that Candidates for public honours must be deemed for such purposes, as persons before the public, and fair subjects for public criticism. The law as thus laid down I cannot at present question. It must be familiar t oyou all: “ -There can be no more wholesome rule than that every one who puts himself forward in a political and public capacity, should be ready to have his conduct sifted—aye to the very bottom—that judgment of worthiness or unworthiuess may be passed upon him ; and so long as public actions and conduct are made the basis of tins inquiry, all is right and as it ought to be. We even go a step further, and say that private character and conduct may be of so notorious and objectionable a description as to warrant its being not merely brought forward and appealed, to, but held as a good and sufficient objection against any person as a candidate for public office, or public respect.’’*—l ask you then this question, —Looking to the law of the case, and looking to the facts of the case—looking to the circumstances under which the article of the 16th of July was written—seeing that it was written under circumstances of great and general excitement, at a time when the whole Province bad been stirred up from its very depths—looking at the proved facts on which that article was founded—to the evidence on which those facts then rested—bearing in mind the example which has been set in ibis place, asto the coarseness and violence wiib which a portion at least of the public press has for years been conducted—can you,‘l say, on a calm perusal of that article, in your hearts and on your consciences declare that it so far exceeds the bounds of "decency and truth" that the publishers of it should be con iemned and punished? If you say so then, gentlemen, there is an end of the Liberty of the I ress there is an end to nil true liberty ■ and henceforward it must go foith to the world, that, in Mew Zealand, " Iree-born men, having to advise the public, no longer my speak free.” But in advocating the Liberty ol the Press, gentlemen, let me not be misunderstood. I here is a Press, a spurious, illegitimate Press a Tress which makes use of the name ot liberty but as a cloak for maliciousness—a Press established not by printers and publishers for public objects, but by private persons for private purposes—for the use of themselves and for the abuse of all who stand in their way—for the attainment of selfish objects, and for the gratification of personal feelings - a I’ress conducted in a spirit ot envy, ba’red, malice , and all uncharitableness, and seeking to attain its ends by evil-speaking, lying, and slandering. For such a Press, gentlemen, 1 have no sympathy ; for such a Press, so licentious and degraded, iam not the advocate. Talk of libels, gen*-< tlemen ! My learned friend nas denounced libels and their want of Christian feeling, f, too, will tell you what are lib-Is I should call it a libel, gentlemen, to publish of the Representative of the Queen that he was dead to honour and honesty. I should call it a libel to publish of the Queen’s Representative that he was a traitor; I should call it a libel to say of him that be

* Vida-Southern Cro%t, Oct,. 1852.'— Reporter.

was capable of rifling , robbing f and plunderina , r should oaflita libel to publish of the Queen’s JfcLi senfilive that be bad acted with characteristic dacity ; I should call it a libel to say of the Represent tive of Her Majesty th|J he bad burnt down « ho*.,' nay, gentlemen, it wMWbe a libel to say of the of her subjects that he had set fire to property not flown.—[Mr. Bartley her* interposed, objecting ffi!! these passages were quoted from the Southern The Court ruled that if so the Attorney-General com not proceed with ihem. The Attorney General he was qu»ite satisfied ; he had effected bis object • u* was obliged to Mr. Bartley for bringing out the aath ship.] —Well, then, gentlemen, I repeat that fortki liberty of such a Press I am not the advocate-tf or a Press is the pest of a community ; it is the very (miincarnate of Defamation. And well has it beeb&d} gentlemen, that “Death itself hardly walks more unceasingly than the spirit of defamation rounds in the community. The reptiles tb»t attend t,-* do not prey more indiscriminately on the noblest 61 * mains than the vermin of the Press upon tbe f»l ** names. Nothing is so exalted as to be aborriS audacity; nothing so sacred as to scare their rtnic’JF ness; nothing so bumble and retired as toellfeliT incessant activity. Not only the public statesmen and the private conduct of public men the secret actions of obscure and lowly indirldua*! 601 their prey. For these they hunt tbe shade of Voln ,,r * seclusion; seize upon them with tbe fury of bun 6 drag them forth into the blaze of day ; and tearth* f * in pieces to appease that gross appetite which can » be satiated.” for such a Press. I repeat W I am not the advocate, but for a Press engaged fo 0 '’ 11 ’ moling public objects; for a Press conducted in »,P----of truth, decency, and fairplay ; for a P reM rei / mt do battle for truth against falsehood ; for right u* wrong; for tbe weak against the oppressor• which has been the only sure bnSr tion of Eland’s boasted liberties. The power of I** Press, and of the free exhibition of public opinion hj yesterday received a princely homage; a foreign nr’:,. of powerful name, backed by five hundred tho fighting men, has proclaimed iu the 'l** o ® world, that if freeborn men, having to »driw lie, may speak free, his government could not stamd That, gentlemen, is the freedom of which it h M so eloquently said “ Give me but tbe Liberty 0 f T Press, and I will give to the Minister a venal llonsaW Peers; I will give him a corrupt and servile House of Commons: I will give him tbe full sway of the p&u on age of office; I will give him the whole host ofamu isterial influence ; I will give him all the power which place can confer, to purchase subnission, and to owr. come resistance; yet armed with the Liberty of ih* Press, I will go forth to meet him undismayed." That liberty, gentlemen, that glorious liberty—that &«• • born men, having to advise the public, may speak-free —for thirteen years has been planted in New Zealand under tbe safeguard of a British Jury. That libertvhas this day, for the first time, been publicly assailed* hut happily, you, gentlemen, nursed in the very lap of liberty are yourselves its appointed guardians ; and there are I believe, those amongst you, who would rather die in that box than betray the sacred trust. By you, gentlemen, that liberty may still be preserved; nay,% yourselves alone, can it be destroyed ; for wheie the flag of Britain waves, “ Hereditary freemen! know you not ! who would be slaves —themselves must strike tb blow !’’

Tha Chief Justice then summed up as follows :-The Defend, ants, who are sued as publishers only of tbe passages alleged to be libels, have admitted on the record that the latter two cern the plaintiff, the plaintiff's name appearing in have not made the like admission as to the former two. The remarks 1 am about to make will all be made oa the usunpiiGg that yon are satisfied that they all relate to him. For a eorrtf definition of a libel, I refer to a recent case in the Court a Exchequer, in England, in which snch a definition was gives tj one of our most eminent Judges:—" A publication, without flu' tlfication or lawful excuse, which is caicniated to injure the reputation of another, by exposing him to hatred, contempt, ot ridicule, is a libel." But, “ there is a material distinction between a publication relating to a public and a private penon, whether they be libels. That criticism may reasonably be applied to i public man, in a public capacity, which might not be applied to a private individual.” Bearing in mind this definition, *ad the distinction between persons in public or in private positions, we have two points to consider, viz., tbe matters which might be legitimately made the subject of newspaper discussion!Of Criticism in the case before us—and, next, tbe manner or hngaige in which such criticism might fitly be expressed. As to the first point, the circumstances of tbe case at once suggest the proper’ rule. Everything might be discussed which might reasonably be considered to constitute or seriously to affect the fitness of a candidate for the office of Supeiintendent, tbe number and nature of such things being determined by thp natureof thattdijgL. This is a plaiu rule: but if there be any di/Sculty in applying it, (here is, in this case, one peculiar circumstance which beats uponit. The plaintiff, it appears, came forward voluntarily, without any solicitation from any of his fellow - efidasns, to offer himself as a candidate for tbe highest position in the civil government of this Province. In so doing he most be taken to have invited the fnllest discussion of his qualifications. Bit this fact, though important, does not appear to me to affect equally every part of the questions which you have to. decide. It affects the question just noticed, as showing that the plaintiff did niff shrink from the fullest investigation. Also it affects tbe qaestion of damages—fur tbe plaintiff must have been prepared to a certain amount of ill-will, and to nave his claims roughly-and

severely handled. He must have counted that as cost, ir, tnereiore, yon nna nun entitled to compe

will remember that such compensation is to be given in respet of such injury as may be owing to these publication* only. But, beyond this, and as to the manner in which the discussion may be conducted by an adverse writer, the plaintiff cannot H understood to challenge any discussion except such at maybe sanctioned by law and by the usage of fair public controvenffis, The boundary within which the language of political diicaumi is to be confined is not defined by any rule of law, and caonot be. It is of course clear that a man may not, under colour of discussing the qualifications of a public man, make bis eritieim a vehicle for private malignity—and that, however innocent bit intentions may be, he may not put forth matter injurious to his - neighbour’s private reputation, if unnecessary for the poblie purpose. But the line between public and private it to be drawn by the jury in each case, upon a careful consideration of all the circumstances. A sort of standard is practically recognised' at home—a standard gradually formed by the action of juries; sometimes aiding liberty, sometimes restraining licence. To that standard, gentlemen, you will desire to conform your decision. No journalist ought to ask more liberty than tlut which is daily exercised by well-conducted journals in England; and I trust no jury in New Zealand will ever be willing to give less. The first three passages complained of relate fo one comino* subject—the religions profession of the plaintiff. Thisflwstk* of the connection between a man’s religious profession aodhis fitness for places of civil trust or power has been, io oof foe, under discussion in the British Legislature in w many Strawand under one form is so even at this time—that whatever be our individual opinions or feelings about the desirableness of raising such questions. I do not see bow a journalist can bf condemned for raising it here. But surely there is no question®* which more care and consideration is to be required, seeing there is none on which the risk is so great of damaging Bin s private character whilst discussing his public claims. The defendant has pleaded that the plaintiff, in his retina w.™ Government Census classified himself as belonging to po cSgfoQ* sect or denomination. On production of the return, it that he described himself only as belonging I" no sect . Now we all know that of late years this very tern has been much canvassed, and that many men repudiate toe term as inapplicable to the Church or body to which they Wo*?It is true the words of this return are ambiguous, and used by persons entertaining very unlike opinions. Botwt we not at liberty to adopt the unfavourable and reject thf ft™"" able construction of the words: and this is the whole rvidenfe on the point. As to this matter, then, of infidelity, d* *™*"' wholly fails, and upon this issue the plaintiff is endued to » verdict. Of these three passages, that of 30th April w construed as part of the long context out of which it w *• Is it merely a rough way of enforcing an argument by petUßgan extreme case ? or is it to be construed as. a suggestion last ta plaintiff is to be compared to Robespierre or would seem to follow) the opposite candidate to WiibertorMor Lord Ashley ? In that of the Hth May, there are two error®!" one of fact, for no oath of office is required in tbe ate «* Superintendent; and one of argument, for such persons ar_ referred to may be sworn. Are these error* to accounted for by haste (unavoidable in a newspaper;, COtnmwi, probably, with prejudice ? or is the raising of the Utter que»o«» sufficient to give the passage, in your judgment, the enaracw a libel ? That of the 23rd April diffeis from the two OID _ is not an argument, or a comparison used to enforce* e ment. It is a political composition of a character same as that of a caricature : in which it is , er r ;j?j a , re {0 great breadth and exaggeration of outline and colour I! be allowed for. But there occur in it two sets of w0 „ . ecenc y require consideration. First, the words respecting ms &’, trutb. &c.” No facts are in evidence to and if yon find them to be a libel, the plaintiff m to a verdict as to this ; but as to the amount of d 6_ > . will consider carefully how far any man of goon I*. could be damaged by words so loose and general, p™*'* in such a composition as this. Then tbe words, , Infidelity.” Now, gentlemen, all of ns who have study the history of the latter part of the what manner of man this Tom Paine wns men less and irreverent assailant of everything that ttinsi. revere. It is not to be assumed that an equal * gfiU, possessed by the ordinary readers of an Auckland pape < _ « yon will carefully consider t.e nature and amount yw. gestion or imputation conveyed by these woids, alter full allowance for the character of the composition, these words are found. If they amount to an *rv,_ voo (o infidelity, you will remember there is no evidence net i . support it As to the fourth passage, the detendant na» that the proceedings at the nomination were regular a .that, and that the publication is not malicious; in otn er w under ail the circumstances in evidence before you a proceedings, the inference drawn in that passage drawn, and the remarks therein made were a l °. legitimately made. It does not appear to me that “‘ iftjr imputes perjury (though that word has often own . perjury meaus the swearing of what is positively .*» » knowingly and corruptly. The imputation seems to w swearing what was literally trne, but evasively, ajw unfair purpose. Doubtless the imputation conveyed jjgjjf grave one morally. That the proceedings were correct, you caonot doubt; that at least six electors did, u demanding a poll. It is a conflict between negative * (and that as to the affirmation damaged) on the one mass of positive and most trustworthy evidence 011 ,, .uj calf you believe the inference to be one which, ondqf.a** cumstauces, might fairly be drawn, of course streogtn ment might be expected from any man who did draw comment here is exceedingly strong. You will * a y._ under all the circumstances, it be within the legitimate of newspaper criticism, and r ;.Tim jury retired and after an absence of about J lO a half returned to court with a verdict for the plainun. ges—Twenty Shillings. " The Chief Justice enquired if the Jury had found ri* a * , proceedings on the Hastings were regular* The Foreman ; Perfectly regular your Honor. A The Chief Justice then tendered the thanks of the Court 0 Jury, and discharged them, when tbe Court was disso Counsel for the Plaintiff—Messrs. Bartley and Whitaker. For the Defendants-The AUbmey.GeucraJ, find Messrs. * riman and Rutsell.