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

Newspaper Acts Opinion [1827] NSWKR 3; [1827] NSWSupC 23

press freedom, press laws, sedition, criminal libel, repugnance to English law, reception of English law, stamp duty, taxation, Forbes C.J. and Governor Darling, conflict between - Macarthur faction, auctioneers' licensing law, consistency with English law, theatre licensing law, consistency with English law, licensing, repugnance to English law

Supreme Court of New South Wales

Forbes C.J., April 1827

Source: Forbes C.J. to Governor Darling, 16 April 1827, Historical Records of Australia, Series 1, Vol. 13, pp 282-285; Mitchell Library, A 748, Reel CY 1226, pp 24-28, 63-66

As the Act does not direct the manner, in which I am required to certify, I must claim the right of exercising my own judgment, and of leaving myself open to better advice, if upon mature consideration, aided by the Opinion of the King's Law Officers in England, it should appear that I entertain an erroneous view of the Duty enjoined upon me by Parliament.[1 ]  This duty I consider as too sacred to be compromised at the requisition of any power on earth; it comes within my private knowledge that, when the measure of confiding so large a discretion as that of legislating to the hands of five individuals was discussed in Parliament, it was distinctly stated by His Majesty's Minister that, in the judgment and honor of a professional judge, there would be found a safe guarantee against any incroachment on the Laws of the land.[2 ]

Your Excellency has required of me that, in the event of not certifying the bills, I should distinctly inform you of my reasons for objecting to them, as being necessary to your own justification; but I cannot perceive how the grounds of my opinion upon a nude point of Law can touch the subject of Your Excellency's responsibility.  It appears to me that Your Excellency is under a Misapprehension of the duty imposed upon me from observing the particular Words, scored under in Your Excellency's last letter; and as it is of importance to have a clear understanding upon this first principle, I will endeavour to make myself better understood by stating the abstract law and putting a parallel case.

The laws of England are the laws of her Colonies (properly such) so far as they can be applied; and, where they cannot, there would be no law to meet the unseen occasions of a distant Colony; legislatures are created with the power of passing local ordinances not repugnant to the Laws of England.  This restriction is coeval with the foundations of the first Colonial legislatures, and has been the fertile subject of many decisions and many legal opinions, before this Colony was discovered.  Supposing the legislature to have passed the proposed bills, it would still have been open to the Supreme Court to judge of their legality, and its duty to disallow them, if they appeared to be opposed to the Law of England.  It was especially to obviate the inconvenience that the particular Clause, which calls upon the Chief Justice to Certify his opinion before any law can be laid before the Council, was introduced into the Act of Parliament.[3 ]  In framing this clause, I have occasion to know that it was thought the first words of limitation, "not repugnant to the Laws of England," were not sufficiently restrictive; and that the second Words, "but consistent with such Laws," were added ex abundantia.[4 ]  Your Excellency will perceive that my first duty is to take care that any proposed Law is not repugnant to the law of England in pari materia,[5 ] and then to see that it is nearly consistent with or Conformable to such Law, as the local differences of the parent State and Colony may admit.

This is the view I have always entertained of the Duty imposed upon me; and, in further illustration of its correctness, I will put a parallel case.  Supposing that His Majesty, in exercise of his prerogative, had created Courts of justice in this Colony, they must have proceeded according to the Course of Law, and tried all issues of facts by means of Juries.  Should such mode of trial have been found inexpedient, it would not, I apprehend, have been competent to the local legislature to have Authorised any different mode of proceeding; recourse must have been had to Parliament.  It was to provide against this very difficulty that Parliament passed the New South Wales Act, expressly sanctioning a mode of Trial unknown to the Laws of the realm.  And, upon the same principle, it must follow that recourse to Parliament will be the only effectual mode of legalizing an act, which has for its object to restrain an equally recognized constitutional right of a British subject, the right of freely discussing all matters in which his private or public interests are concerned.  With the expediency or policy of restraining or extinguishing such right, I have nothing to do.  My duty is merely to say whether such be the law of England, and, if it be, whether the proposed bill be repugnant to it or not.

 

Forbes C.J., 1 May 1827

Source: Historical Records of Australia, Series 1, Vol. 13, pp 290-297[6 ]

REASONS assigned by the Chief Justice of New South Wales for not certifying certain

clauses of a proposed law or ordinance for restraining the freedom of the press, laid before him by the Governor in pursuance of the New South Wales act.

THE Governor having caused a certain bill or ordinance, containing, amongst other provisions, the clauses hereto annexed, to be laid before me as Chief Justice for my certificate, in pursuance of the act of Parliament, 4 Geo. 4, Ch. 96, usually stiled the New South Wales act, and, it appearing to me that under the restriction imposed by the act I cannot legally certify such clauses, I feel myself called upon by the importance of the occasion, as well as by the respectful deference, which is due to the authority from which the bill emanated, to explain the reasons upon which my opinion is founded.  In order to make those reasons more clearly understood, I will first take a short review of so much of the act as immediately relates to the subject, and endeavour to define the exact limits of the duty imposed upon me.  I will then state the substance of the objectionable clauses, and assign my reasons at length.

The 24th section of the act, after reciting the necessity of entrusting a legislative power under proper restrictions to persons residing in New South Wales, enables His Majesty to constitute a council to consist of not more than seven, nor fewer than five persons, with authority to pass local laws or ordinances for the peace, welfare and good government of the Colony, such laws or ordinances not being repugnant to that act, nor to any charter or order in Council issued in pursuance thereof, nor to the laws of England, but consistent with such laws, so far as the circumstances of the said Colony will admit.  The 29th section further requires that, before any such law or ordinance should be submitted to the Council, a copy thereof should be laid before the Chief Justice of the Supreme Court, and certified by him to the same effect.  These clauses require two conditions precedent to the certificate of the Chief Justice - that the proposed law is not repugnant to the laws of England - but that it is as consistent with such laws as local circumstances will admit of its being; if it fail in either of these particulars, the functions of the Chief Justice are at an end.  The repugnancy of any two laws is a fact; if one law be repugnant to another law, it is ``contrary to, opposed to, inconsistent with" such other law,[*] and cannot, without a contradiction in terms, be said to be consistent with it under any possible circumstances.  But it is not necessary to seek for the intention of the act in a nice definition of words; the best means of interpretation will be found in the general principals of law and in the context of the act.  The laws of England are an exhaustless fund of legislative wisdom, from which enough may always be drawn to satisfy the exigencies of a small community; the power of selecting and modifying according to circumstances is committed to the subordinate legislatures of the Colonies; but they are not allowed to alter the fundamental laws of the land.  ``Allegiance," it has been held, ``must be according to the laws of England, and ex consequenti the protection and rule ought to be by the same laws, for they are mutual and reciprocal unum trahit alterum,"  This great constitutional Principle is deeply laid in the foundations of Colonial legislation.[@]   From the communion of laws and institutions are derived those lasting alliances of habits; feelings and sentiments, which form the best safeguard of national allegiance.  The New South Wales act was framed in conformity with this great principle of the law.  Its obvious policy was to preserve uniformity in the laws of the British empire.  It does not delegate to the Governor and Council of New South Wales the same unlimited authority, which belongs to the Parliament of England - they cannot pass any law, which in their opinion the political exigencies of the Colony may require - they are expressly restrained within definite bounds - and, that they may not be led by a misconstruction of their own powers to exceed those bounds, their ordinances must first be submitted to the Chief Justice, who, as a lawyer, is required to certify that such ordinances are not contrary to the spirit of English law; and, supposing them to consist in principle, that their provisions conform to the laws of England, as nearly as obvious circumstances of local difference between the parent state and the Colony will allow.  In the exercise of this very delicate function, I have never felt myself at liberty to enter into the policy or expediency of any proposed measure of legislation - that province belongs exclusively to the Governor and Council in sub-ordination only to the paramount laws of England.

The clauses in the bill, which appear to me to be objectionable, are six in number - in substance, they are as follow - No person shall publish any newspaper or other paper of public intelligence without first obtaining a license - such license to be granted by the Governor through the Colonial Secretary's office - the license to be granted to be in force only for twelve months, and to be forfeited on conviction of any blasphemous or seditious libel - the Governor may, at any time, with the advice of the Executive Council, revoke such license, the reasons of such revokation being entered upon the minutes of the Council and transmitted to the Secretary of State.

The above clauses appear to me to be objectionable upon several grounds - first, because the previous restraint, which they impose by means of a license upon printing and publishing, operates as a monopoly upon a common trade, and is repugnant to the freedom of the press as by law established.  Secondly, because the discretionary power, vested in the Governor of revoking such license, is repugnant to the principles and practice of English law.  Lastly, upon general grounds.[7 ]

First.  By the laws of England,[!] the right of printing and publishing belongs of common right to all His Majesty's subjects, and may be freely exercized like any other lawful trade or occupation.  So far as it becomes an instrument of communicating intelligence and expressing opinion, it is considered a constitutional right, and is now too well established to admit of question that it is one of the privileges of a British subject.  The text is comprehensively laid down by Mr. Justice Blackstone as follows:- ``The liberty of the press consists in laying no previous restraint upon publications, and not in freedom from censure for criminal matter when published.  Every free man has an undoubted right to lay what sentiments he pleases before the public - to forbid this is to destroy the freedom of the press."  To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the revolution, is to subject all freedom of sentiment to the prejudices of one man, and to make him the arbitrary and infallible judge of all controverted points in learning, religion and government.[$] In affirmance of this doctrine, the late Lord Ellenborough is reported, in a celebrated case of libel, to have delivered himself in these words - ``The law of England is a law of liberty, and, consistently with this liberty, we have not what is called an imprimatur, there is no such preliminary license necessary."[**]   In a recent work, of which the great lawyer, whom I have just cited, was pleased to express his approbation, the principle of the law is stated in the following terms: - ``There is nothing upon which Englishmen are justly more sensible than upon whatever has the appearance of affecting the liberty of the press.  But popular writers have certainly extended the notion of this liberty beyond what in reason it will bear.  They have converted it into a native, an original, a primitive right, instead of considering it only as a right derivative and deductive from the joint rights of opinion and of speaking.  This, including an exemption from the control of a licenser, and all previous restraint upon the mere suspicion of abuse, is the proper notion of the liberty of the press."[@@]    It were unnecessary to multiply authorities; it is clear that the freedom of the press is a constitutional right of the subject, and that this freedom essentially consists in an entire exemption from previous restraint; all the statutes in force are in accordance with this first principle of law; they facilitate the means of proof; in certain cases, they encrease the measure of punishment; but in no instance do they impose any previous restraint either upon the matter of publication or the person of the publisher.  Indeed to admit the power of selection among publishers would be more repugnant to the spirit of the law than to impose a direct imprimatur; it would be not merely to confine the right of publishing within partial bounds, but it would be to establish a monopoly in favor of particular principles and opinions, to destroy the press as the privilege of the subject, and to preserve it only as an instrument of government.  ``The press," continues Blackstone, ``can never be used to any good purpose, when under the control of an inspector."  By the laws of England, then, every free man has the right of using the common trade of printing and publishing newspapers; by the proposed bill, this right is confined to such persons only as the Governor may deem proper.  By the laws of England, the liberty of the press is regarded as a constitutional privilege, which liberty consists in exemption from previous restraint; by the proposed bill, a preliminary license is required, which is to destroy the freedom of the press, and to place it at the discretion of the government.

Secondly.  By the laws of England, founded in the law of nature, every man enjoys the right of being heard before he can be condemned either in his person or property.  There must be some complaint, some tribunal before which he may appear, some examination under the sanction of an oath, some definite course of proceeding, some previously known law, by which he may be adjudged.  In the system of licensing adopted by the English statutes, throughout all its extensive ramifications, these first principles of judicial proceeding, however summary the form, are invariably preserved.  The licensed publican is summoned before the Magistrate to answer some specific complaint, made against him by some responsible complainant; he is present at the investigation; he examines the witnesses that appear against him, or produces any others in his own behalf; he has a right to be heard, and to offer any matter which he may deem essential to his defence.  The clauses under consideration do not contain one of these essential principles.; the Govenor, with the advice of the Executive Council, may revoke the license granted to any publisher at discretion, and deprive the subject of his trade, without his having the means of knowing what may be the charge against him, who may be his accuser, upon what evidence he is tried, for what violation of the law he is condemned.  The Governor and Council may be both complainants and Judges at the same time, and in their own cause - that cause one of political opposition to their own measures, and consequently their own interests, of all other the most likely to enter into their feelings and influence their judgment.  In the course of my professional experience, I cannot find a precedent for any proceeding like this; in no instance within my recollection are the accuser and the Judge associated in the same person.  On the contrary, for a Judge to determine in his own cause is, by the laws of England, held to be corruption and punished as a misdemeanor.

Thirdly, So far I have looked at the proposed bill within the limits prescribed to me by act of Parliament.  I have not felt myself at liberty to enter into considerations of state necessity.  I have never been able to persuade myself that Parliament intended to clothe me with a discretionary power of altering the laws of the land; for, if I can certify that the annexed clauses are not repugnant to the laws of England, it is difficult to say what I may not so certify.  Assuming, however, for the sake of meeting the question in every shape, that I may have taken too confined a view of the duty imposed upon me, and that I am bound to admit the political circumstances of the Colony as part of the subject matter, upon which my judgement must be exersized, in any case, even of supposable repugnancy to the laws of England, then I must look at all the circumstances of the Colony in every variety of aspect; and, viewing the proposed clauses on the ground of expediency alone, I think they are open to many serious objections.

In the first place, no case has been made out to establish the necessity of altering the laws already in being with regard to the press.  It is a maxim of the English constitution ``that no liberty of the subject, either in itself, or in any instrument, by which it may be exercized, shall be repealed, restricted or abridged, unless the Magistrate shall shew, upon his part, a full and sufficient reason for such diminution."  That the press of this Colony is licentious may be readily admitted; but that does not prove the necessity of altering the laws.  Have the laws for restraining the abuses of the press been put in force in this Colony?  It comes within my judicial knowledge that they have not: that no single case of ex officio prosecution for libel has been instituted by His Majesty's Attorney General.  The laws of England, therefore, have never been tried in New South Wales; and, until they are first tried, it is impossible to say that they are insufficient.  They have been declared sufficient by the most experienced lawyers in England; they have proved their sufficiency on the most difficult occasions; and, until they have been first tried in this Colony and found wanting, it would be as illogical to affirm that such laws are ineffectual, as it would be impolitic to exchange an old and tried system for one that is new, untried and problematical.

Again, looking at the objectionable clauses in some of their more prominent bearings - the means that they are intended to employ, and their probable success - so far from correcting the abuses they are meant to remedy, it appears to me that they will materially impede the regular course of Justice.  A passing review will establish this position.  It is not clearly expressed whether the license shall be demandable of common right, or shall be granted to such persons only, as the Governor may deem fit; the bill must be made a little clearer in this particular, or it might expose the Colonial Secretary to a mandamus from the Supreme Court.  I will, however, suppose that the clauses are rendered sufficiently explicit, and that the granting of a license is confined in express terms to the discretion of the Governor - a most invidious discretion, the consequences of which cannot have been foreseen.  Under what rules, would the Governor exercise this discretion? Under what limitations would a license be granted? Within what bounds would discussion of public measures be allowed, the bounds established by law or by the governor? Who are to judge of any act of violation? Not the Chief Justice, for he may be called upon to try the case.  The natural effect of a censorship on the press is in some measure to identify the censor with the publisher; and, by an easy chain of consequences, every person, who may feel aggrieved by any matter contained in a licensed paper, will immediately complain to the Governor and expect his complaint to be redressed.  To guard against the charge of favor and partiality, or perhaps participation, the governor must lay down some general rules for his guidance; he must interfere in every private case, or in none; assuming then, as its probable, that the government would interpose its authority in those cases only, which more immediately affected itself, it then becomes at once the accuser, the Judge, and the law.  It is not easy to conceive a situation, in which the government could be placed, more embarrassing than this - one more calculated to disturb the unanimity of its councils, or to destroy its reputation with the public.  The Governor with the advice of the Executive Council, composed of three or four members of his Government, adopts a particular measure; that measure is deemed impolitic by the people, and is censured by the press; the publisher is accused before the Council; the Council sit in judgment upon their own acts, and decide in their own cause.  The necessary consequence of such a decision would be an appeal, not to His Majesty's government, as provided by the Bill, but to the press and popular feeling in England.  The Governor and Council in their turn become the accused, under the grossest misrepresentation of acts and motives; and a case, which, if left to the ordinary course, would have been quietly decided with satisfaction to all parties, is transferred to tribunals where truth is out of the question, and justice becomes impossible.  There is another material circumstance, which should not be lost sight of in considering this question upon the grounds of expediency.  At this moment, a petition is on its way to the King and both houses of Parliament from some of the principal inhabitants, convened at a public meeting, in which the Petitioners take occasion to convey an expression of grateful acknowledgment for the advantages, which they suppose themselves to have derived from the freedom of the press; and, whatever may be the merits of their petition, it will at least be listened to with patience and answered with courtesy.  It is even probable that the subject of the press itself may be brought before Parliament in the ensuing discussions on the New South Wales Act.  Under such circumstances, the present moment cannot be deemed the most expedient for passing a local ordinance in opposition to the declared opinion of the people, and possibly at variance with the sentiments of Parliament.

Before I conclude these observations, I must guard myself against being supposed to offer any opinion upon the abstract question, how far, in a mixed population like that of New South Wales, it may be proper to allow the same unrestrained freedom of the press, as by law is established in England.  This is an important question; but it is one which I apprehend Parliament only can effectually decide.  The duty imposed upon me is sufficiently responsible under the most limited interpretation, and it becomes me to be especially cautious not to extend it by construction.FRANCIS FORBES,

Ch. Justice, New South Wales.

 

Source: Australian, 18 May 1827

"Who is the Framer of the Four-penny Stamp Act for taxing Newspapers?"[8 ]  "How has it happened that the Chief Justice has certified that the Act is not repugnant to the laws of England?"[9 ] "Who are the Members of Council who were present when it was assented to?"[10 ]  "Who are the dissentients?"[11 ]  And a variety of other queries form the current and exclusive conversation in the political and common circles in every company and wherever people meet.[12 ]  Discussions are not confined to common points - to the policy and to the probable effect of the Act; but people seem determined not to be satisfied until they find out who the persons are who have had a hand in the concoction of this public grievance, and until the enemies extraordinary, as they must be thought, to the peace, happiness, and welfare of the community are known - until they are known as well as we who write; as well as the three Editors upon whom the oppressive tax has been exclusively laid.  The Governor in Council has the reputation of passing the Stamp Act; and until the contrary be shewn - the Governor and Council - they will all - all those whose names we exhibited in a recent Number, be taken to be "aiders and abettors," or principals, in the legislative confederacy - as forming a joint concern, and as concuring in the unjust, the unfeeling measure.

It is of comparatively little importance who performed the part of drudge - who became draftsman or searched among the English Acts of Parliament for clauses and provisions, and who jumbled the whole together in the lumberly, inartificial manner they appear.  We are not at loss for conjecture - indeed it is confidently asserted that the Act has not been framed by one in the performance of "Official" duties; but that an occasional helper, a sort of supernumerary, has done the "unclean" work.  If this prove true - the man who could so readily become a tool, and either for pay or with the mean desire of courting favour, lend himself to such a purpose, deserves what we are sure he will meet - the execration of the people.  An officer of the Government might have been so situate that he could not help himself; but this excuse cannot be pleaded for the man who comes forward without compulsion, and on whom no obligation rests, except the obligation which a subservient mind creates; and who has no incentive, except an evil desire to be in mischief.

But to dwell on this point is nothing but waste of time.  It is of real importance to come at the other facts, and to have the laudable curiosity of the public as to them satisfied.  From what we can glen on all sides, we shall not be much astonished to discover at last, that his Excellency the Governor had by some peculiar arguments persuaded himself that the Stamp Act was "essential to the peace and safety," and could not "be rejected" "without extreme injury to the welfare and good government of, the said Colony;" and, having obtained the assent of one Member (perhaps of two Members), proceeded in the way mentioned on the 37th clause of the New South Wales Act, to adopt the Act, without further aid; and that the Act now, by virtue of such adoption only, is intended to remain in "full force and effect," "until the pleasure of his Majesty be known."

We are persuaded that something of this kind has happened, for we are informed that the Members of the Council are as earnest as the people in their exclamations against the Act.  Some say they were not present when it was passed; other go so far as to (or report does for them) declare that they knew not it was in contemplation.  They are all, however, anxious (all of whom rumour has said any thing) to absolve themselves from the suspicion of possessing either attachment for the Stamp Act, or of having been in any manner instrumental to the passing of it.  these are curious disclosures; nevertheless they are useful ones, in various ways.  They shew the un-policy of having laws made in secret - of having a legislative body, like an Inquisition, deciding the fates of a people in secret; the injustice of being at the mercy of legislators, who being above the control of, and protected from the superintending restraint of the objects of their legislation, are not within the reach of any salutary checks; and who in proportion as they are relieved from the responsibility arising from public scrutiny into their individual sentiments, are in danger of using their power licentiously, and of forgetting their duty.  Security from animadversion naturally corrupts the mind; and each man is apt to care not for blame, when blame is divisible among many, and when the members of a body all go "share and share" alike.

The prescribed oath of office binds our Council not to reveal any of "such matters as shall be brought under (their) consideration."  This is all it does bind them to; and it is becoming therefore in those who have not participated the ingloriousness of passing an impolitic, inexpedient, and unjust law, to make a public disavowal to that effect.  A disavowal will excuse them at least from the heaviest censure - the censure of having assented to the four-penny Stamp Act; and they will still be at liberty to explain why they were absent from their post when the Act was passed.  Why they did not attend and oppose a law which they could not sanction.  there can be no law of that indifferent cast to render it indifferent to the people whether it be passed or not.  It must either be decidedly good or decidedly bad.  It must either be expedient and politic, or inexpedient and impolitic; and all who are appointed by the constitution (be the constitution good or bad), legislators are bound to take an active part whenever a law is laid before their body.  Why then did not all the Members of the Council attend, when it was required of them, either to assent to, or dissent from, the law proposed by the Governor?  WERE they all present?  Were they all summoned?  If they were not, the law is not legal - has not been legally passed.

It is well known that the thirty-seventh clause in the New South Wales' Act enables the Governor, "with the advice of the Council," "or the major part of them," "to make laws and ordinances," "provided that no law or ordinance shall be passed or made, unless the same shall first, by the said Governor, be laid before the said Council."  It is then essential that the law be laid before the said Council, and not before the said Council or "the major part of them."  The law may be passed by the Council or "the major part of them," or, in case of certain emergencies, by the Governor, and one of the Members of the Council, but in no case can it be passed, unless laid before the council - that is, all the members of the council.  Here a common rule of law applies - "powers must be strictly complied with" - delegated authority must be performed, not according to the will of the delegates, but according to the will of those who delegate; in this case, according to the will of the British Parliament.  The necessity of performing this Power strictly, has been recognised in this Colony.-

Acts were passed by four Members (owing to the non-arrival of one of the Members in the Colony) when five was the number which constituted the Council.  As soon, however, as the Lieutenant Governor arrived, and Act was passed, confirming the acts of the four Members! - Now that seven Members form the Council - seven Members must co-operate to form an efficient Council, or a part of them, must every law or ordinance be laid - before the seven Members must every Act come, and every one of the seven Members must assent to, or dissent from, every Act.  Nay, "the Members of the said Council so dissenting shall enter upon the minutes of such Council, the grounds and reasons of such their dissent;" "shall enter," leaves no alternative.  It is not like the privelege of a Peer, who protests if he pleases, or does not protest if he wishes to say nothing.  We have an example in a Parliamentary Regulation.  Forty Members form a House.  But this is by positive law.  there is no positive law prescribing a number less than the number of Council-men, and for want of that positive law, and while another positive law endures, viz. that every Act shall be laid before the said council, it would be abomination to pretend, that a part can do what the whole, and the whole only, is intrusted with doing.

It is most confidently rumoured, and by many who affect to have information from the members, that there were absentees from the Council when the Stamp Act was passed, and even that some of the members did not know what was going forward, or that such an Ordinance as a four-penny or any Stamp Act was in contemplation.  This ought to be, this must be explained.  Explanation to the English Ministry will not do.  Explanation must be given to the people.  The people are not bullocks, to be driven here and driven there, and ruled and roasted by laws of the validity of which they know nothing.  Injurious reports must be met.  Explanation and satisfaction must be proclaimed.  We demand to know, as British subjects - and on behalf of British subjects, we demand to know, whether the Authority delegated to our Governor and our Council, have been obeyed, and whether we are called upon to submit to a law which, in addition to its being oppressive, inexpedient, unfeeling, impolitic, illiberal, unjust - is without one of the many positive Essentials required by the Act of Parliament, and whether it is expected that we are to obey a command without knowing that that command is legal in any one point of view.  The people of the territory we know, are only waiting for this information, to move simultaneously in a body; magistrates - gentry - landholders - colonists of every grade, every kind, every description we know, are only desirous of ascertaining who passed the Stamp Act, and under what circumstances it has been proclaimed, in order to their coming forward in a manner that will shew that they are Englishmen.  Let us have the questions set at at rest; who of the Council approve of the Stamp Act - who of them dissent from it, who of them reprobate it?  Let us know if it be the Act of a Military Governor, and of a Church Dignitary, and mayhap of the Colonial Secretary.  Let us understand if these gentlemen - these "alone have done it," if these alone, of all the people in office, and out of office, think "the peace and safety of the Colony" depended on passing the four-penny Stamp Act, and that they could not refrain from taxing three people exclusively, without extreme injury to the welfare and good government of the said Colony!"  If these be the sentiments of his Excellency, and one or two of the members of the Council only - they are sentiments which ought, for the credit of the Colony, to be saddled upon them.

Let us know, we pray, these things, and we can pardon what, after all, may perhaps, be proved to be an unintentional error on the part of those who committed it, we can pardon the absence of the members of the Council who did not relish the Stamp Act, and could not swear they were assisting the Governor, "to the best of (their) judgment and ability," who could not swear "that they were advising and assisting him faithfully" - if they assisted to pass an Act at which their conscience revolted.  The evil resulting from their absence from Council, may be repaired, only let facts - useful facts come to the knowledge of the Colonists.  If the absence of the Dissentients were accidental, they are not to blame - if it were voluntary, and intentional, in demonstrating their feelings, they were guilty of an error of judgment - we do not call it a dereliction of duty - because we think it does not amount to that, and because it may have been imagined, that absence was as declaratory and effective a way of conveying an opinion, as attendance and expression of opinion.

Charles Fox, when his party was met with overwhelming numbers in Parliament, abandoned his Post in the House, and left the Ministers and the Minsterialists to manage the affairs of the nation in their own way.  He was censured for this, because, if he could not oppose successfully, he ought still to have opposed, and because his Constituents had delegated him to attend, not to quit the House of Commons.  He was severely handled in his day for a step which he thought a good one, and calculated to bring affairs to a crisis.  He could not make head against the tide which set against him, and he foolishly ceased in his patriotic efforts.  But he had greater reason for the temporary secession of himself and his party, than any, but especially any of the superior members of Council - admitting that these did pursue such a course.  Fox was aware that fine speeches read well in Newspapers, but that they are frequently but mere fine speeches, and that while they seemed to convince the Members in the House, as they convinced the people out of it, Ministers obtained the conviction of their adherents, by means very different from rhetorical flourishes.  He knew that fine speeches where the Ministers were sure of their votes, effected nothing, and he withdrew.  Though eloquence may be of as little use in the Council of this colony, substantial information, cool reasoning, plain argument must silence the weak, short-sighted arbitrary (if any there should happen to be) and fearful Members, who can see nothing but treason against their august persons in honest structures which question their infallibility, and which hold that their way of governing is none of the best, their policy none of the wisest.  We could name one Member of Council whose abilities natural and acquired, are worth all he rest put together, and who, without a single "set speech," could have gone into Council and shamed all who had ventured to uphold the Fourpenny Stamp Act.

We mean no disparagement to the very, very honorable Members of the Council, - we mean not to call into dispute the cleverness of the Venerable the Archdeacon, nor of any other of the Members of our Council, but we think had the chief Justice certified that an Act, imposing a stamp on Newspapers, was not repugnant to the laws of England - he need not have used many words among the Members of the Council to convince them that any Stamp Act was not wanted, not called for, not expedient here - and further, we think, he would not have hesitated to deny the legality of a Fourpenny, a Fourpenny Stamp Act!

Was the Chief Justice in the Council when the Act was passed?  Was Mr. John Macarthur there?  Was Mr. Robert Campbell there?  Was Mr. Throsby there?  (four members out of seven!)  These are questions which ought to be answered; not only for the sake of the people, but for the sake of the absent members.  We are persuaded they can afford satisfactory reasons for their absence, if they were absent; but while the people remain in ignorance they will be equally included in the people's displeasure, as members who have afforded their support to the fourpenny stamp act on botany-bay newspapers!!!

 

Source: Australian, 25 May 1827

More tales from the nursery! not from the children's nursery, but from the nursery of our "collective" - where the spawn of our Colonial code are warmed into active life.  Lately there was nothing but discordance among the Members - a majority in favor of the Stamp Act could not be obtained, and so the minority, "by virtue of the power in me vested," and so forth, cut the difficulty, on the persuasion that "the welfare and good government" would be sacrificed unless a duty of Fourpence were imposed on every Newspaper published with the Colony.- This was a pretty prevalent gossip, and so speedily prevalent after the appearance of the Stamp Act, and traced up to such quarters, that people began to believe the dissenting Members must have been at the pains to st it afloat, and in their own vindication have taken great care not to own the parentage of an offspring, with which they had neither right nor inclination to claim kindred.  Well, this was at the first onset.  This was when the people in their conversations seemed disposed, without so much light being thrown upon "the affair" of the Stamp Act, as the Frenchman would say, to involve all the Members of our "Legislative" in one undiscriminating mass of censure.  "Out of doors," as it is called, there certainly was unanimity of sentiment, and whether there were agreements or disagreements within the "painted Chamber," outside all were heaping their reproaches on the combination who had sat in solemn conclave within.  The Dervises of the Divan had settled the Newspapers, but they soon saw that they had unsettled the people, and it became obvious that anxieties were not altogether confined to the mass of the people, and that if the Members of Council had not personally disavowed either hatching or bringing forth a "Monster," their friends, with great consideration for them and for their fame, hastily spread it far and wide, that the Honorable Mr. this, had not given his sanction to the Stamp Act - the Honorable Mr. that, was not present when it passed - the Honorable of another quarter had not been summoned - and that the Honorable of all Honorables never heard of it till he saw it in the Newspapers!  So that through all the dear delights of bickerings, misunderstandings, and disunions, had the notorious measure been carried.  Such were the first "idle" rumours which had "their day."  But other of the Members than those by whom, or in whose behalf disclaimers had been put in, began, it is supposed, to feel the weight of honors which pressed upon their shoulders, and seeing that they would have the undivided credit of having "begotten" the "dear creature," bestirred themselves in turn, and counter-statements were contrasted with statements - counter-assertions met assertions.  Disunion in the Council there was none - all was peace and concord, and blisful harmony, for every Member had most cordially concurred in the propriety of adopting the Fourpenny Stamp Act!  We think we may safely attribute this report to one or more of the Members.  We think we could point out the individual Member or Members to whom may be ascribed this last version of the opinions of the entire body, and who unhesitatingly assert that the Act in Council, "Number Three" did not meet a breath of opposition throughout it several (if it had several) stages.  Not a breath of opposition, if there be excepted one trifling circumstance which did raise a debate.  A doubt was started, whether a threepence or fourpence duty would be most expedient.  In the fulness of their affection, their hearts overflowing with the milk of human kindness, our benevolent Legislators, out of consideration for the Press, kicked the beam in favor of fourpence.  In this, it is said, was comprised every opposition to, and every debate on, the Stamp Act.  This circumstance, however trifling in our mind's eye.  It brings us confirmation strong of our suspicions, that the Act in Council is not, after all, an Act in Council which has been made pursuant to the New South Wales Act of Parliament.  What, we ask, had the Council to do with establishing the sum?  Were there then "blanks" left for the Council to be filled up, and one Act being certified, did they pass another?

The Council, it must be known, have only the power of assenting to, or dissenting from any and every measure laid before them.  First, the Governor "initiates," next the Chief Justice "certifies," and lastly, the Council "pass" the proposed enactment, which thus becomes a law.  If the Council make an alteration, it is not the Law which the Governor initiated - it is not the Law on which the Chief Justice "certified," and it becomes thus vitiated in the hands of our Legislators.  If it were left for the Members of the Council to insert the amount of Stamp Duty, their law is not worth the paper it blackens.

We can very easily conceive that some case might have been made out to persuade the Chief Justice of the "expediency" of imposing some duty on Newspapers.  he might have been informed that the Treasury was at a very low ebb, that the Government were dunned by the Government Printer for quarterly payments as a re-imbursement for Government Jobs of one sort or other; that great expenses were entailed on the Government by reason of the claims of the aforesaid Printer - a plentiful farrago of reasons for raising a fund out of the intellectual enjoyments of the people, may this way have been collected and thrown together; and it is possible that the Chief Justice may have been thus plied with arguments, seemingly strong and weighty; and have certified that a law imposing a Stamp Duty of a halfpenny or a penny on Newspapers is not repugnant to the Laws of England.  A specific sum must have been named in the proposed Act; else the Chief Justice might have incurred the risk of certifying that a Stamp Duty of four thousand, instead of four, pence, is not repugnant to the Law of England; and, until we hear it with our own ears, and from the Chief Justice himself, that he certified to the legality of the duty which the Council agreed to, we never will believe that he either assented to the Act, or "certified" to the legality of the fourpenny duty.  The report, indeed, of the discussion - that report being attributed to some of the Members of Council - as to the greater expediency of fourpence or threepence, goes a long way to shew that we form a just estimate of the heart and mind and character of the Chief Justice.  If such discussion did occur, we are satisfied that he Act, perfect or imperfect in other respects - just or unjust - equitable or iniquitous - wants a preliminary essential to make it valid - it wants the Judge's certificate.

But what do all these anxieties among the Members of Council on the one hand, and on the other, prove to the people, and what will they shew at the Home Office and in the House of Commons?  At least, that the Council are ashamed of their own measure!  That some of them are desirous of shifting off their own shoulders all the odium, and all he responsibility consequent upon the passing of the Fourpenny Stamp Act; while others of the Council, who cannot deny having taken a share in this equivocal work, feel themselves unable to resist the torrent of popular prejudice, and think that they attain a very great point, by having it believed that the Council were unanimous, and that every member concurred in the opinion that the four-penny Stamp Act was really expedient.  But, that we should have a Legislature driven into these Straits - that we should have a Legislature establishing among us, laws which please nobody - which are satisfactory not even to the Legislators themselves, is clear and conclusive proof, that our law-making is at the mercy of people who are ignorant of the Colony - the interests of the Colony, and of what is requisite for the preservation of internal peace, and for keeping the people on good terms with England.  The Stamp Act, is an Act which will conduce more than any thing, to rive the Colony - plunge it into intemperate resolves, and engender hostile and deeply inimical sentiments in regard to England.  If Acts like the Stamp Act be congenial to our Governor or to any portion of the Council, they are not so to the taste of he people; and it needs little effort for these to transfer their opinions of the laws, to the law-makers, and thence to those who have constituted them law-makers.  The progress of mental motion, is oft-times easy and rapid; and when antipathy against obnoxious laws takes deep root, it is not a very unnatural operation of the thoughts, to extend that antipathy to the first cause.  The British Ministry are better versed in these things than any colonial Delegate can be, and they will not, we predict, have the temerity to back with an approval, any Act which is filled with danger, present and to come, and which threatens to estrange the Colonists from the feelings which they are expected to cherish towards the mother Country.

In England and in Colonies, the law-makers commonly do contrive that their law shall give satisfaction to some people or to some party - what then are we to conclude - what are we to think when a law is proclaimed, which breeds universal and unmitigated discontent - discontent, bordering on disaffection?  The most benignant interpretation which we can put on such a law, is, that the Legislature has not the capacity to meet existing contingencies, and knows not how to establish the public weal.

Notes

[1 ]Governor Darling perceived himself to be under siege by a critical press, particularly the Australian and the Monitor.  In response, he introduced restrictive legislation into the New South Wales Legislative Council, a licensing Act and a stamp duties Act.  This was the response of Forbes C.J. to the licensing Act.  By s. 29 of the New South Wales Act (4 Geo. 4 c. 96), the Chief Justice had to certify that the colonial legislation was not repugnant to the law of England.  Forbes C.J. refused to issue a certificate for some of the governor's legislation.

For Governor Darling's views of these events, see the correspondence in Historical Records of Australia, Series 1, Vol. 13, pp 79-82, 277-287, 374-379; and Mitchell Library, A 748, Reel CY 1226, pp 17f.  In a despatch to Bathurst on 8 May 1827, Darling said he had relied on a Bill prepared in Van Diemen's Land, and certified by Pedder C.J. of that colony, to be consistent with English law.  Forbes C.J., however, declared that six clauses of the Bill, requiring the licensing of the press, to be repugnant.  Darling partly blamed Forbes C.J. for the outbreak of press licentiousness, because he had advised that no prosecutions should be taken for some time.  On 2 April 1827, Forbes told Darling he would certify any press law "so far as I am authorized by Law," which Darling found to be unhelpful advice.  On 12 April, Forbes told him that he was doubtful about certifying a licence law, but that he was willing to do so insofar as the Bill adopted English statute law on publication and on the punishment of blasphemous and seditious libel.  Then on 16 April 1827, Forbes C.J. sent the letter to Dowling which is reproduced here, explaining why he opposed the licensing provisions.  On 11 May 1827, Forbes wrote again to Darling, repeating the arguments and emphasising that the Bill would have left a licence at the discretion of the governor, and that the governor could not have been forced by litigation to issue a licence.  The relevant clauses are in Historical Records of Australia, Series 1, Vol. 13, pp 285-287; and in Mitchell Library, A 748, Reel CY 1226, pp 29-33, 58-61; the certificate of consistency of some of the clauses is at page 58 of the latter.  Forbes explained his position to Earl Bathurst in a letter dated 1 May 1827 (Mitchell Library, Reel CY 760).

Forbes had warned Darling of the possibility of the bill being repugnant as early as 1 December 1826: Mitchell Library, A 748, Reel CY 986, pp 12, 35-38.  See also Darling to Hay, 4 December 1826, and enclosures, Historical Records of Australia, Series 1, Vol. 12, pp 725-729.

Forbes sent a long letter to Horton on 6 February 1827, stating his views on the press (sources: Historical Records of Australia, Series 4, Vol. 1, pp 679f; Mitchell Library, Reel CY 760).  He said that a "free press is not quite fitted to a servile population" even if it was excellent and indispensable in a free society.  He went on, "an unrestrained press is not politic or perhaps safe in a land where one half of the people are convicts, who have been free men; yet I must not leave out of the account that the other half of the people are free, and that, as an abstract right, they are consequently entitled, as of birth-right, to the laws and institutes of the parent state.  It is a mixed question, and requires to be carefully examined; if you take away the freedom of public opinion upon matters of government, you take away a legal right; necessity you will say justifies it; then the limit of that justification is the necessity which compels it; it should go no further; a question then naturally arises whether all the means of restraint, which the law of England has provided, have been tried in this colony without success.  The answer is at hand, they have not; the late attorney general never instituted one prosecution for libel, except in his own case, and in that he failed for obvious defects of legal merits."  (This referred to R. v. Howe, 1826.)  The Attorney General was the grand jury of the colony as well as the crown prosecutor, and had not acted; this was the cause of the licentiousness of the press.  Forbes continued: "I think an unlimited censorship in the hands of the governor will increase the grounds of complaint and ultimately end in his recall.  Such are my sincere opinions upon the policy of this most important measure; as a question of mere law, it has I find been decided at Bombay that a preliminary license is inconsistent with, and repugnant to, the laws of England; if it be not, it may be difficult to say what is."  After referring to the certificate granted by Pedder C.J. of Van Diemen's Land, stating that that colony's licensing law was not repugnant, Forbes said that an "English judge cannot be too careful of his reputation for independence; if he lose that, he loses his necessary influence over the public opinion, and, on state occasions, he becomes useless to the state".  "I am no advocate for courting popular applause 'that echo of folly and shadow of renown' as Lord Mansfield once called it; but the good opinion of the public, over which one presides, is worth having; and the judgment of the people, altho' sometimes misguided, is always grounded on right feeling; their suffrages are sometimes just. ... But, without doubt, I am a friend to a defined limitation upon the press in the present state of the Colony, and also to some point of contact with the people as to the raising and accounting for the revenues of the country". 

Forbes had written similarly to Horton on 4 December 1826 (Historical Records of Australia, Series 4, Vol. 1, pp 644-646; Mitchell Library, Reel CY 760), saying that writings in the press which attacked the magistracy or suggested that prisoners were harshly or illegally dealt with were dangerous.  He went on to say that: "It is at all times desirable that the weight of government should be kept out of the scales of justice; even in England, it is so; but the reason, that it should, is a hundred fold stronger in this Colony, where the Judge that presides holds his place during pleasure; and the jury, that try, are military officers, subject in a thousand ways to the feelings and influence of the government, and consequently open to imputation, how conscientiously soever they may decide."  He went on that he only wished to vindicate the governor, "whose motives could not have been but pure".

Forbes returned to the topic in his letter to Horton of 27 May 1827 (Historical Records of Australia, Series 4, Vol. 1, pp 718-729; Mitchell Library, Reel CY 760).  He said he had opposed the creation of a Legislative Council when the idea was first proposed, because it would engender the idea of popular representation, and because the notion of a veto by the Chief Justice would necessarily place that person in conflict with the governor.  That had now happened.  He followed this comment with a short history of press laws in the colony, and of his own role in the recent events.  He followed this with another letter on 1 June.

The most analytical account of this and other cases concerning the press in these years is B. Edgeworth, "Defamation Law and the Emergence of a Critical Press in Colonial New South Wales (1824-1831)" (1990) 6 Australian Journal of Law and Society 50.  See also C.H. Currey, Sir Francis Forbes: the First Chief Justice of New South Wales, Angus and Robertson, Sydney, 1968, chs 19, 20, 22, and 23 for a detailed account of these disputes, especially ch. 23 on the prosecutions against Wardell.

[2 ] In fact, Forbes played a large role in drafting the colony's constitution, the New South Wales Act, (1823) 4 Geo. 4 c. 96: see C.H. Currey, Sir Francis Forbes: the First Chief Justice of New South Wales, Angus and Robertson, Sydney, 1968, chs. 3 and 4.  He also drafted parts of the replacement Act, 9 Geo. 4 c. 83: Forbes to Hay, 12 November 1827, Historical Records of Australia, Series 4, Vol. 1, p. 746.

Forbes was no radical: he told Horton on 6 March 1827 "that governments are founded in opinion and formed by events; that all changes, except such as are wrought by time, are revolutionary and mischievous, and that whoever abruptly attempts to make violent alterations, merely because they are better in the abstract, is a traitor or maniac" even if an exception could be made in the case of colonies.  As for New South Wales: "It is certainly a convict colony; so are the West Indies slave colonies; but I never heard it contended with reference to them, that their forms of Government and measure of British right were less, because their estates were cultivated by their slaves. ... The policy of sending convicts to New South Wales stands recorded upon the rolls of Parliament; it was, and it is, to improve the colony, and make it more useful to the British nation; in what place shall we find that it was in barter for British right; or that any man was less amenable to English law, or less entitled to the privileges of an English man, because the soil on which he trod was cultivated by convicts?  As a lawyer, I know of none such; on the contrary, I have always thought that the colonies were only a more remote portion of the British realm; that the laws of England were the common bond that united Englishmen in their allegiance to the King, and in fraternity with each other; that they are the cheapest and strongest defence, and the most durable guarantee of defendence [sic]; and when the state of the two countries may have so changed, as to render a separation, I the persons of their respective rulers, essential to the well-being of both, they will still be united by identity of laws and institutions, similarity of habits and feelings; the result of such laws, and those endearing ties between people sprung from one common ancestry, which the worst policy cannot wholly eradicate, and the best may render eternal."  As the colony evolved, it would need a gradual adoption of political privileges, and adaptation of English customs to local needs.  Source: Historical Records of Australia, Series 4, Vol. 1, pp 688f; Mitchell Library, Reel CY 760.

[3 ] The reference is to (1823) 4 Geo. 4 c. 96, s. 29.  See B. Kercher, An Unruly Child: a History of Law in Australia, Allen and Unwin, Sydney, 1995, p. 70; A.C. Castles, An Australian Legal History, Law Book Co., Sydney, 1982, p. 131.

[4 ] Ex abundanti cautela: from excessive caution, to be on the safe side.

[5 ] In the same subject matter.

[6 ] This was an enclosure in Darling to Bathurst, 11 May 1827 (Historical Records of Australia, Series 1, Vol. 13, p. 239).  Forbes C.J. wrote an accompanying letter to Bathurst, dated 1 May 1827 (pp 289-290).  The document is also held by Mitchell Library, Reel CY 760, pp 143-152.

[*] Marginal note. - Johnson in verb. repugnant.

[@] Marginal note. - Shower, P.C., 32; Vaughan, 290; Salk, 412; Hobart, 211; 1 Bl. Com., 107.

[7 ] Chief Justice Forbes gave a similar reason for refusing to certify a bill to regulate auctioneers: Forbes to Darling, 15 July 1828,Chief Justice's Letter Book , Archives Office of New South Wales, 4/6651, p. 175.  The objection was that the bill placed the discretion as to whether a licence would be issued in the hands of the governor, whose actions were outside the powers of the court to supervise.  The governor agreed to make changes: p. 180.

The same principle led Forbes to declare a bill for the licensing of theatres to be repugnant.  Those who operated without a licence were to be considered a rogue and vagabond, and the licence was to be in the discretion of the governor: Forbes to Darling, 26 August 1828, Chief Justice's Letter Book , Archives Office of New South Wales, 4/6651, p. 186.  Once again, the governor made the suggested changes to the legislation: p. 189.

[!] Marginal note. - Bac. Ab. Tit. Monopoly.  1 P. Wms., 183; 11 Rep., 54-86; Godbolt, 253.

[$] Marginal note. - 4 Bl. Comm., 151.

[**] Marginal note. - 29 St. Tr., 49.

[@@] Marginal note. - Holt on libel, 59.

[8 ] The stamp Bill proposed a tax on newspapers, which its opponents thought was designed to eliminate the opposition press.  Forbes C.J. first approved the bill in principle, when there was a blank space for the amount of the duty although "four pence" was pencilled in at the margin of the page.  Later "four pence" was added to the blank, making a tax of 4d. per issue.  Darling assented to the bill and formally promulgated it, even though Forbes had not certified it in its final form.  He subsequently found it to be repugnant to English law.  See C.H. Currey, Sir Francis Forbes: the First Chief Justice of New South Wales, Angus and Robertson, Sydney, 1968, ch. 20.  Darling argued that Forbes' initial approval was a certification.  He said that Forbes' subsequent change of mind occurred after consultation with the Australian.  Darling's main concern was that on Forbes' interpretation of the certificate provision, "the power of Legislating would in that case appear to be vested almost solely in the Chief Justice".  Forbes told the governor on 28 May 1827 that he had only given approval of the bill in principle, reserving to himself how far any particular tax might have been consistent with English law.  He said he had not certified the actual Act.  He also said that the Bill proposed to raise a fund for a specific purpose, the printing of public documents, but that the amount to be raised so far exceeded that purpose "that it does appear doubtful to me how far the ordinance is consistent with the section of the Act alluded to," i.e. s. 27, New South Wales Act (the taxing provision). Forbes later proposed that the bill should be resubmitted to the Legislative Council.  This led to further squabbling between the two.  Source: Darling to Bathurst, 29 May 1827 and enclosures, Historical Records of Australia, Series 1, Vol. 13, pp 374-387, 391-399.

By this time, Darling often saw only cunning and lack of principle in Forbes, and in this case he thought Forbes was deliberately staying away from the Legislative Council.  Darling also accused him of failing to make reports to the governor about capital cases, sending his trial notes instead, and attacked Stephen J. for the informality of the way in which he gave judgments: Darling to Hay, 30 May 1827, pp 386-387.  A later despatch, Darling to Bathurst, 1 June 1827, included another letter from Forbes to Darling stating his objections to the stamp bill at greater length, and emphasising that the taxation provision of the New South Wales Act required that the Legislative Council should state the object of the tax (Historical Records of Australia, Series 1, Vol. 13, pp 391-399).  The formal correspondence between Darling and Forbes of 30 and 31 May 1827, is in Mitchell Library, Reel CY 760, among the letters from Forbes to Horton.  Forbes sent a copy of it to Horton with his letter of 14 June 1827, where he again gave his version of the events.  He also included remarkable correspondence between himself and Howe, the editor of the Sydney Gazette, in which he asked him what effect a duty of 4d. would have had on his newspaper.  Howe replied that it would have caused the end of publication, as well as that of its competitors.  In another letter on the same day, Forbes accused the governor of wanting to eradicate all but the sycophantic Gazette; this letter also contained copies of other correspondence between Forbes and Darling, dated between 28 May and 2 June 1827, which included Forbes' formal reasons for refusing his certificate to the stamp Bill.  Copies of the correspondence between Forbes and Darling are also among Forbes' personal papers in Mitchell Library, A 748, Reel CY 1226, pp 75f.

See also Australian, 27 March 1827; and Sydney Gazette, 11 May 1827.  The Gazette disliked this law, but denied that it was repugnant to the law of England.  This incident, and the frequent libel actions, led the newspapers to run many articles about libel and press freedom at this time: see, for example, Australian, 11 May 1827; Monitor, 8 June 1827.  The Monitor, 1 June 1827, argued that it was a magazine, not a newspaper, and so exempt from the duty; see R. v. Hall, 1827.

The first of the New South Wales newspaper Acts, (1827) 8 Geo. IV No. 2, was published in the Sydney Gazette on 27 April 1827; and in the Australian, 2 May 1827.  It provided for the prohibition of newspapers unless affidavits or affirmations were first lodged with the Colonial Secretary, stating the ownership of the paper.  This led to a hostile attack by the Australian,  May 1827.  The Australian admitted that there was some precedent for it, in 38 Geo. III c. 78, but that it was unnecessary in New South Wales where the publishers of all newspapers were well known.  It also objected to s. 20, which provided for banishment as a punishment for a second conviction of seditious or blasphemous libel.  The Sydney Gazette, 4 May 1827, defended the government, as it often did.  It denied that the new Act was repugnant to English law, citing the Chief Justice's certificate to that effect.  It touched a raw nerve, when it claimed that sedition was common in its contemporaries (the Monitor and the Australian.)  See also Sydney Gazette, 21 May 1827.

The interest in the press continued to dominate the newspapers in the late 1820s; see for example, Australian, 5 March 1828, reminding its readers of the Chief Justice's certificate a year earlier.

[9 ] The issue was referred to London, and on 31 July 1828, Murray informed Governor Darling of the British government's decision in the following terms:

" With reference to my Despatch of this date, No. 17, explanatory of the act of the last session of Parliament, making provision for the Government of New South Wales and Van Diemen's Land, I have to call your attention to a topic upon which I have not deemed it expedient to enter at length in a document which will be laid before the Members of the Legislative Council. I refer to those restrictions upon the publication of Newspapers in the Colony, which have formed the subject of such frequent correspondence between yourself and my Predecessors in Office.

"When the recent Act was introduced into Parliament the expediency of legislating on the subject of Newspapers in New South Wales and Van Diemen's Land, unavoidably engaged the careful attention of His Majesty's Government - In addition to the reasons mentioned in my Despatch of this date from declining to propose to Parliament any enactment of that nature, the Ministers of the Crown were influenced by a conviction that such a proposal could not have been attended with success.-

"In remitting the question to Your consideration and that of the Legislative Council, I feel that I am imposing upon you an arduous duty, from the responsibility of which, I shall as far as possible endeavour to relieve you.-

"The protracted discussions between the Chief Justice of New South Wales on the Subject of Newspapers in that Colony, and the proceedings of the Supreme Court upon various Trials for Libel, have engaged my very anxious consideration; and I propose, by a very early opportunity to communicate to you upon the whole of the series of unfortunate controversies which those discussions and proceedings have occasioned.

"For the present, I confine myself to the observation that the Law Officers of the Crown have confirmed Mr Forbes's opinion, that the Legislature of New South Wales, could not lawfully restrain the publication of Newspapers without Licenses.- You will therefore consider this species of restraint, as a remedy, to which resort must not be had.-

"Cases may of course, arise of such extreme urgency as to supersede the application of all ordinary principles of law. For such possible, though as I trust most highly improbable emergencies, such temporary provision must of course be made as the necessity of the case may require. But in any ordinary State of Society the previous condition of obtaining a License must not be required.

"The imposition of a stamp duty, even to the Amount of four pence, is regarded by the Law Officers of the Crown as not repugnant to the Law of England. You will therefore propose the  re-enactment of a stamp act of this nature. But it is necessary strictly to adhere to the principle, that the duty must be bona fide levied with a view to Revenue and that the Amount must not be regulated by the supposed advantage which might arise from suppressing or impeding the publication of Newspapers in the Colony.

"The act for regulating the publication of Newspapers, so as to secure proof of authorship having been already passed, it is unnecessary to make any further remark on that subject.

"Other Securities against the abuses of the periodical publications of the Colony, may perhaps be taken by requiring from the Editors or Publishers, security to pay such Fines or Penalties as they may incur, and those Securities might perhaps be fixed at a rate which would prevent the business of publishing Newspapers from falling into the hands of persons of no consideration or property.-

"You will however, understand that the whole of this subject is to be referred to the judgement and determination of the Legislative Council, and that the preceding suggestions are intended to assist, and not to control the exercise of Your Discretion."  Source: Enclosure with Darling's Despatches dated 20 July 1831, Murray to Darling, 31 July 1828, Mitchell Library, A 1209, Reel CY 542, pp 493-499; Historical Records of Australia, Series 1, Vol. 14, pp 275-276.

Murray wrote this after receiving the advice of the Law Officers of the Crown, dated 29 April 1828 (Mitchell Library, CY 760, pp 345-350).  They concluded that they concurred in the decision of Forbes C.J. concerning the licence, and though they disagreed on the stamp duty point, they thought he had arrived at his opinion honestly and so they held him free from blame.  The Law Officers also rejected the views of General Darling about the motives and tactics of Forbes C.J.

On 1 January 1829, Murray informed Governor Darling that the King had formally disallowed the Stamp Act, even though it was virtually repealed.  It was disallowed "because a Tax, amounting to Four pence on each Newspaper, has appeared to Him too high a duty to be levied for the purposes of mere Revenue under existing circumstances in New South Wales, and because, in the original enactment of the Law, very serious informalities appear to have occurred".

[10 ] On 30 August 1828, Sir George Murray informed Governor Darling of the British government's unhappiness about the conflict between Darling and Forbes C.J. and Stephen J. over the press laws and the many libel cases, such as R. v. Wardell (No. 4), 1827, which had taken up so much court time in the previous two years. (Source: Mitchell Library, A 746; Historical Records of Australia, Series 1, Vol. 14, pp 356-365.)  The despatch referred to the vast correspondence between the three over that period.  Murray said that the government was also unhappy that the conflict allowed the press to remain unchecked in the meantime: "I regret, that Mr. Forbes should have advised, or, that you should have been persuaded to adopt the Policy of allowing the Editors of the public Newspapers to pursue their objectionable career, without interruption, until the question could be brought under the consideration of Parliament."  Forbes' decision to refuse to certify the licensing bill was supported by the government's legal officers, and reinforced the government's high opinion of his abilities.  The absence of a preamble to the bill, stating the mischiefs which flowed from unlicensed newspapers, was fatal.  However, said Murray, Forbes C.J. should have discussed the matter with Darling, rather than acting at a distance.

Murray went on: "Adverting to the trans-actions which took place respecting the Newspaper Stamp Act, I am , in the first place, to apprize you, that the question of Law, which had been agitated in this case, between yourself and Mr. Forbes, were referred to the Law Officers of the Crown, who reported their opinion, that there was nothing inconsistent with or repugnant to the Law of England in the Bill for imposing a Stamp of four pence upon each Newspaper.  But they further reported, that, finding no reason to doubt that the Judge had formed the contrary conclusion honestly, they thought he had done his duty correctly, in acting upon that opinion.

"The Act was published imposing a duty of four pence as early as the 4th. of May 1827.  It was to come into operation on the first day of the following Month.  Yet it was not until the 27th. of May that Mr. Forbes announced his opinion, that the Act was invalid, although it appears from his own Letter to Lord Bathurst, that he had adopted that opinion, and had foreseen all the train of embarrassments it would occasion, as soon as he had read the Act in the Gazette.

"For this delay I regret to state that no adequate reason has been assigned.  Armed as he was, with powers, far more extensive than any single Judge, in any other part of His Majestys [sic] Dominions, enjoyed, and a Member of the Legislative and Executive Councils of the Colony, I cannot think that Mr. Forbes had any right to reserve to himself an opinion of so much practical importance, until his Judgment should be invoked upon the question, in Open Court.  When at length he made the Communication, it was at so late a period that you were reduced to elect on the sudden, whether you would acquiesce in his advice or revoke the Law.  I must decidedly disapprove of the time selected for the disclosure of his opinion, as well as the previous concealment of it."

Murray went on to acquit Forbes C.J. of charges of having had secret communications with the newspapers on the subject.  After reviewing the conflicts which arose from the libel cases concerning Wardell, Murray went on to chastise both parties to the dispute between the judges and the governor:

"The review which I have thus been led to take of the long series of controversies in which, during the last two years, you have been engaged with the Judges, and other Public Officers of your Government, has convinced me of the absolute necessity of adopting some decisive measures for restoring harmony to the important settlement under your command.  Considering the peculiar character of the population of New South Wales, there is probably no other Colony in which the authority of the Government must so entirely depend upon its possessing the respect of the Colonists.  These continued dissensions must however directly tend to the subversion of such salutary feeling.  The public interest imperiously demands that these controversies should be immediately terminated.

"Although in the preceding pages I have sought to apportion justly the censure due to the several parties engaged in these disputes, there is one remark applicable, I lament to say, alike to all.  From the commencement to the close of these discussions, I perceive no attempt, on either side, to conciliate by courtesy and kindness, or to reconcile by mutual concessions and explanations the jealousies which had unfortunately arisen.  The tone of asperity and coldness which pervades the whole of the voluminous correspondence before me is much calculated to perpetuate those feelings of distrust and ill will which ought never to have prevailed.  Unless a very different style of communication be adopted for the future by the parties concerned all chance of conciliation must be at an end.

"It is my earnest hope that my present despatch will be received in time to avert the unfortunate results which might follow from the arrival in this Country of any further controversies between you and the Judges of the Supreme Court.  Sensible as I fully am of the difficulties of your situation, and of the industry and zeal with which its arduous duties are performed, and tilling as I am to acknowledge the meritorious labors [sic] of the Judges and the ability and learning of the Chief Justice, I cannot find, even in these important services any adequate compensation for the dangers and mischiefs to which the Colony is exposed by the mutual jealousy and ill will which has been permitted to take possession of the minds of its principal Officers.  I discharge a duty most painful to myself, but on which I consider to be altogether unavoidable in apprising that if unfortunately it should hereafter appear that dissensions, similar in spirit, to those which I have been reviewing, still continue to agitate the Colony, I shall feel myself called upon humbly to advise His Majesty to recall the Judges and at the same time to relieve you from your Command."

See also R. v. Wardell(No 3), 1827 and R. v. Wardell (No 4), 1827, and Ex parte Wardell and Wentworth, 1827 on this despatch from Murray.  See, too, a covering letter, dated 1 September 1828, from Downing Street, addressed to Forbes, drawing the attention of the judges to the importance of stopping the conflict with the governor, and stating that they were to keep this letter private and confidential: Mitchell Library, A1381, Reel CY 986, pp 92-95. On other aspects of the conflict between the Chief Justice and the governor in 1828, see Convict Assignment Opinion, 1827; Ex parte Raine (No. 1), 1828; R. v. Hall (No.3), 1828; R. v. Mackaness, 1828; and on its resolution, the Newspaper Acts Opinion, 1827.

Without knowing of this powerful demand that the dispute should stop, Darling sent another despatch to Hay on 15 December 1827, saying that "Every one admits that Mr. Forbes possesses superior talents, though certainly in his conduct no Man has shewn less judgment, less common sense.  Stung by disappointment [at the loss of influence in Government House], he has been blind to or disregarded all consequences."  On the next day he wrote to James Stephen, the nephew of Stephen J., saying that the judge was a dupe of Forbes.  Source: Historical Records of Australia, Series 1, Vol. 13, pp 648-652.  Then on 16 February 1828, he told Hay that he thought that Forbes C.J. was playing a role in the plan to send a request for impeachment against Darling (p. 789).

The British government's reaction stunned Forbes and Darling when they eventually received it.  They both promised the British government that they would cooperate with one another in future.  See the correspondence between them and the government, dated 18 April, 19 April, 20 April, 21 April, and 24 April 1829, Mitchell Library, A 1204, Reel CY 537, pp 619-632; Reel CY 760, 351-356; Reel CY 986, pp 230-233; Historical Records of Australia, Series 1, Vol. 14, pp 714-716.

See C.H. Currey, Sir Francis Forbes: the First Chief Justice of New South Wales, Angus and Robertson, Sydney, 1968, ch. 30.  Currey thought, understandably, that Forbes deserved no censure from the British government.  He had been acting according to his judicial duty, and was criticised by a prejudiced Tory officials in England: pp 337-339.

[11 ] In a letter to his son, John, dated 16 May 1827, John Macarthur senior thought that the split between Forbes C.J. and Governor Darling may have arisen because Forbes did not manage to have Wardell appointed as Attorney General in place of Bannister.  (Source: Macarthur Papers, Mitchell Library, Reel 752B, pp 159a ff.)  He went on to say "It is most unfortunate that a man of so much subtlety and talent should be so unprincipled as Mr. Forbes has proved himself to be.  His most intimate associates are Wardle  Wentworth and Sir John Jamison and their parties consist of the most profligate and loose characters."  He said that "Colonel Dumaresq has freely expressed his dislike of Forbes," and that Darling's "hatred and dread of Forbes are about equal."  Macarthur also thought that Stephen J. was "a poor old drunken creature, whom he [Forbes] manages as he pleases." He went on: "I wish to God we could devise some means to convince the British Government of the serious evils which must ensure unless men of  integrity and good morals are appointed to fill publick stations in the Colony.  Forbes they might have known (had they been at the trouble to enquire) was not so, for I am told that he displayed his radical propensities in a remarkable manner at Newfoundland." 

On 27 May 1827, Macarthur returned to the theme: "the editors [are] all desperate radicals alike, shameless and illprincipled.  Our Chief Justice is their idol, and on him they rely for protection whether their libels be aimed against individuals or [?] against Government.  Fortunately this dangerous man has overshot his mark at Govt. House, and a rupture between the Governor and him has certainly taken place."  Macarthur said that Forbes C.J. was not at the Legislative Council meeting at which the stamp Act was passed, but that he (Macarthur) was.  He was one of the warmest supporters of the Act, because the press "made a practice to mislead and to create disorder, disobedience and a mutinous spirit amongst the convicts and labouring people by publishing the most infamous falsehoods knowing them to be false, and whose study it was to level all distinctions in Society and to spread universal disorder."  He suspected that Forbes plotted to have the Sydney Gazette libel him.  The governor told him that he planned to prosecute the Australian and Monitor, his two main critics, for libel (which he did in long cases against Wardell and Hall in the second half of 1827).  This, Macarthur thought, would test Forbes: "Forbes is as cowardly as he is base.  The Colonial Secretary Mr. Mcleay speaks out respecting his conduct and amongst all respectable persons he is detested.  It will be a happy event for us all if they proceed to such lengths as to cause his removal."  At least the governor was now alive to the conspiracy between Forbes and the radicals.  On 1 June 1827, Macarthur told his son that if Forbes C.J. were not recalled, the colony would be ruined.

Dumaresq was Governor Darling's brother in law, with whom Dr Wardell fought a duel in March 1827: see B. Edgeworth, "Defamation Law and the Emergence of a Critical Press in Colonial New South Wales (18241831)" (1990) 6 Australian Journal of Law and Society 50, at 50-51.

Eventually, Macarthur moved to have Forbes impeached: see R. v. Macarthur, 1828.

[12 ] Attached to the despatch from Murray to Darling, 30 August 1828, Mitchell Library, A 746, was a letter from Forbes C.J. to Governor Darling, dated 11 September 1827, which gave Forbes' version of the events: "It was certainly on my recollection that your Excellency had admitted you had received information to my prejudice --- and I intended to have written to your Excellency and requested that I might be put in possession of the names of my accusers, the specific charges against me, and such other particulars as would enable me at once to meet and refute them.  I cannot form any definite opinion of what impressions your Excellency may entertain; but to this I will pledge myself, that if your Excellency will state to me the data upon which they are founded, I will undertake to give such an explanation as I think will remove them from your Excellency's mind.  Your Excellency well knows that, in this Colony, I have a few deep and determined political enemies; made so, not by any voluntary act of mine, but by a line of duty imposed upon me by His Majesty's Government.  I have long predicted, and been prepared to expect, that the first difference of opinion between your Excellency and myself, would be eagerly embraced as the means of scattering wide the seeds of disunion, and I have not been disappointed.  For the Honor however of His Majesty's government, and for the interests of this Colony, I still must request your Exy to state the facts upon which your unfavorable impressions rest, that I may be afforded an opportunity of removing them."

Mitchell Library (B 207) also contains draft letters from Forbes on the press.  One dated September 1827 gave more of his version of the events: "My correspondence with the Governor dated 16th April, and my reasons assigned at large for not feeling myself authorized to certify the proposed licensing act, clearly prove that I had all along advised the government to resort to a vigorous course of prosecution in the Supreme Court, against the publishers of libellous matter - it is reconcilable with common sense, that I would have recommended such a course if I had committed my character to the keeping of the persons whom I should be compelled to beg to punish, and perhaps to exasperate against me - and this too, with so easy a door to escape at, as a quieting license law, or a fourpenny stamp act? - No my dear Sir, those who listened to their slander, and countenanced it under the bond of secrecy, well knew its falsehood, and are ashamed to admit even the consideration of having listened to it. ...

" I assisted in preparing the first New South Wales bill, and was appointed to the Supreme Court in 1823. The many and more important subjects which have since engaged your attention, will not have caused you to forget the great anxiety I felt and expressed in a letter to you, intended to be laid before Lord Bathurst, upon the very delicate ground you had placed me, in regard to the Governor of this Colony. The powers of the government had been at once legislative, judicial and executive your act abridged all these powers, and created in the Supreme Court a check, indeed a controlling authority. I felt that sooner or later this power of the Judge would be considered by the governor as an encroachment upon his authority, and in spite of the best feelings of private good will, would bring their respective offices into difference. During Sir Thomas Brisbane's government I contrived to keep clear of all collision; but since the administration of his successors I have not been equally fortunate. ...

" I have reason to believe that the Governor considered that I was bound to support him - whatever I might think of the abstract policy or propriety of any particular act that I was bound to give the weight of my opinion to the measures of his government; and not by an appearance of neutrality, to allow it to be supposed that I disapproved of them. Perhaps the Governor was right, if I were to be regarded in the light of a privy counsellor, but assuredly it was my first duty to preserve the irreproachability of the judgment seat. The people of this Country look with the most intense anxiety at every act, every opinion of the Judge - without trial by Jury, without the corrective power of an assembly, without one single popular right, they naturally regard the Supreme Court as their protection against absolute power - their rulers may be the best possible, but they will not probably be better then rulers at home - and why have the people of England imposed all those checks and balances, but upon the assumption that they are necessary - and if they are necessary there, why should they be less so in New South Wales? I propose the question, I do not mean to answer it - but this I will affirm, that it has been my incessant endeavor, ever since I have been in this Colony, to raise the character of the Supreme Court in the opinion and confidence of the Colonists - that I have strained hard to preserve its independence and prevent its being supposed to be capable of being influenced - in this I have thought I consulted the highest honor of the Crown, as well as the best interests of the people - if I have erred I have done so upon principle - but it will require some extraordinary power of persuasion to induce me to believe, that in a Court firm in the confidence of the people, there is not a safe-guard of the public peace, stronger than in the force of armed men - that in a just and vigorous, because just, execution of the laws, there is not a far greater protection to the government than in the seeming acquiescence of a pliant Judge - than in all the subserviency of the most obsequious bench. Such is my principle, and such has been my policy by them I have guided every proceeding in my office - and it is alone my pride and satisfaction to say that the Supreme Court does rank high in public opinion, and is at this moment affording the government a support and protection , by the force of its character, and the independence of its acts, which although not accurately estimated by the government itself, are felt by its adversaries, and acknowledged by the community at large. ...

"I had been appointed by Parliament to discharge a sacred duty - it was to see that the laws of the empire were not encroached upon. I was called upon the Governor to perform this duty. I did so to the best of my judgement and ability. I refused to certify General Darling's bills, because I thought them repugnant to law - because I felt I should compromise my oath, and my honor if I sanctioned them. His Excellency's function was at an end and I had performed mine - what legal right could the Governor claim to press me further, or to endeavor [sic] to alarm me into compliance? ..."  Forbes went on to denigrate the members of the Legislative Council which had passed the press Bills, saying that Macarthur was personally interested in the measures and wanted a tax of a shilling on each paper in order to suppress them completely, while another member, Throsby, did the government's bidding in order to gain a lucrative contract.  Soon after he blocked the legislation, Forbes said, rumours began to circulate that he was in league with the newspaper editors.  He went on to discuss Macarthur's Parramatta faction, which he had offended by doing his duty.  He then denied the specific allegations against him, that he colluded with Dr Wardell (the editor of the Australian), and that he delayed the libel trials.  This was a draft of a letter which he wrote to Horton on 20 September 1827: Historical Records of Australia, Series 4, Vol. 1, pp 731f; Mitchell Library, Reel CY 760.

In an attached note (which was not in the letter sent to Horton), Forbes reiterated his attitude to the press in a penal colony: "It does not lie in the [?] compass of a mere point of expediency, how far a free press may be political, in a country where a large portion of the inhabitants are prisoners under sentence of transportation - with such a question, taken by itself, there is no difficulty in dealing. But a considerable  body of the colonists are free by birth, and emancipation - and they have opinions and feelings which cannot be suppressed. One of your own legal advisers has told them that 'let an Englishman go wherever he will, he carries as much law and liberty with him, as the nature of his situation will bear' - granted you will perhaps, say - but your's is the situation of a penal settlement, a convict colony, and therefore you must be content to receive such a modification of your paternal rights and privileges, as the different condition of your colony requires - and among the restrictions to which you must submit is that of not being allowed to express your sentiments through the medium of the press. [Now, in the soundness of this doctrine I entirely acquiesce - and were the matter merely in discussion between us, we should find no difficulty in coming to a conclusion - but such is not the case with the colonists - they will not admit, because a fraction of the laboring classes is under sentence of the law, that they therefore should be abridged in their natural rights - and lest I might be suspected of advocating their opinions, I will give them to you in the language of one of the wisest statesmen and most illustrious orators that ever lived - I mean the great Edmund Burke."  The extract from Burke pointed out the consciousness of civil liberties among those who held slaves.  Forbes concluded as follows:

"You will pardon this long extract, for the extensive views, the profound wisdom, the masterly knowledge of human nature which it develops - and you will not fail to remember the prophetic spirit in which it was originally delivered. Let me now close this long letter with one parting suggestion. [If it shall ultimately be deemed advisable to silence the press, let it be done completely, not partially - let all political discussion be suppressed together; and no latitude allowed either to commend, or to censure, the acts of government. I can pretell [sic], from what I have  witnessed, that a licensed press would be converted into an engine of government, and stimulate a deep and settled hostility to its measures - the more dangerous and deadly, as it would be circulated in private, until it assumed a sufficient body and form, to present a formidable resistance - not in the way of arms, but remonstrances, petitions, and appeals to England, which ultimately must free themselves upon your attention, and find their way before the public. I so firmly believe that the extraordinary degree of hostility which has been called forth against the acts of the present governor, has been chiefly attributable to the unqualified laudation which the Gazette has lavished upon every measure of his administration, and the unrestrained abuse which it has heaped upon all who opposed them. Let me earnestly impress on you, my dear Sir, if the press is to be put down, that an extinguisher be put upon it altogether, and that nothing whatever be allowed to be published except official documents, and private advertizements."

Even more extraordinary documents are held by Mitchell Library at A 743.  One, apparently in Forbes' handwriting and dated by a librarian at 1827, suggests that D. and A. (Darling and Lieutenant Arthur of Van Diemen's Land) conspired to prevent the Sydney Gazette, which supported the government, from being prosecuted for libel.  The governor's aim, according to this document, was to use the licensing measure to destroy opposing newspapers, and to use the rest of the press as a propaganda arm of government.  The stamp Act would be a silencing tax in support of this.  The document continued: "With all this before my eyes, with it confessed before me, how could I certify such things, as not repugnant to, but consistent with the spirit and letter of English law?"  A further document at the same reference, also seemingly by Forbes, stated bluntly: "The Governor determined to bring down the Supreme Court --- in defiance of the section of the Charter, in defiance of his own commission, publicly read on his assuming the Government, he determined to lower the Supreme Court."  These were the most bitter of Forbes' documents about Governor Darling, apparently made as notes for himself.  They accused Darling of frequent illegal actions concerning sentences, of conspiring to interfere with justice, and of attacking the Supreme Court.  They are among the most remarkable documents in the legal history of New South Wales, but are not readily available.

For further detail of the conflict between Forbes and Darling, see Broadbear and Wife v. Macarthur et al., 1827.

This was not Forbes' first conflict with a governor.  When he was Chief Justice of Newfoundland, before taking up the position in New South Wales, he fell into disagreement with the governor there, Admiral Hamilton.  There, too, he felt it his duty to hold the governor to the law, though the personal relations between the two seem to have been much more cordial than between Forbes and Governor Darling.  On the Newfoundland conflict, see for example, Provincial Archives of Newfoundland, GN 2/1/31, Vol 31, 1819-1821, pp 264-267; and see A Report of Certain Proceedings of the Inhabitants of the Town of Saint John, 1821; and Observations on the Present State of Newfoundland in Reference to its Courts of Justice, Local Government, and Trade: in a Letter addressed to the Right Honourable Henry Earl Bathurst, 1823.  The latter two documents, which are held by the Centre for Newfoundland Studies, in the Library of the Memorial University of Newfoundland, show that Forbes' liberalism was admired by the reformers there, as it was in New South Wales.

Published by the Division of Law, Macquarie University