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

Ex parte Wardell and Wentworth [1827] NSWSupC 79

Colonial Secretary, action against, criminal libel, criminal procedure, Crown immunity, press freedom, Forbes C.J. and Governor Darling, conflict between, convict service

Supreme Court of New South Wales

Forbes C.J. and Stephen J., 28 December 1827

Source: Monitor, 31 December 1827

SUPREME COURT.  FRIDAY. - The Juges (sic) having taken their seats, Dr. Wardell and Mr. Wentworth made certain affidavits.  Dr. W. then rose with one of the affidavits in his hand, pinned to a copy of the Sydney Gazette.  He informed the Court, that he held in his hand an affidavit of William Charles Wentworth, Esq., Barrister of that Court, in which the learned Counsel had deposed, that a certain newspaper called the Sydney Gazette or New South Wales Advertiser, of date the 28th Nov. last, No. 1,431, contained an article entitled a Government Order, (No. 40) dated the 27th Nov. last, in which were the following words.

"HIS EXCELLENCY is confirmed in the Assurance he had entertained, by the Orders he has received from the Lord Viscount GODERICH since writing the above, relative to certain proceedings here of His Majesty's Government, that the conduct of Lieutenant Governor STEWART, and of every other Officer, who has done his duty by discountenancing the Individuals who have laboured, as some have, to the latest moment, to degrade and villify the Government, will be duly appreciated, as those who have acted otherwise will be made strictly accountable for their conduct.

"By His Excellency's Command,

ALEXANDER McLEAY."

THE affidavit went on farther to depose, that a certain other newspaper, called the Sydney Gazette or new South Wales Advertiser, dated the 14th December instant, No. 1,438, contained an article also entitled a General Order (No. 43) dated the 13th of December instant, which contained the following words.

GOVERNMENT ORDER.

COLONIAL SECRETARY'S OFFICE, DECEMBER, 13th 1827.

"HIS EXCELLENCY the GOVERNOR, having received a Paper, signed "JOHN MACKANESS," purporting to be the Resolutions entered into at "a General Meeting of the Turf Club," held on the 11th Instant, which Meeting, appearing to have been surreptitiously obtained through the means of the Australian Newspaper.  His Excellency would not do the Turf Club so great an injustice, as to impute to it, as a Body, such a gross dereliction of every proper feeling, as to receive the ebullitions of five or six factious Individuals, as the expression of the sentiments of the Turf Club generally.  The Paper alluded to has therefore been received as it merits.

"HIS EXCELLENCY avails himself of this opportunity of intimating to the Officers, and other Persons employed by Government, whose names may still appear as Members of the Turf Club, that their continuance as such, would be inconsistent with their duty to the Government.

"By His Excellency's Command

"ALEXANDER McLEAY."

The affidavit went on to say, that all these sentences alluded to him, the said W. C. Wentworth, Esq. as he verily believed, and was believed by others who had informed him that that was their opinion thereof; and the said W. C. Wentworth further deposed, that he had never laboured at any time, "to degrade and villify the Government," nor was "a factious individual," and therefore prayed the Court to grant a rule, calling upon Alexander McLeay, Esq. the Colonial Secretary, to shew cause, why a criminal prosecution should not be filed against him, for being the author of an article of such scandalous defamation.

DR. W. further observed, that his client was a Barrister of that Court, and was charged with that, which, if true, was a criminal offence, and amounted at least to a misdemeanour; so that he would, if guilty thereof, be subject to punishment.  It was laid down in every book, that whatever writings tended to degrade a man, and lessen his comforts in society, were an injury cognizable by law.  The sentences he had just read had this tendency; coming from the quarter they did, they were calculated to intimidate all Mr. Wentworth's associates, leaving him as it were, friendless, and alone in the world.  For besides that the higher classes of society, (to which his client belonged) holding civil and military appointments, would not dare to associate with or transact their business with him, after he had been charged with "villifying the Government," and with being "a factious individual," other gentlemen, magistrates for instance, and indeed all who expected the least indulgence or patronage from the Government, would naturally flee from a person, who had thus been so publicly and notoriously marked.  Such was the present state of society in New South Wales, that for the Government publicly to identify an individual as a "factious individual," and as "a villifyer of the Government," was to hunt him out of society.  This was the situation of the Colony as public matters stood at present.  He considered the sentences read, as libellous as any which could be promulgated.

(JUDGE STEPHENS here enquired, if Mr. Wentworth had sworn to his belief of Mr. McLeay being the author?  Dr. Wardell replied in the affirmative.)

DR. WARDELL continued.  He pointed out the sentence which contained the words "surreptitiously obtained," as particular defamatory of, and injurious to, a person of Mr. Wentworth's rank in society and standing in that Court. The General Order, however, had put its own construction on the evil consequences of being a "factious individual," and of "villifying" the Government, by informing the civil and military officers of the Colony, "that their continuance as members of  "the Turf Club, would be inconsistent with their duty to the Government."

AFTER the Judges had consulted a few minutes, Judge Stephens observed, that the present application was so novel in its nature, that the Court would look over the affidavit at its leisure, before it came to a conclusion on the present application.  This it would do, not because of the mere rank and eminence of the party complained of; but because the Court would not presume, that the person complained of, whose duty it was more especially to protect, would think of doing what the learned Counsel attributed to him.  The Court therefore must be most fully satisfied, the alleged libel had actually issued from the quarter which it was asserted it did proceed from, before it could grant a rule.  On Monday, however, the Court would decide for or against granting the rule sought.

MR. WENTWORTH then rose, and said nearly all the same things of the same libels, as they applied to Robert Wardell, L. L. D., a Barrister of the Court, (the latter first reading an affidavit to that effect) and prayed the Court to grant a similar rule.

THE Court returned the same answer it did on Dr. Wardell's application.

 

Forbes C.J. and Stephen J., 31 December 1827

Source: Australian, 2 January 1828

Two motions were made in the Supreme Court on Friday last, for Rules to shew cause why Criminal Informations should not be filed against Alex. McLeay, Esquire, for libels published by that Gentleman, in his capacity of Colonial Secretary; the one on Doctor Wardell, and the other on Mr. Wentworth.

The alleged libels were contained in two numbers of the Sydney Gazette, and appeared in the shape of Government Orders.

The motions were made on the usual affidavits, denying the truth of the charges and insinuations.

The matter complained of, on the part of Mr. Wentworth, is as follows:---

"The conduct of Lieutenant Governor Stewart, and of every other officer who has done his duty, by discountenancing the individuals who have laboured, as some have, to the latest moment, to degrade and villify the Government, will be duly appreciated, as those who have acted otherwise will be made strictly accountable for their conduct.

"By his Excellency's command, Alex. McLeay."

"His Excellency the Governor, having received a paper, signed `John Mackaness,' purporting to be the Resolutions entered into at a `General Meeting of the Turf Club,' held on the 11th instant, which Meeting, appearing to have been surreptitiously obtained through the means of The Australian Newspaper, his Excellency would not do the Turf Club so great an injustice, as to impute to it, as a body, such a gross dereliction of every proper feeling, as to receive the ebullitions of five or six factious individuals, as the expression of the sentiments of the Turf Club generally.  The paper alluded to has therefore been received as it merits."

The former of the two passages complained of, appeared in the Sydney Gazette, with the signature as above, on the 28th of November; and the latter, in the same paper, with the same signature, on the 13th of December.

The publication was further charged as illegal, in reference to Doctor Wardell, inasmuch as that it contained an imputation, purporting that he had been instrumental in obtaining a Meeting of the Turf Club "surreptitiously," "through the means of The Australian Newspaper."

When the Rules were applied for, the Court took time to consider, whether it would be proper to grant them or not.  Accordingly on Monday, on the opening of the Court, the Chief Justice pronounced the following decision, at which the two Judges had arrived, and which they adopted as the most suitable course, under existing circumstances:--- [1 ]

Ex-parte Robert Wardell, Doctor of Laws, for a Rule, to shew cause why a Criminal Information should not be filed against Alexander M'Leay, Esquire.

This is an application to the Court for a rule, calling upon Alexander M'Leay, Esquire, Secretary of the Colony, to shew cause why a criminal information should not be granted against him, for causing a certain Order, entitled a Government Order, to be inserted in the Sydney Gazette, on the 14th day of December last, and which Order, it is sworn by the party applying for the rule, Robert Wardell, Doctor of Laws, contains a charge of factious and improper conduct against the defendant.  In ordinary cases, the single point for the consideration of the Court would be, whether a sufficient prima facie case had been made out, to induce the Court to call upon the party accused, to shew cause against the rule being made absolute.  But it is impossible for the Court not to perceive that the act imputed to the Colonial Secretary, is that of an officer of the Government, and that it might have been performed under a sense of duty on his part, and under the immediate authority of his superior.  We do not mean from this to deduce an inference, that the Colonial Secretary is shielded from the responsibility of being party to any act, by which any one of his Majesty's subjects may be injured in his person or character.  It is a maxim of the English Law, that the King can do no wrong; but it is an inseparable concomitant of this maxim, that the King can do no act, by which his subjects may be prejudiced, without some responsible adviser.  It has been truly said by the highest legal authority, "that the Governor is in the nature of a Viceroy, and therefore locally, during his Government, no civil or criminal action will lie against him."  But as the orders of the Sovereign would furnish no protection to an officer, carrying such orders into effect, further than they might be sanctioned by law, it necessarily follows that the Governor cannot be invested with a power superior to that of his Sovereign, and that his Excellency's Orders cannot afford an immunity, unknown to the laws of the land.  Applying these principles to the case before us, we should examine the matter charged as libellons (sic) upon its own merits, and see how far the Colonial Secretary may have been a party to its publication, without reference to his official station in the Colony.  There are, however, circumstances, which have been lately and powerfully impressed upon our judicial cognizance, which we cannot conscientiously shut out of our consideration, and which we feel ourselves at liberty, if not called upon, to notice in a particular manner.

During the late trials for libel,[2 ] out attention was directed to the state of the press in the Colony; and from the copious references that were made to its daily productions, as well to mark the animus and intention of the libellons (sic) matter on the part of the crown officers, as on the part of the defendant to impeach the motives of the prosecution, we could not fail to observe that the tone and temper manifested by the newspapers in their discussions, were exceedingly ill suited to the small society, and mixed population of this Colony, and were calculated to sow the seeds of disunion and discontent amongst its inhabitants.  We scrupulously abstained from any expression of our opinion upon this evil tendency of the public journals in the Colony, at the time of the trials, because it might have had a prejudicial and improper effect upon the minds of the Jury, in considering the immediate subject matter of the prosecutions.  But the trials being over, and his Majesty's Attorney General having informed us, that it is not his intention to proceed any further in similar prosecutions for the present, we avail ourselves of the first opportunity which has been afforded us, of expressing our entire disapprobation of the style and manner of discussing public measures in this Colony.  It is impossible to say that the press has not transgressed the bounds of fair and temperate discussion - and an intemperate press is no less opposed to the mild laws under which we live, than it is to the good sense, the good taste, and the sober feelings of society.  It is one of the advantages of the excellent institution of Juries, that the Judges in their charges to Grand Inquests, have an opportunity afforded them of alluding to any offences which, in the course of their circuits, may more particularly attract their notice, and call for their especial animadversion.  The effect of these occasional admonitions, are very salutary upon the public; and have a direct influence in restraining the excesses of particular times and places.  In this Colony, form the peculiar structure of the Supreme Court, we have no such opportunity afforded us.  But we feel that we are acting in strict accordance with the spirit of Constitutional Law, and that as the Judges of the land, we are imperiously called upon to interpose our authority, and in the most public manner to notice and condemn any practice which, in our opinion, may violate the laws, outrage the feelings, or disturb the peace of the community.  In these observations we desire to be understood not to allude to any particular publication, or to any individual person.  We condemn what we consider to have been a general practice, in the same manner as it is condemned and forbidden by our law.  And we would earnestly recommend all those persons in whose hands the press of the Colony is placed, to be more guarded in the uses which they make of it - they are, to a certain degree, entrusted with the springs of public opinion - they hold a powerful influence over the peace and good-will of society - it is their moral duty, no less than their legal obligation, to conduct their discussions with fairness, temper, and moderation.  The law protects them within these limits; beyond them, they become criminals in the eye of the law, and disturbers of the public peace.  Reverting to the case more immediately before the Court, the remarks we have been called on to make, have no further application to it, than this - the rule which is now sought is, in our opinion, calculated to renew discussions, and revive feelings, which it were better should be suffered to subside.  We shall therefore defer making any order upon the application before the Court, until the ensuing term.

Ex parte William Wentworth, Esquire, for a Rule against Alexander M'Leay, Esquire.

This application is similar in its nature to the one we have just disposed of.  Mr. Wentworth will feel the force of the reasons we have assigned for not disposing of the application upon its merits - it is to afford time for feelings to subside, which it is important to the public, in whose name present proceedings are sought to be instituted, should not be agitated at present.  We shall therefore defer our decision upon it, until next term.

 

Forbes C.J., Stephen and Dowling JJ, 6 March 1828

Source: Source: Dowling, Select Cases, Vol. 1, Archives Office of N.S.W., 2/3461

[p. 8]

[Exparte Alexander McLeay Esquire.] [3 ]

[Libel]

This case had been moved on a former occasion I arrived in the Colony and stood over for judgment.  It was an application for a criminal information against A. McLeay Esq. the Colonial Secretary, for publishing in the Sydney Gazette of the 28th November 1827 and 14th December 1827 [p. 9] respectively two alleged libels (in the form of Government notices), upon Mr. C. Wentworth Esq. Barrister at Law.

Dr. Wardell now prayed the judgment of the Court.

Forbes C.J. desired that the affidavit on which the motion was founded should be read.

The affidavit of Mr. Wentworth was read.  None other was produced.

Dowling J.  I doubted 1st. whether there was sufficient proof of publication by the Secretary before us; and 2d. whether the alleged libels could by any reasonable intendment be construed to apply to Mr. Wentworth, without some other proof; Mr Wentworth stated that the libels pointed at him personally, and that in conversation that he had had with other persons, they entertained the same opinion.  No affidavits were produced on the part of these persons so as to give a point to these libels; and I suggested to my brother Judges that it was not [p. 10] because Mr Wentworth chose to "put the cap on his own head", we ought therefore to grant a rule.  Without better evidence, sitting judicially, I said, I could not yield my assent to the application.  I suggested that, at all events, no possible good could be obtained by granting a rule in such case, when the tendency of such a proceeding was to increase the unhappy state of feeling which prevailed in the Colony on my arrival.

Upon consideration of these suggestions,

Forbes C.J. delivered the opinion of the Court in the following words:-

"Without going into the merits of the matter charged as libellous, or the sufficiency of the proof in the affidavits, that the publication of the alleged libellous matter was the act of the Colonial Secretary, We are of opinion (considering our duty as the guardians of this particular process of the court, to keep in view the great interests of [p. 11] society in the administration of Justice, that no public benefit could be obtained by granting a rule, and therefore upon these grounds we refuse it.

Rule Refused.

Mr Wentworth had made a similar application against McLeay Esq. for a like libel upon Dr. Wardell, and now with the leave of the Court, he withdrew the affidavit on which the motion was founded. [4 ]

Notes

[1 ] The same judgment was reported in the Sydney Gazette, 2 January 1828.  The Gazette also commented on this and other libel decisions that day.  The reply of the Australian to the Gazette was published on 4 January 1828.  See also Sydney Gazette, 7 and 9 January 1828.  Each newspaper blamed the other for the trouble.  See also Sydney Gazette, 24 and 31 December 1827.

In important decisions such as this, the bench handed down written judgments to be printed by the newspapers: see Walker v. Scott (No. 2), January 1826, footnote 3.

On Wardell, see A. Halloran, "Some Early Legal Celebrities (Second Series)" (1924) 10 Journal of the Royal Australian Historical Society 301, at 337-347.

[2 ] See R. v. Wardell (No. 2), September 1827; R. v. Wardell (No. 3), December 1827.  See also R. v. Howe, December 1827.

[3 ] See also Sydney Gazette, 7 March 1828; Australian, 12 March 1828; and see R. v. McLeay, 1828.  The Australian noted that while proceeding by informations by rule of court was perfectly constitutional and as old as the law itself, the more familiar process was by indictment.  The former allows control to the court which process following a Grand Jury investigation does not.

[4 ]Governor Darling gave a restrained response to this case in his despatch to Hay of 10 January 1828 (Historical Records of Australia, Series 1, Vol. 13, pp 693-694).  He did write one very strange comment however: "I am fully aware of the difficulty you must experience in selecting proper Individuals for Offices here, when it would appear that persons having claims on the Government consider that New South Wales affords an excellent Asylum for Fools and Madmen, as well as Rogues and Vagabonds."  He was frustrated that his opponent, Forbes C.J. was so skilled and he had only such a poor Attorney General as Baxter to assist him.  Darling thought he had won a tactical victory in deciding not to proceed with other libel convictions.

The British government gave its opinion of these events in a despatch from Murray to Darling, dated 30 August 1828, Mitchell Library, A 746.  After discussing the Newspaper Acts Opinion, 1827 and R.v. Wardell (No. 3), 1827, and R .v. Wardell (No. 4), 1827, the despatch discussed this case as follows:

" The Government Order to which I have referred and a second Order of the 13th of December on the subject of the Turf Club led to those inconvenient results which might have been anticipated.  It is not my Province to determine whether the Court formed a correct decision in postponing their determination to grant or to refuse the Rule for a Criminal information against the Colonial Secretary.  I confine myself to the remark that such a delay would, in the absence of any explanation, appear to have been extremely unfortunate.  Ill judged and objectionable as I certainly deem these Orders to have been, I can hardly suppose that the Court could really have regarded them as libellous.  The avowed object of the Judges having been to allay irritation nothing could apparently be less calculated to promote that object than the permitting it to remain for several weeks in doubt, whether the second Officer of the Government was not punishable as a Criminal for having countersigned and published a Proclamation of the Governor.

"Respecting the question of the authority of the Governor of New South Wales over the Convict Population, the Law Officers of the Crown have reported their opinion that under the former law the Assignee of a Convict might have re-assigned him without the Governor's consent, and that the Governor had no power by means of a Ticket of leave or otherwise to grant to a Convict without the consent of his Master the liberty of absenting himself from his Master's service, except in cases of pardon either absolute or conditional.

"On this branch of the subject therefore, Mr Forbes appears to have been right in his opinion.  The recent alteration of the law has set the controverted question at rest.

"Your suspicion that Mr Forbes was in communication on this part of the subject with the Editors of the Public Newspapers, rests upon no proof, and is repelled by the positive and solemn declaration of that gentleman."

Published by the Division of Law, Macquarie University