SUPREME COURT.—Civil Sittings.

New Zealander, Volume 9, Issue 773, 10 September 1853, Page 2

SUPREME COURT.—Civil Sittings.

AUCKLAND, WEDNESDAY, SEPTEMBER 7» 1853. Before His Honor Chief Justice Martin, Brown v. Williamson & Wilson, A Special Jury was summoned to try this case, the following gentlemen were sworn,— Messrs. Win. Connell (foreman), John Rout, Robert Vidal, John Watson Bain, David Nathan, Sampson Kempthorne, Janes Macky, Thomas Weston, John Ireland, Edwin Davy, Robert Lisle, and Edward Rich. We subjoin a copy of the pleadings. This action is brought for One Thousand Pounds, as damiges for the publication by the defendants of the libels hereinafter mentioned. The plaintiff saith, that during the months of April and May, 1053, the plaintiff was a Candidate for the office of Superintendent of the Province of Auckland in New Zealand. That during the said time the defendants published in a certain newspaper, printed and published at Auckland, called the New Zealander, of which newspaper the defendants are printers, proprietors, and publishers; the following scandalous and malicious libels, concerning the plaintiff and concerning the office of Superintendent, and concerning the plaintiff as a

candidate for such office, at the times hereinafter respectively mentioned, (that is to say,) On the 23rd day of April, 1833, the passage following : “ Sale of Horses ! Mr. Gammon has been favoured with instructions to Sell by Public Auction, at the * Squib’ Inn, the undermentioned Horses— ‘ Mai.icb’ —This famous Steeple Chaser, hy Mr. Tom Paine’s Infidelity, out of Egotism, has frequently been known to clear the Turnpike Gates of Decency, Truth, and Fair Play,—indeed nothing is too high for him ; he lias been entered for the * Superintendency ’ Steeple Chase, or, rather, he has entered him«elf—a circumstance never recorded of any other horse, but accounted for hy the unusual develapcment of his organ of self-esteem.” On the 30lh April, 1053, the passage following:— “No man can justly he indifferent whether Robespierre or Wilherforce, Paine or Ashley be aspiring to the Chief Rule.” On the Mlh May, 1053, the passage following;— “ And suppose he did reach it, on what book would he he sworn into office? A correspondent of the New Zealander states, ‘when the census was taken, Mr. Brown did not classify himself under any sect or denomination of Christians;’ at least so I understood the letter signed Spectator, if this be the case what oath will bind him ?” And the plaintiff further saiththat plaintiff having been such Candidate as aforesaid, did, after the termination of the polling for the said office of Superintendent, and before the state of the poll was declared, apply to the Supreme Court of New Zealand for a mandamus ordering the returning Officer of the City of Auckland, the Suburbs of Auckland, and the Northern Division, to make a return on the Writ to him directed that the election for tlie said office of Superintendent had fallen on the plaintiff, and in support of such application the plaintiff did duly make and swear an affidavit upon the Holy Evangelists, before Thomas Outhwaite Esq., a Solicitor of the said Supreme Court of New Zealand having power and authority to administer an Oath on that behalf. And that the defendants on the 10th day of July, in the year aforesaid, did falsely, wickedly, and maliciously publish and cause to be published in the said New Zealander newspaper, of and concerning the plaintiff, and of and concerning the said office of Superintendent, and of and concerning the said application for a mandamus, and of and concerning the affidavit made and sworn as aforesaid, the false, scandalous, malicious and defamatory and libellous matter following, that is to say “We are far from believing that there are not amongst those who voted for Mr. Brown many who in their inmost souls,” and ending in the second column of the said Supplement with the words “ Without equivocation, mental reservation, or latitudinarian laxity, or subterfuge of any kind.” Whereby, and by the publication of the said libels the plaintiff hath sustained damage to the amount of £ 1000.

The defendants for plea say,—that as to the publication on the 23rd day of April, and ns to the publication on the 30th April, it is not admitted that they relate to the plaintiff. '1 he defendants further say as to the passages published on the Mtli May, that before the lime of publishing the same, and on or about , a Government census was taken

of the European population of the Province of New Ulster and that the plaintiff in a return made to , under the said census, did not classify himself under any sect or denomination of Religion. And, as to the passage published on the Kith July, the defendants say that the proceedings as to the demand of a poll on behalf of LieutenantColonel Wynyard on the day of nomination for the office of Superintendent, were regular and correct in all respects. And as to all the passages in the declaration set forth the defendants say that they are not nor is any of them scandalous or malicious. Upon all which allegations in the defendants’pleas contained issue is joined.

Mr. Bartley opened the case for the Plaintiff, saying that he had the honor to appear before the jury in the pn sent case on behalf of the plaintiff—that lie was well aware that the proceedings out of which this case arose, had given rise to prejudice, hut he would admonish, exhort, and adjure the Jury by every sacred tie, by the duty that they owed to society, by their duty to God, and to man, to divest themselves of any prejudice eitlter against the Plaintiff or Defendants that might exist in their minds. He did not imagine, indeed ho could not conceive it possible, that there was any man in the box who;cou!d go into it with the determination to do wrong ; but lie must beg them emphatically to guard themselves against allowing their passions to influence them either on the one side or the oilier, lie made these observations more particularly with reference to a motion that they were doubtless aware bad been made to this Court for the purpose of obtaining a trial of this cause elsewhere. He was aware that the tendency of that motion was to increase the feeling of prejudice against his client, but lie must remind them that it was their duty as he was sure it was their will and pleasure to control those feelings if they did exist, and to throw overboard all prejudice in the matter. That the motion was in itself a fair motion, was a usual motion, one not uncommon in England, and one that the circumstances of the ca c had rendered necessary; that no disrespect was intended to the jury try that motion, and that he should not have alluded to it except for the object of setting himself right with them. And having set himself right with them, he again cautioned them to guard against prejudice, and reminded them that they were entrusted not with the rights of persons alone, but with the protection of society at large. That he trusted for the honour of the town and of all the parlies concerned that they would enter upon the consideration of the case without reference to whether Mr. Brown was popular or unpopular. But whether or not, Mr. Brown was entitled to protection at their hands. That Mr. Brown was, as they were probably aware, a merchant in this Town,—a man of eminence, and had announced himself as a Candidate for the office of Superintendent of the Province of Auckland, as he had a most perfect right to do. Immediately upon his announcement of himself as a Candidate, an article was published in the New Zealander which would be laid before them, and which was merely the commencement of a series of attacksupon the Plaintiff’s character. Infidelity had been charged against him, and this alone was a grevions charge ; there was also a crime charged against him, and it was endeavoured to most grievously fasten on him the crime of Perjuiy,—not that the Plaintiff was in the dock for trial for the crime, but if he had been guilty of the conduct imputed, lie most richly deserved to he so. That the tendency of these articles was that a no less grave charge rested on the Plaintiff than these two, —Infidelity, and Perjury. The charge of Perjury is assigned in distinct and unmistakeable Language that it was no part of his duty to antuipitc the defence; hut he would remark that no justification had been pleaded, that the charge of Infidelity had been brought on several occasions, and the natural tendency of such a charge, was to reader the Plaintiff ridiculous and odious among men, and it is more strongly endeavoured to fix upon him the charge of Perjuiy. It might not be sufficient to justify the jury in finding him guilty —he should rather say in giving a verdict against him. But he must say that if lie failed iu getting.-* verdict Mr. Brown would be irretrievably damnified, that in point of fact the ch a racer, the existence, the more than life of Mr. Brown was in their hands. The first count was then read.

On the 23rd of April, 1053. —" Sale of Horses I Mr. Gammon has been favoured with instructions to sell by public auction, at the ■ Squib Inn,’the undermentioned horses:— Malice.— This famous steeple-chaser, by Mr. Tom Paine’s Infidelity, out of Egotism : has frequently been known to clear the turnpike gates of Decency, Truth, and Fair Play, indeed nothing is too high for him ; he has been entered for the ■ Superintendency ’ steeple-chase, or, rather, he has entered himself—a circumstance never recorded of any other horse, but accounted for by the unusual development of his organ of self-esteem.” No doubt Defendants would plead an election license, but the question was whether the jury would under that plea countenance calling a man Malicious, followed up as it was by an assertion that he had set at naught, Decency, Truth, and Fairplay, accusations which had a natural tendency to lower Mr. Brown in the estimation of his fellow townsmen. Second count read:—

On the 30th April, l(i. r )3, —“ No man can justly be indifferent whether Robespierre or Wilberforce, Paine or Ashley be aspiring to the Chief Rule,” It is not my duty to point out to you to whom this article alludes; I shall call before you witnesses for that purpose, but it is evident that if it refers to the Plaintiff, that coupling his name with Tom Paine, during the time of the contest for the Superintendency, would have the effect of prejudicing him in attaining his object. Third count read;—

On the 14lh May, 1053, —'• And suppose he did reach it, on what hook would he be sworn into office? A correspondent of the New-Zkalander states, 1 when the census was taken, Mr. Brown did not classify himself under any sect or denomination of Christians;’ at least so I understood the letter signed Spectator. If this be the case vvkat oath will bind him This is a distinct reference to Mr. Brown in his religious or rather irreligious character, and it is for you to form a judgment upon the tendency of this article. Fourth count read :

And on the Kith of July, 1053, commencing in the first column of the Supplement, with the words “ We arc far from believing that thsre arc not amongst those who voted for Mr. Brown many who in their inmost souls,” and ending in the second column of the said Supplement with the words “Without equivocation, mental reservation, or latitudinarian laxity, or subterfuge of any kind.”

This was said with reference to Mr. Drown, who had moved amongst us for so many years, and had never yet been charged with any improper conduct. It would bo the duty of the jury to hear evidence on this count; but it was perfectly self-evident that it was intended to charge Mr. Drown with perjury. The reference to Mr. Drown was not denied, and, if it means anything, it means that lie is either perjured or nothing. It fastens on him the charge of Perjury, he may not, strictly speaking be indictable, but it either means that or nothing, ami he would stand or fall by that. The defendants have neither justified nor apologized and lie relied on these facts that no justification had been pleaded nor apology offered. The question was whether he swore falsely or not; if he was only mistaken in what swore, it was not for any man to brand him as a perjurer and afi infidel. Did Mr, Drown design to trepan, deceive, and chouse the Court? Rut lie was quite sure they would deal with the question as it deserved. The plaintiff is charged with infidelity a charge which renders a man odious in society, and he is charged with the grevious crime of perjury; it was not whether they were for Wynyard or Brown, for A. or for B. but was Mr. Brown to hold up liis head again in the town or not ? Was he to bo admitted into society ? His learned friend the Attorney-General would doubtless display his usual ingenuity, but let him if lie could “rail the seal from off the bond,” ami if he can, he, Mr. Bartley, prayed God to send the defendants a go id deliverance.

George Valle, having been sworn, stated that he had seen a number of the jVt uv Zealander of the 13th April; that he had read the advertisement headed “ Sale of Horses” and believed part of it applied to Mr. Brown the plaintiff; conceived that Mr. Brown was there referred to as an infidel: by the term “ Malice” he understood the plaintiff to be represented as a very malicious person, and that lie was “ entered” for the Superintendency ; the terms “ decency, truth, and fair play” he conceived had reference to the plaintiff, as being a candidate for the office of Superintendent and his unfitness for that office because he was opposed to truth and fair play—that he was not a man of truth ; witness had read the passage in the letter signed “one of the assailed ministers,” in which the names of “ Robespierre and Wilber force, Paine and Ashley” were mentioned-*

The Attorney General submitted that the whole letter in which the passage occurred should be read. The Court so decided, and the following letter from the New Ze alander of the 3t)th April was read hy the Uegistrar : To the Editor of the Nkw-Zealandeu, Sin, —The Ministers of Christianity have not been unused to public criticism, nor need they shrink from it so long as they can cover themselves with the shield of truth. 'Three letters, have appeared in the Southern Cross of April ‘Jfith, animadverting upon the “ Protestant Evangelical clergymen” who signed the Requisition to Colonel Wynyard, and I beg the privilege of making some remarks upon them. They are all anonymous:— but we shall take it for granted that they were written in good faith hy professing .Christians, as they claim to be. Their spirit is indeed that of persons professing very superior scrupulousness and spirituality—though they have an acrid flavour not quite reconcileable with such virtues. But let us assume that the fountain is dearer titan the stream, and that some little feculcncy has been acquired with meandering over the columns of the Southern Cross It would therefore have been a sore trial to their humility at any time to rebuke even one reputable and blameless Christian Minister, much -nore must they have felt it so to censure nearly the entire clerical body of the Settlement. But that trial would beaugmented in this instance by another, —the necessity which they felt to appear in print to reprimand so many “ elders,’’ of the various Christian societies. And then v»e may picture them to ourselves when, with downcast eyes and sad hearts, they step over some day after “ familyworship’’ or “ prayer-meeting,’’ to drop their communication into !— the office-box of the Southern Cross. The transition must have been something from the one atmosphere into the other ! Now truly we are not writing satire, but sketching what every good man must have felt in the circumstances. Nor will we intimate that the writers did not feel thus, for we suppose them to be good men, and frame our arguments to them as such. We utterly distrust their judgment, but would speak temperately of their errors and even of their uncharitableness. And there is great uncharitableness discolouring the whole series, but especially the production signed “ Citizen.” This writer iias seen good to speak of the Christian Ministers of Auckland and its vicinity as “ turbulent priests;” by no means a gentle epithet, nor oilier than villifying and angry. With this bitter phrase rankling in Ins heart he proceeds to record as a thing lamentable hut undeniable that “ they love to see their names paraded in the public journals,” *• an untoward circumstance” “ occurring with frequencythat they have a “ thirst for notoriety” and now, with “ unprecedented meddling,”— “ while their flocks arc calmly deliberating as to what measures they shall adopt,” they “ rush into the field of action with all the political fury of the veriest worldlings.” Now how many grains of Christian love could ilie cnniingest chemi-try extract from this mass of acrimony ? Where is that generous judgment of others which marks the elevated Christian character which it may be presumed this critic would not demand from others if not possessed by himself? But we regret to say that those letters proceed upon untruthful assumptions, though we hope not designedly. Yet surely in such a case as this, more than ordinary precaution should have been taken against misconception. Some misgiving might fitly have been encouraged lest the conclusions should lie inordinately wider than the premises. Now what are the facts? Some respectable fellow-citizens brought to the houses of many and perhaps of all the Ministers a requisition which they were invited to sign, if agreeable to their views. I doubt whether one of them had heard of the Requisition until he was asked to sign, or was afterwards in any way concerned in gathering the names which filled it. No such act has been adduced hy their accusers. Can it he truthful then or just, upon the frround of this one fact, that they signed a requisition when ashed, forthwith to publish in the Southern Cross a sweeping censure against no less than ten of the Clergymen of the neighbourhood, and against the Evangelical Alliance, and Colonel Wynyard, expressed too in the violent language quoted above ? Is there no eagerness to attack manifested here? Can “Citizen” indeed be a Christian and withheld an apology for having converted such a thing into a “furious rush into the field” while “ their flocks rvere deliberating.'' But. indeed, who can “ Citizen” be ? He loftily tenders his forgiveness to the clergy “ for the exhumation from the tombs of Egypt, the mouldering ashes of its departed rnonarchs.” As “ Citizen” may he of the proud lineage of the ancient Pharoahs his forgiveness may mean something; hut we did not before know that the “ turbulent priests” had been invading these sepulchres. With some further forgiveness to these disturbers, “ Citizen” winds up his climax with the following appeal to the Editor of the Southern Cross! “ May, we not, sir, with great propriety question their fitness for the high ofiice of spiritual guides.” Surely “ Citizen” cannot be a very wise or a very modest personage even though he should be of royal descent. And how long has the Editor of the Southern Cross been his authority in seeking “ spiritual guides Of the other two writers it is but just to say that they are far less bitter than “ Citizen”—but we cannot help thinking them all liable to heavy rebuke in that they have not only published exaggerated statements and severe reflections, but that they have closed so anonymously and without seeking first any explanation from the parties assailed. Anonymous correspondence is sometimes the cloud behind which the orb cf Genius half coneals its lustre —sometimes the veil of modest worth, hut quite as often it is the covert from behind which some mean assailant his Parthian arrow. Surely men assuming such high principles as these writers do, cannot he of the latter class. But why had they not the courage to sign their work with their own name? it would at least have been satisfactory to know that the letters do not derive their influence from their namelessness alone. It could not be that men so confident in their own superior information —and of the support of the “more sober part of the community” and “ many sensible and serious persons” would shrink from the censure which their candour might bring upon them. We are willing to acquit even “Citizen” of a malign intention—but we ask is not the aspect of the letters malign ? Judging from their appearance only would not they he liable to he considered the device of a chagrined partisan—or the unadvised utterance of censorious young men of little occupation rather than the solemn and regretful testimony of high-minded and venerable “ Fathers in Christ.” We owe tire writers no ill-will, they have not injured us at all, and probably their own calmer judgment will whisper to them some deep-toned misgivings that they have erred. Such, we are persuaded will be the conclusion of many who can think seriously and speak honestly upon such questions without any itch to exhibit their thinkings in the newspaper. But we cannot for a moment bow to the principles so imperiously laid down in these letters for the guidance of Christian Ministers. They assume that there is great impropriety in the part which they have taken—that it is an exceedingly mischievous thing for them to sign a requisition. They will not, we suppose, also demand that Ministers should at their bidding refrain from the use of their franchise.

As Missionaries they are closely conncctedwilh the civil condition of the Natives- but, apart from this, they have not ceased to ho citizens when they btcame Ministers. If they have political rights like other men how can they not have also political duties. No man can justly be indifferent whether Robcspeiere or VVilberforce, Paine or Ashley be aspiring to the chief rule. Dot in truth, “ Elector” is inconsistent with himself. lie would have the ministers teach their congregations their duty in the choice of “ political rulers,” and this as " part of the council of God,” and yet when they sign a requisition along with many of those whom they may properly enough have advised, “ Elector’ writes of this in a newspaper as black, “ and striving unto blood !” The Minister may then according to him, do the greater thing of directing a hundred or a thousand persons as to how they should choose, but when he does the lesser th ng of choosing for himself he has “ descended into the arena of strife for a parliamentary representative” and may expect to be well baited with texts of Holy writ, and without them from the pages of the So art era Cross ! “Elector” forgets, too, that supposing ins own strictures on Colonel Wynyard true, we do not believe, that a requisition implies anything more than that the person addressed is comparatively the best man. It would be interesting to know how “ Elector” purposes to vote. Seeing that lie has availed himself of Mr. Brown’s newspaper, it may be supposed that he will support that gentleman. Will he then have acted in the spirit of his texts, or will he not ? Nothing ran excuse any eager partisanship in Christian Ministers or any unseemly contact with political bustle. But only iet it be understood that they be found guilty before they are assailed in the newspapers. The miry ways of electioneering ambition and chicanery do not indeed befit any man who values or professes Christian discipleship, and it were infinitely to be desired that the foot-marks of such might never be found in them. It will also require the utmost vigilance of all parties to keep asunder the ire theological and the ire political; but should that vigilance he baffled—the writers of whom we have been speaking will certainly incur the blame of having been the first to bring their intensities mischievously together.

One ok the assailed Ministers. April 29th, 1053. Examination resumed.—Witness was of opinion that the writer of the passage wished to make the impression that Mr. Urown, Robespierre , and Paine were all alike in iniquity ; that Mr Drown was a similar character to them ; he believed the word “ Paine” to mean Tom Paine; believed that Paine did a great deal of mischief in society against religion; did not believe Mr. Drown to be a parallel; Paine was an infidel, and witness believed that in associating Mr. Drown with Paine, it was meant to be conveyed that Mr. Drown was an infidel ; believed that Robespierre was the contrary to an amiable man ; as to the passage “ on what hook would he be sworn” &c.— The Attorney General said that the whole passage had better bo read.

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

In returning to a subject which we had hoped the Public and Official Declaration of the Poll on Tuesday would have set at rest, and of which many of our readers are liy this time no doubt heartily weary, we have to offer as onr justification the faetthat Mr. Brown is at the present hour a Candidate for the Superintendency, so far as it is possible for him to tnkae himself one. He is trying, by all means that unscrupulous craft can devise, to eject from the office the gentleman who lias been elevated to it by the votes of the majority of the electors, and to thrust himself into his scat. He is therefore still open to all that “ sifting” to which, according to his own doctrine on a former occasion, every candidate for a representative office is fairly amenable; and to such additional scrutiny as may naturally be provoked by his attempt to override and over-turn the popular choice by pettifogging technicalities of the genuine Old Bailey stamp.

And let us recall attention to the consideration that it is in this aspect of the case that we have deemed it our duty to dwell so much as we have done on Mr. Brown’s personal demerits. The position in which he voluntarily placed himself before the Province not merely justified but warranted sych scrutiny into his fitness for the high office to which he aspired,

as that which we and our correspondents have from time to time instituted. For him to prate about “assaults upon private character” must appear an instance of effrontery, m which “none hut himself can be his parallel,” to all who have read the attacks he has issued even within the last private character of individuals with whom he had nothing whatever to do except on the ground that they were opposed to his pretensions to the Superintendency. Had r - Brown "known when he was beaten,”—bad he receive t et ■ of the constituency against him in a spirit of becoming deference. and retired into the privacy which a majority of the Electors had by their votes declared to be his proper place, then, there might have been some show of reason in his looking for the mercy of silence so far as public animadversion is concerned, --although still it would obviously remain for those whom he had assailed to determine for themselves individually what course it might be right for them to pursue. A few further observations than we had room for in our last, seemed called for with respect to Mr. Brown’s recent appearance before the Supreme Court. We are far from believing that there are not amongst those who voted for Mr. Brown many who, in their inmost souls, so venerate the sanctity of an oath, as to shrink with abhorrence from any thing that has even the appearance of trifling with its obligation ; and many who, apart from their religious convictions and feelings as to its sactedness, would yet be rigidly governed by their sense of that honour and truth between man and man, without which society would, for all good purposes, be but as a rope of sand, and must soon crumble into disorder and ruin. Such persons will, on a searching review of this transaction, find themselves forced to a conclusion which will be only the more painful because it is so inevitable. For the plea that when Mr Brown made his affidavit he only swore that he did rot “ hear" any elector but one audibly demand the poll, is a self-evident quibble. It deserves to be classed with the practice of hard-swearing witnesses m some of the Assize courts, who think that if they can manage to kiss their thumbs instead of the book, they escape the obligation of the oath. It is undeniable that the point sought to be established was, that the poll had not been demanded by six electors. Mr. Brown swears (and, so far most truly), that he stood close to the Returning Officer, and that it was impossible that he should not "be cognisant of what took place. It follows that he must necessarily have seen a number of electors (twice the required six, or more) grouped round the Returning Officer at the moment when he heard Mr. Connell—who, as ■the mover of Col. Wynyard, was properly their spokesman — in a distinct voice demand the poll: and he must have seen the Heturning Officer’s outstretched finger, as he deliberately counted six from the group, and have heard the Returning Officer say, “ You demand a. poll?” before he, on their assent being signified, turned round to the assembly to declare that the poll would take place. Yet Mr. Brown comes before the Court to make an affidavit which, if it means anything whatever to the puipose, must mean that the poll was not demanded by the six electors. It may suit Mr. Brown’s purpose now to quibble upon this point, and even to admit that there were “technical errors” in the mode of bringing forward his case to amend which — t; ere it riot for something —he would renew Iris application to the Court,—and to concede that the Elector who first demended the poll “possibly ” did so “in the name of the other five.” It is necessary for him to shift his ground in order to make out a door of escape which his more unscrupulous partisans may exhibit to the class of pel sons who are willing to subordinate their own minds to Mr. Brown’s mind and will, but who lequire, notwithstanding, just for “the lock of the thing” to have some verbiage at hand that, amongst the unreflecting, may pass current for argument and reason. But what was written, sworn, and recorded in the Supreme Court— remains; and it will remain in all future time as an additional portraiture of the intellectual and moral features of the man who feels himself "injured,’’ as his Counsel expressed it, because he is not placed at the head of the civilized and professedly Christian communitv of the Province!

It is in relation to his pretensions to this office that the press and the public have directly to do with the matter. Had he been contented to remain plain William Brown, —merchant, shiping-agent, land-speculator, grazier, brewer,—or whatever else he may be in his wide-spread money-making schemes—then his views respecting the obligation of an oath (so long as they were not developed in some overt acts) might be exempted from scrutiny or comment, equally with the “ peculiar views” he may entertain respecting Miracles, the Inspiration of the Scriptures, the duty and propriety of attendance on Divine Worship, and kindred subjects. But when he aspires to be—not merely a representative of the people in the previously usual sense of that expression—but to occupy a new post which stands pre-eminent, —indeed alone, —in its importance amongst those places to which, under the British Constitution, the votes, of the people can elevate a representative, then, a searching investigation of such qualifications in a candidate as are here indicated, becomes not only allowable, but, if reasonable doubts exist, indispensable. There could scarcely be a more pertinent enquiry, than whether a candidate for the Superintendency could, or could not, be relied upon to take his oath of office in the fullest and strictest sense of its meaning, as understood by honest and honourable mtr, — without equivocation, mental reservation, or latitudinaiian laxity or subterfuge of any kind. Examination resumed : Witness considered this article to go to the extent that Mr. Brcw.i might lake his oath on the Bible, and still have a mental reservation in his own mind not to feel himself bound by that oath ; such was the impressiou left on witness’s mind by that article. The Attorney-General said the affidavit of Mr. Brown ought to be put in. Mr, Bartley was not referring specifically to Mr. Brown’s affidavit, but wished togetfrom the witness what he understood the article commenting on the affidavit to imply. Resumed: The article went to suggest that Mr. Brown swore contrary to his knowledge; if witness had no knowledge of Mr. Brown beyond what the article conveyed he would think him the worst of men ; he knew him to be the contrary.

By the Attorney-General: Believed the squib applied to the plaintiff by virtue of Mr. Brown having voluntarily offered himself to the community as Superintendent: the word “ entered himself” &c., would apply to him putting himself forward ; had no othei reason for believing that the squib applied to the plaintiff beyond the imputation of infidelity and the mention of the name of Paine ; thought it applied t» him because he had been charged with infidelity before; believed the names of Robespierre and Wilberforce, Paine and Ashley applied to the two Candidates; supposed that Robespierre and Paine were intended to apply to Mr. - Brown; did not think that Wilberforce and Ashley were intended to apply to Mr. Brown because he had not been accustomed to be associated with such characters. (Laughter )

By Mr. Bartlev : Plaintiff had been charged before with infidelity through the medium of the New Zealander which is the defendants’ paper; it was by reason of some thing of the Jitw-Sealander that lie had applied the term to Mr. Brown—from the manner in which the paper had spoken of Mr. Brown. By the Attorney-General : Witness could not charge his memory with the time or date at which the Ncw-Zealander had done so.

Alexander Kennedy, being sworn, stated that he thought the passage in the sale of Horses advertisement applied to Mr. Brown; it was his belief that it imputed infidelity, indecency, and want of truth to the plantiff; it also imputed maliciousness to the plaintiff; it applied to the plaintiff as a candidate for the Superintendency ; plaintiff was a merchant and a magistrate of the first standing ; from the second passage he inferred that an attempt was made to associate the plaintiff with Hobespiere and Paine; he believed that the name of Robespierre conveyed the idea of all that is bad in human nature ; Paine was notorious for his infidelity ; witness considered that the passage was intended to convey an impression to the public mind that the plaintiff was a similar character, —that was his impression of it; the third passage he thought clearly implied that if Mr. Brown were sworn on the Bible he would not be bound by the oath ; he thought the latter article attributed to the plaintiff infidelity and perjury; if applied to himself he would think the same ; witness was on the hustings on the day of polling: there was a call for a show of hands; he was behind and could see nothing himself, but the show of hands was declared in favour of Mr. Brown ; witness was behind the people on the stage, and could not hear what took place ; he did not hear anything at all that was said--scarcely heard a single word that was spoken there. Robert Schultz, being sworn, stated that he was on the hustings on the 20th June last, when there was a demand for a poll, and a show of hands; the Returning Officer declared that by the show of hands the election had fallen on Mr. Brown ; immediately after this Mr. Connell stepped forward and demanded a poll on behalf of Robert Henry Wynyard; as far as witness could recollect the words used were “ Now, sir, 1 demand a poll on behalf of Robert Henry Wynyardheard nothing further than the Returning Officer declaring that a poll had been demanded and that the polling would take place on a day named ; he was immediately behind the Beturning Officer, one party intervening ; did not hear anything further; believed that from the position he was in if anything further had taken place ha must have heard it; left the hustings on that day under the impression that nothing else had been said; he was so placed behind the Beturning Officer that he could not see any of his actions, nor did not hear him deliberately count six from the group on the hustings; had the Returning Officer spoken in an audible voice he, the witness, must have heard him ; had he spoken in a low voice, he might not have heard him, but if he had spoken deliberately he certainly thought he ought to have heard him ; Mr. Brown was in the front, and witness behind, he was close to him ; Mr. Brown was immediately on the left of the Returning Officer, one person only intervening between him and the witness.

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

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

John Makepeace, being a Separatist, went through a form of affirmation, and stated that he was present at the nomination for Superio'.eodent and saw

I

Returning Officer ; he was on the street 5m T"" - opposite the Returning Officer,- had an opportunity tn f edia!e 'y every tiling he did, and hearing too; he stood ah--* yards distant from the Returning Officer, who ° nt . fon r the witness ; after the proceedings had g me oa a c®.?® a k°'» the Returning Officer called for a shew olf hands aiid*? “ The election has fallen on Mr. Brown by a show o e C* o Mr. Connell then said “ I demand a poll on behalf ?' Henry Wynyard,” immediately after this, without th Ro! *rt of a second, Mr. Beckham said “ k poll having b“en a on the behalf of Colonel Wynyard by Mr, Connell will take place on the 30ih,” did not see’ the n*’ 0 * 1 ”’? Officer’s outstretched finger as he deliberately ■ urn »g ' from the group ; did not think it possible that he DteJ *’ x done so without his seeing it; no one could the Returning Officer being higher than where he stood'“ v ‘* w . By the Attorney-General: Witness had already* affirmation on the subject: has now said he was m ® e 88 hustings at the time, (the affirmation made by this 001 - 00 the Supreme Court to. support Mr. Brown's appii cat Wltness « Mandamus, was handed to him, and on being ackuoakd^J 8 * * Joint Makepeace, of Auckland, in New Zealand dealer, solemnly and sincerely declares and affirm attended the met ting, held on the 2oth day of j uo * , Auckland, aforesaid, for the purpose of nominatin'? ,* 7 s1 ’ i( for the office of Superintendent of the Province of ? Ddl<tates That William Brown, Esq., merchant, was propose/? I ® 4 said office. That Lieutenant-C.oloi.el Robert Henry Vir ** was also proposed at the said meting. That the show taken thereat was in favour of the said William Brim***® 4 ® was declared by the Returning Officer, Thomas Bcckha’ ** to be the person on whom the election had fallen.”*’ William Connell, Esq., demanded a poll on behalf Robert Hqnry Wynyard, but this affirmant did noth”***' 1 other person make such a demand, although this a aim?* *** close to the said Returning Officer during the whole?# *** proceedings, and verily believes that it was irotwAi? demand could have been made without this affirmant k ?? of the same. And this affirmant verily believes that elector than the said William Connell did demand a poll said meeting after the saia candidates had bee n pronncJ* *** The proceedings at the said meeting had terminated. **** dOHX MAKaprip* Affirmed at Auckland, aforesaid, this ninth day of ’ Thousand. Eight Hundred and Futy-three Thomas Outhwaitk, * ""ifi' Solicitor, Supreme Court. Examination resumed : The affirmation just read ■ ness’s, he now says he was not on the hustings, but W the crowd at the time ; does not believe there was the «li°v ‘ tt noise at the time. ® t£st By Mr. Bartley . Witness meant in the affirmation that was within alittie distance, of.if not close to the Retiimine (if ficer; about three or four yards Off—the Returning witness should suppose he could see better than those on the hustings as nothing could intervene : the crowd was very u i * then : there had been a noise before ; the words used boT Beckham wefe distinct enough, did not think it possible that other words could have been used without his hearing them. Waiter Lee, being swofn, stated he was a medical practitione in Auckland ; he was on the hustings at the lime of nominatio? some distance from the Returning Officer, there » ’ something said about a shew of hands, the Reluming declared the shew of hands to be in favor of Mr. Brown • M r Connell demanded a poll, the Returning Officer declared' flut a poll would take place, heard nothing between the lime of the demanding of the poll and the announcement that a poll would take place, did not pay attention to the time, if anything had been said it was more likely that he witness might not have heard it than otherwise ; he did not hear anything said, he saw Jir Beckham but did not see his outstretched finger, itmighthave' been so but he did not see it. Joseph Wright, being sworn, stated that he isinthe employ J of Messrs. Brown and Campbell; he was on the hustings at the nomination, very near the Returning Officer, there was a shew of hands and a declaration in favour of Mr. Brown, Mr. Connell stepped forward and demanded a poll saying <■ i demand a poll,” Captain Beckham declared die day and plac» of polling, did not hear Mr. Beckham, with outstretchedSrgtr, deliberately count one to six ; he must have heard it if it lad taken place, he was not more than half a yard from Mr. Berkham ; be stood between him and Dr. Bennett, and was certainly not more than half a yard from him. By the Attorney-General: Mr. Connell said “I demands poll for Colonel Wynyard,” wished the jury to understand that these were the words used by Mr. Connell; thought he said “ Colonel Wynyard,” witness was on the hustings until the end, almost to the last, there was a vote of thanks moved by somebody to the Returning Officer, cannot say by whom, but knew it was moved by somebody. By Mr. Bartley ; Indeed he was not prepared to say whether Mr. Connell said “Robert Henry Wynyard,” or '■ Colonel Wynyard,” his meaning was that it was for Colonel Wynyard he heard the poll demanded. Thomas Beckham, having been sworn, stated that he was ' the Returning Officer who officiated at the election for Supaiutendent; Mr. Brown and Colonel Wynyard were Candidates; the show of hands taken at the nomination was in favor of Mr. Brown, witness announced the show of hands in favour of Mr. Brown ; then after that Mr. Connell demanded s poUoa behalf of the other candidate, cannot recollect the exact words he used; whatever the words were, they drew from witneas the reply “It requires six electors to demand a poll,” or words to that effect; thought he then said here we ate.” or something like that, witness turned promptly round and *aw a number of gentlemen there, and, after counting six, asked if they demanded a poll, when either Mr. Connell oi Mr. Fossaith (witnessthought it was Mr. Forsaith) said “ we demand a poll,” and he then turned to the f rout and said a poll would take place ten days after at the market place ; he mai e the announcement of a poll having been demanded, but could not now take upon himself to name the six who demanded it, —when spoken to on the subject some time after, he was under the impression that Mr. Grahame, Mr. Salmon, Mr. Connell, Mr. Forsaith, and he thought at that time the other two were Dr. Bennett and Hr. Williamson, but he believes that was a mistake; of the former four he believes he was correct, he counted those who presented themselves to demand a poll, and when satisfied there were six, he announced that a poll had been demanded, he rather thought he counted with his hand extended, it might have been with his finger (Mr. Beckham here described to the jury the manner in which he had counted the six persons who demanded the poll) he might have counted as quickly as others would do it; he never thought he would have to give evidence on the subject, and did pot take particular notice of the ; manner in which he counted the six; unless he had been satisfied at the time that there were six to demand a poll, he weald have declared the election to have fallen on Mr,.. Brown, he was quite satisfied as to the names of four of the persons, but be could not call to mind who the other two were; he could not say that the others of the six did not apeak, could Ml say that they made any expression whatever; when witness aid " Yon demand a poll,” they were associated, as he understood, for the purpose, and one of them, he thought Mr. Forsaith, said we demand a poll; could not tax his mind asto what ns said by the other patties. _ By the Attorney-General: Witness was quite satisfied in ha own mind that six persons demanded a poll: Mr. Fotsad offered at the time to give it to him in writing,sayingetoH “ 1” or “ we will give it you in writing,” witness declared the show of hands to be in favor of the plaintiff; did tot uy anything about the election having fallen upon any one; if anf person has said that “ this deponent was then decUred by said Thomas Beckham to be the person on whom the dectiw for Superintendent had fallen,” that would not becffltttL was not a’»are that he had said anything of the kind a* the election had fallen on the plaintiff; after the poll had demanded witness declared when the polling wa* , t<J ■ ‘ place, the plaintiff was neat him on the.hustings when ot this announcement; the plaintiff did not make any p when witness declared that a poll was to take place. _ By Mr. Bartley; In case of no poll having I* 6 ® JLj the proclamation requires that the Election shouldbe « to have fallen on the person, in whose favour the hands appeared; witness’s declaration was that hands was in favour of Mr. Brown, not that the e fallen on Mr. Brown.. ... pj e Here Mr. Bartley enquired for the Gaiettc cob Proclamation, and referring to the 42nd clause, ness as follows— lfia n the " In the event of their being more Candida a number to be Electee!, the Returning Officer s a show of hands separately, in favour of each can i after such show of hands shall declare the person on whom the Election has fallen, and shall rc r

accordingly,” . . , he c i au se. The Attorney-General:—Go on to the en (0 so Mr. Bartley: (To the Attorney-General)— ,i, e Candidates, —“ unless a poll be demanded by some one , or by not less than sis electors on hlsben • j he was pres” ll on John Russell, being sworn stated that I 0 the hustings at the nomination he was ' ® kham dedal* 1 Returning officer, on his left hand: short u me Mr. Brown elected by a show of hands, a Colonel Mr. Connell came forward and demanded a P" was Wynyard; when Mr. Connell demanded 1 ® jr.Cos®*®* some consultation between the Returning o nflt B0 » and one or two gentlemen on his right han , jtjted what that'was about; Mr. Beckham turne the the day on which the election would take pja * nnona osnß , t time of Mr. Connell’s demanding a poll to t 1 minute* by Mr. Beckham that a poll would take p * • . gager out elapsed ;■ Witness did not see Mr. Beakham so> u wit* nor hear him speaking, but it might have ness was speaking to Mr. Brown at the time- g, e Mr. Bartley here wished to put in a num hj s ] C ttet of 'Zealander, published in August, 1852, m w offB ’ s view* Mr. - Brown’s had been published containing • > on the subject of education. amission ot The Attorney-General objected to the a to f whk° paper as it was issued long before the ma this action arose had been published. . w the Mr. Bartley said he wished to put it m of the defendants published the libels with the plaintiffs views contained in that letter. nve anythin i£ The Attorney-General said if it went to pr grown V would be to prove the defendants’ fairness to their publishing his letter in their paper. _ prnressi® ls Mr. Bartley said that the letter contained I he *ss the plaintiff’s admiration of the Christian Rengi sure that he (Mr. Bartley) admired it also. {jiat *** The Chief Justice said, that the presurop pjefU®*^ in favour of the plaintiff, for every man wou ( 0 the to admire the Christian Religion unless it w contrary. ge i for a* o ' 1 " Mr. Bartley then offerred to defendants sion a New Zealander of the 13th July last, w 1 General declined to admit. . . .Jmi*** 0 ® The Chief Justice said that all tendered to the making up of the issue—were admitted. {he Is* Another copy of the New Zealander puhit-m T ctio n ha' W August, the day after the commencement of w been admitted, was put in and read. {otablf It may surprise some of our readers-—aUhougP fftn. will not at all surprise others—to be inform _ . supe**®* Brown, the rejected candidate atthe lat ® min . nC ed legal tendent of the Province, has actually **) plunder, *»4 ceedings, agaiust the Pr or of the aw

eeks to recover One Thousand Pounds damages for the injury * h j ch j, e alleges himself to hive sustained from the investigation of his fitness for that high office, which has been conducted in this Journal, Those who arc unacquainted with the • true character of that person and of the little clique of which he is the centre may very naturally feel surprised at the step. That a man who has been defeated at the polling places, and more than defeated in a subsequent application to the Supreme Court, and who, moreover, has almost certainly a third discomfiture awaiting him in the result of his •* Petition” ashing x' Sir George Grey to make him Superintendent in spite of the ' majority of the electors, should have such a morbidly ravenous appetite for being overthrown as to encounter such a risk as he now dares ; —that one who would fain be regarded as pre-eminently a champion of liberty of thought and speech, and who is himself responsible for attacks upon personal and • private reputation in every class of society in the colony, from the very highest downwards, which have rendered the newsDiner of which he is the proprietor and " real Editor” a foul and offensive thing which respectable persons—alive to the credit and fair fame of the Settlement,—have been avowedly ashamed to send to their friends in other places, and which (although some have treated them with silent contempt or lofty defiance) have made others who were comparatively unknown, fell it necessary to seek out proofs which would convince their neighbours and acquaintances of the falsehood of the assertions, not knowing where the calumnies, if unrefuted, might injuriously meet them or their children, —one who was himself published to the world as his creed that " there can be po more wholesome rule than that every one who puts himself forward in a political and public capacity should be ready to'have his conduct sifted, aye to the vert,- bottom, that judgement of worthiness or unworlhiness may be passed upon him and whose newspaper practically followed out this theory of 'liberty into gross licentiousness with regard lo one of the very individuals whom he is now endeavouring to mulct because they are the publishers of articles, letters, or advertisements, iir which the principle has been inconveniently brought to bear upon his own eligibility for offices—that he, of all men, should strive to repress—or failing in that, vindictively to punish,— scrutiny into the eligibility of a candidate for the highest elective position that it is in the power of the people to bestow must, to those imperfectly acquainted with the man as he has

gradually developed himself in the history of our colonial affairs seem truly marvellous. But - like various other marvels it • becomes Intelligible'in the light of superior knowledge; and those who know Mr. Brown, as very many here have been forced by his own public conduct to know him, will not be greatly astonished even at the phase of character in which he is now self-exhibited. We have in this movement a fuller manifestation of what was intended by the ominous " Bbivark” pul: forth with all tjpographical emphasis in Mr. Brown's newspaper to intimidate his opponents in the late contest. It meant more than a threat of attacks on individual character, (such as the libellous onslaught on one of Colonel Wynyard’s Committee distorted from scraps of domestic history pumped out of a " discarded servant,” in Mr. Brown’s private office, by himself and a friend). It meant more than even the threat against the Government Officers who voted against Mr. Brown, that they would be treated as " servants combining against their masters” (Mr. Brown’s party !), and that no people "having the slightest control over their own purse-strings, would fa-get or forgive such a combination.” It looked forward as would now appear, to the present attempt by an action at law to extract from the Proprietors of a Journal which gave embodiment and expression to the Judgment and feeling of a large portion of the public, a sum of One Thousand Pounds, as a solatium to Mr. Brown’s disappointed ambition and mortified vanity, and as a help towards defraying the expences of his futile struggle for a mastery over the Province. He has resolved on the attempt, but it rests with a Jury to say whether he shell obtain the damages he seeks, or any part of them. We subjoin a copy of the legal document which has been served on Messrs. Williamson and Wilson. It is worth being placed on re;ord, if it wore only from the novelty (in this country at least) of the attempt to wreak vengeance upon a journal, because it echoed and enforced views of a candidate’s fitness for office in which it spoke the minds of many electors who, like ourselves, appoved Mr. Brown conscientiously, ’and , on exclusively public grounds—or indeed (as in three instances out of the four included in the list of " Particulars”) per- , mitted electors to speak their own mind through its columns, A Notice which had been served by plaintiffs attorney on defendants attorney calling for further production of the original manuscripts of the four articles complained of was then read by the Registrar. The Defendants declined producing the desired manuscripts. John Boyle Bennett being sworn stated he was Editor of the New-Zealander, he had been Registrar of Births, Arc., for several months, had held the appointment since the middle of June, he had not entered warnly into the election contest; — he was generally very deliberate —in what he had to do with fie contest he was earnest and conscientious. Here Mr. Bartley enquired of the witness if the articles complained of in ths action had been submitted to defendant’s revision before publication. The Attorney-General objected to the question. The Chief Justice said that defendants were sued as printers and publishers, and were accountable for what appeared in their paper, but Mr. Bartley might put the question whether articles were generally submitted to them. By Mr. Bartley: Ves, generally. Witness was present in the Supreme Court when Mr. Brown applied for a Mandamus—Mr. Williamson was present, and had full opportunity of hearing everything that occurred —cannot recollect that there was any • remonstrance made with him as to the publication of the article commenting on the affidavi ts, was not aware of anything having been said to defendants that any of the articles were so severe that they were not fit to be published ; witness was not present when any such conversation took place concerning the articles—

third parties are not cognizant of articles before publication, so far as be was aware it was a universal rule that only the writers, the proprietors, and the persons engaged in the mechanical part of the work were acquainted with articles before publication. Witness was aware of the grounds on which plaintiff's application for a Mandamus was made and believed defendants were also aware. Mr. Bartley then put several questions to witness with a view of eliciting the manner in which the articles of the ICth Juiy, <fee. had been prepared—whether by the Editor in the ordinary way or whether defendants had deposed the Editor and had written the articles themselves, contending that if they had done so it would be evidence of malice. The Attorney-General did not think that the Editor had a right to commit himself or his employers. The defendants admitted that they had published the articles with a full consciousness of their meaning and purport. The Chief Justice then said that Mr. Bartley could not go any further; defendants were sued as printers and publishers and they now admit having published the articles with a consciousness of their meaning—and thus had adopted the whole Cross examined by the Attorney-General. Witness was present on the occasion of application for Mandamus and was also present on the hustings at the nomination, and had a knowledge of what took place there. Mr. Brown’s affidavit would have produced a false impression on his mind of what had occurred. By Mr. Bartley; An impression might be erroneous or false according to circumstances; in Mr. Beckham’s case, erroneous would clearly be the word; witness knew that it was a poin made by Mr. Brown, that one, not six, demanded the polk This was the end of the plaintiff’s case. The Attorney-General , for defendants, called— John Anderson Gilfillan, who, being sworn, Stated he was a Merchant at Auckland, and Justice of the Peace he was on the hustings on the 20th June last at the nomination for Superintendent, he went as one of Cclonel Wynyard's committee to be present as one of six to demand a poll—he recollected where he stood when the poll was demanded—he was within one of the Returning Officer.was quite near enough to sec and hear what he did and said, the Returning Officer after taking the shew of hands declared it to be in favour of the plaintiff—to the best of his recollection the Returning Officer said “ the shew of hands appears in favour of Mr, Brown” or “ William Brown,” he did not hear him say anything of the kind as that the election had fallen on anyone; if anything of the kind had been said he thought he should have heard it. Mr. Connell then drew near to the Returning Officer and said “ Then, sir, I demand a poll on behalf of Robert Henry Wynyard.” Witness believed that a second time Mr. Connell raised his voice and said he demanded a poll. Witness heard the Returning Officer say •' there must be six,” or words to that effect, several with himself, he believed ten or twelve, then gathered round the Returning Officer, this was by design for the necessary number to demand a poll; Mr. Forsaith said “ Will you have the names in writing ?” or “ Will you take down the names in writing ?” the Returning Officer said “ It is not necessary." The Returning Officer then raised his right hand and counted six from the number using the words "onr—‘wo—three—four—five—six;” at the conclusion of the proceedings there was a vote of thanks moved to the Returning Officer. Witness saw Mr. Brown at that time take his hat off and go forward hut could not tell who moved the vote of thanks. By Mr. Bartley; He believed it did lake minutes for what he had now described—it must have taken more than seconds—more than s minute—did not hear Mr. Brown move a vote of thanks—did not take down the words at the time, but to the best of his Judgment and recollection the words of the Returning Officer were “ the shew of hands appears to he in favour of Mr. Brown” or “ William Brown.” Mr. Connell demanded a pull. William Smellie Grahame, being sworn, stated he was a Merchant and a Justice of the Peace he recollected the moving of the nomination for Superintendent, was on the hustings, and Stood dose to the Returning Officer behind cither Mr. Connell, or Mr. Forsaith; when the Returning Officer declared the show of hands to be in favour of Mr. Brown, Mr. Connell immediately demanded a poll on behalf of Robert Henry Wynyard ; the Returning Officer turned round in the direction of Mr, Connell and said something to him when Mr. Connell replied “ I demand a poll on behalf of Robert Henry Wynyard,” witness repeated “ And I,’’—Mr.Conneil turned round and said “Wedemand apoll,”when the Returning Officer counted six from nur number, thus, with his right hand (witness here described the manner in which the Returning Officer counted the six) the Returning Officer saW nothing more in the henring of witness—to the best of his knowledge and belief he did not say on whom the election had fallen—did not say the election had fallen on Mr. Brown. By Mr, Bartley: To the best of witness’s knowledge and belief the Returning Officer did not say the election had fallen on Mr. Brown—he could hardly have said it without witness hearing it, the proceedings were deliberately gona through—witness and the party who demanded the poll were standing on the right hand of Ms. Brown, the Returning Officer turned from from Mr. Brown, who was on his left:, when he spoke to those who demanded the poll,—Mr, Brown might have heard what passed if he had been anxious to hear it; there was difficulty in hearing what passed—witness joined with Mr. Conneli in demanding a poll, and said “ And I,” cannot tell the particular six the Returning Officer fixed upon, there were more than six presented themselves to him—Mr. Brown might not have heard them as witness did not hear them ; witness would he very sorry to say the plaintiff was perjured if he did not hear. William Powditch being sworn, stated—he was a farmer at Epsom, and a Justice of the Peace: was on the hustings Pn the 20th June—a* the Returning Officer called for a show of hands, witqes» was close by him, Mr. Williamson (one of defendants), was standing beside him; the Returning Officer

declared the show of hands in favour of Mr. Brown, "Witness called out, “demanda poll Mr. Connell,’’ and Mr. Williamson said so too; Mr. Grahame, as witness thought, said, "We demand a poll,” Mr. Salmon said, "Come forward some of you,” the Returning Officer said something to Mr. Connell, witness did not hear what ho said, Mr. Connell then said, “Wc demand a poll for Colonel Wynyard,’’ and then for " Robert Henry Wynyard,” the Returning Officer then counted in this way, (the witness described the manner) six electors.

By Mr. Bartley:—Captain Salmon said, "Como forward some of you, and demand a poll,” heard Mr Connell demand it, and heard Mr. Forsaith ask whether it should he in writing, when the Returning Officer said, "Do you demand a poll ?” Mr. Grahame said, “Of course we do, we demand a poll,”—he Relieved this to be addressed towards the Returning Officer, qe spoke forward towards the Returning Officer; believed he addressed himself to the Returning Officer; those before witness demanding the poll, were Messrs, Connell, Grahame, Salmon, Burtt, Williamson, Macky, and Forsaith ; these were all in the front rank. Witness supposed the Returning Officer was satisfied that the law was satisfied—witness supposed as the Returning Officer's finger went he took notice of those he counted—and he presumed satisfied himself. Mr. Connell said " We demand a poll,” and Mr. Salmon said " We demand a poll.” Witness was standing taking notice of what passed; Mr. Brown might have heard or not.

Thomas Spencer Forsaith, beingsworn, stated he was in the Commission of the Peace, was on the hustings on the 20th June last, seconded the nomination of Colonel Wynyard, after the show of hands Mr. Connell demanded a poll, some one replied there must be six ; the Returning Officer counted six: witness offered to the Returning Officer to give it in writing if necessary, but did not give it in writing: the Returning Officer had a book in his hand, at the time he count'd. By Mr. Bartley; Witness saw Returning Officer deliberately with hand outstretched count one, two, three, four, five six, could not tell whether his finger was out—saw some one with outstretched arm saying "here we are” when the poll was demanded —there was quite a press at the time he counted the six, witness remembered the Returning Officer afterwards in a conversation with him repeating the names of the six correctly except one.

Albert William Hansard, being sworn, stated he was a Commission Agent residing in Auckland, was standing on the west end of the hustings on the day of nomination, could not remember the exact words used by the Returning Officer, could not say whether the words used were " the show of hands is in favor of Mr. Brown’’ or • the show of hands appears to be in favor of Mr. Brown” but he said nothing about the election having fallen on any one, (the following passage from the plaintiff’s affichtvit was then read to witness by the AttorneyGeneral—" and this deponent was then declared by the said Thomas Beckham to be the person on whom the election for Superintendent had fallen”)—witness swore positively that the Returning Officer did not use those words, and he was in t. position to have heard if such words had been used, the plaintiff was standing next the Returning Officer; witness knew that a vote of thanks was moved but by whom he could not say. John Salmon, being sworn, stated he was a Merchant in Auckland; was present on the hustings on the 20th June last, the Returning Officer declared the show of hands in favor of Mr. Brown, he did notsay the election had fallen on Mr. Brown, —witness was near the Returning Officer all the time and requested Mr. Connell to demand a poll on behalf of Lieut.-Col. Robert Henry Wynyard, witness called out to the rest to come up and demand a poll, as six were required, he laid hold of Mr. Gilfillan by the arm and brought him up besidehim, witness said "come up here six of you and shew yourselves, Mr. Connell demanded a poll on behalf of Robert Henry Wynyard, witness said to the Returning Officer " here are six of us,”—he then turned round and counted them, he went on and counted six of them deliberately. By Mr. Bartley. He counted as loudly as I have done—(the witness described Captain Beckham’s manner in counting the six), witness would not say what others heard—he could say what he heard himself—perhaps Mr. Bartley might have heard it himself if he were there; witness could only answer for himself, some might be dull of hearing, and could not bear it, others might have heard it or not—the Returning Officer counted with his finger or his hand—the book was in his hand—in his left hand:—five of us demanded a poll. Messrs. Connell, Forsaith, Grahame, Gilfillan, and myself, they said “ We demand a poll,” and Mr. Forsaith said, “ We will give it you in writing,” they all spoke so as to be distinctly intelligible—they had no occasion to tell their names as the Returning Officer knew them well enough. Witness was not watching Captain Beckham's eye all the time, he said the show of hands was in favour of Mr. Brown, did not say anything about the election having fallen on Mr. Brown.

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

William Bboivs. Sworn at Auckland aforesaid, this ninth day of July, One thousand eight hundred and fifty-three, before me, Thomas Outhwaite, Solicitor, Supreme Court.

The next witness was Michael Hartnett, who, being sworn, stated that he had the census papers in his possession, and had a return now in Court made by the plaintiff; he was well acquainted with plaintiff’s hand writing—believed the return to be in his handwriting. The census return was then handed in and read, from which it appeared that under the head “ Religious Sect” the plaintiff had written ** No.”

Mr. Bartley then wished to know from the witness whether he had not other returns of a similar character. The Attorney General objected to the rctusns of other individuals being produced in Court, they having nothing to do with this case. Mr. Bartley wished to show that two eminent divines. Bishops Selwyn and Pompallicr, had sent in similar returns. The Attorney-General said he was mistaken As to one of them.

The Chief Justice could not allow the production of the returns of other individuals, but Mr. Bartley might ask generally. Mr. Bartley then asked witness if other returns had been filled up in a similar way, witness replied that there were. This closed the case for the defendants.

Mr. Bartley then addressed the jury:—After an examination of considerable length}of the number of witnesses that had been called before them, it was his duty to offer a few observations on the character of the evidence, and the nature of the charge made against the plaintiff. It was a charge of the most grevious character, infidelity and perjury. He was convinced that the jury had given their serious attention to the case, and he trusted that they would meet it with unbiassed minds—there had undoubtedly been considerable prejudice excited, but he trusted that if any existed in their minds they would divest themselves of it, and remember that with the defendants it was a matter of costs, but with the plaintiff it was a matter of character, the dearest of all possessions; that the charges were certainly of a most grievous character, involving as they did, a charge of infidelity, and also involving a charge of perjury. That there was no justification attempted, although the defendants had certainly gone to a great length in the evidence which they had given, yet he had not objected because the plaintiff did not wish to keep anything back, but wished the whole affair to be sifted to the bottom. That the plaintiff was clearly entitled to a verdict in his favour, and he (Mr. Bartley), could see no reason to doubt that he would obtain it. The next question was restitution of character, and he implored the jury to give such damages as would shew that the plaintiff was not guilty. If the articles complained of were a libel, they were a grievous libel; and the amount sought to be recovered by the plaintiff was not a large amount. That he was convinced there was no man in that box who would like to have that charge affixed upon him ; and there was no more wholesome rule than to do unto others as you would be done unto. It was quite clear that the plaintiff must have a verdict, as there was no justification pleaded. The defendants had pleaded to the first charge, that they do not relate to the plaintiff; upon this point he had given evidence clear and conclusive, and no evidence had been given to countervail that evidence, their verdict then must be for the,'plaintiff, that evidence not having been countervailed. In the first libel the defendants charge the plaintiff with malice and infidelity, in the second with infidelity, and in the third witli infidelity in the most grievous form, and in sffpport of this charge they have put in a return made by Mr, Brown to the government when taking the census, which docs not say that lie is of no religion, but simply that he is of no “ religious sect,” and, it is even admitted by the defendants that a great many other persons have so returned themselves. That if they believed that the statement in the third count was a libel, there was nothing in evidence to overturn the conclusion that it applied to the plaintiff, and nothing to mitigate the charge, the return does not support the charge of irreligion, and lie, (Mr. Bartley,) had a perfect right to say that the charge was indefensible, because it had not been defended. That the two first charges alone had the defendants contradicted, and say that they do not apply to the plaintiff. Upon that point, the plaintiff had offered clear evidence, that they do, and the defendants had not attempted to contradict that evidence. That he now came to a charge of a most grievous character, and the jury could not do otherwise than infer malice from the beginning, for, from the first moment that the plaintiff appeared as a candidate for the office of Superintendent, he had been charged with irreligion, had been told that he was a disgrace to the society. But he would ask how was lie a disgrace? Is he bad as a merchant, as a husband, as a father ? Was it a taint or a blast to his character, to be classed with

bishops and with clergy, because he returned himself as belonging lo no sect? He might be of a church and not of a sect. It was well known that there had been discussion, much discussion, ns to the meaning of the word sect, and the plaintiffmight belong to neither. He might belong to no sect, or he might belong to the Church of Scotland, of Rome, of England. There was one gentlemen then on the jury. Mr. Nathan, —if he returned himself as belonging to no sect, was he to lie held up to infamy, deprived of the Superintendency, or any other office. Another charge was a distinct charge of perjury. The jury must have remarked that out of the whole I number of witnesses called before them, there were hardly two ] whose evidence was alike ; but, he would draw their attention more immediately to the evidence on behalf of the plaintiff. Mr Beckham says, that he does not know who were the parties who demanded the poll, and that he himself had amisimpression ; for that is Mr. Beckham to be branded with perjury; error is human, all men are liable to it. Mr, Brown might be, perhaps was, mistaken ; is he therefore perjured ? Had the defendants a right to brand him as he had been in this article, as a perjurer? It was a remarkable fact that, throughout the whole of that article, the word election was not used. The jury were of course aware that an application was made to this court for a writ to command the Returning Officer to return Mr. Brown as elected to the office of Superintendent. Upon that application affidavits were made and sworn to by Mr. Brown, Mr. Schultz, and Mr. Makepeace, and he (Mr. Bartley!, saw at once by the turn given to the affair by the Attorney-General, the stress that it was intended to lay on the word election. Mr. Brown undoubtedly did use the word election, and Mr. Beckham has sworn that he did not use the words that Mr. Brown was elected, that he only said the shew of hands was in favour of Mr. Brown. Now this was perfectly tantamount to declaring Mr. Brown elected, and he was <te facto elected, the shew of hands having been in his favor, and had a poll not been demanded, he, the Returning Officer, must have returned Mr. Brown. The defendants say a poll was demanded ; the whole gravamen, the whole strain of Mr. Brown’s case was how the poll had been demanded. The defendants were in Court, and beard those affidavits read, and yet, with a full knowledge of the circumstances, they deliberately published this.charge; he was well acquainted with the feeling that existed, and regretted that it was so called forth, and denounced it as wrong. Mr. Crown might conceive that he was elected, and that a poll had not been demanded; Mr. Brown may have been in error, but shall he go forth to hide Iris head as a perjurer? Will you so brand him that he shall go forth as unlit to consort with his fellow men. Using the word election now is a mere trick, a play upon words ; in point of fact Mr. Brown was elected by tire voice of the people at thehusttngs. The Attorney-general would doubtless address you with his usual clearness and lucidness ? he well knows the peri! that his clients stand in. It would he well for them if Christian feelings had dictated to them to display a kinder disposition in the manner in which they administered their chiding. The jury must have remarked the manner in which the evidence was given, one witness had used the word “ false’’ in describing Mr. Brown’s statement, when, at the most, it was only erroneous. Was Mr, Brown then perjured ? deserves he to be so branded, that he is not only unfit for Superintendent, hut a criminal. Will you say he deserves so, —Mr, Brown says that th* poll was not properly demanded, and lie it as it may, it is merely a matter of opinion,—many of the profession labour under mistakes on points of law. Is Mr. Brown then to be branded as a perjurer if he mis-conceives ? Mr. Brown laboured under an impression that six should demand a poll, not by ranging themselves round the Returning Officer, but by individually making the demand, and it is quite possible that Mr. Brown’s head may have been turned away durng the time when the circumstances detailed by the witnesses occurred. It is not to be presumed that because eight or ten of the higher ranks of society give evidence in opposition to those in a humbler sphere, that theirs must necessarily he correct —the jury have no right to conclude that they must bo right, and the humbler individual wrong. Would he (Mr. Bartley) contrast tlie conduct of the humblest individual who had given evidence before them that day with the conduct of Captain Salmon, and say which conveys the best impression to their minds. Captain Salmon goes a great length, in fact a greater length than any other witness —that there was a great di screpancy in the testimony, a great dissimilarity in the .statements, a great discrepancy in some—slight in others. A person unacquainted with the facts would hardly suppose that they were speaking of the same subject, yet lie would not say that the witnesses were perjured—it was not a question of who spoke truly, but who spoke correctly; conceding this privilege to them, he claimed the same for Mr. Brown. Mr. Brown may have used a term that is equivocal, but if the term “ election,” was prominent and leading, why was it never used before ? Every thing is stated in the article strongly; if a libel it was enormously wicked, Nothing could be too strong if Mr. Brown was perjured. But why was not the word election used on that occasion. It was a new thought, one lately taken up. It was sp c fie charges that they had come there to meet, mid the question, was, could they answer those charges; the law was open to the defendants to justify, and they had not thought proper to do so. if the jury believed the charges calumnious, and libellous, thov must say so, unless they believed that Mr. Brown was a perjurer, and unless it was shown he was of the class of men that kiss their thumbs. If they believed that he is mistaken, or suppose that he was mistaken, they could not but give a verdict in his favour —that lie (Mr. Bartley) spoke earnestly, but be could assure them it was no affectation. Nobody could more regret that such a state of things had arisen; that his sole object was to set his client right before men ; there might be some apology, for the excitement caused by election feelings, but that that could not justify the imputations brought against his client—but there was no justification and no apology offered, in fac. no apology could be offered for that which was in reality the coinage of defendants’ own brains. It might be said Mr. Brown had in the Southern Cross used strong language ; it might have happened that lie had offended many, that he had been the grossest maligner; he might have maligned, and injured, and calumniated, every body in the Court, and blasted right and left, —Still, Mr. Brown was not the Editor,hut the Proprietor. He (Mr. Bartley) would not say that Mr. Brown did not occasionally write in the Cross, lie had no wish to srceen him, hut this wOqld be to set off, the question was not whether Mr. Brown had done wrong, but whether the defendants had libelled him. No doubt hard language had been used on both sides; lie spoke as a man, and implored them to give heavy damages, for it would he ruinous and destructive to society if they did not do so; Mr. Brown did not want damages to establish his character, he did not want to put money in his pocket, but he prayed them not to send, him forth with trifling damages, either to give a verdict against him or else substantial damages, either a full verdict or none. Mr. Brown had no right to lose his character, and he besought the jury as strongly as he could do to do his client justice and not to let anything in him or his Editor, or anything that had appeared in his paper, operate to influence them; that if the facts that had been laid before them were of the character he described, be called upon them to give his client ample damages. The defendants were wealthy men, and well able to pay them, and they would save us from a state of society in which it would he impossible to live.—Trusting :nl believing that they would do so he left the case in their hands reminding them that the defendants paper had been spreading these libels right and left,whilst Mr. Brown’s hands had been tied, that they had done so before he was a candidate, (luring the election, and since the election, and oven since the commencement of this action.—He left his defence with the Jury—there had been gross libels published, and he besought the jury to place themselves in Mr. Brown’s position, and consider themselves as having been libelled in the same way; to imagine themselves blasted and ruined as the defendants had endeavonred to blast and ruin his client, and to bear in mind the precept of doing unto others ns they would wish to be done unto. The Attorney-General then addne ed the Court a* follows: May it please Vour Honor : Gentlemen of the Jury,—This is the first attempt I believe, gentlemen, which has been made in New Zealand to bring the law into operation against the liberty of the Press. During the period for which 1 have had the honor to hold the office of Her Majesty’s Attorney-General for the Colony, in no single instance have legal proceedings been taken on the part of the Government against the Press for the publication of a libel;—not, gentlemen, that gross libels have not appeared in the public prints; but because it has been thought more for the advantage of Her Majesty’s subjects in these Islands that there should be occasional excess on the part the Press rather than continual restraint, and that, so long at least as the people of New Zealand had no direct voice in the government of the country, they should enjoy, without limitation or restraint, that true liberty, that “ Free-born men, having to advise the public, might speak free.” It would appear, however, gentlemen, that the plaintiff in this action has taken a different course; ami I am willing to admit that if good advocacy could always gain a cause—if zeal, ability, and eloquence could make “the worse appear the better reason,” my learned friend might well hope to obtain at your hands a verdict for his client. But, happily for myself, gentlemen, “the race is not always to the swift, nor the battle to the strong;” and, happily for the people of New Zealand, the cause of freedom has never yet been pleaded in vain before a British Jury. In touching language my learned friend has placed before you a moving picture of the damaged condition of his client; and the plaintiff’s remains, like the dead body of the murdered Osar, have furnished the subject of a most eloquent discourse. “ He was ambitious and they slew him.” “ There is the wound that villain printer gave!” “ Here is the rent the envious Wilson made.” I admit to the fullest extent the damage alleged to have been sustained by the plaintiff in this action; if need be, I am willing to admit that he has been totally destroyed : the only difference between my learned friend and myself is this : he contends that the plaintiff has been destroyed, while I, on the other hand, maintain that lie has in fact destroyed himself, and that this action should have been, not “ Brown against Williamson & Wilson,” but “Browne. Brown,” and that if Brown the merchant had brought an action for damages against Brown the ex-candidate, that the plaintiff in that action would have been entitled to your verdict. As it is, however, gentlemen, the case of “ Brown v. Williamson & Wilson” lies in a nutshell: the principle involved in it has long been settled, the facts are few, and the point is simple; the case in short cannot fail to remind you of the old story of the Pan and the Kettle. This is, in fact, an action by the Pan against the Kettle. It would seem, gentlemen, that in this case “ the Pan” is a "Saucepan:” it would also appear that the Pan and Kettle were both heated on the same (lie. The Pan complains that the Kettle boiled over and damaged it; and it now sues at your hands for damages for the injuries alleged to have been sustained. The Kettle admits that it boiled, but denies that it boiled over, and maintains that even if it did boil over it was the business of the Pan to keep out of the way, and that if it sustained any damage, it had nobody to blame but itself. Now you are aware, gentlemen, that it has long been set led law amongst Englishmen that, as a general rule, a pan cannot complain of a kettle for being black. The question for your consideration then will be, whether, under the circumstances of this case, the Pan can on that account complain of the Kettle. If upon examination you find the “Saucepan” itself to be black, then, gentlemen, your verdict must be for the Kettle, Such, then, briefly slated, is the case you arc now assembled to decide, and if I were to speak on the subject for a week, I feel that I could not place the case more accurately, truly, or pointedly before you. Not being in the secrets ot the other side, gentlemen, I am unable to inform you what ad-

vice may have been given to the plaintiff, or on what advice lie has acted in coming into Court as plaintiff in this action : but this I know, gentlemen, that ray learned friend would advise his client wisely and well; and of this 1 am equally certain that in coming into Court as plaintiff in sucli an action as this the plaintiff has not acted wisely and well. I think, therefore, we may conclude that the plaintiff affords an illustration of the truth of the adage that “ when a man acts as his own lawyer he has a fool for a client.” But though I cannot tell you what advice may have been given to the plaintiff, I may without any breach of confidence tell you what advice I should myself have given him if I had been consulted on the occasion, I should have dissuaded him, by every consideration, from coming into Court as plaintiff in such an action, —on general grounds, on special grounds, on public grounds, and on private grounds. I should have advised him that, as a general rule, it is not expedient for any man, under any circumstances, to take proceedings as plaintiff in an action for libel—and particularly against the Press 1 should have told him that if he were conscious that the libels complained of had no foundation in fact, and that if he were conscious that lie stood well in the estimation of his fellow-men, that no verdict could improve his position ; and that, on the other hand, if he were conscious that the libels were not without foundation, and if he were also conscious that he did not stand well in the estimation of his fellow-men, he could not expect to gain any verdict but such as would make his last state worse than his first. On special grounds—l would have endeavoured to dissuade him ; for 1 should have reminded him that no action had ever yet been brought in New Zealand against the Press; that under any circumstances it is exceedingly difficult to induce a jury of Englishmen to return a verdict which is calculated to encroach on the liberty of the Press; and that it would be difficult indeed to find in New Zealand any twelve men who would desire to attain the unenviable distinction of being thefirstjury to return the first verdict against the freedom of the Press. On public grounds—l should have dissuaded him, for I should have warned him that, having been a candidate for public office, he would, by taking such a course, lie affording his political opponents a ground of triumph, for it would enable them to say “ if such things are done in the green tree, what would be done in the dry ?” If a man before he gets into the saddle begins by attempting to gag the Press, what chance would there be for liberty if that man were in office and in power’ 1 should also have dissuaded him on personal and pri vale grounds from coming into this Court as plaintiff hi such an action. I should have reminded him of that ancient and salutary rule, — a rule as ancient as the law of England itself, that the man who comes into a Court of Justice, should come in with clean hands—that he who would have justice, must do justice—and that if he himself had been the publisher of libels, or if he were generally believed to be the publisher of libels; that if he himself was the editor, proprietor, conductor, controller, director, manager, or had a potential voice in the management of a newspaper which had scattered scandalous libels throughout the community, he would appeal in vain to a jury of his countrymen to give him redress as in the character of plaintiff in an action for libel—for he would have to contend against two of the strongest feelings which animate the breasts of a British jury—the love of freedom, and the love of fair play. I should have warned him too that if lie did bring such a case into Court, it would be treated as a laughing-stock—-that for years to come it would be referred with derision—that by the name of “ Brown’s Case,” —or, “the Rule in Brown’s Case,” it would be cited but to prove that “ \Vhat is sauce for the goose is sauce for the gander.” And as a final argument to dissuade him from coming into Court, I would have reminded him of the adage—that if a goose will put himself upon a spit before a fire, he must expect to be roasted. Having told you, gentlemen, what advice I should have given to the plaintiff, it may now be proper to tell yon what advice 1 gave, or what was the inclination of my advice, to my own clients the defendants. Looking then to tlie grounds of tiro action, seeing the ridiculous nature of the case—considering that it was impossible for the plaintiff under any circumstances to obtain a substantial verdict, the first inclination of my advice was that the defendants should not so much as even appear to the action; that they should leave the plaintiff to come into Court by himself, and to go through the process of trying to satisfy a jury of his countrymen that these things were libels, and that they were intended for himself—to exhibit himself to tlie public in the ridiculous attitude of fitting on the cap—and thus to offer to the people of Auckland about as amusing a spectacle as a blackamoor attempting to wash himself white. But there was another consideration, gentlemen, to he taken into account, and which prevailed to turn tlie scale. As the question at issue was really, whether “ sauce for tlie goose is sauce for the gander,” it seemed to be necessary, in order that you, gentlemen, might come to a fair decision upon tlie subject, that tlie goose should be properly cooked, and with that view it was ultimately determined that the defendants should appear in order to assist in tlie roasting. You may probably rememlier, gentlemen, that by sone means or other, or for some reason or another, that for some time before proceedings were actually commenced, it was rumoured that the plaintiff was about to bring an action against tlie Neiv-Zb.uasdiir for publishing a libel. After a protracted, and I believe a very painful, labor of twclvedays, the Mountain, with tlie assistance of tlie most skilful practitioners in tlie province, brought forth four of the most “ ridiculous mice” that probably ever saw tlie light. It would seem asifthe plaintiff himself doubted whether any one of them alone would make a libel: so, in order to make sure he has clubbed four of them together, and a more curious collection of libels was never classed together. They' must, I should think, remind you, gentlemen, of what is called “an odd lot,” at an auction sale of books —say “the Racing Calendar,” “ Life of Wilberforce,” “ Hie Art of Swearing,” and “ A Treatise on Affidavits.” Now to take them in order— First then as to what may be termed the so called libel No. I—that electioneering squib—the “ Sale of Horses.” Before you can give the plaintiff a verdict for this, you must be satisfied on three points, that it has been proved to apply to plaintiff—that it is a libel, —and that it is false. As to its application to the plaintiff, the evidence is very slight. But where is tlie libel ? It is no libel to compare a man to a horse, and give him the name of Malice. Then as to "Infidelity,” the squib docs not term Hie horse an infidel, but simply gives his pedigree “ by Mr. Tom Paine’s Infidelity” out of" Egotism.” Then supposing it to be a libel to say of a man that he has been “known to clear the turnpike-gates of Decency, Truth, and f 'airplay, you will have to consider, if this was intended to apply to the plaintiff, what was tlie point of tlie application :—that if it was intended to apply to his manner of conducting a newspaper, whether or not it is true that the Plaintiff’ has violated pccency, Truth, and Fair Play, for, if true, you cannot give him a verdict against the defendants for saying so. And now, gentlemen, for libel No. 2. This 1 have always looked upon as the gem of the collection. Why, if this is a libel it will fit, not only the plaintiff, but any one. “ No man can justly be indifferent wMfcther Robespierre or Wilberforce, Paine or Ashley, be aspiring to Hie chief rule.” Who ever heard of such a libel ? Why, 1 will venture to say that tlie defendants may not only print and publish it once, but they may adopt it as the motto of the New-Zealandeu for a twelve month, and not a single member of the community shall gain a verdict against them for the publication. But where is the libel ? and why should tlie plaintiff’take it all to himself? to whom is tlie resemblance? is it Robespierre? is it Wilbeiforce? is it Paine ? or, is it Ashley ? As to Robespierre, the most remarkable point connected with him, at present, is this, that modern historians have recently arrived at the conclusion that, bad rs he was, he was not so black as he has been painted. No v is that the opinion recently entertained of Hie plaintiff? And, if not, how cau it he said that Robespierre was the person with whom the comparison was intended to be made ? Neither, if Robespierre be Hie person with whom the comparison was made, be intended to cast a doubt on Hie plaintiff’s religious belief; for who, but Robespierre, in the midst of the madness of the French Revolution, when all idea of religion had been almost banished from men’s m.uds, himself moved in Hie Convention, “That the French people recognize the existence of the Supreme Being, and the immortality of the soul,” and 2nd, “ They acknowledge that the worship worthy of the Supreme Being is the practice of the liulies of men.” “ Citizens” said he, in moving these resolutions, “ Every doctrine which consoles and elevates the mind ought to be received; reject those which tend to degrade it and corrupt it. Reanimate, exalt, every generous sentiment and every great moral idea which some have desired to extinguish. Who has bestowed upon you Hie mission of announcing to the people that the Divinity exists not. Oh! you who are impassioned for this barren doctrine, and who have no passion for your country ! What advantage do you find in persuading man that a blind force presides over bis destiny, and strikes at hazard vice and virtue; and that bis soul is but a light breath which vanishes at the portal of the tomb ? Will the idea of his annihilation inspire him with purer or more elevated sentiments than that of his immortality ? Will it inspire him with more respect for his fellow creatures or for himself, more devotion for his country, more boldness to brave tyranny, or, more contempt for death ?” These, gentlemen, are sentiments of which the plaintiff need not be ashamed. If he had been in the habit of expressing such sentiments as these he would scarcely now have been charged with want of faith in matters of religion. Is it Wilberforce then with whom the plaintiff is compared ? if so, what Wilberforce is it ? Probably the celebrated William Wilberfore. But it is not Wilberforce or Ashley, says the plaintiff’s witness,—and why? because, says Mr, Vaile, the plaintiff’ has not been accustomed to he associated with such characters as these. And now for the third libel—“ On what book would he be sworn ? What oath will bind him?” Why, gentlemen, if this is a libel every Court of Justice is guilty of a libel; what so common a question when a witness comes into the box who does not look like a Christian, as to ask him this very question, “ How will you be sworn ?” “ AN hat form of oath do you consider most binding ?” Some swear on the Old Testament, others on the New, some in one way, and some in another, and some not at all. This so called libel, too, you will observe, gentlemen, does not form part of the original matter of the newspaper, but is a portion of a letter of one James Geldard, and, as far as I know, a genuine letter. Now, this James Geldard, may be an old soldier, he may have served in countries where there are various races and castes, and may have, nay, probably has, again and again heard these very questions put to witnesses when called to give evidence in our Courts. I repeat then, that this is no libel at all. We now come, gentlemen, to the consideration of libel No. 4, and I think I cannot introduce it to your notice more fittingly than in Hie opening paragraph of a recent number of the “Cautions for the Times.”—“A smart-looking lad about town,” says Hie writer, “ who sometimes wrote letters to the newspapers to abuse his betters, and sometimes gained Ids livelihood by even more questionable means, was once charged by a country squire with having picked his pockets ; upon which the culprit retorted by expressing his astonishment that any one with the garb of a gentleman, should descend to such vulgar personalities. Now, to he sure,” adds the writer, “ it is always painful to a right-minded man to he obliged to throw out what are called personal imputations against any pue. But, it is ofieu quite impossible to perform our duty to the public without exposing not merely men’s errors, but their faults. And when such is a man’* duty, he should not be deterred from discharging it by the clamours of those very persons whom he is dragging to justice.” Now, Hie conduct of Hie plaintiff, gentlemen, is precisely in point. On the 11th of July he applied to this Court for a mandamus to compel the Returning Officer to return him as the person on whom the election had fallen, to fill the office of Superintendent. The application was founded on his own affidavit to the effect that only one elector had demanded a poll. The moment the contents of that affidavit became known, the plaintiff’s conduct was condemned by public acclamation.

Five days after the appearance of the plaintiff’s affidavit, public opinion found expression in the leading article of the Nsw-Zsaiaxdbh, and the conduct of the plaintiff was severely commented upon in seeking to obtain a selfish object by means of a misrepresentation of facts. Now, what did the accused do? Why, like the lad in the story, on being charged with the delinquency, he turns round upon his accusers, and charges them with publishing a false, scandalous, and malicious libel. The question then for your consideration is—whether this is a false, scandalous, and malicious libel, or whether it is not rather, a melancholy truth. It is unnecessary for me to remind yon, gentlemen, that an untruth may be conveyed in various ways ; and that a falsehood may in fact be told in words Which themselves’ are true. “ The nature of a lie,” says South, “consists in this, that it is a false signification, knowingly and voluntarily made”—“ and,” says Paley, “we wilfully deceive when our expressions are not true in the sense in which we believe the hearer to apprehend them." Now, a misrepresentation may be effected in at least three different ways—by a direct falsehood—by an equivocation—and, by a suppression of the truth. If the plaintiff in this action were to say that tlie Returning Officer on the day of nomination had declared that " the plaintiff was the person on whom the election for Superintendent had fallen," and, if it should appear that the Returning Officer had made no such declaration, that would be an example of a “direct falsehood.” But a false impression may also be conveyed by an equivocation, by words which themselves were true. A certain Dr. •Shebbear, gentlemen, was once sentenced lo the pillory. The under-sheriff, whose duty it was to see the sentence carried into effect, showed the prisoner some indulgence; and, the Dr. instead of having his head put through the collar hole of the pillory in the usual way, was merely placed upon the pillory, with liis face opposite the hole; proceedings were afterwards taken against the under-sheriff, who was charged with neglecj of duty in not executing the sentence in the proper and accustomed manner. Now, what defence, gentlemen, do you suppose til* under-sheriff made, why, he too made an affidavit, or an oath, stating that he was present at the execution, which was quite true;—that lie was near the prisoner all the time, and must have seen what took place, which was quite true; —and that he himself had seen I)r. Shebhear’s head through tlie piilory, which in one sense, was also quite true. But what said Lord Mansfield, who presided at the trial ? Why, gentlemen, that it was the most ingenious evasion of perjury he had ever met with. Now 1 need hardly remind you, gentlemen, that when a witness comes into a Court of Justice, although it may be to depose only to a single fact, he is sworn not only to tell the truth, but the whole truth, and nothing but the truth. It is equally incumbent on a suitor, who would seek for some advantage to himself from a Court of Justice, when the Court lias no other evidence before it than the suitor’s own statement of the case, to tell not only the truth but the whole truth. “ For,” says Paley, “ the designed concealment of any truth which relates to tlie matter in agitation, is as much a violation of the oath as to testify a positive falsehood.” What then are the facts of the case? Why the plaintiff i;> charged with having sought to make use of a Court of Justice to obtain some advantage for himself by a misrepresentation of the truth ; and you have now to determine whether or not that charge is true. Looking at the plaintiff’s affidavit, and at the ficts proved in evidence—not by men picked out of the crowd, but by men whose names will carry weight wherever they are known—you can arrive at no oilier conclusion than that that affidavit contains a statement that is false, or, if my learned friend prefers it, “ erroneous”— that it is so framed in its language as to convty a falsi impression; and, that by a suppression of facts, it is also calculated to convey an erroneous impression of the truth. The plaintiff, you will observe, gentlemen, has stated in bis affidavit that the Returning Officer declared the plaintiff " to be the person on whom the election had fallen.” Now, gentlemen, what says the Returning Officer himself? Why, that he made no such declaration. And wtiat say the other gentlemen who were present at the hustings ? Why, that the evidence given by the Returning Officer is true. If, then, you believe that these gentlemen are trustworthy, and that their evidence is true, you can arrive at no other conclusion than that the plaintiff has, in the affidavit in question, sworn to that which is not true. Again, gentlemen, compare the account given by the plaintiff in his affidavit of the proceedings at the Nomination as to thedemand of a poll, with the evidence of the Returning Officer and others of what actually took place, and say on your conscience, if you can, that the plaintiff’s affidavit contains a plain, truthful, and unequivocal statement of the case. The plaintiff, you will find, has sworn in his affidavit that William Connell demanded a poll, but that he verily believes that no other elector demanded a poll. Now, gentlemen, let me ask you what you believe ? Do you believe that if one elector had demanded a poll—and this is what the plaintiff has sworn—and that if the Returning Officer, os the plaintiff has also sworn, declared the plaintiff to be the person on whom the election only for Superintendent had fallen, do you, I say, believe that the plaintiff is a person who would have allowed the Returning Officer to declare that there would be a poll without protesting against it ? Do you believe that if a poll had been demanded by one person only, as stated by the plaintiff, and that upon such an illegal demand, the Returning Officer had declared that a poll should nevertheless take place—do yon, I say, believe that under suih circumstances Hie plaintiff would, at the close of the proceedings, himself have moved a vote of thanks to the Returning Officer for his conduct in tlie chair? And, lastly, as to suppression of Hie truth, was it open and straightforward to conceal from the Court that the Returning Officer had declared that a poll would take place—that a poll had taken place—that without a protest of any kind tlie plaintiff himself had polled his men, and that it was not until Hie majority of the electors had declared against him, that he had alleged an informality in the proceedings ? Is it true then, or is it false, as charged in the article of the Kith July, that the plaintiff sought for some advantage to himself by statements contained in his affidavit calculate! to mislead tlie Court? Whether the plaintiff made these statements knowingly and wilfully, or only inadvertently, lam myself unwilling to judge. I should be most unwilling to say, or even think, that he had made these statements knowing them to be false ; sufficient is it for my clients that I should satisfy you that tlie defendants themselves have not published of the plaintiff that which was false. The answer, then, to libel No. 4, I maintain is triumphant and comp’ete. It rests upon three several grounds, any one of which would itself be sufficient and conclusive. If you are satisfied that the plaintiff’s affidavit did not give a fair and truthful account of the proceedings on the hustings on the day of nomination, you cannot find a verdict against tlie defendants, as public journalists, for publishing what was true. Again, gentlemen, even if the character of the plaintiff’s affidavit had been doubtful, yet, seeing that its accuracy had been questioned almost by public acclamation ; that it was not until public opinion had condemned it, can you say that the defendants were not, at all events, justified in acting on the evidence before them, yea, even though that evidence might afterwards have turned out erroneous. And. lastly, gentlemen, 1 might have claimed your acquittal for the defendants, if defence had been needed, by challenging attention to the tone, style, and chartcter of the article itself as a commentary on the conduct of a man who had put himself before the public. As the liability of persons before the public to public criticism, it is laid down in thelaw of England, gentlemen, that “ Wherever it appears on the plaintiff’s own shewing, or on evidence on the part of the defendant, that the publication was made upon an occasion and tinder circumstances which afford a primd facie presumption that, notwi hstanding the tendency of the words to defame or disparage the plaintiff, they were not spoken or published with that view, but, on the contrary, in the bond fide discharge of some legal or moral duty to society. • * * The plaintiff’ will fail, unless his case establish the malicious intention by extrinsic • idenc;, and shew that the defendant used the occasion as a mere color and pretext for venting his malice. * * • And where the publication arises in the course of discharging any duty the performance of which is required by the ordinary exigencies of society, although the party was under no absolute legal obligation to perform it. Hie occasion operates in the nature of evidence, and supplies a primd facie justification.” In the “case of a Minister of the Crown, of a Judge, or any other public functionary, comments, bond fide and honestly made, upon the conduct of individuals thus before the public are perfectly justifiable; and if any injury be sustained in consequence of such criticism, it is an injury for which the law affords no redress by damages.” You are aware it lias been decided by what may be called Hie Lex Loci that candidates for public honors must be deemed for such purposes, as persons before the public, and fair subjects for public criticism. The law as thus laid down 1 cannot at present question. It must be familiar to you all; • “ There can be no more wholesome rule than that every one who puts himself forward in a political and public capacity, should he ready to have his conduct sifted—aye, to the very bottom —'.hat judgment of worthiness or unworthiness may be passed upon him ; and so long as public actions and conduct are made the basis of this enquiry, all is right and as it ought to be. We even go a step further, and say that private character and conduct may be of so notorious and objectionable a description as to warrant its being not merely brought forward and appealed to, but held as a good and sufficient objection against any person as a candidate for public office, or public respect.” I ask you then this question,—Looking to the law of the case, and looking to the facts of tlie case—looking to the circumstances under which the article of the Ifith of July was written —seeing that it was written under circumstances of great and general excitement, at a lime when the whole Brovin ce had been stirred up from its very depths—looking at the proved facts on which that article was founded—to the evidence on which those facts then rested—tearing in mind the example which has been set in this place, as to the coarseness and violence with which a portion at least of the public press has for years been conducted—can you. 1 say, on a calm perusal of that article, in your hearts and on your consciences declare that it so far exceeds the bounds of “decency and truth that the publishers of it should be condemned and punished? If you say so, then, gentlemen, there is an end of the Liberty of the Press—there is an end to all true liberty—and henceforward it must go forth to the world, that, in New Zealand, “ freeborn men, having to advise the public, no longer may speak free.” But in advocating the Liberty of the Press, gentlemen, let mo not be misunderstood. There is a Brcss, a spurious illegitimate Press—a Press which makes use of the name of liberty, but as a cloak for maliciousness—a Press established not by printers and publishers for public objects, but by private persons for private purposes—for the use of themselves, ami for the abuse of all who stand in their way—for the attainment of 1 selfish objects, and for the gratification of personal feelings—a Press conducted in a spirit of envy, hatred, malice, and all uncharitableness, and seeking to attain its ends by evil-speak-ing, lying, and slandering, For such a Press, gentlemen, 1 have no sympathy; for such a Press,, so licentious and degraded, I am not the advocate. Talk of libels, gentlemen ! My learned friend lias denounced libels and their want of I Christian feeling. I, too, will tell you what are libels. I I should call it a libel, gentlemen, to publish of the RepresenI tative of the Queen that he was dead to honour and honesty. f I should call it a libel to publish of Hie Queen’s Representative that he was a traitor; 1 should call it a libel to say of him that he was capable of rifling, robbing, and plundering ; 1 should call it a libel to publish of the Queen s Representative that he had acted with characteristic mendacity : I should call it a libel to say of the Representative of Her Majesty that he had burnt down a .houseuay, gentlemen, it would be a libel to say of the meanest of her subjects that he had set fire to property not his own. [Mr. Bartley here intcr-

* Vide—Southern Cross, Oct., 1852.— Rtporttr,

Cross. The Court ruled that if so the Attorney-General posed, objecting that these ere quoted from the Sourer* could not proceed with them. The Attorney-General said he was quite satisfied: he had effected his object; he was obliged to Mr. Bartley for bringing out the authorship.] Welt, then, gentlemen, I repeat that for the liberty of such a Press 1 am not the advocate; for such a Press is the pest 6t a community ; it is the very spirit incarn: t« of Defamation. And well has it been said, gentlemen, tb.'.t ** Death itself hardly walks abroad more unceasingly than the spirit o .e* famation goes its rounds in the community. T e rcpt «s that attend him do not prey more indiscriminately on the noblest remains than the vermin of the Press upon t e airest names. Nothing is so exalted as to be above their audacity, nothing so sacred as to scare their rapaciousness; not in g so ; humble and retired as to elude their incessant activity. o only the public characters of statesmen and the pnva « conduct of public men, but the secret actions of obscure and lowly individuals are their prey. For these they unt lie shade of voluntary seclusion ; seize upon I tern wit the fury of hunger ; drag them forth into the blaze of day. J and tear them in pieces to appease that gross appetite which can never be satiatei. For such a Press, I repeat, gentlemen, I ain not 18 advocate, but for a Pus; engaged in promoting public o for a Press conducted in a Spirit of truth, decency, and airp for a Press ready to do battle for truth against falsehood ; for right against wrong ; for the weak against the oppressor ; for that Press in short, which has been the only sure foundation of England’s boasted lilierties. The power of the Press, and o the free exhibition of public opinion, but yesterday received a princely homage; a foreign prince of powerful name, backed by five hundred thousand fighting men, has proclaimed in the face of the civilized world, that if freeborn men, having to advise the public, may speak free, bis government could not stand. That, gentlemen, is the freedom of which it has been so eloquently said “ Give me but the Liberty Of the Press, and 1 will give to the Minister a venal House of Peers ; I will give him a corrupt and servile House of Commons ; I will give him the full sway of the patronage of office: I will give him the whole host of ministerial influence; I will give him all the power which place can confer, •to purchase submission, and to overcome resistence; yet, armed with'the I.ii?eriy of the Press. I will go forth to meet him undismayed.” That liberty, gentlemen, that glorious liberty,—that free-bommen, having to advise the public, may speak free, —for thirteen years has been planted in New Zealand under the safeguard of a British Jury. That liberty has this day, for the first time, been publicly assailed: but happily, y >U, gentlemen, nursed in the very lap of liberty, are yourselves its appointed guardians; and there are, I believe, those amongst you, who would rather die in that box than betray the sacred trust. By you, gentlemen, that liberty may still be preserved; nay, by yourselves alone, can it be dis* troyed; for where the flag of Britain waves, •• Hereditary freemen! know you not! who would be slaves —themselves must strike the blow!”

The Chief Justice then summed up 'S fdlowsi — The defendants, who are sued as publishers only o’ the passages alleged to be libels, have admitted on the record tliat the latter two concern (he plaintiff, the plaintiff"s name appearing in them; but have not made the like admission as to the former two. The remarks 1 am about to make will all be made on the assumption that you are satisfied that they all relate to him. For a correct definition of a libel, I refer to a recent case in the Court of Exchequer, in England, in which such a definition was given by one of our most eminent Judges. “ A publication, without justification or lawful excuse, which is calculated to injure the reputation of another, by exposing him to hatred, contempt, or ridicule, is a libel.’’ But, “ there is a material distinction between a publication relating to a public and a private person, whether they be libels. That criticism may reasonably be applied to a public man, in a public capacity, which might not be applied to a private indiv'-duak” Bearing in mind this definition, and the distinction between persons In public or in private positions, we have two points to consider, viz., the matters which might be legitimately made the subject of newspaper discussion or criticism in the case before us ; and, next, the manner or language in which such criticism might fitly be expresrej. As to the first point, the circumstances of the case at once suggest the proper rule. Everything might be discussed which might reasonably be considered to constitute or seriously to affect the fitness of a candidate for the office of Superintendent the number and nature of such things being determined by the nature of that office. This is a plain rule: but if there beany difficulty in applying it, there is, in this case, one peculiar cir-» cumstance which bears upon it. The plaintiff, it appears, came# forward voluntarily, with^yujny^oH^^ himself for the highest posTnoiTTutTie civil government of this Province. In so doing he must be taken to have invited the fullest discussion of his qualifications. But this fact, though important, does not appear to me to affect equally every part of the questions which you have to decide. It affects the question just noticed,as showing that the plaintiff did not shrink from the fullest investigation. Also it affects the question of damages ; for the plaintiff must have been prepared to incur a certain amount of ill-will, and to have his claims roughly and severely handled. He must have counted that as part of the cost. If, therefore, you find him entitled to compensation, you will remember that such compensation is to be given in respect of such injury as may be owing to these publications only. But, beyond this, and as to the manner in which the discussion may be conducted by an adverse writer, the plaintiff cannot be understood to ihilienge any discussion except such as may be sanctioned by law and by the usage of fair public controversy. The boundary within which the language of political discusaion is to be confined is not defined by any rule of law, and cannot be. It is of course clear that a man may not. under colour of discussing the qualifications of a public man, make his criticism a vehicle for private malignity j and that, however innocent his intentions may be, he may not put forth matter injurious to his neighbour's private reputation, if unnecessary for the public purpose. But the line between public and private is to be drawn by the jury in each case, upon a careful consideration of all the circumstances. A sort of standard is practically recognised at home; a standard gradually formed by the action of juries, sometimes aiding liberty, sometimes restraining licence. To that standard, gentlemen, you will desire to conform your decision. . No journalist ought to ask more liberty than that which is daily exercised by well-io.iducte.l journals in England ; and I trust no jury iu New Zealand will ever be willing to give less. The first three passages complained of relate to one common subject—the religious profession of the plaintiff. This question of the connection between a man’s religious profession and his fitness for places of civil trust or power has been, in our time, under discussion in the British Legislature in so many furms-and under one fonn is so even at this time—that whatever be our individual opinions or feelings about the desirableness of raising such questions, I do not see how a journalist can be condemned for raising it here. But surely there is no question on which more care and consideration is to be required, seeing there is none on which the risk is so great of damaging a man’s private character whilst discussing his public claims. The defendant has pleaded that the plaintiff, in his return to the Government Census classified himself as belonging to no religious sect or denomination. On production of the return, it appears that de described himself only as belonging to no religions sact. Now we all know that of late years this very term “ sect' 1 has been much canvassed, and that many men repudiate ihe term as inapplicable to the Church or body to which they belong. It is true the words of this return are ambiguous, and might be used by persons entertaining very unlike opinions. But we are not at liberty to ; d ipt the unfavourable and reject the favot ruble construction of the words i and this is the whole evidence on the point. As to this matter, then, of infidelity, the evidence wholly fails, and upon this issue the plaintiff is entitled to a ve.dict. Of these three passages, that of .‘loth April is to be construed as part of the long context out of which it is taken. Is it merely a rough way of enforcing an argument by putting an extreme case ? or is it to be construed as a suggestion that the plaintiff is to be compared to Robespierre or Paine, and (what would seem to follow) the opposite candidate to Wilberforce or Lord Ashley ? In that of the Uth May, there are two errors : one of fact, fur no oath of office is required in the case of a Superintendent: and one of argument, for such persons as are referred to may be sworn. Are these errors to be alike accounted for by haste (unavoidable in a newspaper), combined, probably, with prejudice ? or is the raising of the latter question sufficient to give the passage, in yourjudgment, the character of a libel ? That of the 23rd April differs from the two others. It is not an argument, or a comparison used to enforce an argument, It is a political composition of a character much the same as that of a caricature ; iu which it is understood that a great breadth and exaggeration of outline and colouring are to be allowed for. But there occur in it two sets of words which require consideration. First, the words respecting •» decency, truth, ii c.’’ No facts are in evidence to justify these words, and if you.find them to be a libel, the plaintiff will be entitled to a verdict as to this; but--as to the amount of damages, you will consider carefully how far any man of good reputation could be damaged, by words so loose and general, and contained in such a composition as this. Then the words “Tom Paine's infidelity ’’ Now, gentlemen, all of us who have been led to study the history of the latter part of the last century know what manner of man this Tom Paine was—that lie was a reckless and irreverent assailant of everything that Christian men revere. It is not to be assumed that an equal knowledge is possessed by the ordinary readers of an Auckland paper. Still, you will carefully consider the nature and amount of the suggestion or imputation conveyed by these words, after making full allowance for the character of the composition in which these words are found. If they amount to an imputation of infidelity, you will remember there is no evidence before you to support it. As to the fourth passage, the defendant lias pleaded that the proceedings at the nomination were regular and correct, and that the publication is not malicious; in other words, that, under all the circumstances in evidence before you as to thesi proceedings, the inference drawn in that passage was fairly diawn, and the remarks therein made were allowably and legitimately made. It does not appear to me that the passage imputes perjury I though that word has often been used) —for perjury means the swearing of what is positively false, and that knowingly and corruptly. The imputation seems to be that of sweating what was literally true, but evasively, and with an unfair purpose. Doubtless the imputation conveyed is a very grave ono morally. That the proceedings were correct, I think you cannot doubt ; that at least six elsw-tots did, in fact, join in demanding a poll. It is a conflict between negative evidence (and that as to the affirmation damaged) on the one side, and a mass of positive and most trustworthy evidence on the other. If you believe the inference to be one which, under all the circumstances, might fairly be drawn, of course strength of comment might be expected from any man who did draw it. The comment here is exceedingly strong. You will say whether, under all the circumstances, it be within the legitimate bounds of newspaper criticism.

The jury retired and after an absence of about two hours and a half returned to court with a verdict for the plaintiff tt Damages —Twenty Shillings. u The Chief Justice enquired if the Jury had found that the * proceedings on the Hustings were regular. The Foreman : Perfectly regular your Honor. The Chief Justice then tendered the thanks of the Court to the Jury, and discharged them, when the Court was dissolved. Counsel for the Plaintiff—Messrs, Bartley and Whitaker. Kpr. the Defendants—The Attorney-General, and Messrs, Merriman and Russell,