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Decisions of the Superior Courts of New South Wales, 1788-1899

Marsden v. Campbell [1817] NSWKR 7; [1817] NSWSupC 7

[libel]

Court of Civil Jurisdiction
Field J., 21-23 October 1817
Source: Sydney Gazette, 11 November 1817

           The Trial for a Libel, which in our last Gazette we pledged ourselves to present our Readers with an account, occupied the Court: Tuesday the 21st, Wednesday the 22d, on Thursday the 23d ultimo. The information was filed at the instance of the Reverend Samuel Marsden, against J. T. Campbell, Esquire Secretary to this Government, charging the defendant with having written and published in the Sydney Gazette of the 4th of January last, a letter with the signature of Philo Free, and which the Reverend Prosecutor contended contained libellous matter against him, in his clerical and magisterial capacities, and as the agent and representative here of certain Religious Societies in England. It is unnecessary to detail the testimony of the several witnesses brought forward on this occasion, particularly as they failed in establishing any of the points at issue, in meeting the allegations set forth in the information; and the prosecution was at length left to rest on a letter written by the defendant to the Honorable the Judge Advocate, on the first blush of this business, in which letter the defendant is seen to ascribe the insertion of Philo Free's letter to the unusual pressure of public business, which so wholly engrossed his attention on the day the manuscript of that letter was laid before him, that a hasty review of it his observation was principally directed to the opening and concluding passages; and which, as they embraced a subject he was desired to see revived, namely, the appropriation of the sums paid about four years since by the Subscribers to the Philanthropic Society of New South Wales, he did not discriminate so closely for intermediate passages, as under other circumstances he might have done.

           The construction of Courts of Justice in cases of libel, and the authorities by which they are guided in their proceedings are so generally indefinite, that it is a point of extreme difficulty to determine what is, or what is not admissible evidence; and it would be the height of presumption in us to attempt to set up our humble opinion, against a superior wisdom which decided the points in this case; but if we were to venture to hazard an enquiry it would be, whether this letter, addressed as it was by the defendant to a Law Officer in his official department, could allow of any other impression than that of presumed testimony as to the defendant's having had any part in the publication of Philo Free's letter - to say nothing of the authorship, which was abandoned in a very early stage of the trial. To this, we trust, we may be suffered to add, that there were but very few persons who heard the defendant's letter read in Court, that could for a moment attach the imputed culpability to the defendant, or deduce from it one solitary circumstance that went to give a colour to the prosecution against him.

           The Court went through the whole of this complicated enquiry in all its various bearings and stages, with great patience, and the most solemn and cautious circumspection; and on the third day pronounced their verdict, finding the defendant guilty of having permitted a public letter to be printed in the Sydney Gazette, which tends to vilify the public character of the prosecutor, as the Agent of the Missionary Societies for propagating the Gospel in the South Seas. This was the Verdict; and Judgement was deferred until the Tuesday following.

           In viewing this as a Special Verdict, subject from its peculiar construction to legal exceptions on a motion for Arrest of Judgement, we must necessarily be guided by the established Law of the Realm in cases of Libel: which we believe of late years has decided, that the Verdict of a Jury should be unqualified, and declare the defendant guilty or not guilty, generally. The verdict in this instance pronounced the defendant guilty of having permitted the printing of a letter in the Sydney Gazette, tending to vilify the public conduct of the Prosecutor, not in his clerical or magisterial capacities, but as the Agent for the Missionary Societies for propagating the Gospel in the South Sees. The verdict does not declare that it did vilify, but that it tended so to do. This did not meet any charge set forth in the information, which was for writing and publishing a letter in question, as a liable on the prosecutor in his various capacities . May we not therefore fairly infer, from the general content and qualified shape of the verdict, in what light and to what extent the Honourable Court estimated the injury complained of?

           It is not, however, appear that the defendant had any desire to avail himself of any legal exceptions to the verdict, or to calculate upon any advantage that he might have taken on a motion for arrest of judgement; on the contrary, he attended the Court on the day fixed for judgement, and moved, by his Solicitor, for judgement; but the prosecutor's Solicitor intercepted the motion, by stating, that he stood instructed by his client to say that it was not his wish to call for judgement. The defendant's Solicitor, however, persevered with his motion, and very earnestly prayed the court proceed to judgement instanter; whereupon the Court retired to deliberate, and resuming, declared that they did not consider themselves warranted by the practice of the Courts in England to grant the defendant's motion for judgement, seeing that it was abandoned by the prosecutor; and therefore dismissed the matter before them, by granting the defendant permission to depart the Court, and ordering his recogaizances to be discharged.

           Thus ending the first Trial for a Libel in this Country; and if we may judge of the anxious manner in which the defendants sued for judgement, in order, as his Solicitor stated, that the opinion of the Court might go forth into the world as to their sense of the offence complained of, and the share the defendant had in committing that offence, we think we may be at liberty to yield to the impression, that the defendant's feelings would have been more highly gratified had the sentence of the Court been formally pronounced and recorded.

Published by the Division of Law, Macquarie University