Skip to Content

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

R. v. Hall (No. 2) [1828] NSWSupC 88

criminal libel, press freedom, trial by jury, Aborigines, character of, military jury, bond, criminal, sentencing discretion

Supreme Court of New South Wales

Dowling J., 29 September 1828

Source: Australian, 1 October 1828

SUPREME COURT.

LIBEL CASE.

Rex v. Hall. - This case was heard and decided on Monday, before his Honor Judge Dowling and a military Jury.[1 ]  It was on a criminal ex-officio - information filed against the defendant, laying to his charge the publication of a certain "false, scandalous, and malicious libel, contained in The Monitor Newspaper, upon Thomas Hobbes Scott, in the capacity of Archdeacon, with intent to bring him, the said Archdeacon, into public disrepute, and soforth, to which the defendant pleaded not guilty.

The Attorney General, addressed the Jury upon the case, and having called witnesses to prove the publication of the paper, and its applicability to the Archdeacon.

The defendant proceeded to reply, conducting his defence in person.  He would begin by directing the observation of his Judges, to the disadvantageous circumstances of his being a private citizen, coming as a defendant before a Jury of military officers; because he considered that gentlemen of the army felt it to be a bounden duty never to question the expediency of commands received from their superior.  It was indeed, he would admit, essential to the military service, that such should be one of the cardinal virtues of every soldier, for it was founded on general utility.

Proofs, he considered, had already been shewn in the history of the verdicts of the Jury of this country, that citizens were safe in the hands of a military Jury, composed of British officers - that they were indeed neighbours and citizens - because, as men of education and intellect, they had the instruction of the laws delivered to them by the learned Judge from the Bench.  The peculiarity of their situation, indeed, in life, was such, that they were generally enabled to come into Court as Jurors wholly indifferent on the score of private prejudice or private interest.

The history of the Colony had shewn that the military juries of the country, under the direction of a Judge, and the teaching of the law, were enabled to give a verdict satisfactory to the community at large.  It was a remarkable fact, that in no country in the world, had the verdicts of the Supreme Criminal Court of this colony, from its commencement, ever been brought into question.  Therefore, if one were to judge from experience and not by theory, he, the defendant, must repose a perfect confidence in those who were deputed to sit that day as his judges.  He would respectfully solicit the jury to throw off the military character, and to consider themselves as citizens of New South Wales; for it was not to be inferred, that because they had not an estate in the country now, they might not possess one hereafter.[2 ]  They themselves might possibly have to stand before that Court, as he then did, for saying that which the authorities presumed to be against the public peace.  He, therefore, besought the jury to consider themselves as citizens and his neighbours.  The time the Attorney-General had chosen for bringing on this Criminal Information, he considered rather Invidious.  An Information at the suit of the King had been brought on lately, to try the merits of a certain question, connected with the alleged libellous article then under consideration.  Now, had the Attorney-General waited only a few days, that decision which the defendant apprehended would turn in his favor, would have cast a very different shade on the proceedings[.]  The Jury had heard from the Court an opinion in which the defendant perfectly coincided that it would not be allowed in the present case to enter upon the merits of the transaction concerning the pew.  But should it appear by the decision of the Judges that he, the defendant had been illegally ejected from his pew, in what other light would he stand before the Jury, than as a deeply injured man in the tenderest points.  Had the Attorney-General waved this prosecution a few days longer, he, the defendant, considered he would have stood in a very different capacity.  The Attorney-General had been unusually ingenious in his comments upon the remarks published in his, the defendant's Journal.  According to the reasoning on the law for the prosecution, the actions of public men were not to be investigated.  All were infallible; and however erroneous political measures might be, the subject had no right to make any remarks upon the public wrong doer, whether intentionally or otherwise.  One would be taught to suppose from this dictum, that there ought to be no such thing in existence as a lawful public press; - they had to look upon the acts of public men without presuming to call them for a moment into question, and to confirm them in the idea, there had been read to the Jury portions of the law books; it therefore became him, the defendant, to read other portions, and shew to the Jury what was termed libel, and what was privileged discussion.  (Here the defendant quoted from Starkie on libel, ch. 33, p. 509, and proceeded;)  the defendant understood and believed the Archdeacon to be a very amiable man in respect of his private character; but as a political character he would not say the same.  the Monitor newspaper had been declared by the Attorney-General, a singularly atrocious publication; now, he would appeal to the Jury, if they were readers of the public journals, whether they ever saw any thing in the Monitor to hurt private character.  To attack all public questions which he might conceive to be politically bad was his right as an individual.  The Monitor was not a newspaper which was established to support and advocate the measures of Government - it was established to shew its defects in a legitimate manner.  To be consistent it was his duty to criticise all public measures.  The question for the Jury was, whether in attacking public men, he had attacked private character, that he had entered the parlours, and closets, and bed chambers of private persons.  No, there was no journal in the world freer from attacks on private character than the paper he conducted.  He allowed that the public acts of public men, when they came under the lash of his pen, had been handled with severity, but he would appeal to the public whether his censures had not been honest and just.  The Attorney-General had admitted that on the face of the article now made the subject of an action, there was thrown an air of candour and sincerity.  This the defendant presumed, was the greatest compliment could well be paid, for it shewed the legitimacy of his writings.  Out of six columns there had been selected two or three lines here, and two or three lines there - a dozen in the whole.  He would ask the Jury if they saw anything in the article before them to induce a man to seek a violent remedy, for shewing in public how he might best employ himself to the public advantage. - These were his principles, he would defy the world to prove that he had been acting contrary to those principles.  He would put it to the Jury if it would not have been madness in him to offer opinions to the public, if the official prosecutor's law were the law of the land.  It would be presumption and wickedness in him, with the large family he had, if he were to venture upon a publication after the law of that officer.  A public officer was public property; and he must submit his public actions to the test of public criticism.  Salaries and emoluments were not given to the complaining party to advance his private fortunes, but intended to reward responsibility of place and talents and integrity.  But if that Officer wanted talent, a public writer was privileged to speak of it.  It was to be presumed, that the Archdeacon was sent out to this Colony to further the ends of public good.  If the information, instead of imputing malice to him (the defendant) had declared, that by his writings he had annoyed the Archdeacon, he would have at once pleaded guilty, and ceased to be a public writer.  If he went to Turkey or Bengal, or any other slavish state, where the liberty of the Press did not exist, he would never dream of setting up an opposition paper; but he hoped he would not be tried by the practice which prevailed in those places.  If he were at Constantinople, it would be madness in him to make any remarks upon the Grand Seignor - no matter how just his remarks might be, the same peremptory order would be there enforced as in the field; but in a free society, he would consider himself a traitor, were he, as a public writer, not to treat upon all public questions with legitimate severity.  Party zeal often carried public writers beyond the bounds of decency, but he he would say that in his writings, he had upheld the character of persons when assailed, but had never assailed his bitterest foe.  If a person were to be brought before a Court for writing upon the actions of public men, to talk of the freedom of the Press was a piece of mockery altogether.  He wished to impress on the minds of the Jury, whether they could collect from his behaviour, that he wanted to upset the Church and State, and create dissatisfaction and anarchy in the Colony; he must indeed be a maniac who would think of such a thing, but because a man points out this measure to-day, and that measure to-morrow, he is called a libeller for so doing.  If that publication be held to be libellous, he must cease to be a public writer, for it was impossible to conduct his paper any longer with consistency.  He could not have possibly written on a public question, more mildly than as he had in the instance in question.  There was nothing in the article which implied that the Archdeacon was not the most amiable man in being, but irrational in politics.  A man might be a good carpenter, an excellent husband, a kind father, but when he came to the discussion of public morals, these required more instruction than what was necessary for a parent to impart to his children.

Ecclesiastical history shewed this: a man might in his private life be remarkable for virtue, and for every grace which adorns human life, and yet be politically bad.  Indeed it had been frequently remarked to himself, that he was a professor of religion, and an advocate for mildness and peace.  Granted: but the answer he invariably made to these sallies, was to this effect: "When I become a public censor, it is my duty to expose acts and all other evil tendencies which may appear to wage against the public interests.  Yet I trust that private character is entitled to moderation and forbearance."  In doing this, public men must suffer.  The question to be resolved was, whether in attacking public men and public measures, he had attacked Mr. Scott in his private character, or whether he had only done that which he was entitled to do, the discussing of impropriety in the conduct of public men.  He would now read passages from the law books which descanted on privileged publications, in order that the Jury should be better enabled how to draw a line of distinction as to what was and what was not libel.  It was impossible in attacking the measures of public men, not to wound their feelings; if this were not to be incessantly noticed, he, as an individual, should cease to write.  A public officer must expect to pay a tax for the public good.  When a man accepts a public place, he ought to calculate that he will be subject to public animadversion, and should act with magnanimity; he ought to put up with reproof - that reproof which a man of due humility, and an honest man, would feel no sort of annoyance to his feelings in putting up with.  If a writer attribute to that public officer bad qualities, which he does not deserve, let him exercise the Christian virtue - forgiveness.  Let him reason to himself in this manner.  Let him, I say, "forgive this man, for certainly if he had known the recesses of my heart, he would not have spoken so.  I will put up with it; let me exercise the highest of all virtues - forbearance, mercy, and forgiveness.  In all men this temper and disposition is required, but how much more so in me as a Clergyman."  Let the Jury look to what editors of newspapers were forced to put up with from their contemporaries.  A man of native integrity care but little form these things; and indeed he, the Defendant, had made it a rule through life, to disregard scandal and had often regretted he had not acted with more magnanimity when suffering from the effects of slandered character, than his nature permitted.

The defendant here followed up a train of argument in justification of the matter charged as libellous, which he again read over, and concluded by beseeching the Jury to take a candid and impartial view of the case, and pronounce thereon accordingly.

The defence being closed, Mr. Justice Dowling proceeded to sum up in the terms following:-[3 ]

Gentlemen of the Jury - This is an information filed by his Majesty's Attorney-General against Edward Smith Hall, for printing and publishing a libel in a newspaper called The Monitor, of the 5th July 1828, of and concerning the Reverend Thomas Hobbes Scott, Archdeacon of New South Wales.

Gentlemen, a libel is defined by law to be "the malicious publication, in writing or printing, of any matter defamatory of a person, and having a tendency to expose him to public hatred, contempt, or ridicule."  Malice is implied by law, if the act be voluntary, and it is a rule, that a party shall be understood to mean to do that, which is the natural and obvious consequence of his act.  There is this marked distinction however, between an action for a libel, and an indictment or information for a libel.  In one case, the party libelled seeks a compensation in pecuniary damages, for the injury which his character has sustained, and it is an incident to that mode of proceeding, that the alleged libeller may plead, what is called a justification, and prove the truth of what he has published, and thereby shew that the party complaining has sustained no damage by the offensive publication.  Herein, regard is had to the private injury only, which the party complaining may be supposed to have experienced.   But in the other course of proceeding, namely by indictment or information, a totally different rule is applicable.  The basis of this proceeding, is the actual or possible injury to the public peace.  It evidently makes no difference in the mischief of a libel in this point of view, whether the matter alleged be true or false.  A bad man is as likely, and indeed more so, to avenge himself, than a good man.  The truth or falsehood is totally immaterial in the mischief.  The law, therefore, as a justification, puts the truth or falsehood of the libellous matter out of the question.  The act itself is a positive crime, and therefore like theft, perjury, and many other offences affecting the public peace, admits but one simple plea, that of not guilty.  This doctrine is so firmly settled, and so essentially necessary to the maintenance of the King's peace, and the good of society, that no court of justice has at any time allowed it to be drawn into debate or question.  It is well observed by Lord Coke, and is indeed derived from the admirable example of the Roman law, that in a settled state of government, the party aggrieved ought to complain for every injury done to him, in the ordinary course of law, and not to revenge himself by the odious means of libelling or otherwise.

Having made, therefore, these general remarks, the propriety of which, I think can hardly be disputed, I beg your attention to the case now under consideration.

This is an information for a libel upon the character of a gentleman filling the sacred office of a clergyman - a gentleman sustaining the highest church dignity in this remote settlement.

Gentlemen, whether the public or private character of a minister of religion, of whatever denomination he is, be considered, I know of no sort of libel so reprehensible as that which tends to lower him in the estimation of mankind.  As it affects his public vocation, it is highly injurious to society, by tending to bring scandal upon religion itself, and thereby to dissolve the sacred bonds which bind man to man; but above all, as a paramount consideration, to weaken man's confidence in the divine attributes of his Maker.  As it affects his private character, it assumes a different quality, though not less the subject of severe animadversion.  All mankind view, with just indignation, any violence to the person of a minister of religion.  His sacred office, his defenceless position in society, protect him from brute violence and injury.  In this point of view, his person is held even more sacred than that of helpless woman.  Shall it then be said that his character is not as sacred as his person?  Human nature, in the one case, may be overcome by a sense of personal violence or danger, compelling even the minister of peace to repel force by force in a case of extreme necessity; but what defence has he against premeditated insult, public scorn, derision, and contempt?  Is he to make the pulpit or the altar the place of his vindication; or if not, is there any duty which he owes to himself as a private man, or to his sacred calling as a public minister, that will excuse him from seeking the protection of that municipal law which is the shield of all classes of society?  In this case a dignitary of the Church of England - the very Head of the Establishment in this distant settlement - is compelled to come into a Court of Justice, to seek redress for the publication of a scandalous libel of and concerning him in his sacred office.  Just, however, as is his claim to the protection of the law, it behoves you as Jurors to bring your minds to the calm and temperate consideration of the case, and to exercise your honest judgment upon the matter charged to be libellous, without regard to the station of the prosecutor, on the one hand, or the defendant on the other.

In this case, Gentlemen, we are not called upon to determine any matter of private right.  We are to look at this publication, and say whether it is, or is not libellous, and determine accordingly.

Gentlemen, whatever advantages may have been derived, and are daily derived to Society from the just liberties of the public press, I believe there is no well constituted mind can view with complacency any use of the privilege of the Press, when carried to licentiousness.  It is the proper and constitutional province of Courts and Juries to curb the licentiousness of this powerful organ of public communication and discussion.  Circuitous and expensive as this mode of proceeding is, still every man who values the institutions of his native land, would deeply lament the necessity of resorting to a less constitutional mode of repression.  A vigorous and impartial administration of the law in these cases will, I persuade myself, have the effect of averting the consequences reasonably to be expected from an unbridled abuse of that liberty, which, if kept within proper bounds is of infinite benefit to mankind, but if allowed to run riot, is a species of intolerable despotism, that no state of Society can endure.  It is not part of the liberty of the Press, to libel the constituted authorities of Government, to blacken the reputation, and wound the spirits of private individuals, and pour forth columns of matter as offensive to good taste and good feeling, as opposed to the real welfare of this promising settlement.  An honest, public spirited writer is allowed a sufficient latitude without fear of incurring the animadversion of the law.  Candid and temperate discussion upon public affairs, fall properly within the just bounds of a Free Press.  It has been often said, and has been said this day, that the characters and conduct of public men are public property.  Be it so, but let public men be fairly and candidly dealt with.  Let them be shielded from the shafts of malice, and protected against the venom of personal vituperation.  The Editor of a public newspaper has fearful odds on his side against the victim whom he may have singled out for castigation.  He usurps an authority that does not belong to him, and acquires an advantage over his neighbour, as foreign from impartial justice as it is inimical to the public peace, and well being of society.  The mischief of a libel does not always consist in its grossness; on the contrary, when its bitterness is muffled in the garb of innuendo and latent allusion, the malicious purpose is more galling to the feelings of the wounded party.  Gross and vulgar abuse, carries with it its own antidote.  Not so where the venom is wrapped up in obscure suggestion and dropping hints, unperceived perhaps by the common reader, but no less intelligible to him at whom the poisonous shaft is levelled.  Palpable slander does not effect its object; it is too tangible; the libeller overleaps his mark.  It is by the secret, though not obvious wound, the slow corroding venom, that by degrees he consumes the character of his victim.  Against libels of this nature it is, that the arm of justice should interpose.

Lord Ellenborough was a man of great intellects.  Out of the line of politics he was a liberal gentleman, but in politics he was illiberal to draw what he wanted: viz, an impartial conclusion.  To say of a man that he is a corrupt Judge & that a Jury gave an impartial verdict.  To say of the Justices of the Peace they were debauched characters  man in office that he is a cheat  a Commissioner examining a witness that he is corrupt  a Church-warden, that he has cheated the parish, and is a cousening [sic] knave.  Those were the publications which went to produce public discord, and were indictable.

Carrying these general observations with you, (if they coincide with your own sense of propriety), I have now to request your attention to the matter which is charged by this information to be libellous.

The Learned Judge then directed the attention of the Jury to the different counts of the information, the libellous matter charged in each, and the inuendoes [sic] accompanying the alleged defamatory matter, and then proceeded.

The first question for you to determine, is, whether the defendant is the publisher of this paper, and then, equally, whether the matter set forth in the information is libellous.

Both these questions are proper for your determination.

Formerly it had been held, in many cases, that on trials for libel, the facts of writing, printing, or publishing, and the truth of the innuendoes inserted in the proceedings, were the only matters to be submitted to the consideration of the Jury: but the justice of such doctrine being questioned and ably arraigned, the statute 32 Geo. III. c. 60 commonly called Mr. Fox's Act, was passed.  That statute enacts, "That, on every such trial, the Jury sworn to try the issue, may give a general verdict of guilty or not guilty upon the whole matter put in issue upon such indictment or information: and shall not be required or directed by the Court or Judge before whom such indictment or information shall be tried, to find the defendant or defendants guilty, merely on the proof of the publication by such defendant or defendants of the paper charged to be a libel, and of the sense ascribed to the same in such indictment or information.["]  There is in the same statute a provision, "That the Court or Judge before whom such indictment or information shall be tried, shall according to their or his discretion, give their or his opinion and directions to the Jury, on the matter in issue between the King and the defendant or defendants, in like manner as in other criminal cases."

Gentlemen, on the trials of informations and indictments for libel, it has generally been the habit of the Judges of England to deliver to the Jury their opinions upon the matter charged to be libellous.  This, however, is a matter of discretion as I have already pointed out[.]  On this occasion, I shall, I think, best exercise the discretion thus vested in me, by abstaining from giviag [sic] you my opinion of this case, leaving the whole matter to be determined by your own honest judgments.

Gentlemen, although there are only particular parts of this paper set forth in the information, it is competent for you to take into your consideration the whole of the publication from which parts have been selected, in order that you may do ample justice to the defendant, by ascertaining, if you can, whether the whole matter taken together may not be regarded as innocent.

Allowing every fair latitude to the defendant, you will consider first, whether the parts selected, are in themselves libellous, and then, secondly, whether they may not be mitigated by other parts taken as a whole.  A hasty expression or intemperate paragraph, standing alone ought not reasonably to bring a public writer within the scope of the law; and if you see from the whole tenor of the publication, that the motives of the defendant were innocent, you will give him the benefit of that view of the case, by pronouncing him not guilty; but if after an impartial and calm consideration of the whole matter as connected with parts selected for prosecution, it appears to you that the writer had a sedate and deliberate intention of bringing the prosecutor into public scandal, hatred, contempt, or ridicule, then you will say that the defendant is guilty.

After nearly an hour's deliberation the Jury returned into Court with a verdict of guilty against the defendant, who immediately entered into the necessary recognizances to appear when called upon for judgment.[4 ]

Forbes C.J. and Dowling J., 6 January 1829

Source: Sydney Gazette, 13 January 1829[5 ]

 

This was an information, ex- officio, presented by the Attorney General against the defendant, for a libel on the Rev. Thomas Hobbs Scott, Archdeacon of New South Wales.  The defendant having been found guilty on the trial, was this day called up to receive sentence.

The Attorney General having passed judgment on the defendant, and intimated to their Honors the wish of the Venerable the Archdeacon, that no more than a  nominal punishment might be inflicted, Mr. Justice Dowling proceeded to pass the sentence of the Court.

``Edward Smith Hall, you are to receive the judgment of this Court, having been convicted of a libel upon the Reverend Thomas Hobbes Scott, Archdeacon of New South Wales, published in the Sydney Monitor, of the 5th July 1828.

``It being intimated to us by the Attorney General, that it is not the wish of the prosecutor that your offence should be visited with any severity, the Court is willing to give as much effect as possible to that intimation.  It appears to us that you ought to feel yourself deeply sensible of the forbearance thus manifested by the prosecutor, and we trust that you do entertain a proper sense of the motive which induces so much lenity.  But for this notification, it would have been obligatory on us to pass such a sentence as would have subjected you to considerable inconvenience.  That unpleasant duty we are at liberty to recede from, by the considerate wishes of the prosecutor.  At the trial of this case, I rigidly abstained from delivering to the Jury my opinion upon the character of the publication in question, being willing that they should be in no degree influenced by any direction from the Bench.  The jury having found you guilty, I feel less disinclination in now expressing my judgment upon it; and I have no hesitation in saying that, in my opinion, the publication in question was a most indecent and scandalous libel upon the prosecutor.  The libel was concerning an alleged cause of grievance, for which the law would have afforded you adequate redress, if there were in it any meritorious grounds of complaint; and you were not authorised in taking upon yourself to animadvert upon the conduct and character of the prosecutor, in the tone and spirit in which this libel was conceived.  The Court cannot forget that this was a libel upon the character of a Clergyman  the very Head of the Church Establishment in the Colony.  It had a tendency not only to degrade him in his sacred office, but, through him, to bring religion itself into scandal and contempt.  Viewing the case in that light, this court is bound to express the strongest reprehension of your conduct.  No person of a well-constituted mind, having a proper sense of public decorum, and a just feeling of respect for the institutions of civilised society, can look with indifference upon an attack on the character of a Clergyman.  Ministers of Religion, like all other the King's subjects, are amenable to the law, if they do amiss; but, until condemned by the law itself, it ill becomes any private man to take upon himself to violate the sacredness of their characters, by holding them up to ridicule and contempt.  The law, which is made for the protection of all, will not endure this assumption of authority in a private individual.  It was suggested, in the course of the trial, that you are the father of a large family of infant children.  Giving you full credit for the natural solicitude of a father in rearing the tender minds of his offspring to habits of virtue and morality  in teaching them to respect the laws of  their country, and entertaining a reverence for the institutions of civilised society, the Court feels the deepest regret at seeing a person so circumstanced, placed on the floor of this Court to receive sentence for the violation of the law, in an instance which implies a doubt of the sincerity of those feelings which the Court is most willing to ascribe to you.  In your defence, on the trial, it was urged by you that the publication in question was privileged, in virtue of the Liberty of the Press, and that you had a right to print and publish such strictures upon the character and conduct of a public man.  Had you acted in good faith, in this respect, in your character of a public writer, on public grounds, and for the general welfare of the community at large, that topic might have been pressed, with more effect, in the consideration of this case; but the Court cannot shut its eyes to the fact that this libel emanated from personal motives, and that the writer himself was the person supposed to be aggrieved, and the only individual directly interested in the matter.  This circumstance takes from your case the merit for which you desired to have credit, as to the motives of your conduct.

``Assuming, however, that you were influenced by motives of a less personal nature, still the Court views the publication in question as being reprehensible in the highest degree.  The forbearance of the prosecutor, as already suggested, relieves us from the painful duty of marking our sense of this libel; for I am bound to tell you that this is an offence, which, for the sake of example, and for the interests of the public Press.  As the medium of diffusing useful knowledge, and improving the condition of man, the Public Press is the most powerful and efficient instrument hitherto known in the history of the world.  In this infant settlement, such an instrument, when properly regulated, it is capable of producing infinite benefit by meliorating the condition of a large class of her population, and cherishing in all her people a devoted attachment to the laws and institutions of that country, towards which every man, with a drop of British blood in his veins, must feel the most in-intense [sic] love and affection; but which if ill regulated, must induce a train of evils, as dishonourable and disloyal, as they are destructive if the peace, welfare, lic [sic], the Court could not have passed over lightly.  I believe I may be permitted to say, for my learned brethren, as I do for myself, that there is no inclination on the part of the Court, to put away any restraints upon the fair and just bounds of the liberty and good government of society.  Although the Court may not with propriety take judicial notice of the general character of the public press in this Colony, yet it would be affection, if in so small a community, it claimed to be ignorant of the passing transactions of the times.  As men, and as British subjects, owing an inviolable allegiance to their Sovereign, and bound by their oaths of office, as conservators of the public peace, the Judges of this Court, cannot abstain on the present occasion from observing that the Public Press has on frequent occasions in latter times, exceeded those bounds which fairly and justly belong to its province.  Why these excesses have not been brought under the cognizance of the law, the Court stops not to enquire, nor does it cast blame upon any body for the abstinence which has been evinced in passing over such transgressions; but the Court cannot refrain from expressing its deep sense of pain and regret that so valuable an organ of public opinion should have been abused to purposes so little advantageous to the real welfare of the community.  Possibly the mischief alluded to is not extensive in its local influence, because, those who know the predominant character for good sense, right feeling, and loyalty, which pervade the great mass of the King's subjects, in this extreme limit of the British dominions, need be under no apprehension from such causes of excitation; but, inasmuch as the public press may naturally be esteemed in other quarters, as indicating the public feeling and general character of the community in which we live, it is impossible not to be suspicious, that the specimens of editorial management thus alluded to, may be prejudicial to those who are in no degree privy to such irregularities.  It is a matter of notoriety that the eyes of the British public, but more especially of His Majesty's Home Government, are intently fixed upon the transactions of this remote settlement; and to every man who truly regards the interests of this fifth great portion of the globe, it cannot but be a subject of anxiety, that the loyalty, patriotism, and integrity of the great body of the community should be estimated by the character of the public press.  Judging from the general tone of this powerful vehicle of public opinion, marked as it has been, in too many instances, by great indiscretion, little hope can be entertained that the community of this settlement, now emerging rapidly from the cloud of penal obscurity, will enjoy the radiant advantage of His Majesty's paternal protection, or attract the sanguine popularity and sympathy of the British public.  Unless, therefore, the Press of this Colony assumes a different tone, and its conductors manfully check the impulses of personal vituperation, and study to represent the people of this Colony in their true colours, they may justly be considered as responsible for the consequences of those obstacles which are interposed to the fruition of many advantages which His Majesty's subjects possess in every region where the British language is spoken, and British law is administered.  These observations are dictated in the spirit of cautionary admonition, and with a view of exciting a better order of things.  Bound as we are to administer the law of England with fearless impartiality, and knowing no other guides for our conduct than the rigid rules of justice, we are naturally anxious to have it understood, that as far as in us lies, the scared duty which we owe to His Majesty and the Public, shall not be reproached with laxity or indifference.

``Returning now to the case before us, the defendant must be distinctly informed, that the very mitigated sentence, which the Court feels itself excused in pronouncing, is influenced solely by that spirit of forbearance, which is manifested by his prosecutor.  Acting upon that spirit, the Court doth order and adjudge, that you Edward Smith Hall, do pay to the King, a fine of  

[6 ] that you do enter into your personal recognisance, in the sum of £500, to be of good behaviour for 12 calendar months, and that you be imprisoned in His Majesty' s gaol at Sydney, until such fine be paid and such security entered into.

Hearing, 19 September 1829

Source: Australian, 23 September 1829

 

The Solicitor-General next rose, and moved that the securities entered into by Mr. E. S. Hall, Editor, &c. of The Sydney Monitor, in January last, should be estreated.  The Court could not attend to the application, there being no proof in support thereof produced.[7 ]

Source: Australian, 23 September 1829[8 ]

From a perusal of proceedings in the Supreme Court on Saturday last, it will be seen that Mr. Solicitor-General Sampson ventured to move for an order of the Court to estreat a certain BOND which Mr. E. S. Hall, Proprietor and Editor of "The Sydney Monitor" Journal had entered into last November, by command of the Court, in the penal sum of five hundred pounds sterling to the King, conditioned on his good behaviour for twelve months following.  Mr. Justice Dowling said the Court could not entertain the motion, save upon affidavit.  This application has caused a very general and unaffected surprise and chagrin; whilst the way in which the Court disposed of the motion, so far, has produced a very different effect.  We shall lead our readers a little into the nature of this matter.

In July last year the Reverend Thomas Hobbs Scott, then Archdeacon of New South Wales, had dispossessed Mr. Hall and six daughters of a pew, which they had enjoyed peaceably in St. James's Church eighteen months before.  In his comments on this act, Mr. Hall made use of expressions (the most libellous of which was esteemed to be the allegation, that Mr. Scott "was not a man of peace"), for which, at the command of the governor, and at the instance of Mr. Scott, the writer was prosecuted under an information filed ex-officio.  By a military Jury of seven officers, each receiving a compensation-fee of fifteen shillings a day, as usual in all cases for attendance on the Court, Mr. Hall was found GUILTY.  We wish only to state facts, and not to draw inferences.  The Foreman of the Jury was a few weeks afterwards made a Magistrate, and appointed to the Commandantcy of Port Macquarie.  The whole Bar, and the Public at large, were unanimous in their opinion as to the above verdict.  The Attorney-general soon after informed Mr. Hall, that he should not move for any punishment upon him, but merely call him up for judgment.  In consequence of this, Mr. Hall waived employing Counsel to shew cause against the judgment, which Mr. Wentworth, Barrister at law, was prepared to argue before the Court on several grounds.  Mr. Hall accordingly stood up for judgment on an appointed day; when, to his unutterable chagrin and disappointment, he was not only severely reproved and admonished by the Court, but ordered to enter into his own recognizance in the sum of £500 for his GOOD BEHAVIOUR for TWELVE MONTHS --- a sum which, with his large family, would be destructive; and which, nevertheless, with the sort of writing that in New South Wales is called libellous, and with all the various etceteras thereunto appertaining, was likely to be visited upon him, ere the twelve months expired!  Before the twelve months mentioned in this bond for £500 had expired, an article on a certain Captain Crotty was selected for prosecution, with another article on the nomination of Jurymen by the Governor, and both articles were handed to the Attorney-General, with a written order to prosecute Mr. Hall for the same.  Verdicts of guilty were found in both cases, on the principle, that the greater the truth contained in the offensive passages the greater was their LIBELLOUS nature!  In the libel on the Governor, however, several singular incidents connected with the trial are worthy of notices.  Capt. Wright, 39th, was challenged by Mr. Hall on the ground that he (Capt. W.) entertained a personal dislike towards the latter.  The Act of Parliament says --- all challenges must be made on the ground of "direct interest and affection."  Hence Captain Wright maintained his seat in the jury-box.  When the Jury or Commission retired, a voice was overheard outside urging one of the officers to surrender his opinion to the rest.  The Jury or Commission came into Court, and said they could not agree.  They were requested to retire once more.   At length the dissenting officer agreed to find a verdict of GUILTY, and accordingly this verdict was duly delivered by the Foreman.

On the day of pronouncing judgment, one of the Judges delivered an elaborate opinion in writing, why he considered the verdict as illegal.

We shall not here retrace the many manly, enlightened, and straightforward arguments adduced on the one hand, nor the various sophistries brought into action on the other.  The opinions of the dissenting Judge were overruled by his two learned coadjutors, and judgment was pronounced.

The unattenuated severity of the sentences pronounced that day, and among the rest that of twelve months' incarceration on the Editor of THE SYDNEY MONITOR, (his large, youthful, unprotected family of daughters being taken into consideration) was considered by him and his friends as partly in substitution of estreating the bond for £500 above-mentioned; and as no mention whatever was made of the bond at the time, they and the public were confirmed in so rational an opinion.

With these facts, we therefore can never anticipate that the Court will give countenance to Mr. Solicitor-General Sampson's or any Solicitor-General's attempting to [en]treat the bond in question, now that three months have elapsed.  Such kind of security would be worse even than Mr. Sampson's former reiterated attempts to compel Mr. Hall to pay the £500 penalty for the negligence of his clerk in delivering a copy of his Journal to the Colonial Secretary a few days too late.

To conclude.  When we consider the measures of hostility against Mr. Hall in these penalties in pews, in land, and in Peter Tyler's affair,[9 ] his steady perseverance in opposing the present Administration cannot excite any great surprise.

Notes

[1 ] See also Sydney Gazette, 1 October 1828.  Governor Darling reported this case to Murray on 2 January 1829 (Historical Records of Australia, Series 1, Vol. 14, pp 578-601).  He was happy to endorse the florid comments of the Sydney Gazette on the character of the defendant, Hall and on the supposedly false nature of Hall's claims.  Hall was one of the people whom Darling characterised as the opposition to his government.  Darling forwarded a letter from Hall to Murray criticising the governor's administration, and attached other correspondence as well.  In one of the letters, from Hall to Macleay, the governor's secretary, Hall gave his accounts of his many conflicts with the government.  He accused the governor of biased dealings in land grants.  Incidentally, Hall also showed a generous view of the character of Aborigines, calling them a "corteous, mild, volatile, chivalrous race of men, given to mirth, hospitality and deeds of arms.  Their cruelty to their women at times cannot be denied; but it is an exception to, rather than part of their main character" (p. 596, in Hall to Murray, 26 November 1828).

[2 ] Soon after this case was heard, the new Australian Courts Act came into force (1828) 9 Geo. 4 c. 83).  A conservative British government ended the experiment of civil jury trial in the inferior criminal courts, the Courts of Quarter Sessions, which had begun with the decision of Forbes C.J. in R. v. Magistrates of Sydney, 1824.  Hall, like other reformers in the colony, wanted trial by civilian jury, not by military officers.  In debate on the point in parliament, Huskisson said that the juries in the Courts of Quarter Sessions had been found a great evil.  Forbes and the other judges firmly disagreed, as did the free inhabitants.  Deceptive information had been given to parliament by those opposing jury trial, according to Forbes' letter to Horton on 28 December 1828 (Catton Papers, Australian Joint Copying Project, Reel M791).

[3 ] The Australian, 1 October 1828, thinking that this was important, said that the "Judge's charge to the Jury is reported precisely as it was uttered".

[4 ] The Australian, 3 October 1828, reported that Hall intended to move for a new trial.

[5 ] This is taken from the judge's notes, which were passed to another newspaper before being received by the GazetteSydney Gazette, 13 January 1829.

See also Australian, 9 January 1829; and Sydney Gazette, 8 January 1829.  According to the latter, the fine was 20 shillings.  See also Sydney Gazette, 15 January 1829 for an allegation that Hall did not show the gratitude expected of him for this lenient sentence.  The Gazette returned to the case on 17 January 1829 (with flattering remarks about this judgment) and again on 20 January 1829 (with comments on the Monitor).

[6 ] No fine was stated, the space being in the original document.

[7 ] By September 1829, Hall was in serious difficulty with criminal libel prosecutions, no doubt leading to this action against his bond.  See R. v. Hall (No. 2), 1829; R. v. Hall (No. 3), 1829; and R. v. Hall (No. 4), 1829.  See alsSydney Gazette, 22 September, 15 and 24 December 1829; Australian, 16 and 23 December 1829.

[8 ] The Australian, 23 September 1829, commented as follows on this case.

[9 ] SeIn re Tyler, 1829.

Published by the Division of Law, Macquarie University