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

R. v. Wardell (No. 3) [1827] NSWSupC 77

seditious libel - press freedom - Sudds and Thompson case - law reporting - Forbes C.J. and Governor Darling, conflict between

Supreme Court of New South Wales

Forbes C.J. and Stephen J., 22 December 1827

Source: Australian, 26 December 1827

 

The King, on the prosecution of his Excellency General Ralph Darling, through the Attorney General,[1 ] Ex-officio, v. Wardell.[2 ]

This was a prosecution instituted against the Defendant, BY THE COMMAND(!) of his Excellency, General Darling, against the Defendant, for an alleged libel which appeared in "The Australian," of which the Defendant was Proprietor, Editor, &c. on the 25th of May last, in the shape of a letter signed VOX POPULI.

The case was specially set down for trial this day, and, according to appointment, it came on at eleven o'clock.

When the Jury were about to be sworn, Mr. Wentworth, who assisted Dr. Wardell in his defence, took a legal objection to the Poll and also to the Panel.

We shall not state either the grounds of objection or the arguments on the points raised, as we intend to reserve them on account of their importance, for Friday.[ 3]

The Chief Justice and Mr. Justice Stephen, on hearing the arguments, retired to consider of their decision, and on coming into Court, gave their judgment against the challenge.  The case then proceeded, the Jury were sworn, and the Information containing the alleged libel was then read to the Court.  We here take occasion to transcribe the article prosecuted, but divested of the Inuendoes and technical phrases, in order that our Readers may understand its nature more distinctly.

To the Editor of The Australian.

"SIR, - Allow me through the medium of your righteous Journal to offer a few remarks on the late generally admired and much esteemed "Stamp Act", which, as it were, puts a finishing stroke to the popularity of our excellent and much respected Governor - will doubtless immortalize him in the annals of this rapadly improving colony, and will act as a passport to the admiration and grateful respect of our posterity!  With what infinite satisfaction they (our prosperity) will reflect that he (his Excellency) has done more in one short hour than his puerile predecessors either could, would, or should have done during the whole of their administrations; and when, in addition to this popular and judicious measure (the Stamp Act) they think upon the great lenity shewn those atrocious criminals, "Sudds and Thompson,"[4 ] in "commuting their punishment" - upon the spirited interference with a Judge for words spoken on the Bench - upon the wise and solutary restrictions on the granting and sale of land - upon the creation of numerous Boards and Offices, so well adapted for advancing the Colony, backwards, and for putting a total stop to that bane of the Colony - "emigration;" - I say when our posterity think of all these collectively, they will be dazzled by the blaze of his glory, and will exclaim, in astonishment, what a consummate politician! what a profound legislator!  Would to Heaven, that we knew the length of his **** [sic]; for surely so much wisdom and magnanimity argue something super-human.  The effects of this Stamp Act, Mr. Editor, will be most salutary.

"In the first place it will impede and obstruct the progress of knowledge and information; which, owing to the Newspapers, were shamefully gaining ground in this Colony; it will also blight the prospects of the Editors, who, to their utter shame be it spoken, had the impiety and audacity not only to surmise, but possitively assert, that governors and men in power were not always infallible; which assertion, to every one of common sense, must appear false, scandalous, and seditious.  To say that the Governor and Council are not infallible!  Oh, shocking!  Monstrous!! Horrible!!!

"Full of years, wisdom, and honours, how blissful (to the Colony) must be the exit of his Excellency - how delightful (to himself) his retrospections - how enviable his present feelings - how pleasing his anticipations of farewell addresses, &c.

"Shame to the man who (after the manifold benefits his Excellency has conferred on this Colony, to the detriment and exclusion of his own family!) would for an instant protract or deprive him of the pleasure of seeing the "the Australian" as a Magazine, or of receiving a farewell address from-.

Yours, VOX POPULI."

The Attorney General then addressed the Jury. 

From the Information the Jury had just heard read to them,[5 ] they would have collected what Doctor Wardell, the defendant in that case, on the 25th of May last had published in The Australian Newspaper, of which he should be able to prove Doctor Wardell was then editor, Printer, Publisher, and Proprietor.  The Information then before the Court was for a false, scandalous, and malicious libel, reflecting on the character of General Darling, in his capacity of Governor of this Colony.  Before, however, he (the Attorney-General) should proceed to comment on the Information, he would just state, that an Information for the present libel had originally been filed by the late Attorney-General, but that owing to some alterations which were deemed necessary to be made in the Information, and on account of the large calendar of prisoners for trial in the Criminal Court, much delay had taken place, and therefore Doctor Wardell could have felt no sort of annoyance on that score.  He would now briefly observe on the various descriptions of libel.  Every publication which had the effect of exposing a man to contempt, if it insinuated that an individual had done a corrupt act, which rendered him ridiculous and odious, was of a sufficiently detracting character to call that publication a libel, though such imputations might be conveyed in an indirect, allegorical, figurative manner.  The libel in the present case was one of the last description - it was ironical - but written in such a style as to leave not the smallest doubt on the mind of any one as to the conception of the author.  The publication reflected upon the conduct of his Excellency the Governor, in his administration of the affairs of the Colony - it held him up to public ridicule and scorn - but before he (the Attorney-General) proceeded further, it might not perhaps be out of place to read a few extracts from some of the best authors who have written on the subject of libel; and, in order that they (the Jury) might have perfect examples of what was libel, he would read from these authors who spoke of the description of libel then at issue - Libel was a misdemeanor prosecuted by indictment - it was indeed accounted a petty felony.  The issue, guilty or not guilty.  It would not be for the Jury to examine whether the libel spoken of was truth or untruth; for with that they had nothing whatever to do.  The questions for their consideration would be, had the publication then complained of been an injury to the public peace and tranquillity? - had it been promulgated, and had mischief arisen therefrom to destroy a man's reputation - if so, it was to all intents and purposes a robbery, and certainly analogous to a robbery committed on the highway.  After the libel to which he called the attention of the Court having been read by persons of every class, here and elsewhere, the reputation of the individual had been much more wounded than by any other sort of assassination.  He would now read over the several passages of the publication - which he would read slowly - and comment upon as he proceeded - at the same time he would hand them (the Jury) the newspaper which contained the article, the subject of the present prosecution.

Mr. Wentworth, on behalf of the defendant, objected to putting into the hands of the Jury, any paper, which had not been given in by evidence.

The Attorney-General said he was aware of the validity of the objection.

Mr. Wentworth was surprised that the Attorney-General, being aware of the irregularity of such an act, should attempt it.

The Chief Justice. - There is a way of doing it.  You may read what you want from the record.

[The Attorney-General then read distinct passages of the publication - with innendoes [sic] drawn from them - commenting on their bearing, as he proceeded.]  He (the Attorney-General) had already stated that that was libellous in the highest degree, which went to promote a disunion between the Government and the people - which went to excite the people to contemn [sic] the authorities over the, by holding those in authority up to ridicule, shame, and contempt.  He would say that such was a public outrage, not merely upon an individual, but upon the community generally.  It was immaterial whether a publication were true or false; the point was, whether those ironical passages did impute CRIMES to his Excellency as of his own.  It was for them to decide, whether an outrage upon society had been committed.  Now his motives in bringing this - what he would call a most gross libel - into Court, was because he appeared there in his ministerial capacity - he was the representative of a grand jury.  If an article were put into his hands, he was called upon to pronounce his opinion thereon, and say was it libellous, or was it not.  He thought the subject matter charge highly libellous, and in that respect had acted according to the best of his belief and judgment. - It was not to be supposed that he should receive fourteen or fifteen hundred a-year salary, and not support the dignity of the Governor, and shield him from slanderous imputations.  With regard to their situation (the Gentlemen of the Jury, to whom an objection had been taken in limine, he was sure that, conscious of the responsibility of the situation they stood in, towards their Country, they would on this occasion act up to those fine notions, which it was known were peculiar to their profession.  He was satisfied that their verdict, would be satisfactory to the Colony at large, as it had already been on so many former occasions.  He (the Attorney-General) had no feeling in the case, farther than a wish that justice (as far as justice could) should be done; and it would be with the Jury to say, whether the publication in question was a libel in the true conception of the word, or whether it went no further than what was common to political men, in descanting on the measures of Government - whether sent out as it was among the mass of people - distributed and read as it would be among a population 16000 miles distant, where people had no opportunity of judging for themselves - but supposing all that appeared was true - whether it would not influence the world at large, as to the conduct of the Governor of this Colony it was his (the Attorney-General's) duty, when a case of felony and misdemeanour was put in his hands, which he conceived fit to go to a Jury, to present it in the same way as the Grand Jury would do in England - in precisely the same way did he present that information to them - with these few remarks he would leave the case in their hands, and would proceed to call witnesses, who would prove the publication of the libel by the Defendant, and its application to his Excellency the Governor.

The Attorney General then proceeded to call witnesses to make out the libel as charged in the Information.

Mr. Alexander McLeay examined. - I am Colonial Secretary of the Colony.  I held that situation in the month of April last.  It was about that time that an Act of Council was passed for regulating the publication of Newspapers.  Lieutenant General Ralph Darling was Governor of the Colony at the same time.  In consequence of that Act, Doctor Wardell made an affidavit before me, which is the same now produced - this affidavit has been filed and kept in my office ever since.

Cross-examined. - It is my duty as Colonial Secretary, to promulgate all public orders in the Colony.

Here, the witness was desired to look at a Government Order, dated, December 13, 1827, published in the Sydney Gazette - witness did cause to be issued that Order, as Colonial Secretary.

To the witness - Is that an official Act of the Governor.

The Solicitor General rose to oppose such a question being put, on the ground, that it might be a confidential communication between Mr. McLeay (the witness), and the Governor.  With regard to the publication of Government Orders, besides, the paper put into the witness's hands bore date of publication only a day or two ago, and the publication - the subject of the present enquiry, came out on the 25th of May.

Mr. Wentworth - That must certainly be a very confidential act, which is promulgated to the whole world for information.  Now here is a Government Order which contains a most gross libel upon several gentlemen, and among others, upon this defendant.  It is a principle of the law of libel, and if I can prove it, without admitting there has been any libel on our side, there has been a gross libel on the other side upon the defendant.  I put in proof, a matter of fact, which is material for the consideration of the Court, whether we have not in this instance met it, and, therefore, the Court cannot have it too soon in judicial proof.  Now, with regard to this being a confidential act, the thing has been promulgated to the whole Colony, and therefore, what secrecy is about it.  I put it to Mr McLeay, whether the words factious individuals named in this Order, have not an allusion to the defendant as one.

The Court - Your first question was - "Is this one of those Orders you are in the habit of issuing."  The answer was in the affirmative.  The next question was - "Is that an Official Act of the Governor."  What utility would that question be of.

The question was not pressed.

Cross-examination resumed. - This Order was issued in the ordinary way.

Question - Is this passage, "the ebullitions of five or six factious individuals," meant to include the defendant as being a factious person.

The Court - The witness may or may not answer that question, that is as he chooses.

Witness declined replying directly to the question - and continued, the Gazette, dated November 27, 1827, contains a Government Order, to which my name is attached, and I have no doubt it is an Official Order.  I know of an Act being published a little time ago, imposing a duty of fourpence to be laid on Newspapers published in the Colony - an Order was promulgated in the Sydney Gazette to this effect.  I will not say if the object of the at Act was to extinguish the newspapers; I think it would affect the newspapers, but the Editors are the best judges, whether it would suppress them or not.

The Court suggested that Counsel should confine questions closely to the promulgation of those Acts alluded to.  The train of questions which was being entered upon, bordered too closely upon the witness's confidential situation, standing  as he did in he box, under rather peculiar circumstances.  Their Honors must, therefore, make a rule and say, that the Colonial Secretary was exempt from examination respecting the opinions of the members of Council in passing Acts.

Mr. T. C. Harrington was examined in proof of publication, &c.

Mr. E. Aspinall was next put in the box, when Mr. Wentworth objected to the course of examination about to be commenced.  It had been stated by the Attorney-General, that antecedent to putting that information on the files of the Court, an information had been withdrawn in order to substitute the present one.  Now he (the learned Counsel) did object to this course; that such a thing as an ironical libel might exist, there was no doubt, but he did contend, to have rendered it possible for such evidence as that which was about being offered to be gone into, the Defendant should at least have had notice, that a construction of irony would have been placed on the writing which was the subject of present enquiry.  He submitted there should have been an introductory averment, that the article was intended to be written ironically.  There ought to have been the same averment in this Information as there had been in the one on which a noli prosequi had been entered, and which had been presented by the Attorney-General.  It should have said that the article had been ironically meant.  Now, that this was the law, contended the learned Counsel, was clearly to be collected in 11 modern reports.  The evidence, therefore, of the witness in the box, he objected to as being irregular.

The Solicitor-General in reply said, he thought this a most extraordinary objection, for it was most specially stated in the Information, that the publication was ironical - every inuendo went to explain what the writer meant by each passage.

The Court ruled, that whatever might be the value of the objection, it was on the record, and might be made use of, if necessary, in an ulterior stage of the proceedings.  At present the Court was inclined to go on with the evidence.

Mr. Aspinall was then examined. - On reading the first passage of the article, he took it to partake of an ironical character - he considered it to throw irony upon the Governor - he was of opinion he reference made to the Stamp Act was ironical - and that the allusion made to grants of land, meant that the Governor was cramping the purchases of Crown lands.  If he considered the reference made to posterity was a quiz; and of the last paragraph, that public situations were held exclusively by the Governor's relatives.

Mr. James Norton, Solicitor, felt exceeding difficulty to way what was meant by the paragraph.  He imagined there was an ironical meaning applied to the Stamp Act.  Supposed the writer intended it to be conveyed that the Stamp Act had put a finishing stroke to the popularity of the Governor.  The idea of the writer in regard to futurity, considered that an ironical sentence intended to convey a directly opposite meaning.  Understands from the succeeding sentence that the Governor had done more injury to the Colony than any of his predecessors.  The expressions, "popular and judicious measures" was intended should be read in a different sense.  It meant the reverse - unpopular and injudicious measures, and understood from the general tenor of the sentence, that the Governor was exceedingly unpopular and injudicious.  The reference made to the "commutation of punishment" of two men, Sudds and Thompson, witness understands to imply that their punishment was not commuted, but encreased,[sic] on at least whatever was done towards those persons was not a commutation of punishment, but the reverse."  The allusion made by the writer relative to "a Judge on the Bench," reads it to be the writer's meaning, that the prosecutor had in an improper way spoken to a Judge for words, spoken on the Bench.  Thinks in the allusion to grants of land, that there were unwise and injudicious restrictions made by the Governor on the grants of land.  With respect to the next sentence, witness concludes the first part to mean that by the appointment of various boards and offices, the Colony had been retarded in its progress of prospects and in an ironical strain, that the Colony had been injured by being deprived of emigration - and in the concluding paragraph of the article, that the Colony must rejoice very much at the Governor's retirement from office; proceeding ironically, the writer appears to assume that the governor's family had been benefitted to the injury of the Colony.  Taking he whole of the paragraph together, is of opinion the writer intended to convey an impression that the Governor was unpopular, and that by passing the Stamp Act, as it is cited, he had destroyed his popularity, if he ever had any.

Cross-examined - It is very possible that on one occasion witness was concerned in the prosecution of this case.  I have not received a subpoena to attend here to give evidence to-day.  The Attorney General called on me, and put the paper, containing the article, into my hands, and asked my opinion thereon.

Mr. G. M. Bowne, Mr. F. A. Hely, and Mr. A. B. Spark, who were put in the box as witnesses by the Attorney General, were severally called upon to give their testimony on the meaning of the publication.

When the several witnesses had been examined, Mr. Wentworth addressed the Court on the subject of the Inuendoes which the Information contained, and with which it was in fact loaded, and contended that every one of them had extended the sense of the original matter, and that, therefore, the Information was rendered invalid.  He also submitted to the Court that the evidence did not support the Information.  The Court reserved the first point, and decided on putting it to the Jury on the second, whether the evidence did bear out the Inuendoes sufficiently to support a verdict.

Upon this decision of the Court, the Defendant, Doctor Wardell, addressed the Jury at the late hour of six o'clock, the previous proceedings having taken up the whole of the day to this time.

Dr. Wardell alluded to, and animadverted strongly on the various means adopted in various quarters previous to this case coming before a Jury, to bias the minds of the Jurors and to prejudice him the defendant.  Libels had been published of him in the paper, under the immediate patronage of Government.  Articles had appeared in that paper, which tended strongly to reflect on the conduct of a Jury who tried a previous case, and who had not been able to agree.  In one of those articles there appeared a paragraph, which concluded "Australia expects ALL her Jurymen to do their duty," meaning thereby, to insinuate that, that those Jurymen who had been for an acquittal on the above occasion, had not done their duty.  He then adverted to the Government Order which contained the following paragraph:-

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

A paragraph which most people considered in allusion to the Defendant's case, and published, seemingly, for the purpose of intimidating the Jury who might be summoned on the present occasion.  The Defendant then drew the attention of the Jury to another Government Notice, in which the following libellous allusions to the Defendant appeared;-

"Which Meeting (meaning a recent Turf Club Meeting) appearing to have been surreptitiously obtained through the means of The Australian Newspaper, his Excellency would do the Turf Club so great an injustice, as to impute to as a body, such a gross dereliction of every proper feeling, to receive the ebullitions of five or six factious individuals, the expression of the sentiments of the Turf Club generally."

Dr. Wardell then went on to the consideration of the libel, and in this part of his case he cited various publications, which appeared in the law books, and which had been deemed seditious libels.  Thence drawing an argument that it was such mischievous publications as those only, which an Attorney General thought it fit, or worth his while, to prosecute.  He then cited the great case of the King against Lambert, and argued at some length on it, to shew that the alleged libel, under the consideration of the Jury, fell, according to Lord Ellenborough's long dictum delivered on that occasion, within the scope of a priveleged publication.  In support of this part of his defence, and also to shew the extent to which the Liberty of the Press was practically enjoyed in England, the submitted to he submitted to the Jury several articles published in England in various Newspapers - articles which, though evidently more offensive than the one contained in the present Information, were such as were never prosecuted - for if they were - if writers were so strictly tied down to limits which Judges alone prescribed especially, such a Judge as Lord Ellenborough, the Liberty of the Press could not exist a day; public writers could never exercise their pen on popular topics, or on the acts of men in office.  Dr. Wardell next called the attention of the Jury to Mr. Fox's Bill, which brought every case of libel within the province of popular judgment, and instead of leaving each case to be decided according to the futile word catching notions of special pleaders, gave the Jury the power of judging both of the law and of the fact, and of determining not only the simple questions of publication, but whether the matter charged was libellous or not.  The Jury were therefore thereby enabled to judge of the circumstances under which any article was published, and whether those circumstances might not be such as to justify the publication; when, according to different circumstances, they ought to consider them highly libellous.  The matter contained in the Information had appeared at a time of great excitement, and certainly when great provocation had been given to the public and to Editors of Newspapers, by the making of a Stamp Act, which imposed a duty of fourpence on every Newspaper - an Act which, if it had not been rescinded, or if it had been carried into full operation, would have put a stop to the publication of Newspapers, extinguished the press, and destroyed private property and public liberty.  Here then, he contended, there was ample justification of this alleged libel, or of a really libellous publication.  The Defendant here spoke of the effect produced by a free press in the Colony - a Colony which the enemies of freedom represented to be unfit, on account of its being a receptacle for prisoners, for the same degree of liberty as was enjoyed in England.  He compared the state of the Colony now, with what it was before an Independent Newspaper; shewed the ameliorations which had taken place in the arrangement of prisoners, and which had been mainly attributable to the protecting influence of the press.  That neither rebellion nor mutiny could now be feared; and both had happen in the days of darkness; that in short the press was a protection to the Government and to the people, instead of working injury in any shape.

The Defendant concluded his Address about eight o'clock, by asking the Jury to reflect whether this prosecution had not been instituted from vindictive motives, and for the sake of a political job, and by beseeching them to interpose their verdict between him and his persecutors.

The Defendant called no witnesses; and the Crown Officers, according to their determination on a former occasion, insisted upon exercising the right of reply; and accordingly one of them submitted some observations to the Jury; and the Chief Justice summed up in the following terms.

The Chief Justice - Gentlemen of the Jury, in addressing you at this very late hour of the night, it is not my intention to occupy any great deal of time.  I think it necessary to state also, that I am labouring under considerable illness, and I must therefore beg, that you will pay as great attention as you can, and be particular to the points to which I shall call your attention.  This is a case of prosecution by the King, ex-officio, through his Majesty's Attorney General for the colony, against the defendant, Doctor Wardell, who is charged with the publication of a certain article, tending to bring his Excellency the Governor into contempt and dis-esteem in his office of Governor.  Now, gentlemen, whatever tends to the injury of character in society, is slanderous - if put forth in a printed form it take the name of libel.  Libel is increased in the degree of crime, not only as it takes away private character, but as it has a tendency to bring the Government into contempt, and accordingly, as it is more mischievous in its effects.  If a libel upon the Government, it is of an aggravated character.  It is, undoubtedly, the right of the subject to canvas the measures of Government - the law allows it; but places that freedom of discussion within limits.  The point now for enquiry is, whether those fair bounds of discreet and proper animadversion on the acts of this Government have been used as a cloak to attack private character; because if so fair and privileged discussion had ceased, and libel begun.  Libel may be conveyed by direct or indirect means, and though in an ironical manner.  The first point of enquiry for you gentlemen, will be, whether the interpretation on the several parts of matter charged as libellous, has been truly made by the inuendoes, and whether these have been supported by evidence or not.  The paper I hold in my hand has been put in evidence, and moved against the defendant, pursuant to a local Act.  Gentlemen, I will read the article, not because you may have forgot it, but in order that it may appear in the ordinary course of my observations.  The article appears to be a letter addressed to the Editor of The Australian, signed "Vox Populi," and appears in that Newspaper, on the 25th of May last.

Here his Honor read the article throughout.

Gentlemen, I have now read to you, the whole matter which is charged as libellous, I will now proceed to call your attention to the interpretation, which is by means of inuendoes put upon the offensive passages in this matter.  The office of an inuendo is to explain that which is a little ambiguous.  It is required that an Information shall contain plain, intelligible language making out fair rules for what amounts in law to libel.  Where ambiguous terms are used, it becomes the province of an inuendo to lay open the true meaning.  I shall divide this into parts, in pretty nearly the same way as it has been done at the bar.

"Allow me through the medium of your righteous Journal, to offer a few remarks on the late generally admired Stamp Act, which as it were puts a finishing stroke to the popularity of our excellent and much respected Governor."  The inuendo to this passage runs thus;-

"(Meaning the said Ralph Darling as such Governor as aforesaid, and thereby meaning and intending to insinuate, and have it understood, that the said Ralph Darling, in his capacity of such Governor as aforesaid, was extremely unpopular, and in great disrepute with and amongst the subjects of our said Lord the King, in the said Colony of New South Wales, before the enactment of the said supposed Stamp Act, and that his conduct in his capacity of such Governor as aforesaid, has been such, with respect to the enactment of the said supposed Stamp Act, that he had thereby rendered himself at the very highest degree unpopular with and amongst the said subjects.")

On looking into the proof which is to bear out this inuendo, I am brought to the opinion, that it does not go to the length of supporting it.  Several witnesses have been examined.  There was Mr. Aspinall, who speaking upon this particular part of the charge, syas,[sic] he thinks "what is said of the Stamp Act is ironical, and not meant to convey as expression.  In the same way Mr. Norton and other witnesses speak of this part of the article.  They take it to imply that the Stamp Act had put an end to what popularity the Governor might have had.  Mr. Bowen and Mr. Hely, the other witnesses spoke to the same elect - the meaning was ironical, and meant to convey a sense the reverse exactly to what was expressed.  The inuendo, I think, goes beyond this, and says, it meant to insinuate that the Governor had been before extremely unpopular and in great disrepute, and that that publication meant that in consequence of the Stamp Act, the Governor had rendered himself unpopular, in the very highest degree among the King's subjects.  It would, undoubtedly, be tying up things too closely, to expect that witnesses should give the same words as are applied in the inuendos, but then they should substantially do that, I do think this inuendo has gone too far - disrepute is very different from unpopularity.  The witnesses say, the sentence means that the Stamp Act would render the Governor a very unpopular man.  With respect to the supposed Stamp Act, it has been partly in evidence, that a measure of the kind had been contemplated by the Government.  A certain Act was put forth, which professed to put a tax on newspapers.  This was a public measure open to discussion.  But the authors of it were entitled to have the measure discussed with candour and propriety.  What does the writer say in speaking of it? - "which as it were puts a finishing stroke to the popularity of our excellent and much respected Governor."  The witnesses supposed it to be meant, that the Act had rendered the Governor unpopular.  I am not prepared to say that the Editor of a public journal might not say it was calculated to render the Governor unpopular - want of popularity is no crime.  I will now go on to the next passage;-

"(Will doubtless immortalize him in the annals of this rapidly improving Colony, and will act as a passport to the admiration and grateful respect of our posterity.")

The interpretation put on this passage by the inuendo is-

"(Thereby meaning and intending to insinuate, and have it understood that the conduct of the said Ralph Darling, in his capacity of such Governor as aforesaid, had been such, with respect to the enactment of the supposed Stamp Act, that it would render his memory for ever infamous in the annals of the said Colony of New South Wales, and cause his name to be hated and detested by future generations within the said Colony.")

Now I observe also in this, that the witnesses, when cross-examined, in giving a general answer to the questions, said they thought the object was irony, and in some instances go on to affix a meaning more in accordance to the inuendoes; but I did not collect from any witnesses, that here was an insinuation by the terms "will doubtless immortalize him in the annuals of this rapidly improving colony" - that it was meant to say, is the inuendo has it, "it would render his name infamous and hated."  Now, if one take the reverse meaning of these words, I think another interpretation might be put, namely, will not "immortalize him in the annals of this rapidly improving Colony," and that the reverse may be said, that they would not "act as a passport to the admiration and grateful respect of our posterity" (thereby meaning and intending to insinuate and have it understood, that the said Ralph Darling, in his capacity of such Governor as aforesaid, had, on several occasions, acted in a manner prejudicial to the welfare of the Colony of New South Wales, with a view to, and in order that he might by so doing, advance the interests of his own family).  I think this inuendo is put stronger than it should have been, and here I will again observe, it is not required that the proof should meet the exact words; yet it should be substantially so.  But here is the variance which was alluded to by Mr. Wentworth, in the defence - "With what infinite satisfaction they" (our posterity) "will reflect that he" (his Excellency) "has done more in one short hour than his puerile predecessors either could, would, or should have done during the whole of their administrations."  Here comes the inuendo to this passage - (meaning more injury to the welfare of the said Colony, in one short hour, than his puerile predecessors either could, would, or should have done during the whole of their administrations."  Now, with respect to this doing more injury, the testimony of several witnesses go to give it as their opinion, that this was the fair interpretation - it meant more injury to the Colony.  Mr. Norton (one of the witnesses) says he thinks it meant that his Excellency had done more injury to the Colony than all his predecessors did.  This evidently alludes to the passing of the Stamp Act, and the whole context of the passage shews it had allusion to the Stamp Act.  Gentlemen, I have already stated to you, upon this Act being a public Act, it was fair in the subject - the public being deeply interested in it - and the editors of newspapers also, to represent it, if they chose, as a grievance, and to express their opinions upon it, provided they did it within fair and moderate bounds.  Now, it is contended by the Defendant, that there is no imputation of bad motives, but that it is intended to state, that the passing of this Act had done more in one hour than all the administrations in the Colony before.  The question then, Gentlemen, for your consideration is, whether it is meant to attribute a wilful intention of the Governor to do this extent of injury to the Colony, or that he has done so through error? It was competent for an Editor of a Newspaper to state, that the passing an Act of this kind was more injurious to the Colony, than any that had been passed before - I say it depends on the manner in which it is done - if done in an offensive manner, having a tendency to bring the Governor into disrespect, then it is libellous - the case is with you, Gentlemen, to say what is the fair interpretation to be put upon this particular passage.  It was a subject for fair discussion, and the question is, whether the subject was discussed within the bounds of moderation, or whether it imputed to the Governor that he intended to pass an Act with a corrupt or improper motive, and that it was in this respect his Excellency had done more than all the Governments before him.  The next sentence was as follows:- "And when in addition to this popular and judicious measure (the Stamp Act) they think upon the great lenity shewn those atrocious criminals, Sudds and Thompson, in commuting their sentence."  In the first place I will remark that it is competent for any person to say that a public act was injudicious and unpopular, the inuendo places this construction on the remainder of the paragraph - "thereby meaning and intending to insinuate and have it understood, that the said Ralph Darling, in his capacity of such Governor as aforesaid, had acted tyrannically and oppressively towards, and illegally punished certain criminals, of the name of Sudds and Thompson respectively."  Now, gentlemen, if this interpretation be true, that the Governor had acted tyrannically, and in an oppressive manner, towards any one, then it would certainly be libellous in its character, because every imputation of doing so is criminal on the part of the Government to do it, and is criminal in the person to charge it.  Now, gentlemen, as to the fair meaning of that clause in the paper the witnesses who have spoken upon it are of opinion it is meant to say, that instead of great lenity being shewn in the case of the individuals, Sudds and Thompson, the measure of punishment had been increased by the act of the Governor, with respect to those two persons.  Now it is not in exact strict accordance with the words of the inuendo, but in substance the something, because an encrease, of punishment is an illegal punishment, and is in consequence an oppressive act.  If therefore you are of opinion that the witnesses gave a correct interpretation of this passage, that the Governor had encreased the punishment of the two persons, I have no hesitation in saying it is libellous.  At the same time, gentlemen, you will bear in mind what the defendant has stated, that these transactions he had a right to treat upon, he did not attribute any bad motive, but ascribed every unpolitic measure to an error in judgment.   This is the defence, that no motive was attributed in this case.  It is for you gentlemen to say, what is meant by the writer.  It then goes on, "upon the spirited interference with a Judge for words spoken on the Bench."  Now here is a specific act of interference pointed out.  Interference with a Judge in the discharge of his duty on the Bench, is certainly an offence in a private individual - not only an offence which may be immediately visited with a summary punishment, but how much more heinous would an interference be in a higher authority, whose duty is to pay deference to the independence of the judgment seat.  The question on this head, for your considerations, is, whether this charge has been supported, and whether the interpretation put upon the passage in the inuendoe is correct.  The witnesses say they thought it alluded to some act of some Judge generally, and others to a Judge in the Supreme Court; any interference of this sort is a breach of propriety, and might become the subject upon which public writers were at liberty to express an opinion.  The question then would be, whether in this case, by the expression used, there was any attempt to impute to the Governor improper and illegal interference, or whether, as set up by the defendant, in his allusion to the fact, he had a right to allude to it and had done so, but with no bad motives having only ascribed to the Governor an erroneous judgment.  "Upon the wise and salutary restrictions on the granting and sale of land." -  Why, gentlemen, that was a question of very great interest to the Colony.  I put it to you whether there is any thing like libel, in saying that the mode of grant and sales of land was unwise and unsalutary.  The witnesses go no further than conveying this meaning to the passage, and with respect to the creation of "boards and offices," it partakes of the same character, and this therefore leads me on to the next paragraph - "full of years, wisdom, and honours, how blissful to (the Colony) must be the exit of his Excellency." -  Now, by this the witnesses have supposed the reverse of that expression.  The natural course of the interpretation of this part of the paragraph is, that it was meant, not full of years, wisdom, and honour.  One witness gave an opinion that by it was meant, the Colonists would be glad when the Governor went away.  It is, however, for you to form your opinion.  At the same time I will say, that it does not seem to carry a libellous character with it.  "How delightful (so himself) his retrospections - how enviable his present feelings - how pleasing his anticipations, &C."  This passage must, of course, be taken literally.  Where there is no inuendo, the signification must take the matter literally, for one cannot supply the want of an inuendo.  The words are in themselves highly laudatory; and now, gentlemen, comes the part which has been made the subject of several counts, and which seems to be fixed upon as the most libellous.  "Shame to the man, who (after the manifold benefits his Excellency has conferred on the Colony, to the detriment and exclusion of his own family) (thereby meaning and intending to insinuate and have it understood, that the said Ralph Darling, in his capacity of such Governor as aforesaid, had, on several occasions, acted in a manner prejudicial to the welfare of the Colony of New South Wales, with a view to, and in order that he might by so doing, advance the interests of his own family,) would for an instant protract or deprave him of the pleasure of seeing The Australian as a Magazine, or of receiving a farewell address from - Your's, Vox Populi."  Such is the interpretation which has been put upon it by the inuendo.  With respect to the proof there has been some little variance from the interpretation.  Mr. Aspinall, one of the witnesses, says, in his opinion, "shame to the man, &c." applies to the Governor, and alludes to his having appointed members of his own family to situations, who had injured the Colony, and this testimony has been borne out by Mr. Norton, Mr. Walker however, differs.  The two first agree in thinking the Governor, in appointing members of his own family had not done it to the injury of his family.  Mr. Walker thinks differently - that it had injured the Colony.  Perhaps the balance of testimony appears to be in favor of the opinions of Mr. Norton and Mr. Spark, but the inuendo travels a little further, and says, "in order and with a view to advance the interests of his family.  Gentlemen, is this borne out by the evidence?  I make these remarks with as much impartiality as I can.  I shall make no more remarks upon the matter charged as libellous.

A great many observations have been addressed to you, upon the peculiarity of the situation you are placed in.  I think it unnecessary for me to add anything on that subject.  I feel the delicacy.  I know the difficulty of your situation.  I say, I feel this, but it is what cannot be avoided, inasmuch as the law had placed you in that exact situation.  All that I have to suggest to you is this - consider yourselves as twelve individuals in this Colony, whom you might imagine had no previous knowledge whatever of the case, upon which they were called upon to decide, and without suffering your minds to be biassed or swayed by Counsel, either for the prosecution or for the defence - and taking these considerations with you into your room, form your minds upon the several parts of matter charged as libellous, in putting a fair interpretation up on the article.  Gentlemen, you have been sworn to go by the evidence.

When the Judge had summed up, the Jury retired.  This was at half-past nine.  About ten o'clock the Foreman came into Court and stated that the Jury had agreed on their verdict on the two first counts, which was a verdict of Not Guilty; but that they could not agree on their verdict on the third count.  The Foreman was requested to retire, and ascertain, if after a little more deliberation the Jury could not become unanimous.  At half-past ten there appearing as little probability as ever of the Jury agreeing, and the Attorney General declaring that he would not take any responsibility upon himself by proposing to withdraw a Juror, the Court was adjourned at the instance of the Judges, and the Jury locked up in the Jury Room till twelve o'clock.  At this hour the Chief Justice again came into Court, which was immediately opened by the Crier - the people having for the most part remained in and about it.  The Jury were requested to come into Court, and on being again asked if they were agreed, the Foreman re-stated, that on the two first counts they were agreed as to their verdict of Not Guilty, and that there was not the slightest chance of their agreeing on the third.  The Attorney General here intimated again that he was resolved to have a verdict of Guilty or Not Guilty, and would not on any account agree to withdraw a Juror.  The Judge then suggested, and the suggestion was agreed to by the defendant, that the Jury should be allowed to disperse until Monday morning, they undertaking not to hold communication with any one on the subject before them.  When Monday came they were still not unanimous and after being shut up till nearly one o'clock) they were called into Court, and the Attorney General then declaring that he thought every purpose had been answered by their being kept together, and finding it impossible for them to agree, was ready to withdraw a Juror, on the full understanding that no further proceedings should be instituted against the defendant for this cause.

The result was highly satisfactory to every body!

 

 

Source: Australian, 28 December 1827

 

THE JURY.

(Argument on Saturday[ 6] in the prosecution by Information ex-officio, the King v. Wardell.)

Mr. Wentworth --- May it please your Honors. --- Although the magnanimity of the defendant on a former occasion induced him to waive making any objection to the Jury, who were impannelled to sit on that case, still as his Counsel in the present instance, and acting for him, I feel bound to avail myself of every point that may arise.  At the same time, I hope, gentlemen, (addressing the Jury) you will not think that my motive in objecting to your sitting in judgment on this case, arises out of any personal feeling.  The objection I take is solely on a great principle of law, which I take to be incontrovertible a principle which has never been deviated from in England, and I hope will not be deviated from here.  The 4th section of the New South Wales Act, which constitutes the present Jury, after empowering them to try all cases of felony and misdemeanor, says that they shall be severally liable to be challenged, on the special ground of direct interest or affection.  Now it is immaterial for me to enquire what might be the intention of the Legislature in passing that clause of the Act of Parliament.  Various interpretations may be put on it.  It may be that the drafter of this particular Act was perfectly cognisant of the state of society here, that he knew the political condition of the body of men for whom he was legislating; that he was fully aware that the Liberty of the Press had not in fact been established among us, and consequently that he had not in contemplation the possibility that any case of libel could be submitted to the cognizance of this Court, but be that as it may, and supposing on the other hand, that by this clause it is meant that all grounds of challenge shall be abrogated, except these two grounds; viz. direct interest and affection, it still then becomes necessary to enquire first, whether any objection against the Jury arises within the express terms of those allowed exceptions, and if not, secondly, whether the framer of the Act has accomplished his purpose.  Now that an objection arises upon the wording of the Act, as against the polls of the Jury, is obvious, from what Blackstone says of challenge, on the ground of affection.  Under the head of challenge propter affectum, this able commentator thus expresses himself. - "Jurors may be challenged propter affectum for suspicion of bias or partiality.  This may be either a principal challenge, or to the favour.  A principal challenge is where the cause assigned carries with it prima facie evident marks of suspicion, either of malice or favour; as that a Juror is of kin to either party within the ninth degree; that he has been arbitrator on either side; that he has an interest in the cause; that there is an action depending between him and the party; that he has taken money for his verdict; that he has formerly been a Juror in the same cause; that he is the party's master, servant, counsellor, steward, or attorney, or of the same society or corporation with him: all these are principal causes of challenge, which, if true, cannot be overruled, for Jurors must be omni exceptione majores.  Challenges to the favour are where the party hath no principal challenge, but objects only some probable circumstances of suspicion as acquaintance and the like, the validity of which must be left to the determination of triors, whose office it is to decide whether the Juror be favorable or unfavorable."  These instances, both of principal challenge, and challenge to the favour, it is evident are only enumerated by the commentator exempli gratia.  They are not the only grounds of challenge under this head; for Lord Coke gives many others; such for instance as the case of a Juror eating or drinking at the expense of the prosecutor, which he lays down as one among many other causes of principal challenge which are not specified in Blackstone.  Applying the principle therefore to be collected from these authors as forming a valid ground of objection by way of principal challenge to the polls of this Jury, arising under the express working of the Act of Parliament, it strikes me that the reasoning as against the validity of this Jury in poll is irresistible.  Here the avowed prosecutor is the Governor of the Colony, and the Commander in Chief of the Forces.  The Jury, whom it is proposed to swear as Judges between him and the defendant are of the same service and society as it were..  the governor, in his capacity of Commander in Chief, has a direct control over them, collectively and individually, and if they disobey him in any respect, they are amenable to a Court Martial for a breach of their military obedience, and are liable to cashierment.  They are unquestionably more immediately under the control of the Governor than any servant can be under the control of a master; any counsellor or attorney of a client; any steward of his landlord; or any member of any society or corporation, of any other member of the same society or corporation.  Indeed I take it to be impossible that there can be in civil society any condition or state in which so direct and preponderating an influence could be held and exercised over the opinions, acts, and freedom of others; and if this case be not enumerated in he books; if it be not in fact placed where it ought to stand at the very head of the enumerated grounds of principal challenge propter affectum, it is only because in England such an instance could not occur under the constitution of the Courts there - as that the Commander in Chief of his Majesty's Forces should be the prosecutor, and the officers immediately subordinate to him form the Jury.  I therefore submit to your Honors, with the utmost confidence that the fact of the prosecutor in this case being the Commander in Chief, and the Jury who are to pass between him and the defendant, being officers under him, forms a ground of objection to them severally, within the express meaning of the Act of Parliament, and establishes a stronger cause of principal challenge to them, than any enumerated by my Lord Coke, Blackstone, or indeed any writer upon this branch of the law.  The determination of this point rests according to Blackstone, with your Honors.  It is for you to say whether the official relation of the prosecutor and the suspicion of bias and partiality; which legally attaches to it, does not constitute a ground of principal challenge propter affectum, and is not therefore one of the allowed grounds of challenge recognized by the Act of Parliament.  If your Honors should rule it only to be a ground of challenge to the favour, it will still be, as I humbly apprehend, a ground of challenge propter affectum, within the express meaning of the Act, but in this case it will, I conceive, be incumbent on your Honors to leave it to the determination of triors to be named by your Honors, in the manner pointed out by Blackstone, whether such evidence and facts as I may be able to submit to them form a ground of challenge to the favour, with reference to all or any of the Jury here present.

The next point which I have to contend is, that this part of the clause of the New South Wales Act, which specifies and allows these two grounds, "direct interest and affection," as forming valid objections to the polls of the Jury, are mere surplusage; that they are in fact perfectly inoperative, and do not alter the law as it would stand, if no such grounds of challenge were enumerated and I conceive that it is wholly immaterial to the decision of this point, what may or what may not have been floating in the mind of the drafter of this particular clause; he might have thought that no ground of challenge would exist without such a specification, or he might have thought differently, and meant to exclude every other ground of challenge.  In either case it will be my endeavour to prove he was inaccurate in his notions of the law.  this I think will be obvious, from a brief advertence to first principles, and I take it to be a clear proposition that it is the common law of England, that the birth right of every Englishmen remains with him in a Colony settled by Englishmen, until it be rescinded or modified, either by an Act of the parent legislature, or of the legislature of the Colony, to which he may have betaken himself; that this Act does abrogate the common right of the British subjects of this colony, I admit, as far as it contains those negative words, which are repugnant to the exercise of that common right, for it deprives them of the right of Trial by Jury by their peers, and substitutes in their room another Jury, of a different number, class and qualification.  It does all this by clear affirmative words, inconsistent with, and repugnant of the Common Law.  With the right, however, of Trial by Jury as in England, it interferes no further, it forms a different Jury, differing in numbers, class, and qualification, but in no degree does it prejudice the right of challenge, known to the Common Law; it establishes a Jury differing in some respects from a Common Law Jury, but it affords still all the incidents which are thrown around a Common Law Jury; this enactment, therefore, was mere surplusage, unless it meant to say that no other grounds of challenge shall exist except, those specified in the Act - it was inoperative, if it meant this, because it was derogatory to the Common Law, for the principle of the Common Law is, that it shall not be done away with by implication. If the draft meant otherwise, he should have done this - he should have said that the Jury should be severally liable to challenge, on the grounds of direct interest and affection, and upon no other grounds whatsoever.  In respect however, to this ground of objection, it must, I think be obvious, from the tenor of the Act, that the grounds of challenge which are allowed, and distinctly specified, are only challenges to the poll.  It is therefore clear, that this clause is mere supererogation, altering in no respect the law of challenge, as it would be without it; or at best, that if it does make any alteration in the right of challenge, such alteration embraces only the right of challenge as to the polls.

This brings me to another ground of objection to the whole panel of this Jury.  By the express terms of the Act of Parliament the Governor is made the returning officer, filling quoad this Jury the functions of Sheriff.  Now, I take it, this forms an insurmountable objection to the whole array of the Jury - and that such objection is valid in law, I will refer your Honors, not exactly to a case in the books, but to a case which must be within your Honors; recollection.  that memorable case which came before the Court of King's Bench - a case precisely the same as this - which was brought forward by the Constitutional Association, as it was called - the case of the King v. Dolby.  It was a trial like this, in which the Constitutional association was the real prosecutor, the King being merely nominally so, as is the case here.  The Jury were about to be sworn, when Mr. Scarlett rose, and objected to that step.  It appeared that the two Sheriffs for that year were Aldermen Venables and Garratt - the latter one of the returning Sheriffs happened to be a member of the Association, and, it appeared, had subscribed five guineas.  Counsel contended upon this fact, that he was not competent to be one of he returning officers of the Jury.  The Chief Justice ruled the objection to be fatal, and the Jury, after the unindifferency of the Sheriff had been duly ascertained, were dismissed.  Now, applying this principle to the present case, where the Governor is the virtual prosecutor, I confidently submit that this forms a ground of objection as strong and irrefutable as existed to the Jury in that case.  The Governor here is the sole prosecutor, and the sole returning officer of this Jury; and the Jury, if they disobey him, are liable to be tried by a court martial, and cashiered.

But, your Honors, there is another and final ground of objection equally strong to this proceeding, and a ground of objection too, quite clear of the Act itself, and of all the provisions and clauses which it contains, relative to this Jury.  It is a fundamental maxim of law that statutes impossible of execution, and which are against common right and reason, are rendered void by the interposition of the Common Law.  "If a statute be against common right or reason, or repugnant or impossible to be performed, the Common Law shall control it, and adjudge it to be void" - 8 Rep. 118, Benhams case - 2 Just. 527  Fench, 74.  And Blackstone, in commenting on this doctrine says, "Acts of Parliament that are impossible to be performed, are of no validity; and, if there arise out of them collaterally, any absurd consequences, manifestly contradictory to common reason, they are with regard to these collateral consequences void.  I lay down the rule with these instructions, though I know it is generally laid down more largely, that acts of parliament contrary to reason are void.  But if the Parliament will positively enact a thing to be done, which is unreasonable, I know no power, in the ordinary forms of the Constitution, that is vested with authority to control it; and the examples usually alleged in support of this sense of the rule, do none of them prove that where the main object of a statute is unreasonable, the judges are at liberty to reject it; for that were to set the judicial power above that of the legislature, which would be subversive of all government.  But where some collateral matter arises out of the general words, and happens to be unreasonable, there the Judges are in decency to conclude that this consequence was not foreseen by the Parliament, and therefore they are at liberty to expound the statute, and only quoad hoc disregard it.  Thus if an Act of Parliament gives a man power to try all causes that arise within his manor of Dale; yet if a cause should arise, in which he himself is a party, the Act is construed not to extend to that, because it is unreasonable that any man should determine his own quarrel.  But if we could conceive it possible for the Parliament to enact, that he should try as well his own causes as those of other persons, there is no Court that has power to defeat the intent of the legislature, when couched in such evident and express words as leave no doubt whether it was the intent of the legislature or not." - 1 Black. Com. 91.  Now, contended the learned Counsel, I beg your Honors to apply the rule of law to be collected from these authorities to the case before the Court.  Look at the situation these parties are placed in.  Here the prosecutor in fact is in the exact situation of the lord in his manor of Dale - he is in fact judge of the prosecuted, because he judges him by his nominees.  The parties, too, are placed in this situation - a situation contrary to natural equity, by a circumstance arising collaterally out of the Act; and I do submit, therefore, that your Honors are bound, according to the authorities which I have just quoted, in decency to conclude, that such a contingency as this was not foreseen by the legislature, and quoad hoc, to disregard the Act of Parliament, and to discharge this panel.  It is not necessary for my argument to enter into any enquiry, whether a failure of justice might arise in consequence; that, I may say, from experience, that where the old, tried institutions of our forefathers are departed, from where modern devices are resorted to in their stead, that such inconveniences will assuredly arise.  At the same time I would observe, that the same necessity which would constrain the Judges to discharge a defendant from being tried by a Jury so circumstanced, might authorise the Court to impannel another Jury, free from all objection to try such a case.  It is not necessary, however, to enquire further into the power of the Court in this particular; as there is notoriously in another Court of competent Jurisdiction a Jury beyond all suspicion of bias or partiality, who might determine this matter - who may be immediately applied to.  With these remarks, I will now leave what appear to me strong and unanswerable objections, both to the polls and the array of this Jury, for your Honors determination.

The Solicitor-General in reply said, that although the objections that had just been taken, had come entirely unexpected on the Crown officers - though he did expect that some intimation of such a course being intended, would have been made by the defendant, yet he flattered himself that what were said to be unanswerable objections, he should shortly prove to be most absurd.  The learned Counsel had commenced his observations, by saying, that it was most probable the drafter never contemplated that a case of libel would happen to be submitted to the Supreme Court of the Colony.  Now, he would contend, the drafter did contemplate this, from the wording of the Act.  If words have signification that libel is crime, he thought this species of offence came under the words "all crimes and misdemeanours, and offences."  It was quite clear that misdemeanours were included in the Act, and if libel were such, it was included in the Act, and that was quite sufficient.  There were certainly various objections to Juries in England, but he thought they had no reference to this Colony.  The New South Wales Act was too particular in this respect to be misunderstood; it expressly provided a particular Jury, and none other could be substituted in their room.

The Judges hereupon retired to the Judges' room, and were out of Court about half-an-hour.  On their return, the Chief Justice said, that he, with his colleague (Mr. Justice Stephen), had fully considered the objections that had been raised in this case upon the act, and were of opinion the case should be proceeded with, upon the grounds which his Honor would briefly advert to.  The objections of Mr. Wentworth, had been founded upon a comparison of a specific enactment of the New South Wales Act, and the general principles of the English law, with reference to trials.  Looking at the Act itself, it provides that this Court shall exercise all jurisdictions, common to the Court of King's Bench at Westminster, and having given it this general criminal jurisdiction, of course it goes to the extent of including libels.  It then goes on to point out, how this jurisdiction was to be exercised, and provides that all offences, cognisant in the Courts at home, should be tried by the Judges of the Supreme Court, and by a Jury of seven officers; and then goes on to say, these officers shall be nominated by the Governor, but that they are liable to challenge on special grounds.  In the present case it is contended that the Governor substantially is the party alleged to be injured, and in consequence the Governor, who is prosecutor and returning officer, by having nominated a Jury, stands in the situation of Sheriff in England, and the Jury so nominated being under his influence, can be objected to, in the same way as persons are liable to objection in England.  Now the Court could not in decency suppose that the Governor could feel any interest in this prosecution, and still less presume that he could unfortunately have such a desire as to choose Jurors, whom he might imagine were agreeable to his own views.  It was within the judicial knowledge of the Court, that the Jury then assembled were named by the Governor during the last criminal sessions.  At the commencement of every criminal sittings, there is a precept in a blank form sent from the Supreme Court Office to the Governor, who, in order to meet any exigency, inserts additional names to the number of officers required.  There had been several cases of a very important character brought before that Court in the course of last month.  In some particular cases, it appeared to the Court that the Jury might have some impressions which would work one way or the other, without imputing any thing improper to them.  But lest those impressions should be prejudicial to the prisoners, by believing certain testimony offered, the Court made application for another Jury, and the present one was nominated.  The Court therefore could not presume, that because the Act had cast upon the Governor the nominating of a Jury instead of the Sheriff, that he could allow that feeling to influence him in nominating them.  The Court must also observe on the Act, that although Mr. Wentworth's observations are very powerful, yet under that particular Act it did not conceive there was any legal ground of objection.  It would be observed in the fourth and fifth sections of the Act, that a particular mode of proceeding by the civil and criminal sides of the Court was pointed out, and to shew that the Legislature had it in contemplation, that the law, with respect to challenge, would be seen to be specified.  The fifth section of the Act provides a mode of trying, and allows a challenge on the specified ground of direct interest or affection.  When, however, it speaks of civil issues, it requires the Governor to appoint two Assessors, and they shall be liable to challenge in the same way as in England; therefore there was this difference in the Act.  The Court is therefore of opinion upon those grounds, that there is nothing before it to prevent the case from being proceeded with.  Let therefore the Jury who have been impannelled now be sworn.

 

Notes

[1 ] A.M. Baxter.  See also R. v. Wardell (No. 1), June 1827; R. v. Wardell (No. 2), October 1827; and R. v. Wardell (No. 4), March 1827; and Newspaper Acts Opinion, 1827.  The most analytical account of these cases is provided by 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.  See the footnotes to the Newspaper Acts Opinion, 1827, for details of the deterioration in relations between Forbes C.J. and Governor Darling over the course of 1827.  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.

This trial was reported by the Sydney Gazette, on 26 and 28 December 1827; and by the Monitor, 24 and 27 December 1827.  On 24 December, the Monitor also reported the colour of the trial: it said that a "solitary hiss was heard on the rising of the Solicitor General in reply, it not being essential for the Crown officer to speak twice, where the Defendant calls no witnesses.  This was quickly stopped by the Sheriff.  The Judges gave orders for an additional number of the Police to be in attendance, who accordingly arrived with their pendant cutlasses, to preserve silence and order."  It went on: "When it was learnt, at the clearing of the Court, that of the three counts, the Defendant had been acquitted of two, an universal cheering took place out of doors, to the great annoyance of the Constables, and particularly of Jinks and Chapman; the latter of whom, in answer to an order from the former to cut the ears off of those who attempted to cheer, said, `I will not only cut off their ears, but their legs also.'  He was provided with a drawn cutlass, and looked most terrific.  In the interval of the adjournment of the Court from 10 to 12, most of the hearers retired to refresh.  The Barristers had sandwiches and wine in Court."  "In the course of the trial, one of the Judges had occasion to advert to some of the popular parts of constitutional law.   It had such an effect on the audience, as to produce a sudden knocking of sticks and cane-swords on the floor.  This indecorum was instantly checked by the other Judge, and the Sheriff also instantly rose, and insisted upon order.  The audience seemed sensible of the impropriety, and became perfectly silent."

The Australian commented on this case on 26 December 1827, referring to a "glorious epoch".  See also Australian, 28 December 1827, emphasising the "great constitutional principle" at stake in the challenge to the jury; and see 4 January 1828.  The Monitor, 27 December 1827, took a similar line.

The Sydney Gazette's comments were published on 26 and 28 December 1827, alleging that the defence was based on anything but the truth.  In its customary way, it took the government's line, and claimed that the Australian had published "a false, scandalous, malicious, and seditious libel" (28 December 1827, p. 2, col. 1).  Wentworth subsequently moved that Robert Howe, the publisher of the Gazette, be made to answer to the Court for contempt over his reflection on the jury (Monitor, 24 December 1827; Sydney Gazette, 28 and 31 December 1827).  The Court accepted Howe's explanation.  See R. v. Howe, 1827.  See also  Sydney Gazette, 2 January 1828, when it reported the Solicitor General's speech and once again attacked Wardell's character; and see the issue of 4 January 1828.

[2 ] Governor Darling reported the result of this case and R. v. Wardell (No 2), 1827, in a despatch to Lord Goderich on 16 January 1828 (Historical Records of Australia, Series 1, Vol. 13. Pp 717-725).  He said both juries had failed to agree.  He claimed that in both cases, there was a majority of the jury in favour of conviction.  He also commented on a letter from Forbes C.J. and Stephen J., in which they said that these two cases would not have been deemed sufficiently important for prosecution in England.  Things were different in a penal colony, claimed Darling.  He also criticised the judges' conduct of these trials, and said that no member of the government wrote for the Sydney Gazette, despite rumours.  The letter from Forbes and Stephen to Darling (dated 31 December 1827, and see Mitchell Library, A 1203, Reel CY 536, pp 1245-1251; Chief Justice's Letter Book , Archives Office of New South Wales, 4/6651, pp 129ff) was enclosed with this despatch.  In it, the judges said that the Gazette's account of these actions had prejudiced the trials.  The editor assumed guilt and awarded punishment even before the trials concluded, and attacked the judges as well as the jury.  This was particularly offensive because the paper bore the insignia of government authority.  Darling replied to them on 4 January 1828 (Chief Justice's Letter Book , Archives Office of New South Wales, 4/6651, pp 133-134), denying any government role in the articles in question.  The editor made his own decision to support the government.  The enclosures also included a letter from the Attorney General and Solicitor General, Baxter and Foster, complaining about the way the trials were conducted by the judges.

Forbes wrote again about this case in a letter to the Under Secretary of State on 10 February 1828, explaining the results in this case and R. v. Wardell (No. 2), 1827, in both of which the juries failed to agree on a verdict.  He stressed the importance of impartial jurors in the grand scheme of English law, and of the neutrality of the sheriff who selects the jurors.  These were principles of universal justice, equally applicable in New South Wales.  In that colony, however, jurors were military men, selected by the governor.  This departure from the law of England could be justified only by necessity.  The other great departure was that the colony's Attorney General was able to prosecute capital felonies by his own fiat, without disclosing his informer, placing the case before a magistrate, or the intervention of a grand juror.  This was not in the first draft of the New South Wales Act, which Forbes himself had drafted, and had escaped the vigilance of the law advisers of the crown.  (A sidenote to Forbes' letter at this point, signed J.S., stated that this very clause was actually drafted by Forbes, after the first draft of the bill had been printed by the House of Commons.)  Forbes then reached the main point of his letter: these prosecutions were for libels on the governor, and he and the Attorney General were required to handle them with great delicacy.  He went on to discuss the other events in the volatile circumstances of 1827, and to criticise the reporting of the Sydney Gazette of these two prosecutions of Wardell.  Forbes considered the Gazette to be government property, yet unrestrained by the government itself on this issue.  The result was that the Attorney General was prosecuting those who criticised the governor, while leaving the governor's supporter, the editor of the Gazette, untouched by prosecution.  Forbes said that he thought the conduct of the Sydney Gazette affected the result of these trials.  Worse, after rejecting the challenge to the selection of the jury in the December trial, on the assumption that the decision to prosecute was made by the Attorney General rather than the governor himself, Forbes acquired evidence that the governor had instructed the Attorney General to prosecute, while he, the governor, also selected the jurors.  This breach of constitutional principle, Forbes thought, was the reason for the lack of unanimity in the jury.  He concluded that he still held to the view that the unsullied application of the ordinary laws of England would be sufficient to restrain the press.  With this letter, Forbes also enclosed copies of letters between the governor and himself and Stephen J., including their statement that the cases against Wardell would not have resulted in prosecutions in England, and their complaints about the conduct of the Gazette in reporting them.  Darling replied that the Gazette's claim to official connections was no more than a trick of the trade.  Source: Mitchell Library, Reel 760, pp 281-296; and see A 748, CY 1226, pp 123-137; A 1203, Reel CY 536, pp 1229-1243.

In chastising both Forbes and Darling over the press disputes, Murray told Darling:

"The unsuccessful result of the proceedings against Dr. Wardell for libels upon you, is attributed by the Attorney General of New South Wales to the improper conduct of the Trial by the Judges; and in this opinion you concur.  By the Judges themselves that result in attributed to the indiscretion which they think marked your proceedings upon this occasion.

"I cannot undertake to decide, or even to investigate the question whether too great a latitude of defence was allowed to Dr. Wardell.  I entirely disclaim any right to review the Judicial proceedings of a competent legal Tribunal, except indeed when corrupt motives, or wilful misconduct are directly imputed to the Judge.  I am perfectly aware also, that, when an accused person addresses a Jury in his own defence, it is scarcely possible to prescribe with much accuracy, to what point the freedom of speech, should be carried, and where it should be restrained.  I must further remark that this charge against the Judges is made without any opportunity having been afforded to them for making their own vindication; a practice which I cannot too earnestly deprecate.

"Whether the Chief Justice be rightly accused of having laid down the law too favorably for the Defendant, is a question, into which for many obvious reasons, I must entirely decline to enter.  Neither can I attempt to form a Judgment, whether the explanatory evidence tendered by the Solicitor General was improperly rejected.  I must however express any dissent from your opinion, that the Judges manifested an improper spirit of partiality, in allowing the Defendant to give evidence of a publication adverse to him in a Newspaper of far more recent date that those for which he was tried.  If that publication was calculated, as I think it was to produce an unfavorable effect on the minds of the Jury, the Defendant had plainly a right to warn them against yielding to any such impression.

"I have read, with regret the letter addressed by the Judges to you at the close of these Trials.  It was, I think, an ill judged and indecorous proceeding; and your answer to them affords a very conclusive refutation of the censure indirectly cast on yourself for the excesses of an other [sic] Newspaper."  Source: Murray to Darling, 30 August 1828, Mitchell Library, A 746.  See also Ex parte Wardell and Wentworth, 1827, R. v. Wardell (No. 4), 1827; and Newspaper Acts Opinion, 1827, on this despatch from Murray to Darling.

[ 3] See below, after this report of the trial for libel.

[4 ] The Australian published articles on the Sudds and Thompson case on 25 November 1826, and 17 January 1827.  On the background to the Sudds and Thompson case, see Transportation Opinion, December 1826.

[5 ] The Sydney Gazette published the information in its report of the trial: 26 December 1827.

[6 ] 22 December 1827.

Published by the Division of Law, Macquarie University