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

R. v. Wardell (No. 2) [1827] NSWSupC 55

criminal procedure - criminal informations - seditious libel - press freedom - convict service

Supreme Court of New South Wales

Forbes C.J. and Stephen J., 12 and 14 September 1827

Source: Sydney Gazette, 17 September 1827

 

WEDNESDAY, SEPTEMBER 12.

THE KING AGAINST DR. WARDELL.

In this case, an information was filed by the ATTORNEY GENERAL,[ 1] for a libel contained in a certain article which appeared in the Australian newspaper, on the 30th day of May last.

Dr. WARDELL moved, that the information be quashed by the Court; or that before the defendant be called upon to enter into recognizances, the Attorney General shew that he has a legal power to originate prosecutions for matters which took place before his appointment.

Mr. JUSTICE STEPHEN delivered the opinion of the Court, that there was no case, no body of facts before it, on which to form any opinion.  The motion was irregular, and if there was any ground to shew irregularity in the information, it might be taken advantage of in the usual and regular stages of the prosecution.  Motion discharged.

Dr. WARDELL also stated to the Court, in reference to informations for libel filed, by the late Attorney General, in June last, that he had been served with a Rule to plead in those cases, in the present term, and contended, that the Crown Officer had no power to do so, he (the defendan[t]) having entered into recognizances to appear next Term.  A point of practice having been raised, the Court ordered it to stand for argument to morrow.

 

THURSDAY, SEPTEMBER 14.

THE KING AGAINST DR. WARDELL.

 

Dr. WARDELL stated, that the question he was again about to raise had been so often before the Court, that every thing relating to it must now be well known.  The point was, whether the defendant, having entered into recognizances to appear at a stated time, the prosecutor could now turn round, set them aside as a nullity, and go on with other proceedings, without reference to them at all.  Notwithstanding an undertaking, on the part of the defendant, to appear at the next Criminal Sessions, the prosecutor chooses to go on and take a step towards trial, by ser[v]ing a rule to plead within four days, or in default judgment to be had for the King. This was the question he had to bring before the Court, and he contended that, having entered into recognizances to appear at a given time, after the information was filed and process served, it was not competent to the Attorney General to treat the recognizances as a nu[l]lity, and serve him with a rule to plead at a time long prior to the time stipulated by the recognizances.

The SOLICITOR GENERAL observed, that he rose to argue this case under considerable difficulty, not having been fully acquainted with all the facts connected with it.  He understood, yesterday, that the form of the recognizances was, that the defendant was to appear in due course of law, which would be at the next Sessions, consequently he could not be called on such recognizances, as they would not be forfeited till then.  But he contended, notwithstanding, that if the prosecutor choosed to waive the recognizances, the defendant might be called upon to appear and plead.  He submitted that, supposing the recognizances to be for appearance at a particular day, it did not follow that the Crown was to be concluded, and the Attorney General prevented from proceeding before such day. The recognizances were admitted to be drawn without the knowledge or content of the Attorney General or any Officer of the Crown and he contended, therefore, that the Crown was not to be concluded by them.  The learned Gentleman admitted, that he could not proceed upon the recognizances, but contended, by the 60th Geo. III. and 1st Geo. IV, the defendant being in Court and charged with the information, was liable to be called on to plead within four days.  If he could, as he hoped to do, establish that Act to be in force in the Colony, then it was clear the defendant might be called upon in the manner for which he contended; but, supposing even that Act to be left out of the case altogether, the Attorney General was not bound by the mode of proceeding pointed out for informations by private prosecutors  (Bl. Com. on informations, and Chitty's C.L.)

The CHIEF JUSTICE enquired of the Solicitor General if he could shew any point of practice clearly establishing the right of the Crown to compel a defendant to go to trial before he would be compellable by a private prosecutor?  That the Attorney General might proceed when private prosecutors could not, from the principle that no latches were imputable to the King was clear; and it was one of the objects of the 60th Geo. III. and 1st Geo. IV. to abridge this power of the Crown, and place it in the power of the accused to compel the Attorney General to go to trial within twelve months, or be debarred from proceeding after that lapse of time.  It was to this point only that the text books intended to go.

The SOLICITOR GENERAL admitted that he had not seen any other authority except the text book cited.

Dr. WARDELL replied.

THE CHIEF JUSTICE. - We are of opinion that the Crown is not concluded by any irregularity in the recognizances, no assent on the part of the Crown, as to time, having been proved.  But we are prepared to hear an argument, before we dispose of the case, as to whether the provisions of the Statute of the 60th Geo. III. and 1st Geo. IV. are applicable to pleadings here.

Dr. WARDELL then took a review of the state of England in the year 1819, which caused those Statutes, generally denominated the six Acts, to be enacted, one of which was the Act alluded to in reference to the Press, and contended that, being pa[s]sed to meet particular circumstances which did not exist in this Colony, it was not applicable here; and further, that even admitting it to be in force in the Colony, the case before the Court did not fall within its provisions.

The SOLICITOR GENERAL replied.

The CHIEF JUSTICE. - The Court has already disposed of the first objection on the ground which has been before stated, namely, that the Crown is not concluded by any irregularity in the recognizances.  The case now turns upon the application or non-application of the Statute of the 60th Geo. III. and 1st Geo. IV. to the Colony, and how far it forms part of the rules for the guidance of the practice of the Court in the case of information; and, in order not to be misapprehended with respect to the opinion at which the Court has arrived, I will briefly advert to the whole of the circumstances which have been so frequently before the Court, in reference to these cases.  In June last, being the second term of this year, the then Attorney General filed certain informations against the defendant, and, as it would appear from the defendant's statement, in June, process by subpoena was extracted to compel the defendant to appear.  On the 15th of June, the defendant himself moved the Court to restrain the Attorney General from proceeding, ex officio, upon the ground of the informations, shewing upon the face of them that the matter of complaint did not lay any legal foundation for such a form of proceeding.  The Court adjourned the consideration of this matter until the Attorney General should be notified of the motion; which, on the 27th of June, again came on, and was resisted by the Attorney General.  It is unnecessary to go over the several grounds taken in argument; but the Court ruled that ex officio informations were entirely within the discretion of the Attorney General, to be exercised, no doubt, upon sound principles, but, at the same time, at the Attorney General's undivided responsibility; and it refused to interfere, leaving the informations upon the files of the Court in the same state they had been left by the Attorney General.  There was no rule to plead - no application to the Court to call upon the defendant to plead during the remaining days of the Term.  On the 1st of August (the Term being then passed), the Attorney General moved the Court for Bench warrants against the defendant, who was in Court, and stated that he appeared to the informations, and the Court ordered that recognizances be entered into in the ordinary manner.  It appears that, by the act of the Clerk, these recognizances were conditioned for the appearance of the defendant in December, under a supposed right of the defendant to imparle to that term, being the next but one after the Bench warrants had been applied for, and the appearance regularly entered.  By the old practice of the Court of King's Bench, it was the right of a defendant to imparle from one term to the next; and the appearance being after the term of June, could only be considered as an appearance in the next term, September; and the right of imparlance would be to December following.  So stood the old practice.  By the Statute of the 60th Geo. III. and 1st Geo. IV. for preventing delay in the administration of justice, a new and more expeditious mode of proceeding is left to the prosecutor to adopt.  It is not imperative to adopt it, but if it be not adopted, then the old common law practice must be followed.  Now, two questions are raised; first, as to the Statute, whether it forms part of the law and practice of this Court; secondly, does such Statute specifically apply to the question before the Court?  We are of opinion that the Statute is part of our law - it is a beneficial Statute - it takes away unnecessary delays, both from the Crown and the defendant - it gives and takes - it equalizes justice.  Holding this Act, therefore, to be in force, the only question is, whether the point before the Court is within the Statute.  Has the defendant as yet appeared - that is, legally appeared, during any term since the filing of the information, to such information, under process, or by assent?  Now, the defendant has appeared - he appeared in August; and that appearance runs through all the subsequent proceedings.  Having once appeared, he is always before the Court.  Has he then been charged with the information? - Has he been served with a rule to plead?  These are matters of fact.  If he has been served with a rule to plead, he is liable to that rule, under the Statute.

Mr. JUSTICE STEPHEN stated, that he thought it unnecessary to make any observations, or go further into the case, as he fully coincided in the view taken of it by His Honor the Chief Justice.

 

 

Forbes C.J. and Stephen J., 29 September 1827

Source: Australian, 3 October 1827

 

This was a Criminal Information filed by the Attorney-General against the defendant, as the Editor and Proprietor of The Australian Newspaper, for printing and publishing a seditious libel in that paper, on the 3d of August last.[ 2]

The defendant pleaded not guilty.

The Attorney and Solicitor General,[ 3] assisted by Mr. Gellibrand, the Ex-Attorney-General of Van Diemen's Land, conducted the prosecution.  Dr. Wardell defended himself.

The Jury having been sworn, the subjoined Information setting out the alleged libel was then read:-

"In the eighth year of the Reign of our Sovereign Lord George the Fourth, by the grace of God of the United Kingdom of Great Britain and Ireland, King, defender of the Faith.

New South Wales to wit. - "Be it remembered that Alexander Macduff Baxter, Esquire, his Majesty's Attorney-General for the Colony of New South Wales, who prosecutes for his Majesty in this behalf, being present in the Supreme Court of New South Wales, now here, on the seventeenth day of August, in the year of our Lord one thousand eight hundred and twenty-seven, at Sydney, in the Colony aforesaid, informs the said Court, that before and at the time of the composing, printing and publishing of the seditious, scandalous, malicious, and defamatory libel herein after mentioned, a certain Official Notice had been issued and published by command of his Excellency, Lieutenant General Ralph Darling, then, and still being the Governor of the Colony of New South Wales, in his capacity of such Governor as aforesaid, at Sydney aforesaid, in the Colony aforesaid. - And the said Attorney-General further informs the said Court here, that Robert Wardell, late of Sydney, in the aforesaid Colony, Doctor of Laws, seditiously, unlawfully, and maliciously contriving and intending to vilify and defame the said Ralph Darling, so being such Governor as aforesaid, in his character of such Governor as aforesaid, and to expose him to great public ridicule, hatred and contempt, on the third day of August, in the year of our Lord one thousand eight hundred and twenty seven, and whilst the said Ralph Darling was such Governor as aforesaid, at Sydney aforesaid, in the Colony aforesaid, seditiously unlawfully, and maliciously did compose, print and publish, and cause and procure to be composed, printed and published in a certain public Newspaper, called "The Australian", a certain seditious, scandalous and malicious libel of, and concerning, the said Ralph Darling, in his character of such Governor as aforesaid, and of, and concerning the conduct as such Governor as aforesaid, in having caused the said Official Notice to be so issued and published as aforesaid, in a certain part of which said libel was and is contained, the seditious, malicious and defamatory matter following; (that is to say),

"We (meaning himself the said Robert Wardell,) lament to see a Government (meaning the said Ralph Darling, in his character of such Governor as aforesaid), displaying so much ignorance as this Notice (meaning the aforesaid Official Notice so issued and published as aforesaid) betrays; and we (meaning himself the said Robert Wardell,) feel sincere compassion for the weakness which is so readily seduced into error; but while we (meaning himself the said Robert Wardell) extend our (meaning his the said Robert Wardell), pity to the Authorities (meaning the said Ralph Darling, in his said character of such Governor as aforesaid), at witnessing the awkward dilemmas in which they (meaning the said Ralph Darling in his character of such Governor as aforesaid), unwittingly place themselves, (meaning the said Ralph Darling in his character of such Governor as aforesaid), we (meaning himself the said Robert Wardell,) shall strenuously oppose the accomplishment of the purposes of the Notice, (meaning the aforesaid Official Notice so issued and published as aforesaid), and raise our (meaning his own, the said Robert Wardell's,) powerful arm to prevent a meditated encroachnent on the rights of the people, and rescue the Government (meaning the said Ralph Darling in his character of such Governor as aforesaid), from the consequences of intentionally or unintentionally as the case may be, being guilty of a usurpation of power.  We (meaning himself the said Robert Wardell,) crave the particular and minute attention of our (meaning his own the said Robert Wardell's) readers, to every line of this non-descript, nay, even under this Government, (meaning during the period that the said Ralph Darling had so held the office of Governor in New South Wales as aforesaid), the unprecedented Notice (meaning the said Official Notice so issued and published as aforesaid.)  It is worth any man's while to study the principles on which it (meaning the said Official Notice so issued and published as aforesaid,) is built, to look at the havoc it (meaning the said Official Notice so issued and published as aforesaid), makes of Law and the Constitution, and of Constitutional Law.  The absurdities on the face of it (meaning the said Official Notice so issued and published as aforesaid), are enough to startle the man even who never thinks, and satisfy the most cursory observer, as well as the erudite understanding that this Government Notice (meaning the said Official Notice so issued and published as aforesaid) cannot be consonant with right reason, and cannot stand the test of examination, if an Act of Parliament of Great Britain be worth the paper on which it happens to be endorsed."  And in another part of which said libel was, and is contained, the seditious, malicious, and defamatory matter following, that is to say, "Now let us (meaning himself, the said Robert Wardell) conduct our (meaning his, the said Robert Wardell's) readers to the beginning of the Government Notice." (meaning the said Official Notice so issued and published as aforesaid) "An individual whose servants have been returned to Government by an order of one of the Benches of Magistrates having expressed a doubt as to the power of the Bench to remove his servants," (meaning that the said last mentioned passage, so placed between inverted commas, and commencing with the word "An," and ending with the word "Servants," was an extract from the said Official Notice so issued and published as aforesaid.)  "Is this the state of the case?  Are the facts here given fairly?  Is this dealing quite candidly with the Supreme Court?  Either we err, else the Notice (meaning the said Official Notice so and issued and published as aforesaid,) tells not the truth, (hereby meaning and intending to insinuate, and have it understood, that the said Ralph Darling, in his character of such Governor as aforesaid, had intentionally caused a falsehood to be issued and published in the said Official Notice.")  And in another part of which said libel was, and is contained, the seditious, malicious, and defamatory matter following, that is to say, "Good Heavens, what strange mistakes - what extraordinary misapprehensions are we made to witness," (thereby meaning and intending to insinuate, and have it understood, that the said Ralph Darling, in the exercise of his office as such Governor as aforesaid, had publicly committed strange mistakes, and misapprehended his authority in an extraordinary manner.)  "What would this poor Colony (meaning the aforesaid Colony of New South Wales) do without a Free Press, to serve as a beacon to the local administration," (meaning the said Ralph Darling, in the character of such Governor as aforesaid.)  "when with it we see such things as these come to pass!  Down with the Press, crush the Editors, and what would become of the Colony," (meaning the aforesaid Colony of New South Wales) if the English Government should chance to appoint to the to the command of the Colony (meaning the aforesaid Colony of New South Wales) if the English Government should chance to appoint to the command of the Colony (meaning the aforesaid Colony of New South Wales) an ignorant and an obstinate man!!!" thereby then and there meaning to insinuate and have it understood, that the said Ralph Darling, in the exercise of his office of such Governor as aforesaid, was an ignorant and an obstinate man, to the great scandal and disgrace of the said Ralph Darling in his said office of such Governor as aforesaid, to the evil and pernicious example of all others, and against the peace of our Lord the King, his crown and dignity.  And the said Attorney General further informs the said Court here, that the said Robert Wardell further seditiously and maliciously contriving, and intending to vilify and defame the said Ralph Darling in his office of such Governor as aforesaid, and to expose him to great public ridicule and contempt, on the third day of August, in the year of our Lord one thousand eight hundred and twenty-seven, and whilst the said Ralph Darling was such Governor as aforesaid, at Sydney aforesaid, in the Colony aforesaid, seditiously and maliciously did compose, print, and publish, and cause and procure to be composed, printed, and published in a certain public Newspaper called The Australian, a certain other seditious, scandalous, and malicious libel of and concerning the said Ralph Darling, in his office of such Governor as aforesaid, and of and concerning his conduct in his office of such Governor as aforesaid, in having caused the said Official Notice to be so issued and published as aforesaid, and which said last mentioned libel was and is as follows - that is  to say, "We," (meaning himself, the said Robert Wardell) "lament to see a Government," (meaning the said Ralph Darling, in his character of such Governor as aforesaid) displaying so much ignorance as this Notice, (meaning the said Official Notice so issued and published as aforesaid) "betrays, and we (meaning himself, the said Robert Wardell) "feel sincere compassion for the weakness which is so readily seduced into error," to the great scandal and disgrace of the said Ralph Darling , in his said office of such Governor as aforesaid, to the evil and pernicious example of all others, and against the peace of our said Lord the King, his crown and dignity,

ALEX. M. BAXTER."

The ATTORNEY GENERAL opened the case. - This was an information, he said, against Doctor Wardell, for a libel on his Excellency the Governor of this Colony, in his official capacity of Governor.  The libel set forth in the information, was published in The Australian Newspaper (of which it would be proved the defendant was Editor and sole Proprietor) on the 3d of August last, professing to be remarks on a Government Notice which had been issued some days previously.  Whenever a proper time arrived for so doing, he (the Attorney-General) would be prepared to shew this Notice was politic, and highly beneficial to the Colony.  The question then, for the consideration of the Jury, was, whether the publication which had been read to them, was a libel on his Excellency the Governor, in his official capacity as such.  It was not his intention to call into question the freedom of discussion of public measures, provided that discussion was conducted in a decent and proper manner, and provided that the subject was not meant to be handled for the purpose of abusing the Governor.  It could never be tolerated that an individual, under a pretence of remarking upon the act of a governor, should introduce a torrent of abuse, or to allege, generally, that the Governor was a weak and corrupt man - this could be to no good purpose, but tended rather to introduce anarchy and discontent in the Colony.  Before he concluded, he would read over the parts of the article in question, and put it to the Jury whether those remarks were put forth in decent and respectful language, and intended as a fair, proper, and liberal comment upon the Government Notice; or whether it was intended by those remarks to hold up the Governor to contempt and ridicule.  The libel imputed to the Governor, in his official capacity, obstinacy, ignorance, and weakness.  The article contained the most rancorous, contemptuous epithets of the governor, and was written in a style well known to distinguish the defendant as an excellent writer.  It was well known, when it was considered how that libel had been circulated, and read by a vast population - by a community who had no opportunity to know whether the remarks were just - when it was considered by the mass of population sent to this colony to expiate their crimes - who, beggared in fame and reputation, were disposed to change their condition, and remove from that authority which was very properly placed over them, for the purposes of punishment - when it was for a moment considered that such a matter went forth in such a Colony.  If it was evil in the mother country, how much more so was it here.  Hence then, it was his duty to suppress it by all the means that lay in his power.  With regard to this article being a libel, he would proceed to read it, and bring forward some of the latest dictums of the most learned judges of the day, in support of the view he took of the present case.  [Here the learned Counsel read and commented upon the article] Now, no doubt, said the learned Counsel, it would be said in defence that this was a hard prosecution - that it was a petty warfare against an individual, that this information was filed - but he would state, that it affected the well being of the Colony.  It was amusing to hear those who were in the constant habit of libelling the Government, cry, they had been injured and oppressed by the Government - men who have an engine of such a powerful description in their hands - which no healthful government could resist - it was amusing how they came forth and said they were the tools of oppression.  How was it possible, he would ask, that a Government could exist under such a load of obloquy, when it reached the Home Authorities?  He apprehended it would be said to them (the Jury), that in giving their verdict as Military Officers, they should discharge their own consciences as an Independent Jury, and should not be swayed by any influence whatever.  This, however, he did not think worth considering on.  He had been witness to the most conscientious verdicts from them, and he trusted that on this day they would give the same conscientious verdict between the government and the present defendant; for they would hereafter find, that as soon as the spirit of discontent subsided, that unhappily at present raged in the Colony, their verdict would be such as to give satisfaction to the mind of every honest man.

Mr. GELLIBRAND then proceeded to call witnesses to prove the publication, &c.

Mr. ALEXANDER McLEAY examined - Is the Colonial Secretary of the Colony of which Lieutenant-General Darling is the Governor.  An affidavit, put into the witness's hands, was made by defendant, in his presence.  The defendant made oath, that he was Editor and Proprietor of The Australian Newspaper.  Witness was Colonial Secretary at the time the affidavit was made, and has continued to act as such ever since.  Has seen seen [sic] the paper now produced, The Australian of the third of August, at his Office - the paper contains a Government Notice, dated July - it purports to be a copy of a Government Order that witness had caused to be published by order of the Governor.

Cross-examined. - Witness has read the article in question, before now.  He read it, in all probability, on the morning of publication.  On reading it, can't recollect what step he took upon it - cannot say exactly what he did with the paper - is almost sure he sent it, with some other papers, to the Governor - it is not always the case he does so.

Question. - On sending this paper to his Excellency did you make any particular mark upon it, as to any particular passages it contained?

The three Counsel for the Crown rose together, to object to this question being put to the witness.

The CHIEF JUSTICE desired it to be intimated which of the Gentlemen who appeared for the Crown undertook to carry on the examination of this witness, for three persons to be rising up at once, said his Honor, was out of order altogether.

Mr. GELLIBRAND then, only, remained on his legs.

Dr. WARDELL having again put the question,

The CHIEF JUSTICE asked what was the objection taken to it.

Mr. GELLIBRAND. - I object to it on this ground - Whatever communication passed between Mr. McLeay and the Governor, was a confidential communication, and should not be disclosed.

The COURT was at a loss to see what benefit it could be to the defendant by getting an answer to the question - it could have no reference to the matter at issue.

Doctor WARDELL suggested that he might be enabled to prove that an undue influence had been used in getting up the prosecution against him.

The CHIEF JUSTICE - We are of opinion that under the circumstances which the witness stands in, with relation to the Governor, in his official capacity of colonial Secretary, there must be naturally a degree of confidence arising between them, and an obligation of confidential secrecy, and therefore cannot be called upon to disclose any matter of a confidential character.  The witness will of course know, from the nature of the question put to him, whether in answering it he will commit a breach of this sort; for, if it will, he is not obliged to answer it.

The examination of Mr. McLeay was resumed - I do not recollect having made any report to the Attorney-General with respect to this article - I have never heard any thing about Exchequer Bills - but I recollect something about Treasury Bills - and that the Editor of The Australian was likely to leave the Colony - I had an intimation to this effect from two or three quarters.  [The witness was here asked to mention what quarters they were, but declined to do so - it was a confidential communication made to him by several persons.  His communications does not, that he knows of, extend to the Editor of the Sydney Gazette.  He never puts any paragraphs in the Gazette, except Government Notices.  The Sydney Gazette of the 8th of August was here put into the witness's hands, and desired to look at a letter addressed to the Editor in that paper.]

Question - Do you know who was the writer of that? - Question objected to and overruled.

Mr. SHAND examined - I live in Sydney - I have read  an article published in The Australian of the 3d of August last.  In one of the passages there are the words an ignorant and an obstinate man.  At the time of reading it I thought it applied to the Governor, and I am of the same opinion still.

Cross-examined - I am an old friend of the Attorney-General's - I never talked with him about this information - It was from reading the whole of the article that I concluded these two words to apply to the Governor.

Re-examined - This is my own opinion, and not an opinion which I have derived from the Attorney-General.

EDWARD WOLLSTONECRAFT, Esq. - I am a Magistrate of the Colony - I have resided here about eight years.  The witness was desired to look at the article in question, taking the context of it - is of opinion it applied to the Governor, coupled with the fact of the words an ignorant and an obstinate man being written in Roman characters.  Has not consulted with the Attorney-General, either directly or indirectly on this subject, further than that he was asked the question to whom he did think he article applied - on that very morning.

Cross-examined - It is from the context that witness thins the article applies to the Governor - Thinks the Governor is expressly implied in a passage above that in which the two words are written - It precedes those words about half a column.

The case for the crown here closed.

Dr. WARDELL then rose in his defence.  In the course of a long address to the Gentlemen of the Jury, he adverted to numerous matters which he considered had relation to the present proceedings.  He represented that this was only one of many prosecution which had been instituted against him - not for the sake of correcting the abuses of the Press, and upholding the law, but to destroy the freedom of the Press.  He adverted to Mr. McLeary's unwillingness to answer sundry questions - remarked on the employment of Mr. Gellibrand, the Ex-Attorney-General of Van Diemen's Land, as if two silk gowns were not enough to cope with the defendant; on the improper view which the Attorney-General took of his office, in considering himself as acting only ministerially, and on the evils which such an opinion introduced, by leaving parties unprotected by that sound discretion which it is expected always regulates the movements of an Attorney-General.  The defendant proceeded afterwards to read the whole of the article out of which the alleged libel had been taken; and, in commenting upon it, as he read, he shewed that it was a publication which fell within the pale of privileged writing.  He cited various law authorities to bear him out in his reasoning.  He described the article to be a fair commentary on a Government Notice which had been published; and that it contained such remarks as the occasion called for.  The Notice, he stated, had appeared after a decision of individuals over assigned servants, under Mr. Peel's Act, and was in direct opposition to that decision.  The entire article, as it appeared in The Australian, and was read in Court by the defendant, is as follows:-

"This (meaning a Government Notice which appeared at the head of the following observations, but which we do not now think it necessary to re-insert) is a Government Notice signed by Mr. McLeay, the Colonial Secretary, by command of his Excellency - dated, the thirtieth ultimo, and published on the first instant.

"We lament to see a Government displaying so much ignorance as this Notice betrays, and we fell sincere compassion for the weakness which is so readily seduced into error; but, while we extend our pity to the authorities, at witnessing the awkward dilemmas in which they unwittingly place themselves, we shall strenuously oppose the accomplishment of the purposes of the Notice, and raise our powerful arm to prevent a meditated encroachment on the rights of the people, and rescue the government from the consequences of intentionally or unintentionally, as the case may be, being guilty of a usurpation of power.

"We crave the particular and minute attention of our Readers to every line of this non-descript, nay, even under this Government, the unprecedented Notice.  It is worth any man's while to study the principles on which it is built - to look at the havock it makes of Law and the constitution, and of Constitutional Law.  The absurdities on the face of it are enough to startle the man even, who never thinks, and satisy the most cursory observer, as well as the erudite understanding, that this Government Notice cannot be consonant with right reason, and cannot stand the test of examination, IF an Act of Parliament of Great Britain be worth the paper on which it happens to be engrossed.

"We have read of Parsons in ancient times being Chancellors of England - we have heard of Soldiers being Judge Aevocates, [sic] and we have come to the knowledge of Governors being constituted Equity Judges, and judging most equitably, and certainly most facilely the abstruce cases which had puzzled most professional Lawyers and regular Judges; but it has remained for us to learn in New South Wales, that the Right Honorable the Secretary of State for tee [sic] Home Department is "Consulting Lawyer" for Botany Bay?  The Right Honorable gentleman, as we are right honorably informed, has given "a legal opinion."  "The case" submitted to the "learned lawyer" must have been curious, but "case and opinion" duly endorsed must shew us something more curious still.  By the bye, when was the Secretary of State for the Home Department consulted?  Six months have now elapsed since we ventured to propound this difficult, this right difficult point!  This we had always understood was the period when the question was first callen into discussion.  Did then the Right Honorable Secretary forward his opinion unasked, and in anticipation of this knotty business?

"However, let this be as it may, we have the opinion, and the opinion goes to tell us; - First, the intention of the Legislature, and secondly, the meaning of the Act of the Legislature.

"We were not aware that it was the province of the Right Honorable Secretary, though he were one of the Legislators who passed the Act, to explain the meaning of the Members of the British Parliament.  "When any doubt arose upon the construction of the Roman Laws, the usage was to state to the Emperor in writing, and take his opinion upon it."  But we did not know that the functions of Imperial Rome had descended to the Right Honorable the Secretary of State for the Home Department in England, and that this "bad method of interpretation" had, by a strange species of transmigration settled in him, and after being houseless for fifteen hundred years, had at length found a Home in the Home Secretary.  We have always been taught that when the words of an Act of Parliament were not "dubious," they needed no explanation, and that when they were, their meaning was to be ascertained by rules certain, and not by "interrogating the Legislature," or any of its members - but perhaps we have adopted bad guides for teaching us; perhaps our Instructors were boobies, and perhaps my Lord Coke, Lord Hale, Lord Raymond, Plowden, &c. &c. &c. were uncertain authorities, and ought "to hide their diminished heads" when a Government Notice sports opinions of Right Honorable Secretaries of State, in direct contravention of what they. in their times looked upon as established law.

"With respect then to the first of the above point - the Right Honorable Secretary is correct in his law, and can very properly undertake to tell us what the framers of the Act of Parliament intended, and further, require us to be guided by his assurance, IF - the lawyers of minor consequence - lawyers whose names we have cited be incorrect in their language and their law, and in the rules which they have laid down for expounding doubtful clauses, and words of Acts of Parliament.

"Then, as to the second point - when the Right Honorable Secretary informs us, what the 8th section of the fifth of Geo. IV. Enacts, he must pardon us if we do not take his reading of the law to e the proper reading.  When he tells us what the section does, and what it does not do, he must excuse our scepticism, for not yielding implicit faith to his knowledge of law.  The Right Honorable Gentleman may, if he please, tell us what the Legislature intended to do, not though with a view of guiding the people here, for that cannot be done on the strength of such information, but merely as a matter of curiosity, and to satisfy us whether or not, the Legislature has failed in its object.  Here however we must stop, or expect other to think and explain the law as well as himself, and perchance to differ from him.  He assures us, so says the "Government Notice," that "the 8th section of the Act does not preclude the local Government from making any Regulation which may be necessary, respecting the re-assignment of the services of convict."-  Whence does the Right Honorable Secretary derive this information?  On what does he ground his legal opinion?  On the words of the Act?  No, but as we suppose, on his own intention, when he introduced his Bill, else on what he would do if he were to bring in another Bill!  The opinion of an old washerwoman would be just as good an opinion.  The words of the Act are,

"It shall be lawful for such other person," (meaning the Assignee of a Prisoner,) whenever he shall think fit to assign any such offender to any other person,  for the then residue of his or her term of transportation, and for such Assignee to assign over such offender, and so often as may be thought fit."  The Act says the Governor shall assign to A, and A shall assign to B, and B shall assign to C, and C to D, and so on to the end of the Alphabet - as often as it shall suit the convenience of A, B, C, &c.  And then, what asserts the Right Honorable the Secretary of State?  Why, that the Act says no such thing, and the Act makers meant no such thing!  And what does the Governor upon this?  Why, his Excellency repeals the Act of Parliament!  Tells the people that they are not to have the benefit of the Act of Parliament!  That He will, and does restrain the operation of the Act.  The Act of Parliament says, you shall, if, and as often as, you shall think fit, re-assign a prisoner of the Crown; the Governor says, "you shall not re-assign him!!!"  The Governor and the Act are at issue.  Which of the parties are right?  It is certainly a pity that the Home Secretary should have the misfortune to mislead the Governor.  For in this instance his Excellency is misled.

"Now, let us conduct our Readers to the beginning of the Government Notice.  'An individual whose servants have been returned to Government, by an Order of one of the Benches of Magistrates, having expressed a doubtas to the power of the Bench to remove his servants.'  Is this 'the state of the case?'  Are the facts here given fairly?  Is this dealing quite candidly with the Supreme Court?  Either we err, else the Notice tells not the truth.

"Why, surely, a case has been decided in the Supreme Court - a case which set at rest all doubt, if ever doubt did exist!  But who is the 'individual,' who 'expressed a doubt?'  Never since we mooted the question did, as we have been given to understand, a doubt exist in the breast of any man in the Colony.  Certainly the individual who applied to the Supreme Court for his assigned servant who had been taken away from him by a decision of one of the Benches of Magistrates, never expressed a doubt, and never entertained a doubt!  He was confident - certain confident and certain that he had been wrongfully deprived of his assigned servant; and a simple application to the Court was attended with the success which he anticipated.  His assigned servant was ordered to be restored to him.

"Against this decision then - against the deliberate decision of Lawyers - the deliberate judgment of the Judges of the Supreme Court, as well as against the common sense, and plain and undoubtful reading of the Act of Parliament, is it published to the Colonists, that they shall be deprived of the services of the prisoners of the Crown by Order of any Bench of Magistrates, 'on proof,' &c.!!  We say against this decision; for we understood it to have been held in Court, that his Excellency could not take away an assigned servant from and assignee.

"Is not this informing the Supreme Court impliedly, that the decision given in it is good for nothing?  We may mistake, but we think it is.

"Another word more.  The Governor still reserves to himself, the right of granting tickets-of-leave or other indulgence, to the well conducted prisoners in the service of the settlers and inhabitants!!!  We have forborn to bring this question into prominent discussion.  We did, for the sake of well conducted prisoners, who might not be in the service of well conducted assignees, or to whom the granting of a ticket-of-leave might be resisted by his master, and unfairly resisted; all circumstances considered - we did not like to draw on this discussion.  The Government Notice has forced it upon us now, and alas, we fear that  many a prisoner, in the hands of assignees, will now have their indulgence withheld, when we declare that it is not in the power of the Governor to grant a ticket-of-leave, or any undefined indulgence, without the consent of the master.

"Why, it was necessary to insert a clause in the Act of Parliament, to prevent the King being divested of his Majesty's High and Royal prerogative of mercy and to prevent his Majesty being rendered incapable by the sweeping terms of the preceding section, of granting an absolute pardon!  The eighth section actually divests his Majesty of this prerogative, but the ninth restores it; and can then the Governor imagine, that a Government Notice can put his Excellency in possession of a power greater and more extensive than the King possesses - that he can do for himself, more than a clause in an Act of Parliament has done for the King?

"Good Heavens, what strange mistakes, what extraordinary misapprehensions we are made to witness!  What would this poor Colony do without a Free Press to serve as a beacon to the local administration -- when with it we see such things come to pass?  Down with the Press - crush the Editors, and what would become of the Colony - if the English government should chance to appoint to the Command of the Colony, an ignorant and an obstinate man!!!"

The defendant having concluded his commentary, sought to impress on the minds of the Jury how closely interwoven with the interests of the Colony was a Free Press, and besought them to consider themselves as a Jury of twelve men selected from the community, and to give such a verdict as such a body would return.  He felt that his case was safe in their hands; and whether they found him guilty or not guilty, he should be satisfied with their decision.  He wished them to look at the motives which had instigated the prosecution.  He only asked them to act towards him as they would act towards one of their own body; because he knew that he was at the mercy of honorable men.

When Doctor Wardell sat down, the Solicitor-General rose to reply.  This Doctor Wardell opposed, as he had called no witnesses; and while he admitted the right of a Crown Officer to reply, still he in- sisted [sic] on the practice, and represented that the Crown Officer seldom, if ever, availed himself of the privilege of his Office, by replying on a defendant who did not call witnesses.  The Attorney-General, Solicitor-General, and Mr. Gellibrand maintained the right.

The court observed, that the right certainly did exist; but is was not usual to exercise it.  It rested, of course, with the Crown Officers, in the exercise of a sound discretion, to determine whether they would press the right.

The right was pressed; upon which Doctor Wardell observed, that he should call witnesses, and put into the box,

Mr. T.H. James, who gave it as his opinion that the terminating sentence in the information, ignorant and obstinate man, did not apply to the Governor, but was meant, as he thought, to apply prospectively to some future Governor.

The solicitor General then replied.

The chief justice, after conferring with Mr. Justice Stephen, summed up.  This is an information preferred by his Majesty's Attorney General against the defendant, Doctor Wardell, for certain matters, charged as libellous, which were published and laid before you as having been published in a certain paper, entitled The Australian, on the 3d of August last.  The information contains two counts.  First, it selects from the article, alleged as libellous, a very large portion which it incorporates in itself, and by means of inuendoes  and explanatory notes, undertakes to shew that the matter charged as libellous applies to the Government of this Colony.  The second count only takes a small part of the same matter, and charges it in the same way.  With respect to the proof there are two points for your consideration - the fact of publication, and the fact of criminal intention.  With respect to the fact of publication the evidence is short; it consists of an affidavit which has been read to you, and which is caused to be made in the Colony by the provisions of a local act, for facilitating the means of justice in cases of this sort.  With respect to this part of the case, as tracing the responsibility of this article to the defendant, I apprehend little doubt can be entertained, inasmuch as the whole tenor of the defence has been to take off the charge of libellous intention, and is therefore so much of an admission, that the matter so argued upon is a production for which the defendant is responsible.  There is also particular evidence to point the application of the paragraphs to his Excellency the Governor.  Witnesses have been called before you for the purpose of shewing that the articles marked and set out in the information alluded to his Excellency the Governor, in his character of Governor of this Colony, two witnesses have been called on the part of the Crown, and one on part of the defendant.  The first witness on the part of the Crown is Mr. William Shand, who states that he has read the paragraphs contained in the paper before laid in evidence. The paper is put into his hands.  He turns his attention to particular passages pointed out to him, and one in which is incorporated the charge of libellous matter, and begins with the passage "Good Heavens," he says, in his opinion, it refers to the Governor of this Colony, now present in it, and to no one else.  On his cross examination he says that he formed that opinion of himself, and not from the Attorney-General.  The next witness called is Mr. Wollstonecraft, who states he has read the paper before the Court, and taking the context with the closing paragraph, he though it alluded to the Governor.  He had no conversation with the Attorney General on the subject until this morning.  In this place it may be proper to call your attention, Gentlemen, to the adverse testimony we have before us, of the application of this article to the Governor.  A witness called on part of the defendant is Mr. Thomas Horton James, who says he has also read the passages alluded to, and thinks it applies to some future Governor of the Colony.  He also takes the context of the article, and thought it applied prospectively to some Governor.  The witness reads the paragraph thus - "If the Press were put down, what might a future Governor do."  Gentlemen, these are conflicting opinions, but it is a point of evidence, and it will be with you to decide.  The question, Gentlemen, for your consideration is, do you believe the allusion in large letters, "AN IGNORANT AND AN OBSTINATE MAN," to allude to the Governor of this colony, and to no one else.  I will now proceed to other parts of the case, which more immediately relates to its merits.  Gentlemen, the point for your consideration is, whether this is libellous or not.  The question is one partly of fact, and partly of law.  So much of the law of the case as may be necessary, I will now call your attention to, and I am rather disposed to trust to the legal decisions of great lawyers than anything of my own.  I must therefore beg your particular attention while I read them. His Honor here read a dictum of Lord Ellenborough in the great case of The King against Lambert, which was a trial for libel on the King, on which a verdict of acquittal had been pronounced, and applied this dictum to the present case, substituting Governor for His Majesty.

His Honor, having cited another authority, proceeded; -

It is competent for a public writer to discuss public measures.  So long as he does it with fair and honest principles it is not libellous.  But when he transgresses the bound of moderation and imputes bad motives, the bounds of discussion cease and libel begins.  The article in question which is charged to be libellous, enters into the merits of a particular Notice which had been discussed with regard to its legality in this Court.  It relates to a subject in which the people of this Colony were interested, and therefore, every subject had a right to express an opinion upon it.  An Editor of a Newspaper had a right to discuss this. As a public writer he had a right to discuss its legality and its expediency.  But it is necessary that in doing so, he should bring himself within the boundary of the law.  The question is, whether the Editor in this case has turned aside from those fair boundaries of moderation, or whether as he has described it, to shew the impolicy of the Notice, or whether he has written contemptuously of the Government.  Whether he imputes it to improper motives, or whether with an intention of analysing this Government Notice, and shewing fairly and honestly its errors.  I must confess to you gentlemen, I feel the delicacy of your situation, but I hope it is unnecessary to say, that I do not think you will bring wrong feelings with you to try this question.  You will exercise fair opinions in judging of the article, whether it is of that character which the prosecution describes as a libel.  Whether it is of moral or immoral tendency, and intended to bring the Government into contempt, or whether it is a moderate, fair and candid article.  That is a point for your consideration.  I will abstain giving any opinion on the case.  An argument has been addressed on the peculiarity of the situation you are placed in.  Give such a verdict as a jury of your country would do under similar circumstances.  Mr. Justice Stephen as well as myself have agreed to leave the case for you to form your own opinion upon, as to the intention of the individual in publishing the article which is now in your hands.

The Jury retired about five minutes to three o'clock, and at half past four the Foreman returned into Court, and addressing their Honors, said, "please your Honors, we can't agree in our verdict, nor is there a remote prospect that we shall."

The Judges having conferred a little while together suggested to the Foreman a re consideration of the case.  Upon which the Foreman returned to the room where the other Jurors were waiting to hear the result of this application to the Court.  About twenty minutes after, the Attorney-General rose, and addressing their Honors, said, that as there appeared to be so much difference of opinion with the Jury, he was induced on the part of the Crown to discharge the Jury.

The Court - Is that acquiesced in on the other side.

Doctor Wardell wished to know the terms on which the Jury were to be discharged.

The Attorney-General replied, that he would withdraw the information and not present any other for the article then before the Court.

Doctor Wardell consented.  By order of the Court the Jury were sent for.  On coming in, the Foreman observed, that it was impossible for them to agree.

The Chief Justice said the Court regretted they could not come to a verdict, and would therefore discharge them.  The Jury then bowed and retired.

The Court was crowded throughout the whole of the day to an extent never before witnessed.  Such was the anxiety for the result of this case, that of Magistrates, there were no fewer than twenty-one present.  The respectability and rank of the individuals attending exceeded any thing of the kind ever known in the Supreme Court of this Colony.

 

Notes

[1 ] A.M. Baxter.

[2 ] See also R. v. Wardell (No. 1), June 1827; and R. v. Wardell (No. 3), December 1827; R. v. Wardell (No. 4), March 1827.  For a preliminary hearing of this case, see Sydney Gazette, 24 August 1827.  For other reports of this trial, see Sydney Gazette, 1 and 3 October 1827; Monitor, 1 October 1827.  The Sydney Gazette stated in one of its comments on this case (3 October 1827), that it was the first seditious libel prosecution in the colony's history.  See also Sydney Gazette, 1 and 19 October 1827.

The Monitor (1 October 1827) was right to argue that this was a part of Governor Darling's attack on the press.  Its comment on this case reminded its readers that a convict servant of the Monitor, John Wood,  had been withdrawn, and that the editor subsequently faced a charge of harbouring a prisoner illegally at large, and was found guilty and fined fifty dollars (see Monitor, 30 August 1827).  See also Monitor, 25 October 1827.

For the responses of Forbes C.J. and Governor Darling to this case and R. v. Wardell (No 3), 1827, see the footnotes to the latter case.

[ 3] James Holland.

Published by the Division of Law, Macquarie University