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SUPREME COURT.
JAMES HURTLE FISHER, Resident Commis-
sioner, v. ROBERT THOMAS and GEORGE
STEVENSON.
The prosecution was for an alleged libel in
the South Australian Gazette, published by
Robert Thomas and Co.
Mr. C Mann appeared for Mr. Fisher ;
Mr. Stevenson for the defence.
The following common jury was sworn:—
James Chambers, carrier, forman
James Coltman, victualler
Giles Abbot, sen., carter
Isaac Emery, carpenter
William Fergusson, carrier
Giles Abbott, jun., stone mason
Thomas Bell, carpenter
John Barclay, tailor
Robert Jacques, stone mason
John Wilson, farmer
Robert Bristow, lodging-house keeper
Abraham Fordham, victualler.
The Clerk of Court read the indictment, and
the defendants pleaded the general issue.
Mr. Mann applied, agreeably to act 9 Geo. 4,
c. 14, to amend the word reserved to nursed. It
was at once agreed to by Mr. Stevenson.
Mr. Mann then addressed the Jury as follows .—
GENTLEMEN. — lt is the nature of the legal pro-
fession to deal with the doubts and difficulties of
life ; but such doubts and difficulties I could wish
should fall to stouter hearts and abler heads
than my own to decide. In solving such problems,
I feel it more on the present than on any other
occasion. If it were a case touching the moral
or private character of Mr. Fisher, I should con-
sider it a serious resposibility; but it is not so.
You are not called on to decide as to private
character, but whether the principles upon which
the colony is founded are to be promulgated
whether they are to be supported and upheld; or
whether they are to be overthrown, and the Com-
missioner to be assailed by scurrility and abuse—
which far surpasses that even of Van Diemen's Land.
Of Mr. Fisher, in his private character, every one
speaks with respect. He is an excellent father,
a kind friend, a hospitable and generous man—
all come but to one conclusion. But you have to
decide on a more serious charge on Mr. Fisher in
his public capacity; and to shew whether the
principles of this colony are to go on advancing,
or to be stopped in their progress. The learned
gentleman here expressed his deep regret that he

had not the talent of a Romilly, a Lyndhurst, a
Wilde, or a Follett, to bring to the advocacy of
this case; but trusted that any defect in himself
would not be allowed by the jury to prejudice his
case. Truth would be spoken, and truth would
speak more powerfully than any language of his.
Gentlemen, it it customary in those cases to shew
the conduction with the individuals brought into
such an arena as this. This is very important in
civil cases, because it throws a light and shade
over the parties, so that they stand out in relief
before us, and enable us to discourse more as the
right and justice of the case. But in such cases
as this, it is still more important to enable us to
judge of the motive, powers, and the personal
struggle for victory, that we may make a good
picture of it, and properly judge of things
coming before us in evidence. We shall fol-
low this out. The learned gentleman then de-
tailed the powers vested in the Colonization Com-
missioners, and contended that all these powers
were exercised by Mr. Fisher, ex officio, as Resi-
dent Commissioner ; and he contended that such
an individual must he a man of great firmness,
acute intelligence, standing well among his
neighbours and fellow-colonists; and as was once
observed by a Roman citizen, that his name should
not only be without suspicion, but even without
the shadow of suspicion. He also asserted that
the great and important power vested in the Co-
lonization Commissioners of borrowing money for
the express purpose of paying all expences of the
colony was also carried out by Mr. Fisher. In
him, said the learned gentleman, the immense
machinery and the whole of the monetary con-
cerns of this colony are vested. I say it not dis-
respectfully ; I am no radical; I wish to see her
Majesty's Government respected, and while Ad-
vocate General of this province, I always did
support it; but I know that where the land and
the money is, there also is the power; and the
same feeling which makes me pay respect to the
Governor, leads me also to pay equal respect to
the party who exercises such powers as these.
To attack, therefore, a public functionary by libel
is a more serious crime than to blacken private
character. The latter sinks into nothing and
fades entirely away when we compare it with
calumny which touch the interests of thousands,
and may stop the advancement of a community.
Mr. Fisher stands here, therefore, in a very dif-
ferent position than if he were a private gentle-
man. The learned gentleman then said he should
shew the jury who the defendants were. He
said it was well known that Mr. Stevenson and
himself were not on good terms, and that in or-
dinary cases this would shut his mouth ; but he
had a severe duty to perform, and he must do it.
Gentlemen, Mr. Stevenson is a justice of the
peace, heaven save the mark ! As such he is
bound to repress all these scurrilities of which he
is the originator or certainly the publisher. He is
also Clerk of the Council, and as such ought to
be more amenable than any other man to pay due
respect to the individuals composing that Council.
He is not only Justice of the Peace and Clerk of
the Council, but also the proprietor and editor of
the only paper we have yet had, though, said the
learned gentleman, I am glad to announce this will
not long be the case. A deep and serious re-
sponsibility, therefore, rests on himself and his
partner Mr. Thomas. No one values the press
more than I do; but when it departs from its
original intention, attacking the ministers of the
Crown, and leaving the injured parties without
the means of reply, I can scarcely express my in-
dignation at a press thus misused, not used ; I re-
gard it as circulating poison through the colony.
And what can a person do who is thus calumnised?
The only power left is that which a few letters
give, him ; some friends may wish replies because
they know his worth; but tbe poison circulates
beyond the reach of any such an antidote. A
man is thus laid down to be cut and hewn and
murdered without the means of defence. I know
what I have felt when I have seen a man struck
when on the ground. I have said the man is a
coward who would thus strike; and I feel just the
same when I see a man thus exposed to the
merciless attacks of a libeller. Thus far for the
juxta-position of the parties. I have shewn you
the Justice of Peace as the editor of a paper; I
have shewn you the Clerk of the Council as the
editor of a paper—devoting what might have been
a blessing to be a curse to this infant colony. As
to the other defendant, Mr. Thomas, I shall say
little. I knew Mr. Thomas in England, and
indeed it was principally through a friend of mine
that he came hither. He is an honest and worthy
man, but sadly misled; but it must be remembered,
that if his intellect is not strong enough to see
the tendency of things passing under his control,
he is not tbe less guilty because he is not able to
originate the slander, if he give publicity as the
printer. I have myself remonstrated with him
before ; but although I do not think he is the
writer, he has had a guilty knowledge of the
libel, and must take the consequences of going in
a wrong track. The learned gentleman then ap-
pealed to the jury as to their own knowledge of
the successive scenes of attacks made on Mr.
Fisher in the Gazette for nearly twelve months;
and then asserted that he was assailed, not for
any thing he had done of which he ought to be
ashamed as a private person, but solely us the
Resident Commissioner; because he was the
stern asserter of principle, and because he acted
as a check on those who wished to destroy that
principle. Let us, said he, suppose a case.
Suppose this power of the land and purse vested
in Mr. Fisher should be a subject of jealousy—
suppose a theorist deeming absolute power to be
better than the modified power we enjoy—what
course would such a person suggest to get rid of
such powers ? Let the public mind be disabused
through a public functionary; let principle be
stubbed through his character. There was no-
thing in Mr. Fisher's character to bring him into
the paper at all but with some such motive as
this. A love of arbitrary power and a dispo-
sition to bring the colony under similar govern-
ment to the Cape or Van Diemen's Land was the
only reasonable explanation of the libel in question.
A political opponent would, he said, blacken
private character as a medium of attack on public
principle; otherwise he could not conceive how
such a man as Mr. Fisher, whom he was proud to
call his friend, could have been selected as a
martyr and a victim, except that some such object
might be obtained. After these general remarks,
the learned gentleman proceeded to comment on
the article charged as libellous; and having gone
seriatim through such paragraphs as he deemed
suitable for remark, asserting that all the pro-

ceedings in regard to the mode of choosing
both the town and country land were in perfect
accordance with the regulations of the Colonization
Commissioners; that Mr. Fisher had always
given sufficient notice of such meetings by printing
posting bills, which were affixed throughout the
town, that in point of fact, the Gazette, from its
irregular appearance, would have been an unfit
vehicle for such announcement, contending,
however, that really notice was given, because
an editorial account of a meeting contained a re-
solution that another meeting should be held at
some future day. He attempted to shew that
the proprietors of land were not at all affected
by the deficiency of surveyed land in parti-
cular districts, and that Colonel Light's testi-
mony would be given that ample surveys
had been made, so that land owners had a
priority of choice of 148,000, being 105 square
miles more than they could select: and that of all
these facts the defendants were cognizant, having
been at the public meeting and taken a part
therein. In reference to the Murray, he treated
with indifference any settlement on that
river or at Encounter Bay, vouching his own
experience and daring as a boatman that the latter
presented the most, formidable obstacles. The
suggestion that probably the land on the Murray
was designed for some special survey was not
denied; but the learned gentleman argued that
such insinuations, unless with damnatory proof,
as if the finger of the Almighty pointed it out,
ought not to have been written. He repudiated
every thing: like trickery, cheating, chousing, for
private ends, on behalf of Mr. Fisher. No, gen-
tlemen, it is the principles of the colony that are
sought to be wounded through Mr. Fisher—it is
for this his character is blackened, that we may be
brought back to absolute power; and that what
we deem it our duty to support—what we paid
our money to obtain and support, and what we
will continue to support—may be overthrown.
Now, gentlemen, enough has been said; and I beg
you seriously to consider whether a public man is
to be called a trickster, a cheater, a chouser, and
a dabbler in other men's pockets. If Mr. Fisher
deserve such epithets he is unworthy of holding
such a public situation. Keep these facts in your
minds, that nothing drive them thence until you
deliver your verdict. Gentlemen, it is now my
duty to show you a little what may be anticipated
as the line of defence on this occasion. I wish to
show you how the cat jumps. You will no doubt
hear a good deal about the liberty of the press;
but you have not lived so long in England
as not to know that liberty is not license. A
man may strike at license and do his duty ; but
not at liberty: he may try to put down the abuse,
but not touch the immaculate privilege. The
learned gentleman quoted Blackstone as a lawyer,
and Dr. Johnson, whom he styled a magnificent
author, to prove that the licentiousness of the
press must be restrained. The Launceston Adver-
tiser, the editor of which, Mr. John Jackson, the
learned gentleman said he had lately had the hap-
piness to add to the number of his friends while
on a visit to the neighbouring colony, had taken a
right view of the South Australian Gazette when he
called it "a tyrant press." It was true Mr. Jackson's
accusation, which he founded on the information
of Mr. Dowling had been noticed by the defend-
ants in these terms — " 'South Australia,' says our
Launceston friend, 'has not a free press—it has
a tyrant press.' If a press which has quarrelled
with public men because of their conducting offi-
cial business secretly—because it has exposed every
job—and clamoured for publicity in all matters
in which the public have an interest—because it
has defended no wrong, and never once refused ad-
mission to the defence or other statements of public
men implicated in its columns —if, in short, its only
course has been to speak out boldly and honestly
—then is this journal a tyrant press —not other-
wise." This has been said by the writers of the
South Australian Gazette, but it is a mere clap-
trap. The defendant will no doubt endeavour
to amuse you with long accounts of pork and
bullocks to lure you from the right scent and
lead you from the track, and my business will be
to prevent your being so led. I shall keep you to
the libel, and no other point. There is not a
thing published in No. 9 which I do not pledge
myself in Mr. Fisher's name at a proper time to
bring before a jury ; but now on this occasion we
will keep to the issue; and I say this that when I
come to object to questions which may be put, it
should be supposed I wish to avoid those matters.
My issue now is to prove those facts and libels,
and not to allow the defendants to go out of that
issue. I do not do this from any disposition to
shirk enquiry ; for, as I said, I am prepared to
bring every fact in every paper before a jury.
The learned gentleman then exhibited the South
Australian Gazette of the 28th ultimo, and read
an article therefrom to show that the same feeling
still existed against Mr. Fisher. He then appealed
to the jury to bear in mind that it was the Resi-
dent Commissioner who was thus attacked—the
second person in the colony—and expressed his
strong indignation at such a line of conduct. Mr.
Fisher's appointment, gentlemen, said he, is for
life, and even her Majesty cannot remove him
without cause shewn, and must take the course
prescribed by law. But, gentlemen, such things as
these are sent to England, without allowing him to
know what is circulating there; and private calumny
is taken for granted. The learned gentlemant hen
told the jury the question to decide was whether
the paper in question did contain a statement of
facts which were true and ought to be published,
or whether it was an abuse of the press, which
suggests things that were not, to blacken the cha-
racter of an individual. I rely on your verdict
simply because the party will find it morally im-
possible to prove the facts ; and you are bound as
men and as citizens, and for the good of society
hereafter, to prevent the circulating of poison
through the body politic, to give a verdict of
guilty. Bring in your verdict, gentlemen, so
plainly and broadly that this libel may be stigma-
tised at it deserves to be this day.
Michael Skipper proved the serving of a notice
to produce the original copy of the libel and also
the purchase of the file of papers from No. 2 to
No. 19 (with the exception of No. 7). The pa-
per No. 13, containing the alleged libel, witness
purchased from Mr. W. Thomas, Mr. Thomas'
son.
The Clerk of the Court then read the libel, as
follows :—
MOST IMPORTANT TO LANDHOLDERS.
" The Resident Commissioner is at his tricks
again. A meeting of landholders of preliminary
sections was held, we are informed, on Tuesday

last, but no public notice of it having been given
in the Gazette (the only official channel of publica-
tion), the proceedings of the meeting are of course
ILLEGAL, and not binding on any landholder. On
this occasion, however, a resolution was passed,
to ballot for the choice of preliminary sections on
some day next week— what day we have not
heard. This ballot is intended to determine the
priority of the right of choice. Previously to the
day named, landholders or their agents holding
more than a single section are required to in-
timate to the Resident Commissioner the number
of sections of land they mean to ballot for at one chance ;
whether, in short, the owner will take his two, or
ten, or twenty, or fifty sections at one chance, and
in a lump, or in us many different chances, and,
as the case may be, different places.
"Now, if any proceeding of this sort take place
under present circumstances, we proclaim it to be,
substantially and in effect, the most disgraceful
cheat ever attempted to be practised—calculated
only to swamp the smaller landholders and to put
a few thousand pounds into the pockets of the
larger owners.
"Before any landholder can judge or be fairly
called upon to decide in what quantities he will
select his land, he ought in common justice to
have afforded him, not merely proper facilities of
being acquainted with the districts where the
land is to be surveyed, but he ought to have an
opportunity first of seeing the sections fairly
mapped out, and then a reasonable time allowed
him to determine what may be the most advan-
tageous choice. He has bought and paid for
these rights and privileges, and in demanding
them he demands only his own.
" Nay, more—the regulations on the faith of
which the preliminary land was purchased de-
scribe and define a certain mode of proceeding in
reference to the point in question, which cannot
be departed from but by the unanimous consent
of the 437 preliminary landholders or their autho-
rised agents. Without such consent it is certain,
in the event of any irregularity or departure from
the prescribed form, that it would be in the power,
even of a single owner of a preliminary section,
to invalidate in a court of law the whole proceed-
ings, and thus vitiate the titles of every individual
proprietor. However deplorable and ruinous
such a result would be, the course adopted by the
Resident Commissioner points directly, and
must infallibly lead, to it.
" But* what are the circumstances under which the
landholders are called upon to ballot for choice of land ?
" Is the survey completed ? Are the sections measured
off ? The districts where the land is to be surveyed
even mapped down ? The districts themselves known ?
Do any means exist of enabling the land owners to
avail themselves of that priority of choice which the
Resident Commissioner is in so violent a hurry to make
them happy with? No SUCH THING !
" The survey is not completed. It is not near com-
pletion. The districts are not mapped down. Some
of them are not even known.
"It is a sad but disheartening fact to state, that
though the surveyors have been eighteen months in
the colony, not one of them, up to this hour, has
visited the river Murray or seen Lake Alexandrina
from a point nearer than the summit of Mount Lofty.
BUT STILL IT IS A FACT. Maps of the survey
were called for at the meeting we have referred to ; but
there were none to produce. No means, in short, exist
at the present moment of enabling the landholders to
avail themselves of their rights of choice—even were
that now bestowed upon them.
" But worse than all this—what do our readers
think Mr. Resident Commissioner has the cool
effrontery to declare ? Why, that he will include no
land on the Murray in the preliminary survey ! Will
the landowners suffer themselves to be choused
in this way and by this man ? If they do they de-
serve to have nothing better to choose upon than the
salt bogs and arid plains the surveyors are now mark-
ing out for their benefit, between the town and the
harbour, and which are to be recommended, we suppose,
from the circumstance that brackish water may be
found by digging ten or fifteen feet from the surface.
Who knows but the banks of the Murray are to be
nursed for some special survey ? Such things have
not been darkly hinted at. They are openly talked
of. Let the preliminary landholders beware of a trap.
They are entitled to demand their sections on Lake
Alexandrina or the Murray; and they surely are not
simpletons enough to choose their properties any where
but in the best location ; or at all, till the land for their
choice can be pointed out to them.
" At all events we hope we have said enough to
put a stop to the contemplated trickery. Some
of the bona fide colonists, the most respectable
landholders—those who are not dabbling in other
people's pockets—are determined to protest
against the Resident Commissioner's proceedings.
But if the honorable gentlemen be obstinate, it is pro-
bable an injunction from the Supreme Court will
put an end to the farce, and protect the honest land-
holder from ruin, and the fairest hopes of the colony
from destruction."
William Kyffin Thomas is in the employ of
the defendant, Robert Thomas; his duty was
superintending the setting up of the types ; the
copy from which the paper is printed comes into
his possession.
Mr. Mann then asked in whose hand writing
the paper was.
Mr. Stevenson objected to the question.
Mr. Mann gave up the point.
Mr. Mann was then sworn and tendered himself
as a witness : he produced a subpæna by which
he was summoned to produce a certain deed which
lay on the table.
Examined by Mr. Stevenson—Is counsel for
Mr. Fisher in this case. Mr. Stevenson then ob-
jected to the deed being received in evidence.
Examination continued—he held this deed as a
stakeholder between Messrs. Stevenson and
Thomas; was employed as attorney for Mr.
Thomas in London to prepare this deed; it was
left in his custody as a stakeholder, not as an
attorney, by Mr. Thomas ; holds an order not to de-
liver it up but by a written authority from Messrs.
Stevenson and Thomas, and has received no such
order ; applied himself for the subpæna to him-
self as the attorney of Mr. Fisher; Mr. Fisher
knew of its existence but not of its contents ; as
his attorney he informed him he had a deed which
was necessary to prove the partnership of the de-
fendants.
Mr. Stevenson said he never could have believed
the profession could have reached its present
state of degradation ; how any gentleman could
* The passages quoted in italics were omitted in
Mr. Fisher's indictment.

appear in that court and so far forget his duty to
himself and his clients, as willingly to proffer
the production of a deed drawn by himself and
executed by them, entrusted to his keeping for the
security of both, he could not conceive. That an
attorney when employed by another, should use
a deed to the prejudice of his last employer,
was a violation of all confidence ; and that to
serve another individual by whom he is subse-
quently employed, he should betray that confi-
dence, was an act which no circumstances could
justify or palliate. I can not conceive, Mr. Steven-
son said, a position more painful than the one in
which Mr. Mann has placed himself. I knew
that neither the prosecutor nor his attorney were
scrupulous; but I did not think that so unpre-
cedented an attempt at betrayal of professional
confidence would be attempted even in this case.
I should not be doing my duty as a good citizen
it I did not take some serious steps against Mr.
Mann for this attempted breach of confidence.
Mr. Mann has no right to produce this deed : he is
not only bound in honor, but he is legally prevented
from so doing ; without my written permission
he cannot produce it to any person, and to attempt
so to do shows a baseness which I could not have
expected even in that quarter.
Mr. Mann attempted to justify his conduct :
he said he had received no retainer since his ar-
rival in the colony. He would be the most senti-
mental fool in the world if he refused to produce
that deed. He would allow no shadow of
morality to stand between himself and justice ,
that he was bound to bring to light that
which could not affect Mr. Thomas, but which
would bring home to the man, whose moral in-
fluence is greater, and whose mind ought to keep
him from such conduct, the guilt charged. I am
no attorney, but a mere stakeholder for the par-
ties ; it is the guilt of that man (pointing to Mr.
Stevenson), who I charge with libellous writing,
that I want to establish ; I have never been Mr.
Stevenson's attorney ; I come to prove it as an
aggravation of his guilt that he is the editor of
this paper.
His Honor the Judge decided that the deed
could not be produced in evidence, and said it was
atrocious to attempt it.
Mr. Mann then tendered as secondary evidence
his own parole examination to p[?] [?]
nership.
Mr. Stevenson submitted that as the deed had
been refused, no secondary evidence could be re-
ceived from the same party, as his only knowledge
of the fact resulted from his confidential pre-
paration of the deed.
Mr. Mann said he was the only party in posses-
sion of the facts, and he must of course examine
himself ; and that he again for the purpose of jus-
tice, tendered his parole testimony. Mr. Thomas
had applied to him to prepare it in London ;
he was anxious for the sake of the colony to
establish the paper, and he drew up this deed as
Mr. Thomas' friend, to guard him ; for the same
object he now held it—he had not been his attor-
ney before, and it was put into his hand simply to
guard Mr. Thomas against the very position he
now stood in; he knew of course the terms of
the deed, and told Mr. Fisher of the same ; he
took a subpæna for himself in consequence, and
he now offered to give evidence in order that Mr.
Stevenson might be fixed with the consequences
of his conduct; he was a stakeholder, not an at-
torney ; besides preparing this deed he prepared
one for Mr. Gilles, whose attorney he was not,
and never would be—simply for the good of the
colony; he never was an attorney for Mr. Stevenson
and never would be.
Mr. Stevenson submitted that since he was de-
barred from using the deed, he could not offer his
own evidence.
His Honor said it was quite clear that when in
consequence of the relation of attorney and client
the attorney became acquainted with facts, he
could have no right to reveal them, and he there-
fore decided that Mann could not give parole evi
dence of facts, the knowledge of which he had
acquired under the seal of professional confidence.
Mr. Mann— Here then, the case so far as George
Stevenson is concerned, terminates; and his honor
took a note to that effect.
Mr. Stevenson proceeded with the case on the
part of the defendant Mr. Thomas.
W. K. Thomas recalled, and shown a number
of the South Australian Gazette —that paper is
printed and published by Robert Thomas and Co.
that is by Robert Thomas and George Stevenson ;
has seen Mr. Stevenson in the printing office as
a private individual ; cannot say whether he has
ever seen Mr. Stevenson giving directions as to
the printing and publishing ; remembers the pro-
ceedings before the Resident Magistrate in Novem-
ber last against Robert Fisher; Mr. Stevenson
appeared there (he thought) not as a partner. On
your oath did he appear or not as partner?
Mr. Stevenson objected to this question; all de-
positions taken before the magistrates were in
writing, and the best evidence must be produced ;
he held it to be a general rule of law ; and that
when written evidence existed it must be forth-
coming before parole evidence could be given.
Robert Fisher was then sworn—Is in the em-
ploy of Robert Thomas and Co. ; Robert Thomas,
the defendant in the case, is one of the firm ; Mr.
George Stevenson is also one of the firm.
Mr. Stevenson said that the court had already
ruled that parole evidence should not be heard in
support of the deed.
Mr. Mann said that parole evidence was the
best he could now procure, and his Honor having
refused the admissibility of the deed, he produced
the best evidence he could.
The Judge read cases to prove the admissibility
of parole evidence to prove the existence of a
partnership.
The court then adjourned until next day.
SECOND DAY, TUESDAY.
Robert Fisher's examination was resumed, a
question having been put as to the duty of Mr.
Stevenson in the partnership of the defendants ;
Mr. Stevenson objected to the question, and Mr.
Mann argued the point. He had identified the
parties Thomas and Co. as George Stevenson and
Robert Thomas; and his Honor must allow the
question to be put to know what part George
Stevenson undertook, so that his Honor might
properly apportion the guilt. The case is different
to one between a party bound by oath or by a con-
fidential duty as a legal adviser. A steward in not
in the same situation as an attorney; the latter is
protected from disclosure. Where the employer
could be called on to state facts, there the servant
can. His Honor would see that all evidence
which would come first before a jury ought to do

so except that of an attorney. Your Honor thought
I was an attorney in this matter, and refused any
evidence, but this is certainly admissible.
His Honor thought the medical profession were
also exempted from revealing secret confidential
matters.
Mr. Stevenson rose to reply to Mr. Mann, who
objected to his so doing; but the Advocate
General, on his being appealed to, said he believed
the party had a right to reply to the council
arguing an objection.
Mr. Stevenson contended that his objection was
founded on the simple principles of justice. He
was unacquainted with the law ; but if the con-
fidence reposed by a merchant in his clerk, by a
banker in his cashier, by a client in his solicitor,
by an editor in his printer, were thus to be
violated, the faith of every master in his confi-
dential servant would be at an end. If in the
conduct of a public journal, all its secret sources
of information were to be openly revealed, there
would be end of all confidence. He believed it was
not usual with the London press for editorial articles
to be always confined to the editor's pen.
Leaders, as they were technically termed, were
often furnished by men of the highest rank and
first talent in the country ; and if the parties were
in be at liberty to reveal such facts, a ministry
might be brought into question. If the secret was
to be revealed who was the writer, there would be
an end of all confidential disclosures of public
wrong-doing, and to all salutary political discus-
sion. Such a proposition would be scouted by
every man of proper feeling; he never heard of
such an attempt—it never was done—and it never
ought to be done.
His Honor's opinion was, that the rule only re-
strained the legal profession.
Robert Fisher's examination resumed.—Mr.
Stevenson is the editor of the newspaper. Mr. Mann
asked witness to point out any particular article
in the file of newspapers written by the de-
fendant Mr. Stevenson.
Mr. Stevenson objected to this course. The
witness, who exibited a very earnest desire to give
evidence against his employers, wanted No. 7,
but it was not on the file.
His Honor wished for cases as to the rule pur-
sued in England against newspapers.
Mr. Mann said the rule was that all matters
confried before retainer were not within the scope
of the law—that his object was to fix Mr. Steven-
son with the guilty knowledge rather than Mr.
Thomas.
Robert Fisher examined.—Mr. Stevenson edited
the articles from No. 2 to No. 19; some of these
referred to the character of Mr. Fisher, the Resi-
dent Commissioner; he has made remarks on
Mr. Fisher to me; there was an article in No. 7
on the change of editors, and the defendant de-
sired me not to tell any one that he still edited
the paper. On another occasion in giving witness
an article against Mr. Fisher, he could not recol-
lect which it was, the defendant said, "There's
another article against Mr. Fisher, and I intend
to give him a good dressing ;"—he never under-
took to give a person a dressing without accom-
plishing the object he had in view; and he
referred to an instance of a Mr. Raphael, in
which himself and the editor of the Times had
been concerned, and in which he succeeded in
giving the party a dressing; to the best of his
belief has heard Mr. Stevenson say he would
drive Mr. Fisher out of the colony; cannot say
by whom the article in the paper of the 28th ult.
headed " Mr. Fisher," was written; believes it was
by Mrs. Stevenson; has seen Mrs. Stevenson's
writing, but has not seen her write; believes that
some of the letters signed " A Colonist," in the
Gazette, were in her hand, written by her; the
proofs were corrected by Mr. Stevenson.
Cross-examined by the defendant.—Has been in
prison lately; was senttenced to two months im-
prisonment and solitary confinement, because Mr.
Thomas swore that he had entered into a further
engagement with him for another twelve months,
and the magistrate sentenced him ; is now in the
office of the defendants ; has seen Mrs. Stevenson
write on several occasions, once when she wrote
a note to Mrs. Thomas, and to the best of his be-
lief some of the letters of the " Colonist" were
written by her; did not set up the type of tbe
article headed " Mr. Fisher," on 28th April; saw
the copy in the office; has never shewn copy out
of the office to any person ; has shewn the proofs
of unpublished articles ; has occaisionally read
them at Mr. Coltman's of an evening; cannot tax
his memory with having shewn proofs to Mr.
Fisher; has never shown any to Mr. Mann ; does
not know who wrote the article in paper No. 13,
headed " Most Important" (the libel now at
issue); has shown proofs to Mr. E. Stephens
while he was in the defendants' employ : it was
Mr. M'Laren's letter signed " Quiz." While
in his present employ has not been offered a ser-
vice in the new printing-office by either Mr. Fisher
or Mr. Stephens; has asked Mr. Stephens to get
him the office of overseer. This was during his
employ with Thomas and Co.; he had consulted
Mr. Stephens eighteen months ago as to sending
to England to establish a printing-office himself.
Mr. Stephens recommended him to wait, and this
was why witness applied to him when he heard
another paper was about to appear; has applied
to Mr. Fisher on the same subject; has gone
back to his employ by the advice of Mr. Mann;
Has not communicated to Mr. Mann or Mr. Fisher
any of the secrets of the printing-office.
Re-examined by Mr. Mann—Was induced to
come back to Thomas and Co. by a threat that
they would serve him with an attachment; he con-
sulted Mr. Mann, who recommended him to return,
as it was of no use taking his case into the Re-
sident Magistrate's Court; his agreement with de-
fendants was written and executed in England;
had advised with Mr. Mann on the efficacy of it;
he said it was that it was for no term whatever.
James Hurtle Fisher, Esq. sworn—Is Resident
Commissioner of public lands in the colony; pro-
ducent the appointment and also the regulations of
the Commissioners, which are under their seal.
A part was read by the Clerk of Court. In De-
cember last, the holders of preliminary land
orders sent in a requisition to him to call a meeting
of owners for the purpose of determining the
order of choice; and he in consequence gave
notice by hand-bills posted about the town. (The
notice was read.) It was the same mode of giving
notice which he had always adopted on previous
occasions. No disatissfaction had ever been ex-
pressed before at this mode; had no reason for
its non-insertion in the Gazette but the irregularity
of its appearance. The meeting was held in conse-
quence of that notice. It was attended by a very

considerable majority of those who represented
the 437 preliminary land orders. The defendants
were present. (The defendant Thomas was pre-
sent at the previous nieeting for determining the
choice of town lands and the order of ballot.)
There was a regulation passed at the meeting that
the regulations of the Commissioners be read as
far as related to the matter; it was moved by Mr.
Stevenson. Mr. Finniss, the deputy sur-
veyor, was present—to the best of his recollection
Mr. Finniss gave information relative to the sur-
vey —he offered information to the meeting.
Neither of the defendants ever applied for infor-
mation at the office, or they would have received
it as every one else did who took the trouble to
apply. The meeting of 23rd December came
to certain resolutions, and they were inserted
in the South Australian Gazette of 20th January.
In consequence of resolutions of 23d December,
he gave notice for a meeting. It was done
by printed hand-bills as other notices, and a
meeting took, place on 20th February. Its
object was to determine the mode in which the
order of selection should he made. Mr. Thomas
was present. The persons present represented
360 out of the 437 preliminary land orders. The
meeting came to a decision that the order of choice
should be decided by ballot, and fixed a day for
the proceeding. A resolution was passed that
parties entitled to more than one land order should
determine as to whether they would draw the
whole in one turn or more ; they were to send in
a notice before a fixed day, and if they did not do
so, it was to be understood they would draw all in
one lot. The resolution was inserted in the
Gazette, in the same paper that contains the libel
now complained of. The resolutions were in
substance the same as those panned prior to the
choice of town lands. What is the effect of re-
solution 3d of the meeting of 20th February ? If
a person held more than one land order, and did
not before a particular day declare to me that he
intended to draw for his order of choice in any
other mode than in respect of all his land orders
together, he would have only one order of choice
for the whole. Would an owner taking his single
choice be therefore bound to take all his sections
in a single lump, say ten or fifteen sections ?—
Certainly not. If he had more than one, he might
take them together or separately as he pleased,
so that his right of choice to the land would not
be affected? Yes, it would very materially alter
his position; if a person had twelve sections, in
respect to which he determined for an order of
choice, he might then select the whole together
or in different parts as he pleased, or he might
select each separately in different places. The
third resolution was in accord with the Commis-
sioners' regulations, and was acted on by the de-
fendant Thomas. So that if any disgraceful
cheat were attempted, it would be practised by
the Colonization Commissioners ? I cannot say.
Mr. Mann said, my question was catechistical.
I meant to cay if any cheat arose from the regu-
lations, it must be the act of the Commissioners
and not of the Resident Commissioner. The
ballot took place for choice on the 28th March,
not by the usual notice, but by a circular letter;
and I believe it was also inserted in the Gazette.
Prior to this period, had the survey proceeded
enough to warrant the making this choice ? Ac-
cording to my conception it had.
Examined by Mr. Stevenson.—ls that advertise-
ment in the South Australian Gazette of 3d June,
headed Land Office, signed by you?
Mr. Mann objected to the question, on the
ground that matters out of the issue could not be
gone into. That the cross-examination must not
extend beyond the limits of the examination in
chief, and as such it was not a proper question.
What could the cutting down trees in the streets
of Adelaide have to do with whether Mr. Fisher
had choused, cheated, or tricked the land owners
by a certain course of conduct at a particular
meeting, or whether he had nursed land on the
Murray ? He must entirely oppose this course,
He did it not on the ground as matters of fact,
but as being out of tbe issue. He did so that
what was done here might become a precedent—
that no irrelevant matters may be introduced.
The defendants plead they have not published a
libel—they cannot enter into a justification ; but
I should not object to that if it were confined to
the matters in tbe scope of the issue; if Mr.
Stevenson could prove that Mr. Fisher had acted
illegally, or cheated, or choused, or tricked, as the
instance on which issue is joined, then I should
advise him to go into that evidence, but his Honor
could not admit his doing a something—in cutting
down trees in Adelaide—was a matter before him.
What had it to do with any issue as to the parti-
cular facts.
His Honor said Mr. Stevenson was the best
judge of the relevancy or not of the question.
Mr. Mann then stated that he should object to
any question put on matters not in the issue.
Mr. Stevenson addressed the Court—I am
placed here in a very painful situation. I am
charged by Mr. Fisher with intending to destroy
his character, to injure his name, fame, and repu-
tion. It is with that offence I am charged. He
has come before a jury to defend his character,
and I am entitled by law to go into every act of
his from the day be was in office to the day of that
alleged libel. I go further; Mr. Fisher has not
confined himself to the issue, he has gone into
other matters; he has travelled far beyond the
issue. I am accused with having slandered Mr.
Fisher through the whole series of the Gazette.
My duty to myself and Mr. Thomas—my duty
to the public and to my country, is to ask
Mr. Fisher such questions as will show whether
this accusation be true ; and I am entitled to have
answers to every question I may put affecting Mr.
Fisher's public character. If Mr. Fisher is an
innocent and wronged man, it is his duty to have
these questions answered. I claim it as a matter
of right that they should be. The plea I have
put is not guilty. He says he has always been
reputed to be of good name, fame, and reputation,
and I come here to shew that he has not; and I
claim my right to examine the witness on every
point of his public character.
His Honor decided that no person but the
questioner could decide at fact as to what was
right or not.
Mr. Mann said this difficulty arose from the
defendant being his own counsel, and not under-
standing the difference in pleading between what
was material and immaterial to the issue. Because
a general affirmation of good character is intro-
duced into the pleading, the defendant is not
therefore entitled to shew that such good charac-
ter does not suit. It is just one of those legal

statements taken for granted. The defendant
cannot go into general evidence. That which is
immaterial for him to prove he cannot go into.
It is only throwing dust in the eyes of the jury
to go into matters not before the court. Suppose
Mr. Fisher were literally what Mr. Stevenson
wishes it to he believed he is—that he has been a
pork jobber—that he has sold bullocks improperly
or other things—all which we deny—still he
might come and ask a verdict in this case, be-
cause Mr. Fisher's conduct in question is not as
to these extraneous facts, but as to his conduct
as the Resident Commissioner at a certain meeting
which has been called illegal, and in which he may
be perfectly right, although he may have been
wrong in other things—on this ground to-night
come and ask for a verdict. Examination and
cross-examination must be within the scope of
the issue. It was his wish to give every license
to the defendant consistently; but he would not
allow him to go into all and every matter of Mr.
Fisher's conduct, because the issue binds him to a
particular purpose. It was clear that the object
was to confuse the jury. They are met to decide
whether he has acted legally in a certain case, and
Mr. Stevenson must confine his arguments and
his evieence to that point. We are not met to de-
cide whether Mr. Fisher's character is good or bad,
but whether he has done certain things here
charged on him. If he were blackened by crimes,
yet if he had acted right in the matter before the
court the defendant would not be entitled to go
into previous character. And as to justification,
the defendant may justify that he received the
intelligence and has been misled; but to attempt
to prove that Mr. Fisher has acted illegally will
not do.
Mis Honor referred to a case which left it clear
that the relevancy or irrelevancy of a question
must rest with the advocate.
Mr. Stevenson had no wish to detain the court
and jury. He said, I am placed here charged
with libelling Mr. Fisher, and I mean to give Mr.
Fisher the opportunity to answer all questions
affecting not one, but all of Mr. Fisher's public
conduct. I am anxious to give him this opportu-
nity to explain his acts—to give him the public
means of asserting his good character. If it is
denied to me I must submit. Mr. Fisher says if
I will consent to turn this into a civil case, and
allow the present jury to award damages, he will
consent. [This proposition had just before been
hastily proposed by Mr. Mann.] Sir, I ask a pri-
vilege. I have been dragged here by Mr. Fisher.
I contend here as an accused person that I am an
innocent person; and in self defence I claim to
shew that he has dragged me here illegally; and I
claim the right to judge of the questions I think
desirable to justify me. I ask the questions :it
is for him to answer them or not, as he thinks
proper.
Mr. Mann— l pledge myself that every one of
these calumnies shall be brought before a jury;
and then if the defendant choose to enter into
these questions he can do so.
Mr. Stevenson — May it please your Honor,
I will take no pledge from Mr. Mann for asking
or doing anything; but as a person charged with
defaming and maligning I come to defend my own
character. I come to shew that Mr. Fisher is not
libelled—to shew that he is treated mercifully and
tenderly ; and I claim my right in the face of the
country.
His Honor decided it was competent for Mr.
Stevenson to ask Mr. Fisher such questions as in
his judgment bore on the points in issue.
Mr. Stevenson then asked whether a notice
dated 28th March, 1837, and inserted in the Gazette
of the 3d June, 1837, was authorised to be in-
serted by Mr. Fisher ? Yes.
Had it not reference to the grubbing up of trees
growing in the streets of Adelaide ?
Mr. Mann objected on the express ground that
it was not relative to or within the scope of the
issue which the jury had met to try.
Mr. Stevenson—When the prosecutor has en-
tered into matters decidedly irrelevant, so far as
to come down to the publication of the last
number, asking the printer's servant as to the
same, am I to defend? I do not ask because
wrong has been done by another that I should also
do wrong; if he has travelled out of the issue.
the shame be to him; he is a legal man, and I am
not; but I contend I am not going out of the way.
The very beginning of this alleged libel says, that
Mr. Fisher is at " his tricks again;" I have a
right, therefore, to prove that he has been at his
tricks before.
His Honor said if he would prove the connection
with the libel, the question might be put.
Mr. Stevenson said he would ask no question
that he did not imagine necessary to establish his
defence.
Mr. Mann said that he merely alluded to one
paper to prove Mr. Stevenson was the writer or
editor, and to a subsequent one to prove that the
animus still continued.
Mr. Stevenson—l have no wish to waste time ;
I wish to go into the public conduct of the Resi-
dent Commissioner—to shew that he has been at
his tricks before, and to show what those tricks
were.
Mr. Fisher's examination resumed. — Are the
streets in Adelaide under your particular charge
as Resident Commissioner? It is a matter of
opinion; probably not. At that time I considered
that I had the authority to do so. I am not sa-
tisfied that I have now, but I am not prepared to
admit I was wrong. I may also mention, that the
colonial govennent have adopted what has been
done under that notice; and in the last number
of the paper will be found an advertisement from
them for the sale of them; and that in issuing
that notice, I acted not only under an honest im-
pression that I was doing right and rendering the
public a benefit, and that I was also influenced by
an honest intention, which has been confirmed by
the colonial government itself; and further, that
I am not aware how any one could be either
tricked, cheated, or choused, or in any way injured
by the course I adopted. Nor did the government
either object to tbe tstulng of the notice, or after
it was issued ; nor am I aware how any individuals
could be specially benefited by it unless they im-
properly removed the trees which were cut down
at the public expence; (though I believe efforts
have been made to remove the trees, and that by
the defendant Mr. Stevenson himself, who, I am
informed, sent two carts to remove the trees, but
the carts were sent away and the trees remained
behind.)
Mr. Stevenson said that was an untruth.
Mr. Fisher said he was on his oath, and he would
not allow any one to use such language. (Some

confusion and altercation occurred here, and the
witness was much excited.)
Mr. Stevenson asked where the trees were, and
Mr. Fisher replied in King William-street. He
then asked who informed him.
Mr. Mann submitted that it was now plain that
there was no relevancy in the question, and he
should move that both question and answer be
expunged from his Honor's notes. The prosecutor
made a reply, and he is told it is an untruth.
Mr. Stevenson—l understood when I made that
remark that Mr. Fisher had stated it on his own
knowledge. A more infamous and disgraceful
charge never was made. It is utterly false. Mr.
Fisher is bound, having made a statement of this
most disgraceful nature, to satisfy me—to satisfy
every one—of its truth. He says I am informed
—let him shew who informed him ; let us sift the
truth ; let us bring the man to your bar. I delare
it to be false, and before my country declare no
such thing ever emanated from me. Wherever he
is, bring him here. With regard to Mr. Fisher,
I wish to shew you he has done what he had no
right to do ; that he has employed men as paupers
who are not paupers; that he was entitled to con-
sult and obtain the consent of government; and
that he has brought disgrace on the colony by
saying there are paupers here.
His Honor said if he understood aright, Mr.
Stevenson wished to ascertain the individual who
had given Mr. Fisher the false information.
Mr. Stevenson said he was about to ask if it
was relevant to put in a false answer to a question ;
but I am prepared to shew you that it is a relevant
question. I sincerely hope that if Mr. Fisher
states a thing on hearsay, he will at once ascertain
the truth of the allegation forthwith. If he has
slandered, we have a right to an answer to know
the slanderer.
Mr. Mann said he should desire Mr. Fisher not
to answer the question.
His Honor decided as before.
The Advocate General, as amicus curie, said, I
think I have seen a great deal of irrelevant evidence
produced on the part of the plaintiff, and I think
the defendant must be allowed some latitude.
His Honor advised Mr. Stevenson to state what
is the object, honestly and fairly, of his question.
Mr. Stevenson—l wish to shew you that Mr.
Fisher has exceeded his powers as Resident Com-
missioner ; that he has done what be was not en-
titled to do; that his conduct has not been that of
proper and right acting; that he had no authoiity
to do what he has done, and has assumed a power
which he does not possess. The article says the
Resident Commissioner is at his tricks again; I
tell you here that I am prepared to prove it—that
he had no right to order these trees to be cut
down but under certain conditions. This was one
of the tricks. I am entitled to shew you, by his
own evidence, these facts ; but I go further, and
any that I am entitled to prove in evidence all that
he has himself assumed in the whole of the
papers.
His Honor—Who informed you, Mr. Fisher,
that Mr. Stevenson sent the carts for these trees ?
Mr. Mann—l object to shew that Mr. Fisher is
wrong. I am not to allow Mr. Fisher to be bad-
gered to answer such questions which cannot
refer to the matter in hand. Mr. Stevenson can
not travel out of the record—He must confine
himself to the special meeting in the libel—he
must not take advantage of his own wrong. The
intention, as I before said, is to lead the jury
astray from the true track of the case.
Mr. Stevenson—lf I am to be cramped and
prevented examining Mr. Fisher, the evidence
gone into against me must be scored out. After
the prosecutor having gone into matters so far out
of the record, the defendant must not be deprived
of using these things. I wish not to prove any
thing Mr. Fisher has not put in as evidence. I
wonder Mr. Fisher does not profess his readiness
to answer every question. Questions, which, as a
public man, he would be glad to answer—glad of
any opportunity to give answers to—and where
can he do so more safely and properly than before
this jury?—l say it tends to shew that Mr. Fisher
has not always properly and well fulfilled the
duties of his office. I come to prove he has not
out of his own mouth—l cannot understand what
he would be at; If I cannot be permitted to cross-
examine the witness I might as well close.
The court adjoured for half an hour, Previous to
its separation Mr. Fisher stated that a man named
Geeson had give him the information—the man
was outside the court, and on application being
made to him on the matter, on the resumption of
of the court Mr. Stevenson addressed his Honor
and said that in the interval Mr. Fisher had he
believed ascertained he was wrongly informed, and
that gentleman accordingly stated that Geeson
had said that two carts came, and the men said
they came from Mr. Stevenson, that on being
asked for their order, they said, they had none,
and he believed now Mr. Stevenson had nothing
to do with them.
The Judge made a note of the explanation.
Mr. Stevenson—There were many questions
which I had determined to ask which I will waive
to save the time of the court.
Examination resumed—Have you ever at any
time been refused the privilege of inserting in the
South Australian Gazelle what you chose to send
to it ? To the best of my knowledge I have: I
have an indistinct recollection of once seeing a
letter reflecting on my character. I wrote to give
me up the name, that I woutd not answer anony-
mous attacks.
Did you send a communication which was re-
fused admittance ? I never sent one—l have
sent for information as to the writers of articles
which has been refused.
Has the name of a writer any influence on the
fact be states ? None—l never made any attempt
to have an article inserted: I would not answer
scurrilous tirades under an anonymous cloak; I
never attempted to defend myself against attacks
in the paper, partly because they were anonymous,
but principally because they have been so whole-
sale that my whole time would have been dis-
posed of in replying to them.
Mr. Mann again interfered—lt was not Mr.
Fisher's character they were met to try, but the
merits of a particular case. I move that your
Honor expunge this irrelevant matter altogether;
Mr. Fisher is not to be tried here for the errors of
his life,
Mr. Stevenson in explanation asked what was
the meaning of the words charged in the libel—
" Mr. Fisher at his tricks again ? "
His Honor decided that the libel being dated
the 20th February, Mr. Stevenson had a clear right
to refer to anteceedent matters.

Mr. Stevenson—l thank your Honor; it in my
opinion that a prosecutor should come into court
with clean hands—he requires that
Mr. Fisher appeared to be much excited and
said, Mr. Fisher does come into court with clean
hands.
Mr. Stevenson— If I am to be prevented thus
indecently—if your honor is to be insulted and I
am to be bullied by the misconduct of the witness
Mr. Fisher— Sir, I will not allow any man to
state that I misconduct myself.
His Honor required order.
Mr. Stevenson—I am dragged here by Mr.
Fisher, and I wished to cross-examine him to
prove that he is guilty of the charges I brought
against him; I am entitled to do so through the
witness who has proffered himself, and it is for
your Honor to say whether or not I am right in
so doing.
His Honor desired the examination to proceed.
Mr. Stevenson—Did you ever claim for your-
self as Resident Commissioner the right to name
the public places within the province without con-
sulting the Governor?
Mr. Mann desired Mr. Fisher not to answer the
question—objecting to it as irrelevant, saying—I
take upon myself the responsibility of advising
Mr. Fisher not to answer.
Mr. Stevenson—It is on this ground I insist
upon my right; it is necessary to prove that Mr.
Fisher; was at his tricks before, now he exercised
a right he had no authority to do, and there ex-
ceeded his powers, and thus satisfy the jury of
" trick " the first.
The Judge sustained the objection.
Mr. Stevenson—Were a certain quantity of
stores, oatmeal, pork, &c., provided for the use of
the colonists generally, sold by you to the South
Australian Company, or Mr. E. Stephens, by pri-
vate contract ?
Mr. Mann objected as before that this question
was not within the scope and question of the
issue.
Mr. Stevenson—I will shew that this transac-
tion was prior to the 20th February, and is im-
mediately connected with Mr. Fisher's character
as Resident Commissioner, and with the powers
of his office, and I think this must be quite rele-
vant to the matter at issue; I allege that the stores
were sent for the benefit of the colonists generally
to be sold at certain moderate prices, and I shall
prove they were sold privately to parties by whom
they were not sold to the colonists generally, but
at heavy and extravagant prices, and I contend such
misconduct comes within the scope of the informa-
tion ; I intend to shew these stores were provided
for general use, and that the Resident Commis-
sioner's private transfer of them to a private mer-
chant was a wrong to the colony, and a viola-
tion of his duty as Resident Commissioner; the
prosecutor places his public conduct before the
public in all its facts and circumstances.
Mr. Mann requested his Honor to note the ob-
jection he was going to take, verbatim; I have
objected on the ground of its relevancy and now
proceed to show why. The defendant stated that
Mr. Fisher has alleged that his character is of the
nature averred in pleading and that his acts have
been of the nature there stated, and bona fide.
[Mr. Stevenson here left the court.] It is per-
fectly clear that this allegation is in its nature un-
natural, because if we strike it out altogether the
issue before the court would be exactly the same.
The unhappy discussions which have arisen in
this case have occurred only because the defendant
is ignorant both of the nature and of the reason
of the insertion of such immaterial allegations.
Had a lawyer been concerned I should not
have been reduced to tbe necessity of arguing that
which is purely elementary. As it is, I am com-
pelled to give your Honor and the jury a lesson
on the art of special pleading. Your honor is aware,
and the jury probably knows for the first time, that
it is essential to clearness of statement to put in the
indictment a variety of facts, the object of which
is to simplify and make clear that which is im-
materia. Thus, in the case before us, the ap-
pointment of the Resident Commissioner, and of
his character are introduced to give clearness to
the denials of the facts of the libel which carry
on the subsequent part of the indictment. They
were inserted and are noted, but the substantial
offence would be just the same if they were not;
but the libel must in that case have been set out
in a manner so unclerkly and s0 uncertain that
such a course would be open to objections that
might arise on a judgment the jury might give;
hence it is that to avoid such objections and not
because such facts are material to the issue, they
are inserted by the pleader in the pleadings of the
case. The argument of the defendant shows this;
for if he were correct in the views taken by him,
the jury would meet to decide two issues instead
of one only—first, whether the prosecutor were
guilty and contingent upon this fact of his guilt
or secondly whether the defendants were guilty.
At this moment Mr. Stevenson returned into
court, and requested his Honor to read what had
been taken down in his absence.
His Honor commenced doing so, and had pro-
ceeded to the point where Mr. Mann said he must
give his Honor and the jury a lesson in the art of
special pleading, when Mr. Mann requested his
Honor to preserve order in the court, that the
defendant Stevenson had just groaned most inde-
sorously.
His Honor said he had not noticed anything of
the kind.
Mr. Mann said of course be could not see Mr.
Stevenson, who was sitting behind, but that the
groan was audible all over the court: he wished
his Honor could hear both sides.
His Honor said if he received any more such
interruptions or indecent remarks he would adjourn
the court.
He had, however, scarcely resumed the reading
his notes, when Mr. Mann again rose and inter-
rupted him, on which his Honor rose and said—
I adjourn the court and dismiss the jury ; and
accordingly left the Court-house.
A scene of the utmost confusion took place—
the jury were uncertain as to their being dismissed
—the Clerk of the Court stated the court to be
adjourned till the next day at ten.
Mr. Stevenson declared his perfect willingness,
Mr. Fisher would not answer any more ques-
tions, to leave the case in the hands of the jury,
provided his Honor could be induced to return into
court and go on with the case at once.
The Clerk of tbe Court proceeded to the Judge's
chambers, but found he was gone to Government
House.
Mr. Smart, the Sheriff, shortly after entered the

court, and the jury addressed him, requiring to
know whether they were discharged.
Mr. Smart, in a very vehement harangue, in
which he protested his own constant anxiety to do
his duty, and his determination at all times to act
constitutionally, expressed his regret that impe-
rious duties elsewhere had prevented his being
present in court the last two days: he protested
that he never knew an instance of a jury having
been allowed to separate prior to delivering their
verdict—he reflected on the Judge for permitting
it and for leaving the court, which he declared to
be an unheard-of proceeding: he did not wish to
incite persons, but he must say that he never had
heard of such proceedings in his life; but if his
Honor had adjourned the court of course it relieved
him from all responsibility. He then told the jury
he must lock them up.
Mr. Mann expressed his determination to remain
all night; and the jury also, who were highly
excited at their time being thus trifled with. Mr.
Stevenson trusted the jury would see it was no
fault of his that the case did not go on. Subse-
quently the parties agreed to meet at ten next
day, and allow the jury to retire. Mr. Smart was
about to swear them to secrecy, when he was
reminded there was no court.
The whole proceeding was of the most extra-
ordinary character; to many new-comers who
were present its want of accordance with the
order, regularity, and decorum of an English court
of justice was very striking, and presented a
spectacle we hope never again to witness in the
Supreme Court of this colony.
THURSDAY, May 2.
Mr. Dutton, the Clerk of the Court, informed
the jury that he had a message from his Honor
the Judge.
By the advice ot the Advocate General, Mr.
Dutton committed it to paper, when the Advocate
General advised him not to deliver the message
unless signed by his Honor.
Mr. Dutton went to his Honor, but on returning
stated he was gone out, and he then read the mes-
sage, which was as follows: —" In consequence of
Mr. Mann's insulting conduct the court was ad-
journed by me, and the jury in the case dismissed,
and I positively refuse to hear the case so long as
Mr. Mann is present."
Mr. Mann—His Honor has a perfect right to do
as he pleases—I shall remain here.
Mr. Stevenson—I have been here ever since ten
o'clock ready to proceed.
The Advocate General said he had requested
Mr. Dutton not to deliver the message unless
authorised by the signature of his Honor; he has
put it in writing, but 1 think it would be far better
for the Judge to come into court, and the jury
hear his determination from his own lips rather
than from the officer of the court. If the jury
wished he would see his Honor, and endeavour to
induce him to come into court and give his own
reasons. He accordingly went, and shortly re-
turned, stating that his Honor would come into
court.
His Honor the Judge entered the court, and on
taking his seat addressed the jury as follows :—
Gentlemen of the Jury—A statement was made
to me yesterday evening that two of your number
had already made up your minds to return a ver-
dict of guilty against the defendants, whatever
evidence might appear in their favour. It was
for this reason, but not exclusively, that I have
acted as I have done; the statement was made to
me by a person about to leave the colony: sub-
sequently I heard that Captain Colton was the
person who had heard the assertion made, and
that he was willing when his vessel and himself
were safely out of the harbour to give evidence of
the fact.
Mr. Mann—I submit that is a matter which the
defendants may plead in arrest of judgment, but
it is not a matter for discussion now.
Mr. Stevenson said, I have just heard out of
doors that two of the jury are determined to find
a verdict of guilty. I confess I do not credit the
assertion, there must be some mistake, but I
think for the sake of the jury. Captain Colton
should be called.
The Advocate-General said—Gentlemen, I am
quite sure the Judge will protect you from any
imputation of this kind—you had better take your
seats and allow this case to proceed.
Mr. Coltman one of the jury, said he could not
calmly sit down to hear the case with such a charge
hanging over them; the jury had come to a deter-
mination not to proceed last night, without some
arrangement.
His Honor said the court had been adjourned
and the jury dismissed.
Mr. Stevenson said he had been endeavouring
to ascertain which of the jury it was, but in vain
—it could not be his interest to stop the case,
though he could easily conceive how much the
prosecutor might now benefit by it. He wished to
relieve the jury from the imputation, and that
the individual jurors charged with such infamous
conduct should be identified.
Mr. Mann—The proper course is to move an
arrest of judgment.
His Honor—But I refuse to go on with the
case.
It was here said that Captain Colton was out
side ; the foreman of the jury said, call him in,
we will not go on otherwise.
The Advocate-General—Gentlemen, I invited
you to take your seats, you ought not to refuse to
go on with this case.
His Honor—l adjourn the court till Thursday
when there is another case.
The foreman of the jury read a resolution which
the jury had last night passed :—" In consequence
of the irregularity of the case yesterday and to-
day, they will not assemble again till the neces-
sity of the adjournment is proved."
Mr. Mann—Will your Honor go on to-morrow
morning ?
His Honor—I will not go on while you are en-
gaged in the cause.
Mr. Mann—You may strike, but hear me—I now
address your honor, an I have a perfect right to do
so on this determination. No one pays greater
deference to the party who administers justice in
this court than I; I have sshown that I could
waive all individual feeling while you were judge
—I yesterday kept that up to the last hour of
your honor's presence : the only thing I can at all
recollect desrespectful to your honor, was using
the word "lesson" for " lecture," and but when
I saw the defendant Mr. Stevenson use a stigma-
tizing expression and groan, I turned round and
addressed your honor requiring you to keep Mr.
Stevenson within the bounds of decency; your
honor might have deemed I was doing something

disrespectful, when I was supporting the dignity
of your honor's court. You were reading notes
of my argument—several persons present heard
the groan and saw Mr. Stevenson's gestures. I
might have been wrong, and if wrong your honor
might have fined me, but your honor cannot take
this case out of my hands, a case which can only
he properly conducted by myself. Had your
honor thought fit to commit me, I should have
gone submissively, but you have given a con-
donation of the offence by leaving the court; and
now pardon me for addressing you on a subject
of import :—When a man is once admitted to the
lowest grades of our profession, he has vested in
him a freehold as much as the earth on which I
stand, and it must be proved to be forfeited, be-
fore my right to address your honor can be set
aside. Till I am disbarred in a proper way, so
long will I stand here to do that which is neces-
sary to public justice, and to parties whose in-
terests I represent. Any wrong I had done you
might have visited on me, but you cannot take
away the right I have to address you as a bar-
rister-advocate in a British court of justice—the
right to address your honor fairly and openly; on
that right depends the liberty of every man, and
Sir, you have charged me with acting disgrace-
fully—
His Honor—l said atrociously ; it was in re-
ference to the production of a deed.
Mr. Mann—Well, atrociously; be it so —you
cannot even then take away my right. I appear
here for the individual prosecutor in Her Majesty's
name. Your honor must hear me, as the jury
must hear me. To take away the liberty of an
individual thus is to take away the liberty of the
public. I have said that I did not mean anything
disrespectful to the court. There are many things
as insulting as words—there are looks more in-
sulting than anything given by slander or vitupe-
ration. I might have interfered too hastily; but
I am in your honor's hands, and I claim to address
you on this case and in all other cases. With
regard to the past offence, your honor cannot now
fine me: I am free from either fine or commit-
ment, and entitled as advocate to plead in any
cause. With great deference, I say that any fur-
ther delay is a denial of justice.
Mr. Stevenson—In point of fact I have been
grossly vituperated by the learned gentleman;
and it he says that his indecent behaviour is to be
palliated because mine resembles or exceeds it,
he uses a strange argument, and states besides
what every gentleman in the court can witness is
not fact. Sir, in the midst of all the personal
and malignant abuse heaped upon me, I have been
perfectly unmoved. It is a fit weapon for Mr.
Mann and his friend the prosecutor—not for me.
It was only when I heard Mr. Mann say he
would read your honor a lesson, I turned away in
disgust. It was the first time I ever heard such
a thing in a British court of justice, and I fervently
trust it will be the last.
The Advocate General—I claim the right to be
heard on the part of her Majesty the Queen—I
claim the right to be heard as her Advocate
General to go on with this case. If your honor
decides on releasing the defendants —if your
honor dismiss the jury—I hope your honor will
allow me to dissent, I am her Majesty's Advo-
cate General, and I stand claiming the right to go
on.
His Honor—And I do not dispute it; I am per-
fectly ready to hear you.
Captain Colton here entered, and appeared at
the table increasing the excitement.
His Honor put a question as to his statement
about two of the jury.
Captain Colton said one only.
The Advocate General—Captain Colton can
have no right to be heard now. If this course of
proceeding is to be adopted, and these violations
of all order of the court, there will be no end to
it.
His Honor—And I entertain the same opinion.
I hardly know how to act, the interruptions
have been so great. I adjourn the court till to-
morrow at ten.
The Advocate General then recommmended
that the jury, the plaintiff, and defendant should
meet Captain Colton in the Judge's chambers,
and hear his testimony, which may be pleaded in
arrest should the defendants be convicted. The
plaintiff's counsel, however, declined this course.
His Honor expressed his willingness to meet
them, and the jury expressed their unwillingness
to retire.
The Advocate General then addressed the jury
—His honor, gentlemen, has adjourned the court
on his own responsibility. It is a great hardship
for you to be drawn away from your business day
after day; but you are all liable to this duty,
however destructive to your interests. I recom-
mend you to go quietly to your houses—you can-
not be excused by this delay from your duty. I
thank God I am not in the case, and I hope I
shall not be.
Fourth Day, May 3.
His honor the Judge took his seat at ten o'clock,
when Mr. Stevenson addressed his honor:— I
have come here under very painful feelings, and
though I have no right and never wish to inter-
fere between your honor and the members of your
court, yet this leave seems to have produced feel-
ings between the court and the bar exceedingly
prejudicial to the interests both of the prosecutor
and the defendants. If any course can be adopted
by which this case may be brought to a termina-
tion, it would be a mater of relief and justice to
myself and the other defendant, and would be
satisfactory to the country, and to every one in-
terested if your honor permit me to say as de-
fendant, that although some irregularities have
arisen which might vitiate the proceedings, I am
quite willing to take up the case at the point at
which it was broken off, and to go on before that
jury who have hitherto heard it, and pledge my
self to take no advantage of any difficulty arising
out of and subsequent to the mere stopping of the
proceedings. Let your honor leave in abeyance
any matter of complaint you may have against the
plaintiff's counsel, and allow the parties that jus-
tice to which with all due respect I think they
have a right to.
Mr. Mann—I appear here for the prosecution
and am quite ready to go on.
His Honor—Mr. Stevenson, the circumstances
are familiar to you under which the adjournment
of the court and of this case took place. It was
asserted by Mr. Fisher that it was quite unpre-
cedented that after the case had gone to a certain
point, the jury could be dismissed. The case may
not often have happened in England, but it han
happened in the neighbouring colonies. I recol-

lect a case in which Judge Fortescue stopped the
proceedings of a case from some irregularity : and
in another case at Sydney, when the Judge under
particular circumstances dismissed the case and
said it was not consistent with the dignity of the
court to give any reason for the course pursued:
and in another case at which I believe the Ad-
vocate-General was present a similar course was
pursued. It must be obvious therefore that the
mode of adjourning the court was regular. The
granting of this application, therefore, must be
regarded as a matter of favor rather than right;
but inasmuch as you yourself have made the
application I will grant it, although I shall cer-
tainly reserve to myself the right of doing that
what I think advisable in reference to the conduct
of counsel.
Mr. Mann—What I claim is a right and not a
favor: the neighbouring colonies have no jury.
Your honor is here before a jury who are to ad-
judicate on matters of fact. I claim it as a right
and by no means as a favor to go on.
His Honor—I will not grant it as a matter of
right.
Mr. Fisher here whispered to Mr. Mann.
Mr. Mann—Mr. Fisher very properly reminds
me that in a case like this the law and the fact are
both for the jury to decide.
Mr. Stevenson—I know but little about law
your honor; but I had thought the jury pre-
viously to the passing of Mr. Fox's act, or more
properly Lord Erskine's, were only judges of the
simple fact of the publication, the court decided
on the law. By the passing of that act the jury
became judges of the law in so far at least as to
say whether the publication were a libel or not.
I am now here ready to go on with the case, and
it would be a course desirable for both parties.
I came here from an anxious desire to have the
case tried in a legal way—I have no private feel-
ings in the matter, and I trust your honor will
proceed.
Mr. Mann—I am ready to go on.
It was then found that the jury in the case were
not all present, the foreman had gone down to
the harbour; but Mr. Smart, the Sheriff, having
informed the court that he had sent after him, the
court adjourned until three o'clock. When the
court again met, Mr. Chambers, the foreman, had
not returned and his honor at four o'clock ad-
journed the court till ten o'clock the ensuing day.
Fifth Day, Friday.
Immediately on his honor taking his seat and
the jury being called over, the Advocate-General
addressed his honor on behalf of the jury. When
your honor met the jury the other day you men-
tioned a matter which they considered as casting
a strong stigma on their character. Unless the
impression then made on your honor's mind be
removed, they feel they cannot sit longer as
jurors to try the case now before them. I allude to
the representation made to you by an individual
now no longer in the colony that one or more of
the jury had declared an intention to find the de-
fendants guilty whatever evidence might be ad-
duced. When the jury left the court they called
that gentleman before them and requested him to
point out the person; Captain Colton in the pre-
sence of Mr. Mann could not do so: he looked
at them and did not recognise the individual whom
he had heard make the statement. It appeared
that Captain Colton was at a public house kept
by a person named Chittleborough, and it was
there he heard the words used. The Jury were
not satisfied, they went to Chittleborough and
asked him to recollect the persons who were at his
house on the evening in question, and the jury
repeated the whole of their own names, and of
several other persons, and it appeared not one of
them had been there. There must therefore have
been some mistake in the matter, and I trust
your honor will assure the jury that you are satis-
fied the imputation was unjust.
His Honor said, I am now convinced it was not
a juryman, and I am perfectly satisfied it was not
one of you.
Mr. Mann then called Colonel William Light.
Mr. Stevenson—I understood the case was to
be resumed at the point at which it left off.
Mr. Mann—When his honor left the court, a
discussion took place, the feelings of the jury
were much excited, and Mr. Stevenson decided to
go on, and said he would not ask a single question
more.
Mr. Stevenson—That is not in accordance with
the fact. Your honor left thc court abruptly, and
I said that if your honor would then return to the
court, to save the time of the court and jury I for
one was willing to waive all questions; but it
was expressly on the condition of the case going
on forthwith. That condition has not been ful-
filled, and I am entitled to go on as if no such
offer had been made. I would not have consented
to waive the examination of Mr. Fisher, but under
those particular circumstances; if the jury had
sat still and then heard the case to a conclusion,
I should have been in a very different position.
The terms on which I consented have not been
fulfilled, and I am now here that the jury may
proceed from the point we left off at.
Mr. Mann—The jury on being appealed to
stated that from the excitement they were in, and
the confusion in the court, they had no clear re-
collection of what propositions were made or
acceded to.
His honor then read the note he was taking of
Mr. Mann's argument when the court was ad-
journed on Tuesday.
Mr. Mann then continued his argument to prove
that both in criminal and civil cases the defendant
was not entitled to justify the libel. He may
shew it is a fair criticism or stricture, or that it is
a fair report or proceeding, but he cannot say the
specific case of libel is truth. On the part of the
prosecutor I say if the defendants can prove the
regulations were illegal or other matters in
the libel, or that the prosecutor tricked or
cheated or choused in any of those regulations, or
be actually nursed land on the Murray, I will con-
sent to such evidence. But if he cannot shew
the specific facts, you gentlemen must return a
verdict of guilty.
Mr. Stevenson—lt is exceedingly painful to be
placed in a position to ask questions which must
necessarily be most unpleasant to the prosecutor
—if I am forced to do so, it is by the prosecutor
himself. But more, I contend I have a clear and
distinct right to use in evidence whatever has been
put in as such by the prosecutor. He has pro-
duced and founded on the whole file of papers
from No. 2 to 19, and I contend that wherever
Mr. Fisher it named there, I am entitled to ask
questions; I am not to be limited to the article
alone. Mr. Mann has said, that from the com-

mencement of the paper till Saturday last, Fisher
was maligned and libelled in it—but he has not
only produced the papers, he has examined evi-
dence out of the libel on articles under date of
September last, and of 28th April, only last week.
I am entitled to go through the whole evidence of
Mr. Fisher, and he has given me a rigbt
to do so by pursuing the course he has done.
Your honor must therefore decide this point first,
whether a party producing documents as evi-
dence can refuse to answer questions founded on
those documents.
His honor asked which of the papers had been
produced in evidence.
Mr. Mann said he had only put in that of Satur-
day, 16th September, 1837, which he put in to
prove the editorship, which is an aggravation of
guilt; the one containing the specified libel of
of 24th February, and the other of the 28th ult.,
to show that the animus still continued.
Mr. Stevenson—The whole file of papers were
put in, and it was stated that through the whole
series, the defendants had published malignant
libels from 2d June to 28th April.
Mr. Mann had not put in the whole.
Mr. Stevenson contended they were put in as a
file.
The Clerk of the Court said he had read matters
to the Court from the papers dated 16th Sep-
tember, 24th February, and 28th April.
Mr. Mann repeated his previous assertion.
Mr. Stevenson—The whole were decidedly put
in in evidence, and the jury told the whole were a
series of malignant assertions on Mr. Fisher. (Mr.
Stevenson here requested Mr. Smart, the sheriff,
would have the goodness to make any observa-
tions in a lower tone, so as not to interrupt him
and Mr. Smart was about to reply, but was
checked by the Judge). Can a man put in these
papers, and found a charge against my private and
public character, and I not allowed to put ques-
tions to the party to show the statement is untrue.
Is that the law of evidence ? Common law and
common sense both repudiate it.
His honor decided that Mr. Stevenson might
ask such questions as he thought fit, but it must
rest with Mr. Fisher to answer them or not. If
Mr. Fisher deemed that answering the questions
would criminate himself, he had no right to do so.
he might refuse to answer, and the motive for his
so doing would be a matter for the jury to weigh
in their own mind when they came to the conside-
ration of their verdict.
Mr. Smart explained his interruption, and fa-
vored the jury with a scrap of Latin on the
subject.
The examination of J. H. Fisher Esq., was then
resumed by Mr. Stevenson.
Were certain stores of the Commissioners, sent
for the use of the colonists generally, sold by you
by private contract to the South Australian Com-
pany ?
Mr. Mann again objected to the question.
Mr. Stevenson—Mr. Fisher, will you answer
the question ?
Mr. Fisher—I place myself in the hands of Mr.
Mann.
Mr. Mann—I object to his answering.
His honor—You are not bound to answer ques-
tions what might be supposed to affect yourself as
to any charge.
Mr Stevenson to witness—Did you sell to Mr.
Hack certain cows by private sale ?
Mr. Mann objected on the ground of relevancy.
Mr. Fisher—I place myself in the hands of my
counsel.
Mr. Stevenson considered that it was his un-
doubted right to have an answer from the witness
himself; he has no privilege but that belonging to
any other witness. If Mr. Fisher consider it an
improper question, it is for Mr. Fisher to give
that answer. I never heard of a counsel answering
for a witness in my life.
The Advocate General said the practice un-
doubtedly is, that the witness must object if he
consider the answer would degrade his character,
or subject him to punishment; but in cases af-
fecting the relevancy of the question, the counsel
may object; in the other case, Mr. Fisher must
object that it tends to disgrace his character.
Mr. Stevenson—Will your honor give a decision
on another point; who is to decide on the rele-
vancy or irrelevancy of a question ? It is not a
question now, for the question or answer will
affect the moral, not the public character of Mr.
Fisher.
To Mr. Fisher—Do you remember the proof of
a letter of the colonist being sent to you in July
last, requesting you to look it over? No ; a letter
came without a proof. I should have been glad
to have seen the proof, because then I should have
known the writer. (The witness evidently did
not understand the technical differences of proof
and copy as used in printing-offices; he thought
it was the enquiry related to the M. S. copy.)
Mr. Stevenson proceeded to read a note:—
" The editor of the Gazette presents compliments
to the hon. Mr. Fisher, and begs leave to enclose
him a copy in proof of two letters which will
appear in the ensuing number of the Gazette, with
the view that if Mr. Fisher has any remarks to
offer on the matter therein referred to, he may
have an opportunity of publishing such remarks
at the same time, if they are sent to this office
before 12 o'clock to-morrow.
Gazette Office, Thursday morning.
Mr. Fisher—l cannot speak positively as to the
proof. I gave an answer to the editor's letter.
Mr. Stevenson—Did you avail yourself of the
offer made you?
Mr. Mann again objected as to the relevancy,
but the witness answered—I gave a written reply.
Mr. Stevenson—Did you decline or avail your-
self of the offer ?
Mr. Mann objected again on the same ground.
Mr. Stevenson—Have you ever been connected
with a party desirous of establishing another
newspaper in opposition to the South Australian
Gazette?
Mr. Mann objected.
Mr. Stevenson—Did you sign a paper, after-
wards published as a handbill, addressed to their
brother colonists?
Mr. Mann—I object on the same grounds; it
is really useless to repeat any thing but that
which is particular to the libel can be gone into.
They cannot make out contingency of guilt arising
from honesty or dishonesty of previous conduct.
Mr. Stevenson—I have no wish to waste the
time of the court and jury. If the witness
shrink before a jury from answering such questions,
it is for him to explain why; I ask the questions
I deem necessary; I care not whether he answer

or not. It is a public and painful duty I have to
perform, and I will perform it.
Mr. Stevenson—Did you call a meeting by
public advertisement to be held on 10th August
last ?
Witness—On what subject?
Mr. Stevenson—To take the opinion of the co-
lonists with regard to certain letters of " The Co-
lonist."
Mr. Mann—I object on the same grounds.
Mr. Stevenson—The whole papers were put in;
the witness, Robert Fisher, was desired to turn
them over, and to fix on any article written by me ;
and if that be not putting in the whole, I do not
know what is. He said I want No. 7, it is not
here. If the prosecutor could turn over the whole
file, and question a witness upon their contents,
surely the defendants may do the same ?
His honor—The reason and motive for not
answering such questions must be left with the
jury to decide.
Mr. Mann—I object on the ground of relevancy.
His honor—Shew me what is the relevancy of
this question.
Mr. Stevenson—I wish to follow it up by asking
whether he communicated to the Commissioners
the fact of his having purchased privately, for his
own family, a certain number of bullocks en-
trusted to him for the use of the colonists ge-
nerally.
Mr. Mann—We are not met to try the question
of Mr. Fisher's character. I said at first all this
would be the case. Mr. Fisher's character is not
to govern the jury in their verdict; this is to con-
fuse right and wrong. All those things shall come
before a jury at a proper time.
His honor desired Mr. Stevenson to give a prima
facie case to prove the relevancy.
Mr. Stevenson—l want to prove that Mr. Fisher's
conduct, as Resident Commissioner, has not been
correct, and to ask such questions as may prove
that fact. I say he called a meeting, a public
meeting, to give answers to the questions put by
the Colonist; and that at that meeting, he gave
what he called an explanation. I want to know
whether what he said was true or not. This is a
case in which Mr. Fisher's character, as Resident
Commissioner, is at issue By calling witnesses
to look over the whole file, he has made the whole
file evidence.
Mr. Mann—I deny that Mr. Fisher's character
has any thing to do with the libel.
Did you, on or about 28th March, 1837, com-
municate to the Commissioners in England your
proceedings in reference to the disposal of certain
animals, bullocks, cows, &c. ?
Mr. Mann objected.
Do you remember the circumstance of a person
of the name of Trollope dying in the infirmary ?
Mr. Mann—I object to that question.
One of the jury (Fordham) here said that he
thought only the three papers were put in as
evidence.
Mr. Stevenson—Pray, Mr. Fisher, are you de-
sired in your instructions to give the fullest and
most constant publicity to all your proceedings as
Resident Commissioner of public lands ?
Mr. Mann—I object on the former ground; and
also that there are private instructions from the
Comissioners which ought not to be produced.
His honor—I allow that objection on the latter
ground.
Do you remember a meeting of landholders at
your office on 23d December last ? I do.
Do you remember a resolution moved by myself
and seconded by Mr. Gilles that half an acre on
each side of the canal should be reserved for
public purposes? I cannot take upon myself to
say exactly the terms; there was some such reso-
lution.
Was it put to the vote? It was.
Were the votes equal on that occasion ? I be-
lieve not; to the best of my recollection it was
negatived.
Were you sure it was not carried by the votes
being equal ? I think it was not carried.
Are you sure that as chairman you did not say,
" The motion is not carried, the votes being
equal"? I believe I did not say any such thing*.
How was the previous question carried ? What
was it ?
Mr. Stevenson—I will read it:—That it is the
opinion of this meeting that the colonial govern-
ment cannot order the reservation of any land at
the harbour for government purposes beyond the
four acres already reserved for public purposes,
each further reservation being contrary to the
regulations of the Commissioners.
I am not aware it was put or carried at all.
You say that to the best of your recollection
the motion was not carried at all ? No, to the
best of my recollection it was not carried, and
that I did not vote as represented in the paper,
nor give a casting vote as chairman as represented
in the newspaper.
Did you enter into any public contract for car-
rying the stores of the Commissioners, or baggage
of the emigrants, from the Port or Bay?
Mr. Mann objected.
Have you ever publicly stated that you would
include no land on the Murray in the preliminary
survey? I have, I think in your presence.
Have you ever publicly declared previously to
the 20th February last the situation of districts
in which the preliminary surveys were to be car-
ried on ? I had stated the fact to many who had
asked the question.
My question is, had you ever stated it publicly?
So far as to many, to every one who came to ask;
any one that came for information always had it.
Was it then determined where the districts
were to be ? It was.
Did you ever give any public or official notice
of it? No, because I did not think it necessary.
Then, Sir, the proprietors who did not come to
you to make that enquiry had no other means of
knowing where the preliminary surveys would be?
Except by going to the Surveyor General.
Was the survey completed at that time ? Up-
wards of 60,000 acres were completely surveyed.
And the survey was in progress beyond that ?
The defendant Thomas was so informed at the
meeting of 20th February.
Would the balloting for choice at the time
originally fixed by you have enabled the prelimi-
nary land owners to obtain their land sooner? The
time for the ballot was fixed by the land owners
and not by myself, but I conceive it would have
enabled them to get their land sooner.
Has it done so ? Yes.
* There is positive proof that Mr. Fisher did.

In how many instances ? In the first choice.
Who held the first choice ? The Surveyor Ge-
neral, who obtained his order of choice as the
rest, by ballot.
Has any other choice been made? Not that I
know of, it could have been made.
Who has the second choice ? Mr. Morphett as
agent for Mr. Blundell. His Excellency the Go-
vernor has the third.
No. 3 cannot choose till No. 2 has so done?
Not till 12th May. If Mr. Morphett declared
before, the next might, and so on in succession.
Some persons have different notions to others—
some wish to see their land, others buy without
seeing—some have gone to Encounter Bay.
Mr. Stevenson—I shall now only put one more
question, which, if objected to, I shall not perse-
vere in this line of examination.
Have you ever afforded any information of the
arrival of the emigrants sent out at the public ex-
pence, either to His Majesty's Government or to
the public, whereby the colonists might be in-
formed of such arrival, and of the trades or occu-
pation of the emigrants themselves ?
Mr. Mann—I object on the same grounds.
Mr. Stevenson—I wish to explain why I close
my examination here: it was my intention to give
the prosecutor an opportunity of explaining pub-
licly all his public conduct, an opportunity he has
pretended so anxiously to desire, but it is wasting
time to ask questions not to be answered. I beg
your honor to take a note of my objection, that
my giving up this course of examination may not
prejudice me in the subsequent steps I may
deem it proper to take.
Mr. Mann—-This address is quite irregular my
objection to these questions is that they will come
before the court in a proper time and way.
Mr. Fisher re-examined by Mr. Mann— Is the
manner in which the country surveys are taken
pointed out in the regulations of the Commission-
ers ? Yes, it is.
Were the regulations strictly followed? To
the best of my knowledge they were.
Were the regulations printed and circulated in
England before the first colonists left? They
were.
So that in point of fact before the colonists left
England the course to be pursued was publicly
noticed by the Commissioners ? Yes.
In your opinion had a sufficient quantity of
land been surveyed prior to February ? Yes.
Was that meeting of 23rd December called in
consequence of their belief of that fact ? I can-
not say that.
In point of fact, however, the subsequent pro-
ceedings took place with the consent of the pre-
liminary land-owners ? Yes.
How many were present ? About 314 of the
number were represented.
Are there not actions for libel now depending
between yourself and the defendants with regard
to other libellous matters in the South Australian
Gazette ? Yes, there is one now pending.
Colonel William Light, called and examined by
Mr. Mann—I am Surveyor General of this pro-
vince. I have in that capacity instructions from
the Commissioners for South Australia. Those
instructions contain directions as to the site of
the first town, which was left to my own judgment.
The selection of the country sections depended
on the site chosen for the town. I am desired by
my instructions as soon as the site of the first
town shall be fixed on to survey the surrounding
districts. The quantity of land now surveyed
consists of about 69,000 acres surveyed and
mapped down around the town, 27,000 acres at
Rapid Bay, 5,400 at Yankalilla, about 20,000 at
Kangaroo Island, independently of which at least
28,000 acres of what I know to be good of the
plains of Onkaparinga could be done in a short
time. In round numbers about 105 square miles
more than are required for the preliminary land
owners.
Would that leave to the owners of preliminary
land orders a sufficient quantity of good land from
which to choose ? According to my judgment it
would ; there are different opinions.
You were engaged in the Peninsular War ? I
was, and employed particularly in surveying and
reconnoitring the country, and was often obliged
to judge of land in a very hasty manner.
To the best of your belief prior to the meeting
was there a sufficient quantity of land surveyed ?
There were 60,000 acres near the town surveyed,
though not completed. Rapid Bay was partially
surveyed before the arrival of the Buffalo, and
was finished in January last year. Supposing any
individual were to give me the bearings and dis-
tances I could assign him any particular number,
provided he were correct: some do not know
north from south.
Examined by Mr. Stevenson—Did you ever
state at any public meeting how much you sup-
posed ought to be surveyed before the first choice
was made ? I think I once stated 60,000 acres,
but that I should or rather should wish to carry it
to 100,000 before that was done.
How many acres were absolutely required to
supply the 437 preliminary land owners ? About
59,000.
So that in point of fact 60,000 acres were
necessary to give the whole quantity sold ? Yes.
On the 20th February how many acres were
actually surveyed ? At least 60,000 near the town
to the best of my recollection.
Was that survey of 60,000 completed ? Com-
pleted so far that every officer employed had done
his own portion, but it was not all mapped down
in one map, but in separate sheets. The map,
however, is now completed.
Was the map in existence on the 20th February ?
It was in existence—it was not finished. The
map now produced was not finished then.
What was done on 20th February? To the best
of my recollection it was not completed till a
few days afterwards.
Had any map up to the 20th February been ex-
hibited in your office ? I think in part.
Could you remember what parts? A part of
the 60,000 acres near the town, which had been
completed by Mr. Finniss.
Previous to the selection of the town land, was
the map of the town lands exhibited ? Yes it was.
Were the town acres marked off in any way
before the ballot took place for priority of choice ?
Yes, they were staked off.
They were numbered also? Yes.
Have the country preliminary sections been
marked or numbered ? They are in progress.
They were not on 20th February? No; they
are not all done yet; none were staked out.
Were any begun on 20th February? To the
best of my recoflettion they were begun.

Had the staking off any number of the preli-
minary sections begun on 20th February? I am
not sure whether they were or not; to the best
of my belief they were begun.
They had begun marking off, but not num-
bering ? Not in the fields, they were numbered on
paper. The sections are not yet numbered except
on the map.
Does there exist at this moment any means by
which a plain country farmer could choose a spot
by personal inspection on any one of the surveyed
districts, and come to your office and put his
finger on the place in the map ? I should think
he could not.
Do you think a person of better education and
observation, but not able to take the bearings of
a spot, could point out any spot he had selected ?
He might in some cases, but generally not.
On 20th February last, did any intention exist
to include Encounter Bay in the preliminary sec-
tions ? Yes.
Was that intention publicly known? That I am
not aware of.
Was the survey of it commenced on 20th
February last? No.
When did it commence? It is not yet com-
menced.
Still it is to be included in the preliminary
surveys ? Yes.
Was there ever any intention to survey any
lands on the Murray in the preliminary sections?
Not that I am aware of.
Re-examined by Mr. Mann—Did the regulations
of the Commissioners order the numbering and
staking of the country sections before the preli-
minary land owners chose? I do not recollect
anything of the kind.
Look at the regulations and say whether the
only direction is that you should survey a suffi-
cient quantity? There is nothing as to staking
and numbering.
Are you required to include Encounter Bay or
the Murray in your preliminary survey ? I am to
survey a sufficient extent as far as practicable.
Any person requiring assistance to ascertain the
bearings and choose land would be assisted by the
officers. In point of fact out of these 150,000
acres, anybody who could obtain the bearings and
distances, might have his choice pointed out and
the number fixed.
Examined by the Judge—There are about six
or seven officers on the survey.
Mr. Mann—That is my case, your honor.
Mr. Stevenson—Gentlemen of the jury, I ap-
pear before you for the first time in my life,
charged with an act which by the law is indeed
criminal. Gentlemen, the libelling and traducing
of private character is in my estimation the most
infamous and unworthy act of which any man can
be guilty. The libelling and traducing character
of any kind is contemptible and disreputable. I
cannot express to you more forcibly my own
feelings of the man who has unjustly and without
cause stated of another that which he did not be-
lieve to be true. But a great distinction must be
made. To attack private character, is unworthy
or unmanly. Wherever you find a man libelling
private character that man's mind is not con-
stituted rightly, nor his heart in the right
place; but when a man is placed in pub-
lic office, when he is put in a situation where all
his acts become not his own property but the pro-
perty of the public, when he is paid out of the
public money, he becomes not the master but the
servant of the public. Then his character becomes
public property, and he is the subject of all fair
and legitimate enquiry. I have seen a little my-
self of public life, and I never yet knew a man
in a public station who, when his actions were
fair and honest and straight-forward, shrunk from
submitting them to public scrutiny—it is not only
due from him to submit to that, but it is the right
of the public to compel him to do so. Mr. Fisher,
the prosecutor, is in this position : he acts for all;
for you, for me; h is paid by our money, he ac-
cepted of his place with this understanding, and
you are entitled to say—Sir, you must administer
our affairs openly, honestly, and justly, you
are not to act for yourself but for us, and
whenever you act for yourself and not for
us, your conduct is a fair mark for our
animadversion. It is certainly to be regretted
at all times when a man publicly hesitates to give
an explanation of his public conduct. I never
yet knew a public man acting honestly, shrink
from giving a fair, right, and willing explanation
of his conduct. When a man administering pub-
lic affairs and filling a public office, suspected of
not using that office in a way to justify the ap-
probation of his fellow-citizens, refuses legitimate
enquiry into his conduct, refuses to answer before
a jury questions calculated to elicit the truth, or
when such a man is charged with improperly using
money not belonging to himself, and still refuses to
answer, I say such conduct is pregnant with
suspicion. I never knew a public man come into
a public court of law, to seek redress for any at
tack on his character, who did not feel there
was some colour for the charges against him.
Why should a man so placed not give an
explanation of his public conduct? We do
not go into his fireside to know if he is
the respected father, the kind husband, the
good friend—God forbid that our hostility should
be carried into tbe privacy of domestic life. But
we have a right to say to a public man—what
have you done with our money? You have done
things which by your office you ought not to have
done—answer us—we are entitled to be answered
every question touching those matters, and it is his
duty to answer. No man can refuse to account pub-
licly for his conduct who desires to have an honest
reputation. Wherever power is, there ought to
be a jealousy of power; wherever a single indi-
vidual has, or assumes to have, a control over the
public purse, it is the duty of the press to take
care that such a man's conduct is enquired into
and followed through all its secret windings and
turnings and shiftings. All such enquiries are within
the fair and legitimate ground of public question. I
have been an attentive observer of public men and
public affairs for many years, and I never knew,in the
whole course of my experience, a man refuse to
answer questions such as have been put to the
Resident Commissioner—this is the first time I
ever knew a man who had appealed to a jury for
justice to his public character so to act. We
all know and have all seen public men the parti-
cular marks for observation—we constantly see
that such a man or such a minister has done things
he ought not to have done—and attacks on his
public character are of daily occurrence. Men
of sense in England know their situation—they
know that when they accept of office they

are sure of abuse of all kinds—it is the only
payment—the only part of their salary—for which
they have not to wait till quarter day. To shew
you the latitude allowed in England in this re-
spect, I will read to you, gentlemen, an article
in which her Majesty's ministers are treated in a
way Mr. Fisher would not be at all contented with.
(Mr. Stevenson here read an extract from a late
number of the Times, under the head of " Police
intelligence extraordinary," in which ministers
were represented as theives, gamblers, &c.) Now,
gentlemen, if a thing of this kind were to be pro-
secuted in England, it would be laughed at—
hooted out of court. With regard to the position of
an editor of a newspaper, he is under great diffi-
culties and responsibilities; he is the public
guardian of the public interests of the country or
place where he happens to be. I hold him to be
altogether neglectful of his duty if he do not
freely animadvert on the actions of public men
where they appear to be wrong. It is quite im-
possible honestly to fulfil this duty and praise or
continue a passive, and silent spectator of evil
actions. There is no mode of defining what the
duty of a newspaper editor may lie. If a writer
act honestly and expose the conduct of public
men, he is sure to be quarelled with. You can-
not suppose that Robert Thomas and Co. would
ever have appeared before you if Mr. Fisher had
been allowed to go on in his course without re-
marks of that nature. If Mr. Fisher had been al-
lowed to use public money as he pleased—to do as
he pleased with others' property—it is quite impro-
bable we should have been here to-day. Gentle-
men, we have been dragged here for honestly and
faithfully doing our duty. It is quite true that
I might have stood on other grounds, but I
chalked out a course for myself, and that I have
followed. I have denounced public wrong-doing
wherever it has occurred. I knew I must sa-
crifice friendships for a short time with some I would
not otherwise have willingly offended. I knew
the consequences to every public man of speaking
honestly and fearlessly the truth; and I remembered
the words of Daniel De Foe, that "If I might give a
short hint to an impartial writer, it would be to tell him
his fate. It he resolve to venture upon the dangerous
precipice of telling unbiassed truths, let him pro-
claim war with mankind, neither to give nor to
take quarter. If he tell the crimes of great men,
they fall upon him with the iron hands of the law;
if he tell their virtues, then the mob attack him
with slander. But if he regard truth, let him
expect martyrdom on both sides; then he may go
on fearlessly. And this is the course I take my-
self." These, gentlemen, are the practical ob-
servations of one of the greatest writers of the day
in which he lived. When I came into this colony
I came prepared to support Mr. Fisher. I had
long conversations with him on our voyage—I
knew him some time before our leaving England,
and was prepared to act with him so long as I
supposed he acted consistently with his duty and
for the public benefit. Mr. Fisher knew very
well I was connected with the South Australian
Gazette —it was known to Colonel Torrens and the
Commissioners generally. Neither was it any
secret that I commenced the publication of the
South Australian Gazette in London, with a view
to promote the interests of this colony and to
support the principles on which it is founded—
but I began it with a determination to put down
misconduct in public men wherever it appeared ;
I have followed that course—it is because I have
done so that I stand here to-day. This course I
am prepared to defend and maintain; and I can
look you and every man in the face and say, I have
done it. Gentlemen, it appears to be a great
crime in the eyes of Mr. Fisher to be connected
with the press—a crime in me that when I was
Clerk of the Council and a Justice of Peace,
" Heaven save the mark !" I should have conducted
a newspaper. It may be a crime also to be a pro-
prietor of a newspaper, and another to be a pub-
lisher. But, notwithstanding, we are told there
is to be another newspaper, in which the prose-
cutor, his attorney, and many others, are the
editors, printers, and proprietors. I am glad of it.
I never knew any success or good produced when
a newspaper was single. I rejoice there is to be
another. There can then be nothing like con-
cealment—now the conduct of public men must
be scrutinized ; nothing can be said or done which
may not be exposed. It will now cease to be a
libel to say to Mr. Fisher:—You, Sir, are a pub-
lic man, invested with power or entrusted with
money, and we demand to know whether you have
used it wrongfully or employed it rightfully. It
will enable you, gentlemen, to judge where truth
is. A single newspaper can hardly do this.
People will not write in a paper they do not like.
Mr. Fisher can no longer have a shadow of ex-
cuse for concealment. Yet, let me say, no in-
tance has occurred of any public officer being pre-
vented from publishing whatever he liked in the
Gazette. So far from desiring to pulish any
thing against Mr. Fisher which he could not have
liberty to answer, a proof of the very first article
in which his public character was impeached, was
sent to Mr. Fisher with a note, a respectful note,
stating that though the editor must publish the
letter, still if he had any thing to say in reply to
the charge, I should be happy to insert it in the
same paper, that the antidote might go forth with
the bane. What, gentlemen, what in God's
name, could be fairer than this ? Here is a state-
ment made, truly or not, of selling park at ten
guineas a cask which ought to have been sold to
the colonists at a much lower rate ; and because
your sons are engaged, in selling it privately in
stead of the colonists having to buy it at public
sale, you are accused of selfishly and pri-
vately depriving the colonists of that benefit.
If you can my anything in reply, say it—if you
have a proper explanation, give it. As a public
man Mr. Fisher had that opportunity afforded
him, and he then said, I will not—the conclusion
has been drawn that he could not. Mr. Fisher
might, without any extravagant condescension,
have explained. He might have said, I thought
it was the best and fairest method of disposing of
the pork: I wanted bullocks to bring up my
houses, and I admit I took these that suited my
work best, though these animals were bought for
your benefit at your cost, and I have taken them
for myself. I shall not explain or give any reason
why. He might have said, I am sorry I have sold
these cows to Mr Hack when you wanted them
so badly; but in giving that dealer a monopoly I
thought I was consulting your interests. This
would not have made Mr. Fisher's action proper
ones, but it would have given something like an
explanation of the transactions to those whose
property he was using as his own. He might also

have admitted—I have received a large quantity
of pork from the Commissioners for your benefit,
which I have sold privately to the Company ; and
he might have said, my sons (both minors) are
selling that pork for the Company at ten guineas
the cask, which you would have purchased at a
great deal less, and I regret it. All this might be
capable of explanation, which, if not fully jus-
tifying his conduct, might have crushed all sus-
picion that he was wilfully doing wrong. These
and a great number of other things Mr. Fisher
might have done; but there is not one instance
from the beginning to this moment of his having
done so. None of his proceedings have been made
public except his impudent defiance of her Ma-
jesty's authority in the case of Mr. Brown. Mr.
Fisher is bound by his instructions to give the
most constant and full publicity within the colony
to all his proceedings as Resident Commissioner
of public lands : he has done no such thing; he
has not stated to the public one single act he has
done since his arrival in the colony—what have
been done with the large sums of money he has
received—in what manner he has fulfilled his in-
structions—we are altogether ignorant. No infor-
mation connected with his public conduct has
ever been made known in the colony. I appeal to
you if it is possible that a public man who pub-
lished his procecdings, and these proceedings fair
and honorable, could justly say that his public
character or conduct was injured by doing so?
A jast ground of suspicion is alone afforded by
the man who, entrusted with patronage and public
money, carefully conteals his actions from the
scrutiny of his masters. Gentlemen, with regard
to the mere fact of being connected with a news-
paper, it is not so exceedingly disreputable an
employment as the learned gentleman who opened
this case may imagine. Mr. Fisher himself is not
so entirely independent of the opinion of news-
papers as he would have you suppose —nor is he
so callous as he may think himself to their in-
tluonce—nor is he insensible of the importance of
giving explanation in them on proper subjects.
To edit a paper or contribute articles, has been
an object of ambition to many and to some
people who profess to care so little for anonymous
observations of the press. Gentlemen, I think it
is fair and proper you should know this. Sup-
pose you had received a letter to this effect: —
York Buildings, Thursday morning,
22nd October, 1835.
My Dear Sir—l am still without any further
information with regard to my appointment. The
Commissioners met yesterday afternoon at three
o'clock. I left them sitting at five, and on my
return to their oftice in the evening, all I could
collect was, that there was to be a special meeting
of them on Friday. I presume that they came to
some conclusion as to the loan, but that they do not
think it right that it should transpire until the
minutes of yesterday's board have been confirmed,
which is probably the object of to-morrow's
meeting.
I have been placed upon a committee which is
to meet at half-past three this afternoon, to ar-
range for bringing out a small paper to be called
the " South Australian Gazette," which a person
has undertaken to print. It is not improbable
that I may be asked to write the first leading
article; and although I should much like to do so
and think that it might be of great service to me
if I did, I cannot venture upon it, and to undergo
the ordeal of criticism to which it will be ex-
posed. Indeed, I do not feel myself competent.
It would be invaluable to me if you would be
kind enough to write one for me, as I know it
would be a production which would, not only be
deserving of every mark of approbation, but be
serviceable to the colony in the extreme. The
first paper will, of course, attract much attention;
and if I had the credit of the first leading article,
I think it would ensure my success. The first
paper is to be published on Wednesday next,
and if you would be good enough (provided you
can with perfect convenience,) to contribute your
aid for me, I should be sincerely obliged; and if
I knew you would, I should probably offer this
afternoon to supply the leading article on that
day, and I should then have contributed my por-
tion of assistance for the present. Will you send
me two lines or words by Charley the bearer,
and I shall give you a call in the evining if you
are not going out.
I remain, my dear Sir,
Your's most sincerely,
J. H. FISHER.
G. Stevenson, Esq.
Gentlemen—suppose a person in my situation had
received a letter of that sort; suppose I had not
only endeavoured to comply with the request
there made, but suppose that every assistance I
could possibly give should be given to the indivi-
dual who wrote that letter; suppose I exerted
myself to do him every service in my power in
order to promote his interests—could these appear
to you acts of malice or design of raining and
destroying the character of that individual? Is it
likely that I should try to injure a person who
could ask me thus to give my time and any little
talent I might possess for his benefit ? That the
first act of mine would be to injure and malign
the public character of that very man unless I had
very strong reasons for suspecting the honesty
or propriety of his official conduct? Is it not far
more likely I should have supported that man?
And will any one tell me thatt if his conduct has
been unworthy, his motives suspicious, his views
selfish and unjustifiable, his handling of your
money concealed and secret, it is my shame and
disgrace to have reprobated that course of that
of the individual who appears here as my prose-
cutor? I now proceed to the alleged libel itself ;
and among the many strong things which the
learned gentleman said, nothing astonished me
more than this, that I had libelled Mr. Fisher
throughout every number of the Gazette. It was
very satisfactory to hear that from the beginning
to the last number, I had done nothing but malign
the character of Mr. Fisher; it was exceedingly
pleasant to hear that nothing but falsehoods, in-
cessant and calumnious falsehoods, were written;
and it was very agreeable to ascertain that Mr.
Fisher and his law-advisers refused to answer all
questions which could prove whether these
"calumnious allegations" were true—whether
they were facts or not facts. The libel is heeded
"Most important to landholders." It commences
by saying "Mr. Resident Commissioner is at his
tricks again." Now it is reasonable to suppose
the writer meant he had been at his tricks before.
I have not, however, been permitted to prove Mr.
Fisher's previous tricks. But to say that any
one is at his tricks is not in itself libellous. We

use the word constantly; we say a man performs
a trick; it may be a capital trick—or an excellent
trick—or a scurvy trick—or a rascally trick ; but
the trick without the quality prefacing it can
never be a libel. I believe that Mr. Fisher was
performing public tricks—tricks with your money
—making you believe that he was doing that for
public what was for private ends. It means that
he was playing a trick—it might perhaps have
been a justifiable trick; but he has refused to
explain it, and the mere fact of his playing tricks
or contemplating trickery is no libel. Then, gen-
tlemen, it is a frequent charge that a man is
tricking. In the Spectator, one of the most able
and moderate of English papers — political
characters are often charged with tricking; we
read of a tricking minister, a tricking ministry,
and tricking persons. Trick is a common, al-
lowable, and definable term, as applied to the
conduct of public men. Lord Stanley charged
ministers with " thimble-rigging." Though I cer-
tainly believe this to be false, yet where is the libel?
When such a man has not acted straightforwardly
in his public capacity, it is fair and legitimate
to say he is at his tricks; and people in
England would stare because a public man was ac-
cused of tricking, if he were to prosecute for
libel. None but the galled jade could wince
under such a charge; none but a man sensible
he had played tricks would have brought such an
action. As to the words of the libel, I need not
say that a charge of illegality is by no means li-
bellous. Mr. Mann takes a singular exception as
a proof of the malignancy of the article, that in
the same paper in which an assertion is made,
the day of the meeting is unknown, there is
an advertisement fixing the very day on which the
meeting is to be held. I believe Mr. Mann does
not know that the editor of a newspaper never
[?] advertisements, and that a notice published
simultaneously with that article was not likely to
be known to him. He could not know on what
day a certain meeting was to take place, the ad-
vertisement of which he had never seen nor could
see until the paper was published. The editor
then says if any proceeding of the sort take
place-—not that it will—it is hypothetical under
particular circumstances—" if then " we proclaim
it to be, substantially and in effect, the most dis-
graceful cheat ever attempted to be practised—
calculate only to swamp the smaller landholders
and to put a few thousand pound into the pockets
of the larger owners." Why, gentlemen, is that
a libel? If your honor give an unjust decision,
you are an unjust judge; but you must do the
unjust act before you can be so charged. If you
charge more for your property than it is worth,
you are guilty of a cheat; but you must first
commit the act. Should I say, if you shoot a
man through the head, you are a murderer; can
I be brought into court for that? I may call him
a murderer if he commit a certain act; but the
charge depends on the act being committed. It
is impossible you can read this passage and say it
is a libel, or any thing like it. It is altogether
dependent on a contingency. The act was not
done; by Mr. Fisher's own shewing it was not done.
[Mr. Stevenson here read and commented at some
length on the different passages of the libel.]
Now, judge of the animus from what I have
read. Why, gentleman, is there anything
extravagant or unjust in this? Is not a man
entitled to examine the land which he has
paid for, and should he be compelled to take any
step till he has done so? If such a proceeding
had actually taken place, I should say at once—
you were cheated — you were choused — you were
swindled—you were betrayed; —it would be a
cheat and a swindle practiced upon you here—but
one never contemplated by the Commissioners
at home. Has it been done? You are asked
to choose, before you can know where your
land is situated—before you can have personal
inspection of it—before you can say there is the
number you wish for — great and irretrievable in-
justice will be done to every landholder in the
colony. The Surveyor General says, that any one
not competent to take altitudes, and fix the
bearings of a place, could not, by looking at the
map, point out the spot he wished to possess.
Admitting you could go and look at the land and
fix on it — where is the number to guide you ?—
every one of the 437 sections has to be examined
before the 12th May. In this colony there are
about 150 holders of preliminary land orders.
And what are the means, after the survey of
100,000 acres is completed, afforded there to make
their selection? What would they do for me if
my turn comes—why, I can say, I have found a
part somewhere between this and the mountains,
it is somewhere about this place, but I cannot
tell—you may choose 200, it may be half sand
half scrub, or you may choose 231, which shall be
excellent land; you may choose a swamp—he may
choose sand, and I contend that if from want of
[?] [?] information he did so he would be
choused and ?; :•':?ed and swindled. Is that the
way ;. .<u :'.!!??? •.. . ??>] your land? Did the Commis-
sioners think of doing you justice in that way?
No. They meant to do you justice— a__ple justice.
It is these gentlemen here who are doing you in-
justice and wrong—who are tricking you to your
face. I acquit all the Commissioners; and Col.
Light most unequivocally and fully—he is as
anxious as any man to do you justice—so far as
his means are efficient—he cannot do more than
he has done. A man more anxious for the welfare
of the colony I believe does not exist; but he cannot
do impossibilities—he cannot do that which was
intended for you. The grand public error com-
mitted was an inefficient surveying force. It is a
tremendous hardship to have waited so long — it
is hard to make you do so still—but it is doubly
hard to make you take you land without sufficient
means of judging of its value, and squander your
money away after your land. You will now, in a
few days, be compelled to choose. What was
said on 20th February is true on 4th May—you
have but little more facility now than you had then
for choice. And I contend that you are not obliged
to choose your land till it is surveyed to a suf-
ficient extent to give you ample choice; you can
never be compelled to choose your land without
means of judging as to its suitableness. What
was known on 20th February when this article
was published? Why that 60,000 acres were sur-
veyed round the town; but even then their survey
was not completed—not in a state for enabling
you to [?]. The whole of the preliminary land
orders require about 5?,000 acres, and you were
[?] [?] in a place where one third was of no
value to choose 58,000 acres out of 49,060; for if
one third were useless land, as the fact is, it re-
duces the 69,000 surveyed to 43,000 at once.

Why, gentlemen, how could you choose 58,00
acres of land out of 40,000? A certain gentle-
man swore there were 100,000 acres surveyed and
ready for choice; and we have it in evidence
from the Surveyor General that the survey of
100,000 acres is not completed at this moment.
The difference of 100,000 acres being surveyed
and the survey of 100,000 acres being completed
is very great. You are called on to choose them
before they are measured of or numbered. A
man with a ruler can go near the sections at once
on a map with a stroke of the pen, and I cannot
consider that land measured off. I ought to be
able to go on the land and examine every [?]y
—be able to ascertain the natural advantages of
rivers, flats, timber, &c. But I ask, would it have
been fair, honest, or fulfilling the instructions of
the Commissioners, to have forced me to a choice,
without first affording these facilities? The
districts themselves were not even known at that
time. Colonel Light had some knowledge that
Encounter Bay was to form part of the survey;
it was also known to some of the favoured
friends of the Resident Commissioner; but the
government did not know it — the principal
landholders did not know it. How then could
you choose till you did know it? Why, there was
no opportunity, no chance, of hearing of that
which, according to my firm belief, will yet be
the most valuable location of the principal far-
mers. Was that right? It was a deception
caused by improper concealment of a public officer
Gentlemen, a considerable part of this article the
prosecutor did not regard it convenient to insert
in the indictment. "It is a sad," &c. "No one
has heard the Murray," &c. Gentlemen, the
same fact exists now. You may go into the
fields and select land, but you cannot avail your-
selves of your right of chance of land on the
Murray. Gentlemen, if I understand any thing
of the colony, the very part of which the prelimi-
nary land should be selected is on the Murray.
Only conceive of a survey of land in America so
conducted that you had landed in Florida, and
that preliminary land holders should have heard
of a river some distance off called the Mississippi,
and before you completed your selection of lands
you had said, let us have a little land on the
banks of the Mississippi—what would you think if
Mr. Fisher had said—no, you have purchased and
paid for the best land, but the best land you
shall not choose. I have not seen the land you
speak of—the surveyor has not seen it; you know
it to be the best; but I, the Resident Commis-
sioner, tell you you have no right to it, and you
shan't have it! All this, too, in the face of the
order of the Commissioners that you shall have
the choice of the best land in the best location!
Was it not necessary after such a fact to shew
you how Mr. Fisher was exercising his public
duties to your prejudice? Mr. Fisher was acting
in a most improper, almost in a fraudulent manner;
and the editor very frankly says "if such things be
done, then it is a cheat," &c. I will say and repeat it,
if such things be done, that it is a cheat—a gross
cheat too—that the right of every one of the pre-
liminary land holders is sacrificed. Why should
not the bold truth be spoken? What did Sir John
Jeffcott say? "If, then, my view of this question
be not the correct one, supported as I am in that
view by the terms of the publication which I
have just read, and others issued under the au-
thority of the Colonization Commissioners in
England, then have the Colonization Commissioners
—I say it boldly—been holding out false claims
to the public who may have been induced to come
out here in reliance on the correctness of the
repii;" = ?.-.:•? '.:• :.s given in their prospectuses
and publications." Gentlemen, I have shewn
you that putting a hypothetical case is not a libel,
and Sir John Jeffcott thought the same. Gen-
tlemen, Mr. Fisher has admitted in his evidence
that he has refused to give any part of the best
land in the colony on the banks of the Murray,
where
teen or fifteen hundred l:.',i-. .';i^:>> is i :- 1..:
lands — land is more valuable because of the faci-
lities afforded for producing cheaply and carrying
to a market; the mere position of a place often
renders land more valuable that the annual power
of producing. Thus, I have known land in such
situations produce two to three pounds per acre,
while many of better quality at a little distance,
would not fetch two dollars. It is the best be-
cause it possesses the best road to market—has
the best water communication ; but says Mr.
Fisher, you shan't have it. Well, we have all heard
that the South Australian Company meant to have
a survey there ; I have heard [?] a body of
private gentleman in this colony meant to
have a survey there—and is there any crime in
saying it is to be [?] for a special survey ?
But I couple it with the fact—the startling fact—
that Mr. Fisher has prevented the preliminary land
owners from occupying it. It is for you to judge
of motives ; but I say that Mr. Fisher has incurred
a serious responsibility by taking from you a right
so valuable. He says, the land is the best; but
is the exercise of my discretionary power, repre-
senting gentlemen who are anxious you should
have every opportunity of selection, I say, I can-
not include the land on the Murray. Gentlemen,
you are to remember that Mr. Fisher's acts can-
not be controlled but at 13,000 miles distance ;
is it fair, just, or right he should do this? I assert
it to be wrong, to be more than wrong, to be
highly and most palpably improper, not to use
another or stronger phrase. I have said what I
would stand by, and would have proved every fact
by Mr. Fisher's own lips. I undertook to prove
it, but I have not been allowed to do so. But it
is necessary to go a little further into the present
state of the survey to show you it was absolutely
impossible the preliminary landholders could have
obtained a fair choice then. Colonel Light said
that 60,000 acres were so far surveyed as that the
several officers had mapped down their parts ;
and he also said that there were no means by
which a plain farmer could by personal inspection
select the precise spot he might prefer. Now, I
contend that the survey was not completed, and
cannot be completed till that is done. When the
town lands were surveyed, stakes were put and
the acres were numbered. You could go on it,
and say, that is the land I wish to have. By the
instructions of the Commissioners, the country
sections were to be similarly completed. Without
such staking and numbering, how can any one
choose? Ruling to a particular piece, how shall
I know if it be 220 or 250? You are at the
mercy of a number of individuals, but you have
a right to say — my property as [?]
land owner is valuable, and completely out of
reach of the others. I [?] [?] [?] [?]

property of another, nor can they have over me.
The regulations of the Commissioners protect
me by putting it out of the discretionary power
of any one; and any thing by which that right
is injured, Mr. Fisher has no authority or justifi-
cation for doing. You must be perfectly satisfied
from Colonel Light's evidence that the survey had
not proceeded to a sufficient extent. On that a
material point of the writers' remarks rests. They
were fully entitled to say a cheat in effect would
have been practised, and that too by the Resident
Commissioner, if the sections had been chosen
before the land was ready for choice. Gentle-
men, I have done with the libel; it is not neces-
sary I should say more on that point; but a few
remarks are necessary on the general question.
In the prosecution of this libel, I have been most
shamefully treated by the attorney for the prose-
cutor, Mr. Mann. It is pretty well known that
that gentleman and myself, partly on private and
partly on public grounds, are political enemies.
I can conceive a man, actuated by political feeling,
doing many things; but political feeling cannot
sanction an unjustifiable, degrading, and unpro-
fessional act. Gentlemen, a connexion was at-
tempted to be established by Mr. Mann between
Mr. Thomas and myself by the production of a
certain deed. Mr. Mann held that deed as the
confidential attorney of Mr. Thomas and myself.
[ Mr. Mann here said across the table—" the deed
is not in evidence," to which Mr. Stevenson re-
plied, that was not Mr. Mann's fault.] No, gen-
tlemen, it was not the learned gentleman's fault.
Never yet was such a thing attempted in any
court of law in England; had it been done there,
it would have been met, not by the imperfect
remarks of the defendant, but by the steps the
members of that honorable profession know how
to pursue when a brother betrays the confidence
of his clients. Mr. Mann says it is not in evidence,
and I say it is not his fault; but, gentlemen, he
offered his own evidence to prove facts — the
knowledge of which were only obtained by him
under the seal of professional confidence. One
word as to Robert Fisher who was called to es-
tablish me as a principal writer in this paper. My
right to be in the printing-office was well
known to this witness who shewed such com-
mendable eagerness to betray the confidence of
his employer. It may not be known to you,
gentlemen, that, by an act of council, the pub-
lication of the Official Gazette is entrusted to me;
and that I am fully authorised in that character to
enter the office. Mr. Fisher knows this too. I
have been there repeatedly, gentlemen, in the exe-
cution of that duty, and I mean to go again. One
word as to the result of your verdict. It will,
perhaps, have this effect on the colony —if unfa-
vorable to the defendant, it will shew, at least,
that you consider that the actions of public men
are not to be scrutinized at all. It has been said
by Mr. Mann that Mr. Fisher held his office for
life; but I tell you he holds it not for a day
longer than his good conduct entitles him to.
Gentlemen, it is not true that he holds it for life
—he holds it during the pleasure of her Majesty,
and no longer. He does not even hold his office
ad vitain aut culpam, and are we to be told when
grievous faults are committed by a public officer
—that there is no remedy—he holds his place for
life? are we to live under such an administration?
—is a man to trample upon us, and our answer
and redress to be—" I hold my office for life?"
Gentlemen, he is your servant, he must do as you
bid him—he must act for the interest of the pub-
lic; the Commissioners at home hold their office
no longer than they so act. The question is,
gentlemen, shall this be a free colony or not?
It has been pretended that these libels have been
an attempt to wound the principles of the colony
through Mr. Fisher. Who does not understand
this? The principles lie in a nutshell. The
whole proceeds of public land are to be de-
voted to one purpose—land is not valuable
without labor—the only difference is that the
disposal of land is not in the hands of govern-
ment, but in the hands of an officer indepen-
dent of government; that the money must be
sent to England to send you out labor, and
there is the real and substantial difference
between this and other colonies. The Com-
missioners are entitled to borrow £200,000 on
land to pay the first expenses. That, gentlemen,
is not the principle of this colony—it is a de-
parture from that principle; I consider it a
serious evil, but it could not be avoided. Now,
gentlemen, we are in a pretty state when we
are told that Mr. Fisher holds the strings of
the public purse. Government have been driven
to the necessity of raising a police, and the
Commissioner refuses any assistance. You are
taxed, gentlemen, because the Commissioner has
not thought proper to provide means for the
protection of your lives and properties. You
are suffering now because the Resident Com-
missioner will not do his duty. When £800
was wanted to pay for the canal or ditch at
the port, money was found immediately; when
money was wanted for a police force, it was
refused. That is the fact. Is the Resident
Commissioner, then, to do as he likes, and are
we not entitled to tell him—this or that is
wrong? As for Mr. Thomas, a more worthy
and innocent man is not to be found; find him
guilty and you find yourselves guilty. I main-
tain that nothing is said in the newspaper—
nothing in the alleged libel— that is not fully
justified from beginning to end; nothing if it
were not justified that might not be asserted
without being a libel; nothing that under the
same circumstances any bold or honest man
would fear to repeat. I justify what I have
said on Mr. Fisher's own statement, that there
has been concealment of public acts—improper
squandering of public money, contrary to his
duty, contrary to his orders—to the manifest
injury of the best interests of the colony. In
exposing Mr. Fisher's actions the line of fair
discussion has never been overstepped; and
whatever your verdict may be it shall exist in
this province as fully and fairly as in England.
His Honor then briefly summed up the case.
At the request of the jury he went through the
leading facts of the evidence and left the issue
to their decision without giving any opinion as
to the fact or law of the case.
The jury retired, and after an absence of two
hours returned into court with a Verdict of Guilty.
Mr. Fisher rose and thanked the jury and,
after some other observations, said, he did not
intend to call the parties up for judgment.
[We are obliged from want of room to exclude

the additional matter sent us in reference to
Mr. Fisher's observations till our next, when
these and the proceedings in court on the last
day of term, when Mr. Stevenson gave no-
tice of his intention to move for a new trial,
will be published.]
The following, we understand, are the grounds
on which a new trial is to be moved for:
1. A person placed on the jury by the
Sheriff who is not on the common petit jury
list.
2. Two of the jurymen being unable to read
or write.
3. Two of the jurymen having declared pub-
licly, after the close of the first day's pro-
ceedings that, let the proof be what it might,
they were determined to find the defendants
guilty.
4. One of the jurymen being the servant or
in the employment of the prosecutor.
5. The jury having taken with them the file
of papers produced by the prosecutor, which
was not allowed as evidence on the trial, the
defendants having been debarred so using it
6. No evidence of partnership between the
defendants.
7. The case being declared by tbe prosecutor
terminated against Mr. Stevenson, one of the
defendants, of which his honor took a note.
8. The admission of improper evidence.
9. The refusal of proper evidence.
10. The admission of parole evidence to
prove the handwriting of a manuscript of a
printed article—no notice having been given to
produce the original manuscript.
11. The defendants being debarred cross-ex-
amining the prosecutor on all points important
to the case.
12. The refusal of the prosecutor to answer
relevant questions touching his public conduct.

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