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

In re Tyler; R. v. Rossi and others (1828) NSW Sel Cas (Dowling) 568; [1829] NSWSupC 25

habeas corpus - convict service - Wellington Valley - convict punishment - magistrate, action against - certiorari - supervision of inferior courts - Jane New's case - press freedom

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 15 April 1829

Source: Dowling, Select Cases, Vol. 2, Archives Office of N.S.W., 2/3462


[pp 191-192] [Habeas Corpus will not lie to bring up the body of a Convict felon, removed from his Masters service to a part of the Colony not a penal Settlement, unless to be under any restraint not compatible with his simple state of transportation and servitude.]

[p. 191]

April 15 1829


Forbes CJ

Stephen J

Dowling J

In re Peter Tyler


On a former day a rule nisi had been applied for a habeas Corpus to bring up the body of Peter Tyler an assigned servant of Mr Edward Smith Hall,[1 ] from Wellington, where it was alleged he was employed in the ordinary service of the Crown in a road party.  It was stated that Tyler had been duly assigned to Mr Hall [p. 192] and that he had been forcibly taken by Mr Hely the Superintendent of Convicts, against the will of the servant from his Masters service.  Mr Hall claimed property in the services of the man and therefore prayed a Habeas Corpus to bring up the body and have the man redelivered.

Forbes CJ. now delivered the Judgment of the Court.

We are of opinion that the grounds laid before us are not sufficient to authorize us in granting a writ of Habeas Corpus.  It is conceded that Peter Tyler is a prisoner of the Crown and it is alleged that he is now employed with a road party in Wellington Valley  Prima facie, being a prisoner of the Crown he is liable to be employed in the ordinary service of the Crown.  It is not alleged that the man is under an unlawful state of duress or coercion.  Had such been the case probably we [p. 193] should have granted the writ in order to see why he was so treated.  Whatever claim of property Mr Hall may have in the services of this man, that is a question which cannot be determined on a return to a writ of Habeas Corpus.  The only question we could determine under such a writ would be whether the man was under an illegal state of confinement or was sent to a part of the Territory to which he ought not to be sent.  Now it is within the Judicial knowledge of the Court that Wellington Valley is not a Penal Settlement within the meaning of the order of Council and therefore the presumption is that he is not unlawfully employed.

On this ground therefore we refuse the writ.

Writ refused.


Forbes C.J., Stephen and Dowling JJ, 30 March 1829

Source: Australian, 31 March 1829

As the Court was about to rise, Mr. Keith intimated to their Honors, that it being the intention of Mr. E. S. Hall to bring the case of his assigned servants under the consideration of the Court, it had been suggested by the Solicitor General that it might be as well, if their Honors had no objection, to put a special case, in order to try the question, and to prevent the course which would otherwise be adopted, of having Mr. Hall summoned to the Police Office, and fined for harbouring his own servant; and after all this was done, bringing the proceedings of the Magistrates before the Supreme Court by writ of certiorari.

Their Honors said the Court could only entertain specific motions.  The discussion of the point in question in the manner suggested, would be irregular.  Let a motion be shaped of which the Court could judicially take cognizance, and it was then at all times ready so to do.


Stephen J., 21 April 1829

Source: Australian, 24 April 1829


Mr. Justice Stephen was the presiding Judge.

Mr. Keith rose on behalf of Mr. E. S. Hall, for a writ of Habeas Corpus, to bring Mr Hall's assigned servant, Peter Tyler, from Wellington Valley, on the ground of his being compulsorily detained there by the Government for no assignable reason.

His Honor said, he should take time to consider, but the better way would be in primis, to bring up the proceedings of the Bench of Magistrates, who had taken upon them to fine Mr. Hall for retaining his own servant in his office or house, by writ of Certiorari.  Applied for accordingly and granted.[2 ]


Banco hearing, 25 April 1829

Source: Sydney Gazette, 28 April 1829[3 ]


In re Peter Tyler.

In this case, which was an application to the Court to bring up the body of a man named Peter Tyler, from Wellington Valley, made by Mr. Keith on a former day, His Honor the Chief Justice  delivered the judgment of the Court in the following terms:--

The Chief Justice --  ``In the affidavits before the Court, in support of the application for a writ of Habeas Corpus, to bring up the body of Peter Tyler, a transported felon, from Wellington Valley, it is stated, that Tyler was, about 3 years ago, assigned to Edward Smith Hall, as a servant, in pursuance of the transportation Acts.  That Tyler continued in the service of Hall, until the 5th day of April instant, when, as is alleged, his person was forcibly taken from the house of his master, by order of Frederick Augustus Heley, Esq. Superintendent of Convicts, and on the 9th day of April forwarded to Wellington Valley, which is represented as a place of a penal description, and there employed either in a road party or an iron gang. These acts are represented to have been forcibly done, and as being without any cause of complaint, or offence committed by Peter Tyler, and against the will of Tyler, as well as of his master, Hall.

``Upon these facts we are called upon to issue a writ of Habeas Corpus, but is appears to us, that the grounds laid before the Court are not sufficient to call for its interposition.  As far as any question of property in the services of Peter Tyler may be raised, the process of Habeas Corpus is not one upon which we could give any opinion touching the right of Hall to the services of Tyler.  The only question which we can consider in this form of proceeding is, whether the party sought to be removed by Habeas Corpus is in a state of illegal restraint.  Now, it is within the judicial knowledge of this Court that Wellington Valley is not a penal settlement, or place of punishment, within the meaning of the order appointing penal settlements within the Government of this Colony, and it is not positively stated that Tyler is worked in an iron gang without having been found guilty of any offence.

``It is stated, in a general and alternative way, that Tyler has been forwarded to the farthest road party or iron gang -- it is no alleged that he is de facto worked in irons on the roads.  We do not think, therefore, that any fact is deposed to which shews that Tyler is in a state of unlawful duress, or is illegally punished.  We must, therefore, refuse the present application."


Forbes C.J. and Dowling J., 13 June 1829

Source: Sydney Gazette, 16 June 1829


Hall, v. Rossi and others

In this case a rule nisi, had been granted on a former day, calling upon certain Magistrates, named therein to shew cause why a writ of Certiorari, should not issue to bring up the proceedings before them in the case of a conviction had against the applicant, Mr. E.S. Hall, for harbouring a prisoner of the crown named Peter Tyler, illegally at large, but whom the applicant claimed as his assigned servant.  Mr. Wentworth, rose to move that the rule be made absolute, observing that the Solicitor General, be understood, was prepared to shew cause.  The Learned Judges, after consulting for a few moments, intimated to counsel that, if there was no particular object for pressing the motion, they would prefer having it argued in full court, and the case was accordingly postponed to Saturday next.


Forbes C.J., Stephen and Dowling JJ, 20 June 1829

Source: Australian, 23 June 1829

Writ of certiorari.

In re Tyler, assigned servant to E. S. Hall, Esq. v. Rossi and others

After the libel cases had been disposed of,

Mr. Wentworth rose to move the Court that the rule granted on the Saturday before, in the above case be made absolute, producing affidavits to strengthen his motion.

Mr. Solicitor General rose in opposition to the criminal information moved for by Mr. Wentworth.

Here the learned gentleman was interrupted by Mr. Chief Justice Forbes and the other Judges, who imagined the Solicitor General meant to allude to the certiorari granted on a former occasion.  The Solicitor General having corrected himself, proceeded to read the affidavits of Messrs. Rossi, Bunn, Browne, and Wollstonecraft, in defence, and to comment on the affidavits filed in support by Mr. Hall, which he represented as not containing any facts, being merely generalities of an indefinite nature.

Mr. Wentworth in reply, remarked, that he could perceive the object at which the Solicitor General wished to arrive.  In the first place, he had commenced by defending a rule for a criminal information, and he (Mr. W.) would add, it was not altogether inapplicable, inasmuch, as he hoped, and would move, that the Court would command the proper officer to file an information for a contempt on the Supreme Court by the Magistrates aforesaid.  The learned gentleman then adverted to the affidavit of Mr. Hall, and stated that although the Solicitor General could find no facts in the affidavits, he would be able to shew the Court not only facts, but awkward facts, and would take leave to recommend the Solicitor General, the next time he attempted to skim the cream of an affidavit, to wear spectacles.

Mr. W. here read that part of the affidavit, wherein Tyler was stated to have been three years assigned to Mr. Hall -- had two years to serve -- had never received any revocation of that sentence, and yet was forcibly taken out of his master's house -- the master fined six dollars -- the notice to the Magistrates to proceed no further, and ultimately the levy.  Mr. W. then alluded to the case, wherein Jane New had been before the Court, and the point settled as to a master's claim, and stated that the learned quartette (the Magistrates) had, by their decision in their inferior jurisdiction, set a[t] nought the decision of the Supreme Court, and thereby incurred the motion he made for a criminal information.  It was in fact (continued Mr. W.) a question of right of property, and consequently not within the jurisprudence of the learned quartette.  He then moved that the rule for a certiorari be made absolute, and that the proper officer be directed to file the information.  Rule granted.

Mr. Bunn here took the liberty of rising, and said he could enter into an explanation of the case.

The Chief Justice. -- "We cannot hear any thing from you, Sir."  His Honor proceeded to observe, that he thought the Court had been treated in this matter by the Magistracy, uncourteously, more particularly, as he and his learned colleagues had passed many anxious hours in arriving at a conclusion in the recent case of Jane New, which should have been a sufficient guide for them to act upon.


Forbes C.J., Stephen and Dowling JJ, 27 and 30 June, 1 July 1829

Source: Sydney Gazette, 4 July 1829[4 ]

(Sittings in Banco)

Ex parte E. S. Hall, v. F. N. Rossi, Esq. and others.

In this case a writ of certiorari had been directed to issue on the former day, calling upon the defendants, Francis Rossi, George Bunn, Edward Wollstonecraft, and Warren Jemmett Brown, Esquires, Magistrates of the Territory, to bring up he conviction before them of Mr. Edward Smith Hall, for harbouring a prisoner of the Crown, named Peter Tyler, alleged to have been illegally at large.

The proceedings having accordingly been  returned, were read by the Clerk of the Court.

Mr. Wentworth then moved that the conviction be quashed, on the ground that there was no corpus delicti appeared upon the face of the record to bring the defendant within the provisions of the Act in Council against harbouring runaway convicts.

The Solicitor general, on behalf of the Magistrates, contended that there was sufficient upon the record to support the conviction.  It was stated that the revocation of the assignment of Peter Tyler, by His Excellency the Governor had been clearly proved to have taken place; and with respect to the allegation that such revocation had been made in the usual form, their Honors would see that this being the first occasion on which the power had been exercised, no specific form had been adopted.  It was contended on the other side that His Excellency had not the power of revoking an assignment, unless for the purpose of bestowing a temporary or partial remission of sentence; but, he, (the Solicitor General) submitted it did not follow but that the Governor may yet confer such temporary or partial remission.  It was not necessary that it should be done immediately upon revocation; His Excellency was not confined to a particular time, and even upon that ground of objection, he submitted to the Court that there was nothing shewn upon the other side which would warrant their Honors in disturbing the conviction.

Mr. Wentworth. - The power given to the Governor is to revoke and remit, and if that power had been duly exercised this man was not a runaway convict.

The Solicitor General.  The Act does not state that the remission shall take place immediately upon the revocation.  If it be granted within a moderate period of time, the provisions of the Act are complied with.

The Chief Justice. - But the real intention might have been set out in the revocation.

Their Honors having consulted together for a few minutes, the Chief Justice intimated to Mr. Wentworth, that, assuming the conviction must be quashed, the Court was anxious, as the intention of taking ulterior proceedings had been intimated, to take up the whole case together, and therefore desired that the learned counsel would proceed with what other steps he purposed to pursue.

Mr. Wentworth. - Then, may it please your Honors, I have to move for a rule to shew cause why a Criminal Information should not be exhibited against these defendants.  For maliciously conviction Mr. Edward Smith Hall, of harbouring Peter Tyler, a prisoner of the Crown, under pretence that he was a runaway Convict, he being in reality at that time the assigned servant of Mr. Hall.  In addition to the affidavits already on the files of the Court, and of which your Honors are cognizant, I have now to advert to a further affidavit of Mr. Hall, which I hold in my hand, and which shews the history of the case up to the period of the proceedings which took place before the defendants.  On the 9th of March last, Mr. Hall received a letter from the office of the Superintendent of Convicts, directing that the man, Tyler, should be in attendance there on the following morning.  He immediately suspected the intention with which the letter was written, but before he had time to comply with the direction it contained, that intention was made manifest.  Having some business in the Supreme Court, Mr. Hall was there during the trial of a cause before the Chief Justice, on the day after the letter had been received by him, when a constable entered the Court, beckoned to a man who was assigned to the Editor of the Australian, and then taking notes of the proceedings for that paper, took him out of the Court and conveyed him to the Barracks, where he was immediately placed among the other prisoners in the ordinary service of Government, and Mr. Hall swears that he verily believes, had he complied with the directions of the letter before alluded to, that his servant would also have been detained.  On the 11th of March Mr. Hall received a letter from Mr. Hely, the Superintendent of Convicts -- and this letter, your Honors will perceive, is the usual form of revocation alluded to in the conviction --  desiring that Peter Tyler might be immediately returned to the service of Government, as His Excellency the Governor had revoked his assignment.  To this mandate Mr. Hall paid no attention; but Tyler, fearing the consequences that might accrue to him, surrendered himself, and was taken into the Prisoners' Barracks, whence, however, he afterwards absconded, upon it being represented to him that quitting his master's service was an act of disobedience for which he was liable to be punished, and returned to Mr. Hall.  In the course of the arguments in the case of Jane New, which took place subsequently to Tyler's return to the service of Mr. Hall, the Crown Officers pressed for the opinion of the Judges on the meaning of the 9th section of the New South Wales Act, in order to set at rest the question as to the power of the Governor to revoke an assignment at pleasure; and on the 21st of March the Supreme Court came to a solemn decision, that His Excellency had not such a power, and which decision was published in the Gazette.  In consequence of this decision, Mr. Hall refused to give up Tyler, who, though he had not received any temporary or partial remission of sentence, and though the Supreme Court had decided that the Governor could not absolutely revoke an assignment, except for the purpose of conferring such temporary or partial remission, was continued to be advertised as a runaway, though he was actually in the service of his master.  In consequence of this proceeding on the part of the Superintendent of Convicts, Mr. Hall caused an advertisement to be inserted in the Monitor newspaper, warning all Constables and others against capturing his assigned servant; notwithstanding which, and in the very teeth of the decision of this Court, obtained at the earnest request of the Crown Officers, and published in the Gazette, a paper in the interests of the Government, in which by the way its principle was very decently denied -- notwithstanding all this, I say, the Superintendent of Convicts caused Tyler to be forcibly taken from the premises of his master, against his will and that of Mr. Hall, who was subsequently summonded [sic] to answer to a charge of harbouring his own assigned servant, as he swears to the best of his belief, by order, either verbally or in writing from Mr. Alexander McLeay.  The proceedings which took place before the defendants on that occasion, are already before your Honors, in the affidavit of Mr. Hall read on a former day.  Notwithstanding the decision of this Court, which was repeatedly pressed upon their attention by Mr. Hall, they proceeded to convict, and fine him for harbouring his own assigned servant, and which fine was afterwards levied by distress.  I ask your Honors whether such conduct is to be endured, and I put it to the Court whether it is not called upon to vindicate its own dignity, and to prove to these defendants that they are not to presume to treat its decisions in the way in which it is sworn they have done.  I submit that independently of the malice and corruption apparent on the face of the whole proceedings, and the utter impossibility that the magistrates could for a moment conceive that the case was at all one coming within the provisions of the Act in Council against harbouring runaway convicts, that the Court owes a duty to itself and will not only grant the rule for which I now apply, but proceed against the defendants, in whatever manner it shall deem most proper, for the gross contempt exhibited by them.  It is unnecessary to enquire at whose instance these Magistrates were called together to reverse the decision of the this Court.  The individual, I think, cannot well be mistaken; but I do once more press it upon your Honors, that independently of the malice and corruption evident throughout all these proceedings, and upon which I move for this rule, that a gross contempt of this Court has been committed, and that you will either direct the proper officer to file a criminal information against them, or otherwise proceed by the more summary process of attachment, and have them put to the usual interrogatories.

The Chief Justice - With respect to the preliminary motion to quash the conviction handed into Court, we have come to the conclusion that it cannot be sustained in law, and therefore direct that it be quashed.  Upon the second motion, the Court grants the rule applied for, in order to give the Magistrates an opportunity of explaining the various matters that appear upon the affidavits before us.

Mr. Justice Dowling - I am clearly of opinion that this conviction ought to be quashed upon the face of the record.  The conviction returned into Court admits, after preceding matters, that there was a claim of property; and it is clearly laid down as a principle of law, that where a question of property arises, the summary jurisdiction of Magistrates is ousted and their hands tied, though the facts be such as otherwise they have authority to take cognizance of.  It may have been that the assignment was rescinded by some competent authority, but it was open to the defendant to question that authority.  Can it be said, however, that this was a case coming within the meaning of the Act in Council against harbouring runaway convicts and the encouragement of convicts tippling or gambling?  That Act, after reciting the purposes for which it was passed, goes on to recite the mischiefs it was intended to prevent; and could it possibly have occurred to these Gentlemen that Mr. Hall came within the description of persons therein mentioned?  It appears to me, therefore, that there was a colour of title in the defendant whereby, according to all the authorities, the jurisdiction of the Magistrates was ousted, and that this conviction must be quashed.  Had there been, as alleged, a fair intention of taking the opinion of this Court upon a point which the Magistrates conceived had not been already decided, there was an obvious and easy course to be pursued for that purpose; but upon this subject I shall reserve such observations as I may deem it necessary to make at another stage of the proceedings.

Mr. Justice Stephen coincided in the opinions given by his learned colleagues on the bench.

The conviction was accordingly directed to be quashed, and the rule nisi for a criminal information, by consent of the Solicitor General, made returnable on Tuesday.


The King v. F. Rossi, Esq. and others.

Mr. Wentworth moved that the rule to shew cause why a criminal information should not be filed against the defendants, obtained on Saturday last, be made absolute.

The Solicitor General rose to shew cause against the motion.  The learned Gentleman argued at considerable length on the improbability that the defendants could have been actuated by any feelings of malice towards Mr. Hall.  He assured the Court that the Magistrates, not considering the decision in the case of Jane New as applicable to that of Mr. Hall, had merely acted in the way they had done in order to raise the question at issue in a more formal manner for the consideration of their Honors.  The Solicitor General then put in affidavits made by the defendants in which they severally disclaimed any want of respect for the decision of the Supreme Court; but on the contrary were at all times anxious to evince the utmost defference [sic] for any opinions that their Honors might express; that in the case of Jane New the opinion given by the Court as to the meaning of the 9th Section of the New South Wales Act, was considered by them as merely incidental; that Mr. Kerr who attended on he part of the Crown officers, upon being asked his opinion on the subject informed them that the question had not been decided in the case of Jane New, and that had he expressed a contrary opinion they would not have proceeded in the case.  The Solicitor General concluded by trusting the Court would see that the Magistrates had acted entirely under a misconception and would therefore discharge the rule.

Mr. Wentworth. -- It cannot have escaped your Honor's observation that the arguments on the other side, as well as the affidavits that have been put in, are directed to one point, namely, to exonerate these defendants from that charge of contempt that is alleged against them.  How far they have succeeded in the attempt I will endeavour to shew to the Court.  It is alleged in the affidavits on the other side that it was merely the intention of the parties that the decision of this Court upon the question at issue might be obtained.  Now, I should like to know what is meant by the intention of the parties?  It is clear from the affidavits in support of this motion, that as regarded Mr. Hall, the proceeding was a hostile one: for he was forcibly dragged before these defendants to answer a charge of harbouring his own servant.  The intention, therefore, was on the part of those who set the proceedings in motion.  Who those parties were, it is not difficult to guess; indeed it is sworn in an affidavit of Mr. Hall, that it was set in motion by one Alexander McLeay -- a fact not at all denied on the other side.  The very act of adopting a hostile proceeding on such a suggestion, clearly shews, not only their unfitness for the office they fill, but their base subserviency to higher quarters.  I tell the Solicitor General that no man, conscious of the solemnity of the oath he has taken, to administer justice fairly and impartially to all His Majesty's subjects, would lend himself to such a foul proceeding; and that if a charge of perjury or conspiracy were preferred against these defendants, it would perhaps be better fitted to bring home to them their demerits than the present proceeding.  It is clear, even from their own affidavits, that the only party they thought of consulting in the course of these proceedings, was the Crown Prosecutor.  Do they imagine that it is their duty to yield implicit and blind acquiescence to his dictum, knowing it, as I contend they did know it, to be opposed to a dictum, or rather decision of this Court?  Is this the way in which these men discharge their official duties?-- disregarding all arguments on the other side, disregarding the solemn decision of this Court?  Is it to be endured, because they are told that your Honors' opinion was merely incidental, that they are to act directly in the teeth of it?  They ought to be taught that the merest dictum that falls from this Bench, should be law to them until it is reversed.  The decision in the case of Jane New, if they ever read it, and that they had read it, that it was over and over again pressed upon their attention, there can be no doubt, carried upon the face of it evidence that the point had been decided.  If, having read it, they are so grossly ignorant as not to understand its meaning why then I say, they are utterly incompetent of the office they fill, and that men of such gross intellect are more fit to follow at the tail of a plough, that to discharge the judicial functions.  The only way in which they could get out of this dilemma, was by swearing that they did not believe the point had been decided; but the affidavit of Mr. Hall clearly shews that they were not only cognizant of the decision, but that they all repeatedly adverted to it.  It is in the knowledge of every one, that shortly after the decision on this point was obtained, and which the Court went out of its way to give at the request of the Crown Officers, it was very decently criticised in a publication under the eye of the Government, and its principles held up as erroneous, by a person just as well qualified for such an undertaking as either of these defendants.  At the same time, however, I will allow, there was some little courtesy in this discussion, for the writer admitted that until reversed, the decision was law.  But, I advert to the subject to shew that from the very first, the opinion of this Court was unpalatable in a certain quarter, that the subsequent proceedings were set on foot, as sworn by Mr. Hall, By Mr. McLeay, and that the defendants acted under the influence of a superior.  With what decency, however, after the opinion of this Court had been obtained, the Crown officers could drag Mr. Hall before the Magistrates, it remains from them to explain; indeed that they were somewhat ashamed of the job is evident from their having induced Mr. Kerr to undertake it.  All the affidavits on the other side go upon the subtlety, that though an opinion had been given, there had not been a formal and direct decision; and that it being a mere opinion in esse, they were therefore bound to treat it as a nullity and exercise their own judgment on the meaning of an Act of Parliament, though that judgment was directly opposed to the opinion of this Court.  Now, I put it to your Honors that the animus which actuated these defendants is not more obvious from their decision in the case, than from the language made use of on the occasion and to which I have before adverted.  Mr. Kerr was the only party consulted, and having the most implicit deference for his opinion, and the strongest inclination to bow to it, they did not care a fig for your Honour's opinion.  They did not think it necessary to take the more prudent course of an appeal to this Court.  No, they had a more paramount object in view, that of giving satisfaction to the party who set the proceeding in motion; they go on to a conviction, and though they had the most formal notice of the  illegality of their acts, they actually proceed, by distress, to levy the fine they had imposed.  Besides your Honors will perceive that they acted out of the plain direction of their commission which provides that, in case of doubt, they shall not proceed to judgment, except in the presence of one of the Judges of the Supreme Court.

The Chief Justice. -- That clause is copied from the ancient Commissions, and is the reason, says Hawkins, why the Justices do not proceed to the trial of felonies.  Mr. Wentworth -- I contend, then, that a gross contempt is fixed upon these defendants, not more by their acts, than by their own affidavits.  They admit that there was an opinion; and if an opinion which the Court took several days to consider, after a solemn argument, is to be so treated by a body of Magistrates, packed or otherwise, there is an end to all order and propriety.  The very foundation of the social edifice is sapped, the decisions of this court are a mere nullity, if they are only to be acted upon when these gentlemen think fit, and to be contemned [sic] and despised whenever it pleases them.  The affidavits of Mr. Hall charge the defendants with having maliciously convicted him of harbouring his assigned servant.  Swearing that no objection was taken on the ground of right of property is not sufficient.  They should have sworn more.  They should have sworn that they knew nothing of the principle of law whereby their jurisdiction is ousted in such cases.  But the very preamble of the Act in Council under which the conviction took place, must have shewed them how utterly inapplicable it was to the case of Mr. Hall.  It is quite impossible that any men in their senses could have imagined that Act to refer to the case of a master entertaining his own servant.  It is not within the scope of possibility for them to have believed this case came within the meaning of the Act.  It was sworn that Tyler had been assigned to Mr. Hall for three years past; that his period of sentence had not transpired, and the only pretext was a revocation of assignment.  Even assuming that revocation to have been most formal and complete, no man in his sense could have supposed the Act in Council to have applied to such a case.  Under every point of view, it is impossible they could have believed they were acting justly; and, therefore, the malice charged upon them is the necessary consequences of the whole proceeding.  The Act in Council was used as a mere colour to carry in to compliance that dictation which they acted under, and which with them was paramount to every other consideration.  I trust that your Honors' will teach them that they are not so to act; and that they are guilty of the greatest violation of their oaths in taking their seats upon the Bench, and acting under the dictation of any one.  That they were the nominees of a party, that they were packed is clear from the whole proceeding.  In being so they were guilty of a violation of their public duty, and a gross malversation of public justice.  I therefore call upon your Honors to make the rule absolute.

The Chief Justice. -- This is the last day of term, but as the matter which has been argued before us, is of great public importance, and as the whole case is grounded on voluminous affidavits, we wish to look carefully into them, and therefore propose, with the consent of the parties to consider the case this evening, and deliver judgment tomorrow morning.

Counsel on each side consented, and the Court shortly after adjourned.


The King v. F. Rossi, Esq. and others.

At eleven o'clock the Honorable the Chief Justice Forbes, Mr. Justice Stephen, and Mr. Justice Dowling took their seats on the bench, when

His Honor the Chief Justice stated that the Judges had met together at chamber for the purpose of considering their decision in this case, and were now prepared to deliver their deliberate and unanimous opinion.  Mr. Justice Dowling having worded the judgment to the form in which the Court desired to express itself on this occasion, His Honor would now dispose of the case.

Mr. Justice Dowling then delivered the judgment of the whole Court to the following effect:--

The Court having determined, on a former day, that the conviction of Edward Smith Hall, for harbouring a supposed runaway assigned servant named Peter Tyler, could not be sustained for want of jurisdiction, apparent on the face of the record, the Court is now called upon to determine whether there is a sufficient ground laid before us for for [sic] granting the criminal information moved for against the Magistrates who took part in that proceeding, it being alleged that they were influenced by malicious motives against the then defendant.  We most deeply lament that any occasion should arise for the discussion of such a question; but it being forced upon our attention, we cannot shrink from the discharge of our public duty, however painful.  In determining this question, as it respects the interests of the party supposed to be aggrieved, we must keep distinctly in view the allegations of malice towards him personally.  The contempt and disrespect supposed to be shewn to this Court on the occasion in question is a separate and independent matter of which the Court alone can take notice, and proceed respecting from a sense of what it feels to be due to its own dignity, distinct from any private injury to particular individuals.  It is alleged that the gentlemen were actuated by malicious motives towards the defendant in the proceeding in question.  Now it is a general principle, the reason and fairness of which must be fully admitted, that a Justice of the Peace is strongly protected by the law in the execution of his office.  But if it clearly appears that he has been partially, maliciously, or corruptly influenced in the exercise of his duty, and has, consequently, abused the trust reposed in him, he is liable to prosecution by indictment or information (Rex v. Young, Burr. 556.)  To induce the Court, however, to grant an information, there must be a clear and apparent partiality or wilful misbehaviour made out.  Sitting in this place, and having due regard to the nature of the office, and the responsibilities attached to it, we shall always lean towards favouring a Justice of the Peace, unless partiality, corruption, or malice distinctly appear.  This consideration for the situation of Magistrates, as a body, is more necessary in this country, where they have not at all times the same facility in procuring legal advice as is afforded to the Magistracy of the mother country.  As a general rule, therefore, we should feel it an incumbent duty on us to abstain from any astute criticism of their decisions, where the heart and intention are right.  It has been decided, that wherever Magistrates act uprightly, though they mistake the law, no information shall be granted against them; but, it they act improperly and knowingly, they are liable to an information.  (Rex v. Jackson and another, 1 T. R. 653. Rex v. Holland and another, 1 T. R. 692)  Is there then enough disclosed in this case to shew that these Magistrates have acted maliciously in the conviction of the relator ?  We have carefully attended to what has been advanced on the one side and on the other, and we think, upon the whole we ought not to make the Rule absolute for a criminal information.

It appears to us, that there are no circumstances disclosed in the affidavits in support of the motion, from which direct personal malice may be fairly inferred.  Certainly in support of the motion is was distinctly alleged that the Magistrates acted under this influence.  Although there is no direct proof of this on the face of the affidavits, we confess it would have been satisfactory to the Court, if their had been some denial of the truth of this imputation, in a matter where their honor and character were so deeply affected.  Acting, however, upon the proofs disclosed, we cannot say that a case of malice has been satisfactorily made out.

We have, however, very reluctantly come to the conclusion that there has been so much of obliquity in the conduct of these gentlemen, manifest in the whole transaction, that we ought to discharge the rule only upon payment by them of the costs of the application.  We admit that Justices of the Peace ought not to be made criminally liable for a mere error in judgment, and that great allowance ought to be made for gentlemen, whose previous education, habits, and pursuits, may not be supposed to qualify them for the most important office of Justice of the peace.  We feel, however, great difficulty in attributing the decision in question to a mere error in judgment, first, because in taking cognizance of the case at all, there was a violation of one of the plainest and most notorious principles applicable to the summary jurisdiction of Justices; and secondly, the proceeding to conviction was opposed to a solemn decision of this Court, then pointedly and distinctly brought under their notice.  In the first place, was this a case within their jurisdiction?  It must have been manifest to them, that there was a claim of title or property in the services of the prisoner Tyler involved in the question.  Now, it is a general rule, (of which we cannot presume these gentlemen have been ignorant), that ``where property or title is in question, the jurisdiction of Justices of the Peace, to hear and determine, in a summary manner is ousted, and their hands tied from interfering, though the facts be such as they have otherwise authority to take cognisanze. (Rex v. Burnaby, 2 Ld. Raym. 900. 1 Salk. 181. Rex v. Speed, 1 Ld. Ruym.[sic] 583. Kinnersley v. Orpe, Doug. 499)  This principle is not founded upon any legislative provision, but it is a qualification which the law itself raises in the execution of penal statutes, and it is always implied in their construction.  This doctrine is distinctly laid down in Burn's Justice, a work to which we presume these gentlemen had access.  It is not denied that the relator in this instance, had originally a right of property in the services of the assigned servant Peter Tyler; nor is it suggested that the servant had voluntary absented himself from his master, and gone into the services of another person, who had harboured him in violation of the relator's right of property.  Looking to the words as well as to the manifest intent of the local ordinance on which this conviction proceeded, we are really at a loss to divine how it could enter into the minds of the magistrates below, that this case came within the operation of the local ordinance.  The local ordinance ( 5 G. IV. No. 3.) on which this conviction was founded, is entitled ``An Act to prevent the harbouring of runaway convicts, and the encouraging of convicts tippling or gambling."  It then recites that ``whereas the harbouring and employing of runaway convicts greatly encourage them to abscond from their lawful services, and mislead the thoughtless into bad courses of life; the harbourers and employers of such convicts frequently become the receivers of stolen goods, and conceal dangerous offenders from justice."  These are the mischiefs intended to be remedied; and then it proceeds to enact that ``any householder, &c.  Harbouring in or about his or her house, lands, or otherwise, or in any manner employing any person illegally at large, shall pay to our Lord the King a fine" of so many dollars.

It has been said, that on the occasion in question, no objection was taken to the want of jurisdiction in the Magistrates, on the ground that a question of property was involved.  This may be so, but it,must have occurred to the natural good sense and intelligence of these gentlemen themselves, upon the reading of the local ordinance, that this could not be a case within the provision of that Act.  It must not be forgotten, that the very point in issue was a question of property, because the defendant appeared before the Justices in order to claim the property in the services of the man Tyler.  The relator was convicted in substance of harbouring his own servant, which we take to be a contradiction in terms.  It may be that the original assignment was cancelled by a competent authority, but still we apprehend that the harbouring of this servant by the original master could got [sic] by any reasonable construction of the local ordinance bring the master within the mischief intended to be thereby remedied.  The slightest attention to the local ordinance with an unprejudicial mind must have satisfied the Magistrates that this was not a case within the intention of the legislature.  At all events it must have appeared to them that the then defendant had some colour of title to the services of the man he was charged with harbouring, and consequently they could not but have known that their jurisdiction was ousted.  Assuming that they committed an honest mistake in this matter, the point not having been brought to their notice, can it be fairly predicated, secondly, that they were unacquainted with the fact, that the question of law involved in the case had been solemnly decided.  In support of this application it is positively sworn that the Bench was distinctly and pointedly informed that this Court had solemnly decided upon the construction to be put on the 9th section of the 9, Geo. IV. c. 83.  We do not find this denied on the other side, in such terms as are satisfactory to our minds.  Indeed, if the affidavits in support of the motion can be depended upon, the Justices in deciding upon the case, alluded to the decision, and canvassed and criticised it with great freedom, -- one gentleman going the length of saying that his law was as good as that of the Judges, or something to that effect.  This offensive expression is certainly contradicted on the other side, and distinctly denied to have been used.  It has been suggests that the object of the Justices in proceeding to conviction was merely to call upon this Court to give a more deliberate and solemn adjudication upon the 9th Section of the 9 Geo. IV. c. 83 than was pronounced upon it in the case of Jane New, under a supposition that the opinion therein delivered was a mere obiter dictum.  There is no doubt that, that case might have been decided on a point peculiar to itself, but it is no less clear that the construction of the 9th Geo. IV. c. 83. sec. 9. would have directly arisen, but for that circumstance.  The Court would have decided the case upon that point alone, and would have rigidly abstained from giving any opinion on the 9th Section had not the Law Officers of the Crown urgently desired -- nay, implored the Court to set the question at rest by taking the clause into consideration and give our interpretation of it.  Complying with this earnest entreaty and invocation, the Judges applied their anxious and most deliberate attention to the subject and after a careful examination of the clause, and after hearing Counsel on both sides they felt themselves bound to hold that His Excellency the Governor had not the extensive power supposed to be given to him by that Section of the Statute.  His Honor the Chief Justice delivered a very elaborate written judgment upon the point.  In his opinion, my brother Stephen and myself entirely concurred.  I also felt it to be my duty to go very minutely into the subject, and give my reasons at large in writing for concurring with the Chief Justice.  These opinions were publically delivered and were soon made generally known, and were it is said unceremoniously canvassed in the public papers long before the decision by these Magistrates.  It is true that I reserved to myself the privilege of reconsidering the question, if it should again be brought under more solemn deliberation; but so far as the question was then raised, I had not any doubt upon the matter.  The Magistrates may not perhaps have considered this in the technical sense of the word, as a solemn decision upon a case specially reserved; but looking at the whole of this transaction, we think it can hardly be doubted that the Magistrates had their minds distinctly informed of the fact that the Judges had pronounced a deliberate opinion upon the act.  Certainly the Law Offices of the Crown, (the Attorney and Solicitor Generals) knew the fact, and if there were any other doubt upon the subject the Magistrates might have had recourse to them for information.  It is now said that this was a proceeding merely for form sake, in order to have the question fairly raised in the shape of something like a feigned issue.

If there had been a sincere intention of again inviting the attention of the Court to the question in that form, there was an obvious path open for the Justices, without setting up their opinions, hastily concocted, in opposition to the solemn judgment of the Court, pronounced after many days anxious deliberation.  They might have acted upon our decision, and acquitted the defendant, subject to the opinion of this Court upon a case reversed.  There certainly could have been no necessity for them to proceed to extremities and cause the penalty imposed to be levied on the goods and chattels of defendant.  It is the conduct of the magistrates in the instances thus pointed out that induces is to think there was some obliquity in the proceeding, inconsistent with that straight-forward, upright and impartial administration of justice, which the public have a right to expect at their hands, and this Court is bound on all occasions to enforce.  The Court is disposed to believe most conscientiously, that the Magistrates were not actuated by personal malice towards the defendant, and therefore on that ground the rule for a criminal information must be discharged, but as we cannot help thinking there was reasonable cause of the defendant, in bringing the conduct of these gentlemen under the consideration of this Court, we are of opinion of the reasons already given, that we ought to make these gentlemen pay the costs of the application.

On a former day, it was alleged that these gentlemen had suffered themselves to be influenced either by verbal or written communication from a gentleman holding a high official situation in this Colony, and that they allowed themselves to be guided in their proceedings by dictation or instruction from that quarter.  Nothing but the most distinct, clear, and irrefragable [sic] proof of so high a misdemeanour, could induce us to give credence to such an insinuation.  Such a proceeding would be as derogatory from the duty of the gentleman alluded to, as insulting and offensive to the feelings of those supposed to be acted upon.  We cannot believe that there is any colour for imputing such outrageous misconduct.  Had this fact been clearly and distinctly sworn to, the Court would have had no alternative but to grant the information.  Certainly it is not, in our judgment, borne out by the affidavits in support of the motion.  All that is sworn to is, that the defendant had been informed and verily believed, that these Magistrates were directed either verbally or by letter, from the honorable person alluded to, to meet and try the deponent for having Peter Tyler in his employ under the harbouring act, notwithstanding the knowledge of the decision of this Court in the case of Jane New.  No fair inference can arise from this statement, that the Magistrates were acted upon in the way, and for the purpose suggested in argument.  We regret to find, however, that this allegation is not in any way answered on the other side, notwithstanding the opportunity afforded with that view.  Sitting judicially, this Court is bound to presume, that it could not be safely contradicted.  The Court, therefore, is constrained to take notice of this as another circumstances of indirection, compelling us to discharge this rule only on the payment of costs.

Having thus disposed of the application for a criminal information against these Magistrates for the supposed malice of their proceedings in convicting the relator, we feel it to be our duty to make a few observations upon that part of their conduct in which they are supposed to have designedly treated the decision of this Court with contempt.  It has been urged that we owe it to our own dignity to direct His Majesty's Attorney General to prosecute these Gentlemen by information, or to punish them summarily by attachment for their contumacy in proceeding to convict this party in despite of the known decision of this Court on the question involved in the case before them, and for treating our determination with something like contumely and disrespect.  Nothing could give us more pain than that a case of necessity, should arise for exercising the undoubted authority which the Court possesses of taking one or other of these courses of proceeding.  In the present instance we persuade ourselves that the dignity and authority of this Court will suffer no diminution in public estimation by our abstaining from the severe measure which it is suggested we ought to pursue.  If we thought there were a real necessity for so strong a measure, the reluctance which our personal feelings would endure, must have yielded to a sense of paramount public duty.  Not such necessity occurs to us as to exist in the present case.  Although this is our opinion as to the result of this appeal to ourselves as Judges, we cannot forbear saying a few words on this part of the conduct of the Magistrates below.  In reviewing the conduct attributed by the relator to each of the gentlemen alluded to, we own we cannot trace anything that can be fairly construed as offensive in the manner of their proceeding.  All the Gentlemen now distinctly disclaim any intention of treating the Court or its decision with disrespect.  We are willing to give, and do give them full credence for this declaration.  Their affidavits on this point are mostly satisfactory and highly creditable to them.  If the supposed contempt imputed, had reference to the Judges individually, these Gentlemen have done everything to appease the Court, supposing that as individuals we could suffer ourselves to be influenced by private and personal considerations in such a matter.  Disclaiming all feelings of that sort (which we think would be unworthy of our station) and giving these Gentlemen full and ample credit, that any affront upon this Court was most remote from their thought, we take a much higher ground, than the individual instance in which a want of proper deference has been shewn to the Court.  We think it is the constitutional violation of their duty as subordinate Magistrates, that calls for notice.  The facts seems to be admitted on all hands that the Magistrates below were apprized that this Court, had pronounced some decision (whether final or not is unnecessary to notice) upon the construction to be put upon the 9th Section of the 9 Geo. IV. c. 83.  It is also admitted, at least it is not denied by the Magistrates, that they not only did not acquiesce in that decision, but canvassed and criticised it, very freely giving their opinions seriatim, and finally deciding against the known opinion of the Judges.  This proceeding being thus brought to the knowledge of the Court, it is quite impossible that we should pass it over in silence.  Had the question been brought under the consideration of the Magistrates in the first instance, even though they had no jurisdiction over the case in which the question arose, this Court would have given them full credit for the uprightness of their intentions however erroneous their decision might have been.  Gentlemen in their situation can not reasonably be supposed to posses the same knowledge of the law as those who have devoted their lives to the study of that science, and therefore it would be unfair to canvass their decisions with hypercriticism.  In this instance, however, these Gentlemen have precluded themselves from such consideration for their conduct.  By the Statute 9th Geo. IV. c. 83 the Supreme Court of New South Wales is erected into a Court of Record, and the Judges have the like power and authority with the Judges of the Courts of King's Bench, Common Pleas, and Exchequer in England.  By His Majesty's Charter of Justice, the power and authorities thus given are confirmed to the Judges.  One of the incidents of our jurisdiction, is a supreme and paramount control over all inferior magistrates.  In a constitutional point of view, therefore these Gentlemen have undoubtedly departed from their province.  Their conduct though unintentional, has a manifest tendency to bring this Court into disesteem and contempt.  Any desing [sic] of lowering the character of the Judges or degrading this Court in the eyes of the people, is highly dangerous to the public welfare, and we should regard the author of such a proceeding as an enemy to the public peace, upon whom the utmost severity of the law should be visited.  In this instance these Gentlemen did in fact set the decision of this Court at naught and place their opinions in juxtaposition with those of His Majesty's Judges.  We acquit these Gentlemen of unworthy motive.  Personally and privately the most learned man may be excused in feeling diffidence of his opinion, but when a Judge in his public official character is called upon to put such an interpretation upon an Act of Parliament, as shall be a guide for his fellow subjects, he feels the greatest anxiety, and exercises the greatest caution, in giving an opinion for which he may be afterwards deeply responsible.  I must say for myself, that I applied my mind to the subject, with a just sense of the importance of the question involved, and the interests which were likely to be affected by the determination of the Court.  If the Judges have put an erroneous interpretation upon a section, involving such vital consequences to the King's people in this Colony, it was not unadvisedly or inconsiderately pronounced; but certainly they disown any authority in this Colony to sit in judgment upon, and reverse their decrees.  His most sacred majesty by His Charter, and the Parliament of the United Kingdom by its Statutes, have made us the Supreme Judges of the Law.  To these august Authorities alone do we bow, in calling into question our determinations.  Entertaining all due respect for the Magistracy of this Territory, and we do so most unfeignedly, this Court would, we think, compromise its dignity and abandon its duty, if it were to endure for a moment, that any inferior tribunal should be allowed publicly to treat its decisions with indifference.  Had these gentlemen been really and honestly desirous of inviting the Court to a reconsideration of the opinion formerly pronounced, there was a plain and correct line of duty for them to have pursued - such as there Magistracy of England invariably observe, when any doubt or difficulty arises in the administration of their functions, namely, to have bowed with deference to our opinion in the first instance, and formally decide in favour of the subject, and then reserve a special case, (stating the facts) for the solemn consideration of this Court.  This course was not taken, but another was adopted, which appears to us to have been incompatible with that respectful submission which these gentlemen's subordinate station required.  The private worth and respectability of these gentlemen, would, we should hope, shield them from the imputation of undue motives in this transaction, but it was due to our station and to their character as Magistrates, to pursue a course of conduct which should repel even a suspicion of their integrity.  By the affidavits read today, they have purged themselves of the contemptuous intentions imputed to them.  Conceiving this concession to be a full atonement for the error into which they have fallen we should be extremely unwilling to take any more serious notice of the matter.  It should however be made known, that although Justices are not criminally liable where they act uprightly, even where they mistake the law, yet if they act improperly and knowingly, they are liable to a criminal information, Rex v. Jackson, 1 T. R. 653, Rex v. Holland 1 T R 692; Rex v. Filewood.  If Justices, in the situation of these gentlemen, were in England, so far to forget their duty as publicly to impugn the decision of any of the superior Courts, they would expose themselves to very severe and just animadversion.  We are willing to give these gentlemen full credit for the integrity of their motives, and we endeavour to persuade ourselves that the conduct attributed to them proceeded from mere inadvertence.  We trust that upon more mature reflection, they will now feel that the example they have set to the people of this Country, in slighting the solemn and deliberate judgment of this Court, was not likely to increase that respect for the laws which all classes of His Majesty's subjects are expected to observe in this community.  On a former day His Honor the Chief Justice, very properly pointed out an important clause in His Majesty's Charter of Justice, granted to this Court at the time of its erection, in order to shew what sort of obedience His Majesty is praciously [sic] pleased to exact from his subjects of all ranks, to the power and authority of the Judges.  It may not be amiss to reiterate this clause, for the purpose of impressing these gentlemen with a more just sense of their subjection to the control of the law, and to the authority of the Court.  The 23d section of the Charter is in these terms, ``and we do hereby strictly charge and command all Governors, Commanders, Magistrates, Ministers, Civil and Military, and all our liege subjects, within and belonging to the said Colony, that in the execution of the several powers, jurisdictions and authorities hereby granted, made, given, or created, they be aiding and assisting and obedient in all things, as they will answer to the contrary at their peril."  The trust reposed by the Crown to men in our high station, is reposed for public purposes, in the confidence that our powers will be exercised for the honor of His Majesty's Crown, the firm and upright maintenance of the law, and the happiness and welfare of the King's people.

For the honest discharge of our duties we are deeply responsible to our Royal master, to Parliament, and to those Laws which are made for the common Government of all His Majesty's subjects.  Perhaps the peculiar constitution which has been devised by the wisdom of the Legislature for the Government of this Colony, subjects the Judges of this Court to greater responsibility, more intense anxiety, and severer vigilance in the discharge of their high functions than fall to the lot of Judges in any other British Colonial possession.  With an acute sense of these difficulties; with a painful consciousness that their proceedings are watched with scrupulous circumspection, by every man in the body politic, the Judges approach the discharge of their public duty under circumstances little calculated to encourage temerity.  If then after addressing their minds to a most important question; exercising a cool and dispassionate judgment; calling forth their faculties, matured by some experience and improved by no little devotion to the study of the laws of their Country, they deliver a conscientious opinion, formed after great deliberation, they have a right to exact deference and respect, at least from those who in a subordinate station take upon themselves to mote [sic] out ``summary" justice to the King's subjects.  It is unfeignedly painful for us to have made these observations.  The sincere respect which we entertain for these Gentlemen in their private station, and for their office as Magistrate would have restrained us as men, from uttering anything that savoured of censure; but acting as Judges of this Supreme Court, we think we should not stand excused to our high and honourable offices, however imperfectly and unworthily filled, if we did not endeavour to resist, even the slightest approach to disrespect or contempt for our proceedings. -- Rule discharged


Forbes C.J., Stephen and Dowling JJ, 7 September 1829

Source: Australian, 9 September 1829

Mr. Keith moved for a rule to show cause why in re Hall v. Hely, Rossi, and others, J. P.'s., a Jury should not be guaranteed the nominal defendant in lieu of Magisterial Assessors, Mr. K. stating he moved thus early in order to provide against contingencies, such as the contemplated Jury Act, not passing antecedent to trial of the cause in question.[5 ]  Under the new Act of Parliament, the Court had the power to grant a Jury under special circumstances.  Mr. K. here read an affidavit of his own, which stated that he could not recommend his client to go to trial before Assessors.

Mr. Justice Stephen opposed the motion at this stage of the proceedings.

Mr. Chief Justice Forbes said that such an application to any of the superior Courts in the Mother Country would be unprecedented; but in the peculiar constitution of this colony, he was of opinion the motion should be allowed.

Mr. Justice Dowling concurred in this opinion.  Mr. Keith's motion was consequently granted, returnable next Saturday.



[1 ] Hall was the editor of the Monitor, whom Governor Darling was attempting to silence through removing his servants and through numerous libel prosecutions.  See the several actions called R. v. Hall in 1829.  The same was happening to Hayes, the editor of the Australian: see R. v. Hayes, 1829; and In re Hayes, 1829.

In 1827, a convict printer who had supposedly been lent rather than assigned to Hall was withdrawn by the governor.  When Hall tried to retain him, he was fined by the magistrates.  (See Monitor, 30 August 1827.)  In March 1829, the governor revoked the assignment to Hall of Peter Tyler, the foreman printer of the Monitor, plus that of another printer, Joseph Monks, and of Edward Lesham, a reporter.  Tyler returned to work, was arrested as a prisoner illegally at large, and sent to Wellington Valley, on the other side of the Blue Mountains.  Hall unsuccessfully sought his release under habeas corpus, and was fined by the magistrates for harbouring a runaway convict.  After the Supreme Court quashed this magistrates' judgment, Tyler was returned to Hall.  By then, however, Hall was in prison for criminal libel.  Early in 1830, both Hall and Hayes took Supreme Court action against the officials who had acted against them: Hall v. Hely, 1830; Hall v. Rossi and others, Magistrates, 1830; Hayes v. Hely, 1830.   In July 1830, Governor Darling found that his view of the rights of the governor to revoke assignments was shared by the Crown law officers in London.  He again revoked the assignment of Tyler, but this drew the anger of the British government since the revocation was obviously for political reasons.  Even after this was made known in the colony, Darling continued to defend himself to Sir George Murray, despatch, 2 August 1830, Historical Records of Australia, Series 1, Vol. 15, pp 648-654See also R.B. Walker, The Newspaper Press in New South Wales, 1803-1920, Sydney University Press, Sydney, 1976, pp 16-17; C.H. Currey, Sir Francis Forbes: the First Chief Justice of New South Wales, Angus and Robertson, Sydney, 1968, ch. 31.

Governor Darling was quite candid that he withdrew Tyler in 1829 in the hope of giving him "less means of disseminating his poison, that the tranquillity of the Colony would be the better preserved".  That is, it was done on political grounds: Darling to Murray, 6 July 1829, Historical Records of Australia, Series 1, Vol. 15, p. 53.  (Hall's written complaint about this is at pp 54-67.)  Darling also continued to press the government with evidence for his proposition that he needed the power to withdraw servants: see Darling to Murray, 6 December 1829, Historical Records of Australia, Series 1, Vol. 15, pp 304-307.

[2 ]Hall was fined five dollars, according to the Sydney Gazette of 9 April 1829: the man had been assigned to him, but the governor revoked the assignment.  The magistrates rejected his argument that his case fell within the principle expounded in In re Jane New, 1829.

[3 ] See also Sydney Gazette, 23 May 1829.

[4 ] See also Australian, 30 June, 3 July 1829.  For commentary, see Australian, 3, 17 and 24 July, 5 and 21 August 1829; Sydney Gazette, 4 and 9 July 1829.

[5 ] See also Sydney Gazette, 3 September 1829: the magistrates applied unsuccessfully to the Supreme Court to have new affidavits read.  The judges (Forbes C.J. and Stephen J.) held that once a matter is disposed of, it cannot be revived "unless in some shape whereby the proceeding might be renewed altogether".  As a result, the Gazette published the affidavits on 3 September at the request of  the magistrates.  On 8 September 1829, the Sydney Gazette indignantly claimed that its law reports in this matter were accurate.

For continuation of this litigation, see Hall v. Rossi and others, Magistrates, 1830.

Published by the Division of Law, Macquarie University