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

M'Arthur v Hill and Hall [1826] NSWSupC 78

libel - press freedom- convict punishment - magistrate, illegal punishment - Macarthur faction

Supreme Court of New South Wales

Stephen J., 15 December 1826

Source: Australian, 16 December 1826


This was an action of libel.  The defendants put in a plea of justification.  The damages were laid at £500.  By the opening, it appeared that the plaintiff.  Mr. Han. M'Arthur, was formerly one of his Majesty's Justices of the Peace for the Colony; he held that office in the year 1822.  The defendants are the proprietors, &c. of a weekly newspaper.[1 ]  On the 29th day of September last, the libel complained of was inserted.  It charged the plaintiff with causing, in his capacity of magistrate, one of his own servants to be sentenced to receive 500 lashes; 200 of which the servant received.[2 ]  The libel also contained other reflections injurious to the plaintiff.  The circumstances which the paper purported to describe, were stated to have originated in a complaint which the plaintiff had been instrumental in bringing forward before several of the Justices of the Peace assembled at Liverpool.  The servant's conduct underwent the investigation of the presiding Bench, who sentenced the man to undergo a corporal punishment of 500 lashes, with a reservation that 300 only should be inflicted.  Mr. M'Arthur, the plaintiff, with his brother, were present to prefer the charge of insubordination against the servant, but plaintiff did not act in the capacity of Magistrate.  It did, however happen, that he sat on the Bench in the ordinary manner, but the Court being ordered to be cleared, he, with his brother, retired.  The alleged insubordination of the prisoner was, that he had made use of an expression within hearing of several other shepherds in plaintiff's employ; that "then was the time to serve the master out, as it was the lambing season."

The printing and publishing were admitted.

Evidence was called on behalf of the defendant, to prove the truth of the libel, and it was contended, that from the circumstance of plaintiff sitting on the Bench while the charge was under a course of investigation, coupled with the circumstance, that he was almost universally known to be a Justice of the Peace, any casual visitor in the Justice-room, might have been led to arrive at a conclusion, that plaintiff had acted in his official capacity of Magistrate.

The Judge (Mr. Stephen,) charged the Jury, that if they thought from the evidence adduced, defendant had published what then appeared to be a libellous paragraph, under the conscientious belief, that the plaintiff did sit in the Justice-room, in his official capacity of Magistrate, at the time he appeared also in the character of a complainant, they would then find a verdict for the defendant; if on the other hand, they thought the publication to have been concocted with malicious views towards the plaintiff, and meant to assert what was uttered as truth; then, their verdict would be for the plaintiff, with such damages, as the case would to them seem to call for.[3 ]

The Assessors having retired for a few minutes, brought in a Verdict for the plaintiff - Damages, £100 sterling, and costs.[4 ]



[1 ] The Monitor.  The relevant issue was that of 22 September, not 29 September 1826.  It included an extract from a parliamentary paper, dated 17April 1826, which detailed illegal sentences imposed by the magistrates.  The report concentrated on the imposition of sentences such as that imposed on James Pharos: "sentenced to be flogged every morning until he confessed where the stolen property was."  The parliamentary paper was also published in the Sydney Gazette, 16 September 1826, with further discussion on 20 September 1826.  In its commentary on these events, the London Morning Chronicle once again attacked Forbes C.J., and the Sydney Gazette again leapt to his defence: Sydney Gazette, 20 September 1826.

The issue of illegal punishments by the magistrates excited the colonial press on a number of occasions: see for example, Sydney Gazette, 3 June, and 4 October 1826; and see Darling to Bathurst, Historical Records of Australia, Series 1, Vol. 12, pp 327-330.  See also R. v. Howe, October 1826. 

This trial was mentioned by the Sydney Gazette on 16 December 1826; and commented on and reported in its issue of 20 December 1826.  The Gazette used the case to argue for a trial by jury, rather than one by assessors who were fellow magistrates of the plaintiff.  The Gazette showed that W.C. Wentworth acted for the defendants and Mr. Norton for the plaintiff.

The Monitor's response to this action was published on 22 December 1826; it confirmed that the original publication was on 22 September.  On 22 December, the Monitor republished the whole article, to give the context of the libellous passage.  It pointed out that two magistrates, acting as assessors, had given heavy damages to one of their fellow magistrates.  It claimed that this was another illustration of the need for jury trial.  The tone of this article is illustrated by one passage: "Be assured, New South Wales though hitherto suffering under the misrepresentations of arrogant and selfish men, will not remain in bondage much longer!  Packed Juries, and Magisterial Juries on Magisterial questions, and Taxation without Representation, cannot long exist in the burning radiance of a free and virtuous Press!"

Governor Darling thought that the facts of this case were proof of the need for restraint on the press.  The Monitor had been immoderate for some time, he told Hay on 16 December 1826, and now the Australian as well was using the Sudds and Thompson affair to make political capital in the campaign for constitutional reform (Historical Records of Australia, Series 1, Vol. 12, p. 765).  On Sudds and Thompson, see Transportation Opinion, December 1826.)

[2 ]Forbes C.J. stated his own attitude to this issue in a letter to Rev. Marsden, 24 November 1825, Mitchell Library, A 1992 Marsden papers, Vol. 1, pp 482-485:  "I am not conscious that I have taken an erroneous view of your Conduct as a Magistrate.  I always believed that you, as well as all the other Magistrates of the Colony, with whose judicial proceedings I had been made acquainted, had acted from good motives --- at least, there never was a case which came, in any manner, within my knowledge, in which I could discover any supposable motive in the Magistrates, for acting otherwise than in the way which they considered themselves authorized, and bound to act --- altho' at the same time, I knew that in cases of summary jurisdiction over Prisoners, they had acted without any legal authority."

On 4 December 1826, Forbes C.J. wrote an important letter about press freedom.  He said that it was necessary to control what he called press licentiousness, especially in a convict colony.  Writings which attacked the magistracy, which stated that convicts were held illegally or treated harshly, or which claimed that there was undue severity in military discipline, were all dangerous in such a society.  (Source: Forbes to Horton, Historical Records of Australia, Series 4, vol. 1, pp 644-646.)

However, Forbes C.J. thought that Hannibal Macarthur acted dishonestly and shamelessly, in attempting to pervert the course of justice: see Forbes to Horton, Historical Records of Australia, Series 4, vol. 1, p. 676.

[3 ] According to the Sydney Gazette, 20 December 1826, Stephen J. also said that a "great deal of time has been saved, in consequence of the admission of the defendant's Counsel, that, if the words were not true, they were libellous".  Its version of the charge to the assessors went on "if you think that the defendants, fairly and conscientiously did conceive the plaintiff was acting as a Magistrate, and that with such belief, they did not wilfully and knowingly allege that to be true which afterwards turns out to be false, you will find for the defendants.  If, on the other hand, you think that they had a complete knowledge that the fact was not as they have stated, you will find the libellous intent, and award such damages as you think the nature of the case deserves."

[4 ] On 24 December 1826, the Australian published a list of "subscriptions by the free people of New South Wales" to pay the damages and costs in this action.  M'Arthur was described as "formerly a Justice of the Peace."  All but two of the donors gave under pseudonyms, the exceptions being Mr. D. Cooper and Mr. George Allen.  The pseudonyms included  "An Enemy to Tyranny," "A Friend to Independence and unpacked Juries," and "Wilks and Liberty".  This showed that party feeling was rife in 1826.  See also, Monitor, 13 January 1827, on Allen's willingness to have his name printed.


Published by the Division of Law, Macquarie University