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

R. v. Hayes [1829] NSWSupC 24; sub nom. (1829) NSW Sel Cas (Dowling) 638

seditious libel - trial by jury - jury, military - jury, challenge to - Sudds and Thompson case - press freedom - judicial review of legislation


Supreme Court of New South Wales

Dowling J., 14 April 1829

Source: Australian, 17 April 1829



Rex v. Hayes.

After adjourning from the previous day, Mr. Justice Dowling sat on Tuesday last in the above case, in which the King was plaintiff, at the suit of Lieutenant General Ralph Darling, Governor of His Majesty's colony of New South Wales, against the defendant, Mr. Atwell Edwin Hayes, Publisher, Proprietor, and so forth, of "THE AUSTRALIAN," a Commercial, Political, and Literary Journal.[1 ]


Upon the Jury being called over, Mr. W. C. Wentworth, who appeared as Counsel for the defendant, opposed the swearing in of Military Officers as Jurymen, they being in a great degree interested parties, and under the particular orders and cognizance of the ostensible prosecutor, who was their Commander in Chief.  After some argument, the learned Judge, Mr. Dowling, ruled that the trial should be proceeded upon, and that the points of law and fact respecting the Jury, which Mr. Wentworth had raised, should be reserved for a future stage of the proceedings.[2 ]

Here follow the names of the Jurors:-

Major Poole, Foreman;

Captain Wellman,Ensign Benson,

Captain Donaldson,Ensign Burrows,

Lieutenant Kidd,Qr.-Master Lloyd.

The Solicitor General opened the case for the prosecution, stating it to be at the suit of the Crown; against the Editor of the Australian, for a SEDITIOUS (!) Libel, contained in four counts.  The first count shewed sedition and upheld it, and was calculated to bring the Governor into dis-esteem and disrespect, and to create an offensive feeling in the minds of the public.  The Solicitor General then went through the next three counts, expatiating on each, and labouring to prove that the publication in question tended to shew that His Excellency had acted from corrupt and illegal motives, and that its evil tendency was so clear as scarcely to require comment.

Mr. Wentworth interrupted the Solicitor General, wishing to know if this was to be considered the opening plea.  If so, then the learned Solicitor General would please address the Judge, and not the Jury solely, and Mr. W. moved that all witnesses should leave the Court.

Proclamation upon this was made, and witnesses on both sides were ordered to leave the Court until called upon.

The Attorney General now rose, and followed the example of his colleague, by stating the case, then before the Court, to be an information, on the part of the Crown, against the Editor of the Australian, for a seditious libel contained in the publication, or newspaper, called the Australian, which appeared on the 27th of January last.  It was a libel of a peculiar kind, and was embodied in four counts.  It was undoubtedly an able article, written elaborately, with cleverness and care, and particularly calculated to injure the Governor in his administration, both here and with the Authorities at home.  His Excellency holding a high and responsible situation, it must be injurious in the extreme in its tendency towards him.  The libel in question imputed illegal, unjust, and bad conduct to the Governor.  Gentlemen (continued the learned Attorney Gen.) this is, and must be, detrimental and injurious in the extreme.  I again say, Gentlemen, as to the truth or falsehood of the statement in the Australian, upon which this SEDITIOUS (!) Libel is grounded, we have nothing to do.  If it bring the Government into disrepute and disrespect, it is what we have to look to, and not its truth or falsity.  [Here the Attorney General read the matter in dispute as below, and continued.] Gentlemen, I must call your attention to the commutation of sentence was seven years, but was commuted to two years working in irons by His Excellency.

Mr. Wentworth interfered, stating the Governor's own communication shewed the sentence to be seven years, the entire term of the original transportation --- to working on the roads.

The Attorney General stated he would prove, by the records, that the commutation was two years.

The Attorney General continued --- With regard to the punishment we have nothing to do --- nothing to do with the truth or falsity of the charges; --- we have to look to the tendency of the matter as likely to bring the Government into disrepute.  We must look at it as a calumnious publication, and one calculated to bring the Governor of this Colony into disesteem and disrespect.  It is certain, that, by Act of Parliament, the Liberty of the Press is allowed in this colony --- it is a boon of a valuable nature --- and it behoves me, as Attorney General, to watch over that boon, so that it should not, by too great or indefinite a scope used by writers, be lost to us --- that we should not, through indiscretion, be deprived of it.  This libel, continued the learned Attorney General, intimates that His Excellency, meaning Lieutenant General Ralph Darling, is not a fit person to rule over us --- not fit to rule over the Colony.  At home, a libel of this kind would meet with severe and merited punishment --- here, in this land, tho' so distant from home, the law is used to act with greater mildness.  In a country like this, where newspapers are the only periodicals, and where they have such extensive circulation --- in a colony like this, he (the Attorney General) would say that the language of the paragraph in question was likely to produce very evil effects.  Was it a fair discussion --- was it right --- was it legal to discuss the conduct of the Governor in this intemperate way?

The Attorney General having entered still further into a long course of declamation, all bearing against the paragraph in question, concluded by quoting some cases, which he conceived to be in point, from certain law publications, and proceeded to call evidence to prove publication:

Mr. Newcombe, a clerk in the Colonial Secretary's Office, was called to prove the newspaper put in as evidence; had been in charge of the newspapers at the Colonial Secretary's office, which are regularly filed; could not swear to Mr. Hayes' handwriting, but had little or no doubt the paper then produced was signed by Mr. Hayes; the signature resembled the other signatures of Mr. Hayes on the official newspapers.

The information, laying the alleged libellous matter in four counts, being here put in, was read aloud by Mr. Gurner, principal clerk of the Court.  Without repeating the instrument verbatim, which would be tedious, being inflated with repetitions, we hereunto subjoin the offensive paragraph in question literally from the Australian of 27th January last.  It is the last paragraph in a long argumentative article of three columns, and is as follows:---

"To each and all of these, we have given a denial which is supported by unanswerable arguments.  We have done OUR duty - we doubt not that the House of Commons will do THEIR'S.  They will decide whether will is to be substituted for law - and whether or no an iron collar be a fitting decoration for the neck of an Englishman - of even an English culprit.  They must determine whether he, who is sent here to govern according to law, and who daily administers punishment for the neglect or infraction of the laws, have authority himself to step with out the pale of them.  It is for the Legislature to determine if high functions are to shield the bearer from accountability; and if that person be a fit delegate to administer justice, and govern according to law, who by his own example could encourage a disregard and ignorance of its plainest principle?  To the House of Commons we leave the case, fully expecting justice; and though we shall ever shew that becoming respect which is due to the individual who holds his Majesty's Commission to govern this Colony, we can never believe and affirm that the author and ostensible executor of Sudds' punishment, and which terminated in his death, is a fit person to rule over a British Colony."

On comparing the information with the published paragraph in question, Messrs. Wentworth and Stephen discovered several variances, which the learned Judge ruling, at that stage of the proceedings, according to a certain Act, 9 Geo. iv. cap. 15, as not sufficient to set aside the case, were left for future argumentation.  The next witness called for the prosecution was, Captain George Bunn, who stated, on the file newspaper being put into his hands, he could not swear to Mr. Hayes's handwriting; that on the newspaper shewn, he considered it "resembled it much;" and though he could not swear to it, yet, to the best of his belief, he thought it was the signature of Mr. Hayes.  With regard to the paragraph, he supposed various ideas might be formed on it; it had, in his decided opinion, a tendency to lower the Government in general estimation.

Cross-examined by Mr. Wentworth. - I mean the language used in that paragraph (pointing to the paragraph in question) tends to injure the Governor; the language is highly disrespectful, to say the least; I conceive that the continual repetition of this matter tends to continue that ill feeling, which, otherwise, would have subsided long since.  No doubt the publication of the documents in the Gazette gave rise to the animadversions which are now being tried as libellous; and supposing the matter to be true, yet it tends to injure the Government.  The increased publicity has an evil tendency, and is likely to prove injurious to the Government.  I don't recollect having read the whole of the article.  The Liberty of the Press has a good effect on some societies; I consider the Liberty of the Press at home a precious boon - but a precious evil (or an injury) in other societies.  In this society I think it more injurious than otherwise!

Counsel. - If that's your opinion of a Free Press, go down, Captain Bunn!

Captain McKellar - I am a Scotchman and a shipmaster; I am now a citizen, having left my ship, and I intend to reside here; I have arrived within the last month.  I consider the paragraph, now shewn, calculated to bring the Governor into contempt.  I have not read the whole paper; the paragraph may be qualified for aught I know.  My attention was directed to it on Saturday, so that my opinion might be matured.  I have been here four times.  I have seen worse matter in English papers, and in this Colony, than the present libel!  I have seen articles much worse in this Colony.

By Mr Wentworth. - Perhaps, Capt. McKellar, you know more about ropes and blocks than you do about English grammar?  I don't know; I have given up ropes and blocks now; I am tired of them.  Perhaps it is a right in Editors of newspapers to point out the errors of Government. As to other papers writing libellous matter, if one does wrong there's no occasion for another to do so too.

Mr McLaren. - I consider the paragraph infers that His Excellency has acted illegally.  The publication might bring the Governor into disesteem with some persons, but not with me.  I have drawn my conclusions from the general statements in the papers.  I think it would have an ill effect with the lower class.  I have not read the whole, and am not prepared to say it is qualified.  From its general appearance I think it calculated to bring the Governor into disrepute.

The Crown Officers having closed their case so far, the learned Counsel for the defence, Mr. W. C. Wentworth rose.

Gentlemen of the Jury --- (began Mr. W.) --- It has been observed by the Attorney General, that the truth or falsity of the alleged libel is not fit for your investigation, and that such would only aggravate the case of the defendant.  Gentlemen, I do not now say if the matter be true or false; but, in the case of ordinary informations, an individual must come into Court with clean hands.  If a man apply for an information against another, he must swear the matter stated against him is false; and when this is not done, no charge is made.  The Court will not villify its character --- the sueing is a sine qua non.  But as to truth or falsify the question is not now --- but circumstances of fact are for you to determine.

A very illiberal and unfair course.  I can't help saying, has been adhered to in this present prosecution.  One small paragraph has been selected out of a quantity of matter, all upon the same subject; and witnesses have been put into the box, who have scarcely read the paragraph itself, much less the antecedant matter.  Under these circumstances, a degree of incompetency attaches to the witnesses.  Gentlemen, you must not adhere to single isolated substance --- you must take the whole into your consideration.  One part might bear a degree of offensiveness about it --- the other parts may be otherwise.  The selection of a single sentence, and the bringing forward witnesses who have so slight a knowledge of the matter, is unfair.  The Crown Officers might have found witnesses who had read the whole with care and circumspection, and a fair investigation would be more likely to concentrate opinion.  Although it may be objected to by the Crown Officers, yet I have it in my power to supply the defect.  I will produce witnesses, Gentlemen, who understand the English language --- men of talent, education, and literary acquirements --- who are fit and competent to give a fair opinion on the article in question.  That the paragraphs are comments on the Gazette of the 10th of January, 1829, there can be no doubt --- Mr. McLeay obligingly furnished the Editor of the Gazette with documents which produced the comments that are now alleged as libellous.

His Excellency the Governor commuted the sentence of Sudds and Thompson in 1826.  The case of these men, after two years, comes before the House of Commons, the circumstances having been made known to Mr. Stewart, M. P.  He moves for the production of all documents relative to the affair.  These documents have appeared in the Sydney Gazette, except the conviction.  These documents are stated to be four enclosures from the Commanding Officer here: --- 1st, General Order.  2d, Letter from Mr. McLeay to the Editor of the Australian.  3d, Act of Legislative Council.  4th, Report of Surgeon McIntyre.  Another despatch, addressed by the Governor, encloses proceedings.  ---  Gentlemen, the time that Sudds & Thompson's conviction took place, and the other concurrent circumstances, may be out of your knowledge.  You may not have been here at the time, and perhaps do not know what was published in the papers, particularly in the Australian, on this matter.  This paper, at that time, demonstrated the illegality of the proceedings.  The Editor of the Australian, three years ago, expressed certain opinions, and performed his duty with regard to the death of one of these unfortunate men.  It would have slept to eternity in the Australian, had it not been for the publication of the documents in the Gazette.  Here was the apple of discord thrown down --- here was the challenge given --- documents published to produce public comment.  The Australian had antecedently taken the opposite side; two courses, and only two, were open for the Editor of the Australian --- to retract or take up the matter.  The discussion was a provocation of the Authorities themselves.  Now, Gentlemen, these documents being published, laid the Government open to severe castigation, and they have received it; and this identical prosecution is to get redress for such castigation.  It is a provoked act, emanating from the Colonial Secretary himself.  The widest latitude should be allowed; and even supposing the latitude has been somewhat over-stepped, does it not arise from the act of the prosecutor? or his accredited agents?  It is the duty of an Editor to sift into matters like these, but this is provoked, and certain latitude should be allowed.  It appears to me, the conduct Mr. McLeay adopted, in giving these papers to the world, has not been bona fide.  There is a wide difference, Gentlemen, between a dispute sought and a dispute not sought.  Here was a challenge --- it was not sought.  Gentlemen, the point for your consideration is, whether this is a provoked discussion or not; and, if so, has the Liberty of the Press beeu [sic] at all exceeded?

A variety of cases have been quoted, on the other side, shewing that any thing tending to accuse the Governor, or bring him into contempt, is a libel.  There is a wide difference between contempt of, and canvassing his measures.  The Attor.- General, with a view of illustrating these cases, has asked whether this matter, or such matter, would tend to lower the Sovereign in the estimation of his subjects?  I say, the Governor possesses no attribute of sovereignty; he is only the Minister of a Sovereign.

The King, by law, is part of the constitution; he is one of the estates recognised by law; there is no hiatus, no gap; he is followed by descent, which continues for ever!  The King is one of the three estates of the realm; and to accuse him of ignorance would be libellous; but it is no libel to impute ignorance to a Governor, or Minister of his; and it is necessary that they should have their conduct scanned and animadverted upon for the good of the public, and for the good of the state.  (Here the learned Gentleman quoted the well known case of Perry v. another, and went on.)

When Officers are ill qualified for their situations, their measures ought to be canvassed, or even if they are ever so well qualified.  It would be libellous to discuss the conduct of the King, but it is not so to sift the conduct of his Minister; and it is necessary that imputation be fixed by candid and direct reason.  The right to accuse Ministers is broadly laid down by Lord Ellenborough in Cobbett's prosecution.  Such publication would be innocuous to the Governor, although libellous to the King; as Minsters, in like manner, may be charged, with error, imbecility, and vice, and yet the charge not be libellous.  There are stronger grounds in the Act why the governor should be amenable to comment.  The liberty that belongs to us, in common law, is engratted into an Act of Parliament.  The Attorney General has set out with an inflated tirade upon his love for a Free Press - he feels it his duty to SUPPORT the "Liberty of the Press."  It is cant, Gentlemen; if I may be allowed the expression, mere cant - vile cant - quite a usual fling in prosecutions like this.  He professes extreme zeal and unbounded veneration for the "Liberty of the Press," but these professions are just as true as those would be of a storming party who advanced in a breach to a fort, saying all the time, they were merely coming to take care of the fort for the owners, than enemies!

If we may judge of Mr. Attorney General's veneration for the Freedom of the Press, it is not the most unbounded.  It must pass for nothing - Truth cannot pass current in cant.  The cases have quoted, prove to what extent discussion may go.  Before I enter farther into the right, Gentlemen, I will once more advert to the "Liberty of the Press" allowed to this Colony.

Public discussion is fair - private is foul.  The reason is, the prosecutor is to arraign the defendant before the public bar, but not to erect himself into an arbiter of public justice.  In "Cowper," a celebrated case, Lord Mansfield ruled that a Governor, for any crime, is not amenable to law in the colony.  You cannot bring the Governor to trial here - it must be before a higher tribunal.  A Governor, under these circumstances, is a person whose measures ought to be most rigorously searched into, and that to keep him within bounds where the law has no effect on him.  In publication, however, I do not want to claim any undue latitude.

The information charges this as a seditious libel.  The word SEDITION has been rammed and crammed into all parts of it; and my client, according to Act of Parliament, may, upon being twice convicted of sedition, be transported from Botany Bay, for, I believe, not more than six years.  At all events, there is one fine advantage in a seditious libel - the party knows the doom that awaits him on a second conviction.  The word sedition puzzles the legal talent on the other side.

The publication does not make an attack upon the King, or upon the form of Government, or upon the realm in any way; but here is one isolated instance - one sentence upon a Governor, upon a Minister, but no contempt; and the introduction of "seditious and inflammatory," in the indictment, is an illegal and unfair one. - Read the form of indictment.  Sedition must be levelled at the King, not his Subjects, not his Ministers, or it is no libel at all.  [Mr. W. quoted a case where the Prince Regent was defamed, but even that information failed of being imputed as a libel on a Minster only, and the Prince Regeant was only a Minister of the Realm.]  Gentlemen, continued the learned Counsel, this information has been explained to you as containing three libellous parts; it has been completely overlarded with inuendoes, strong powerful inuendoes, unfair and unjust.  In the first count, as with the others, the flight of the Attorney-General has been astonishingly fanciful; he must have been quite inspired, I won't say with brandy and water, but a little cool claret, diluted, weak; very much diluted --- more attenuated ha! ha! but the fourth count contains nothing at all.  In the first count one of the two gentlemen modified the paragraph by saying, that it was horrible, the assertion was horrible.  [Here Mr. Wentworth entered into an explanation of what was to be meant by an inuendo.]  How far, he continued, Gentlemen, the inuendoes have been proved, I am to shew you.  The Attorney-General's first inuendo introduced into the second count "they will decide, meaning thereby," &c. in the indictment, that the said General Ralph Darling, in exercise of office, &c. &c. I do contend is without doubt a most outrageous interpretation: these inuendoes are unfair, illiberal, and unjust, Gentlemen, you must see.  Why do they not put a fair construction on words; it is of a sufficiency in itself to arrest judgment.  Now pray, Gentlemen, what can shew that this alleged libel intimates the Governor acted arbitrarily?  That the commutation of punishment was illegal this publication demonstrates, and if it proves the high functionary did do so, why, then, it is the duty, as I have shewn, of a public writer to take up the matter.  Only a short part of the publication has been shewn to you, but even if that goes one tittle beyond mere ignorance of the law; if it really and truly imputes tyrannical or corrupt motives, it is a libel.  To understand the real hearings of this case requires great attention.

[The learned Gentleman here went again into the documents published in the Sydney Gazette, and enlarged upon them.  With respect to the commutation, Mr. Wentworth read that part, where it particularly states the sentence of banishment was commuted into working on the roads in chains for the whole time of transportation.  From the documents Mr. Wentworth drew some strong arguments, showing the Governor had acted from a mistaken feeling, and it became the duty of the Editor of a Newspaper, such as the Australian, to retract or rebut them.]  It has been admitted, continued the learned Counsel, that this is not a declamatory libel, but argumentative by the Attorney-General, and that cool argument; it wants the declamatory.  He admits it is an appeal, a fair appeal to the truth, fairness, and justness of the case.  It must be allowed, that the Editor is well versed in the law of libel from the cool manner in which he set about his task, and that without the least spice of malice.  It is only pretended that three of these paragraphs are libellous, but it is incumbent on you to look into the whole of the publication, paragraph by paragraph.  It must appear to you how completely aware was the Editor of the Law of Libel from his previous publication he confines his former remarks, and begs over and over again, that no improper motive may be imputed to him.  There is one word which has not been dwelt upon by the Crown Officers, and which word I expected would be harped upon, and twisted and twined in all manner of shapes and directions.  It is a word of an ambiguous nature; but you, Gentlemen, must read the article and publication with attention.  The word is "accountability."  If a Magistrate commit an act without the pale of his jurisdiction, there is an accountability; there is an accountability in many acts of error committed through error or ignorance.  It will be for you to say what the author really meant.  It is clear what accountability is meant by the Editor.  Now with regard to the counts, although the Attorney General has diluted one, and attenuated another, I say the counts are the same.  [Several paragraphs were now read, the diluting and attenuating nature of which were pointed out by Mr Wentworth.  There was no libel established, not even by assistance of the most glaring inuendo itself.  Mr. Wentworth here argued at some length on the general tenor of the inuendoes conveyed in the three counts, as explained by the Crown Officers]  Gentlemen, continued he, it has been said you are the sole judges in this case as well of the Law as facts, and it must be acknowledged by you, that what is libel to-day is not so perhaps to-morrow, and you are appointed to distinguish the difference in this case.  The evidence of Captain Bunn is astonishing; could the Court suppose there was an Englishman in the Country who would express the opinion he had, that he placed no value upon the Liberty of the Press in this Colony.  That witness could here breathe no congenial air.  Such Government as that of Constantinople or Algiers, where the word of the Sultan, or that of the Dey was law, would be the country for a witness who had imbibed opinions so un-English like, so unconstitutional.  

The Learned Counsel commented upon the evidence produced for the prosecution in a similar strain of able and argumentative sarcasm.  You as well as myself, observed Mr. W. should wish for the Freedom of the Press.  You are soldiers now, Gentlemen, but you may be Citizens by and by, and then you will indeed value the Liberty of the Press.  I hope it will be firmly established, and I hope I shall live to see it even here established in all its force and freedom.  From you, Gentlemen, as men of honor, as Englishmen, as men of education, although of a peculiar profession, from you the Citizens hope to be shielded from injury; they are your Countrymen, and any injury tending to deprive them of their liberties must eventually affect your own.  I am convinced you will consider the alleged libel bears no inflammatory appeal, and I feel perfectly satisfied to leave the result in your hands.

After this powerful and argumentative address to the Jury, the learned Counsel sat down, having been upwards of three hours upon his legs.

Witnesses were then called for the defence.

The Rev. Dr. Halloran, upon the Sydney Gazette of the 10th of Jan. being handed to him stated, he thought it a genuine copy.  The Australian of the 27th of Jan was now handed to Dr. H. who deposed; I have read the article in this Paper; I conceive the paragraph in question to be a commentary on the documents which appear in some preceding publication - the Gazette of course; I consider the article in question to contain a certain set of hypothetical cases arising out of preceding statements, on which the Editor of the Australian offers no opinion of his own, but refers the matter to the British Legislature.  The Editor says, "if so and so," "why then so and so," I consider it to be merely a series of inferences drawn from a preceding statement.

Cross-examined by Mr. Foster, Acting Commissioner of the Court of Requests - I see no corrupt motives imputed in the article; I have dipped a little into politics myself, and got into hot water now and then in consequence; I wrote as I felt, which I shall always do; I was subpoened to this Court; when the Gazette appeared with the documents relative to Sudds and Thomson, it caused a powerful sensation in my mind; I certainly think matter may be given to an Editor for him to descant on.  Here Dr. Halloran was requested to read the paragraph above quoted.  "We have done our duty, &c."  I suppose the Editor means to say, he has done his duty in commenting on the documents, and when the case comes before the British Legislature, they will do theirs, that is, they will look into the merits of it, and either act upon it, or throw it out; viz. whether the punishment were legal on the part of the Government here, or illegal.  "The Governor had substituted will for law."  Here ensued an argument between Dr. Halloran and Mr. F. on the Latin word for will, Dr. H. contending the word he would use in translating the paragraph in the Australian imputed as libellous would be voluntas, and not arbitrium. [3 ]  I allow it may be taken in the sense of arbitrariness; I suppose it applies to the Governor, on the supposition that this was illegal.  The publication does not tend to bring the Governor into disrepute with me; I look upon the paragraph as a suppository matter, and as alluding to the Governor acting illegally; if the statements or documents were genuine, then the conclusion I consider fair and legitimate.

The Rev. Mr. Therry. - Mr. Therry, on being asked which he considered the best Latinist to quote from, Dr. Halloran or Dr. Johnson, said he could not decide; they were both good - both excellent - it was impossible to decide which was the better of the two.  Rev. Mr. T. agreed in voluntas being the proper word in the present case.  The article, or paragraph, I think, attaches illegality, and nothing more, to his Excellency, relative to the punishment of Sudds and Thompson; nothing but illegality is meant by it, I think.  My opinion is, the Governor acted from a want of knowledge; and I imagine, from the article in question, the Editor of the Australian thought so too.

Defendant's Counsel being contented with calling the two witnesses before mentioned,

Mr. Solicitor General Sampson addressed the Jury on behalf of the Crown for a short time.

It was now past four o'clock.

Mr. Justice Dowling summed up.[4 ]  The learned Judge commenced by expressing the very great pleasure it had given him to find the whole case had been conducted with so much temper and discernment.  Mr. Justice Dowling then complimented Mr. Wentworth on the very cool, able, and dispassionate manner in which he had conducted the case for the defence, and on all the legal Gentlemen concerned.  The learned Judge then went on to expatiate upon the evil tendency of libel, and the law of libel.  He said the matter, as set forth in the information, imputed to the Governor a grave offence, and rendered him liable to an attachment in the House of Commons.  With the truth or falsehood of this matter, the Jury, his Honor would observe, had nothing to do.  In the first place, they would have to see if defendant published the article; and, secondly, if 'twere libellous.  The Liberty of the Press, his Honor begged the Jury to observe, existed in full force in this Colony.  This liberty was indeed an inestimable blessing, and required attention to be paid to it, so that its flights might not become injurious, and perhaps lost to the Colony.  His Honor said he would not offer his opinion on the libel, nor should the Jury be biased by his opinion, though he should say he considered the present a false, scandalous, malignant, defamatory, and seditious libel on the one hand; nor on the other side, should he say it was an examination that did not exceed the bounds of manly, free, and fair discussion.  Still the Jury would have no occasion to attend to his opinion.  They should exercise their own judgment, and not be bound to be directed by his, or the opinions of any men.


His Honor Mr. Justice Dowling then minutely recapitulated the evidence, observing he did not consider the case required the calling of witnesses on either side - the innocence or delictum[5 ] of the defendant being, after all, a matter of opinion for the Jury.


After a most luminous and impartial charge, in which the learned Judge implored the Jury to do justice between the prosecutor and defendant with unbiassed judgments, to divest themselves as much as possible of any preconceived prejudices, and to stand only as though they were in the light of private subjects, and not to be guided by a part, but patiently to peruse and consider the whole article, not even to attend to one hasty or intemperate sentence, but to review the whole honestly, and therefrom derive their judgment, the Jury and on the necessity of the Jury, though military men, acting a constitutional part betwixt the pro[6 ] retired.

It was now generally believed that the defendant must be acquitted of any seditious libel, and the Court continued to be occupied for more than an hour after the Jury had retired.  At length the jury-room opened, and the officers comprising the Jury entered, and their names being called over by the Clerk of that Court, to the evident astonishment of most people, the Foreman returned the verdict of the Jury as - Guilty.

Defendant entered into his personal recognizance of one hundred pounds, to appear for judgment when called upon.


Forbes C.J., Stephen and Dowling JJ, 8 June 1829

Source: Australian, 9 June 1829



[The King at the prosecution of Lieutenant-General his Excellency Ralph Darling v. A. E. Hayes.]

Yesterday Mr. Attorney-General at length brought forward his threatened motion in the above case, which was deferred from the Saturday preceding to the Monday, from that Monday to the Saturday following, and from Saturday last to another Monday (yesterday.)

The three learned Judges, Mr. Chief Justice Forbes, Mr. Justice Stephen, and Mr. Justice Dowling, sat together on the occasion in bancoIn primis the Attorney-General, called for judgment in the conviction also for seditious (!) libel in the case of the King at the suit of the above, against E. S. Hall, but that defendant happening not to be in Court, the former was called upon.

Mr. W. C. Wentworth, as before, appeared as Counsel for the defendant, Mr. Hayes, and stating he had numerous objections to make to the conviction, requested,

Mr. Justice Dowling would have the goodness to re-peruse his notes of the trial in this case.

Mr. Justice Dowling accordingly read over the evidence of witnesses on both sides, concluding with a succinct summary of his own lucid and impartial charge to the seven military commissioned officers, who sat in the capacity of a Jury upon that occasion.  After the learned Judge had concluded,

Mr. Wentworth rose.  As a preliminary matter, he would first recal [sic] to the recollection of Mr. Justice Dowling, that on the trial it was the Australian of the 27th of January last only had been given in to the Jury, whereas the paragraph selected from that publication, and which formed the ground of the trial was part, and but a very small part only indeed of the leading article, which was itself a continuation of the same subject headed Sudds and Thomson, which had already appeared in two antecedent publications: consequently the three articles, being essays following one upon another in a natural order, should have gone to the Jury together, in order that the Jury might have formed a proper judgment of the nature and defect of a part, from the context, or a comprehension of the whole.  Mr. Justice Dowling did not exactly recollect this fact; nor could he prove if it were, or were not as stated by Mr. Wentworth, as nothing of the kind appeared amongst his notes.

Mr. Wentworth then went on to resume the objections formerly raised by him as to the whole array of the Jury.  Once before he (the learned Gentlemen) had made objections pretty similar in their tendency, which at that time the Court did not deem tenable.  He (the learned Counsel) was glad to have again an opportunity of discussing the matter in an argumentative way, as he apprehended the Court had so ruled without sufficient consideration; and had another member not been added to the Judicial Bench of that Court, he felt there were circumstances in this case to warrant the Judges, who formerly acted, as described in the case Rex v. Wardell, in a departure from their former principle.  The present Act of Parliament referring to this Colony, differed in certain points from the Act which then was in existence.  From the fourth clause of the present Act, which prescribes the mode of trial in all issues of fact, the word Jury so distinctly set forth in the fifth section of that which preceded it, is omitted: and this (the learned Counsel) contended, was a most important omission, for if the seven officers so sitting were not a Jury, then according to statutable form and principle, should they have become associated in what was called their verdict with the Judge, as in civil actions, where two Assessors are conjoined with the Judge.  Ergo, if not a Jury, they could be liable to no challenge as allowed at Common Law, nor could the constitution of Juries in this country be assimilated to those in England.

But independent of this strong point, conceding to seven commissioned officers of his Majesty's land forces, the rights and privileges of a Common Jury, he the learned Counsel would unequivocally object to such a Jury on one of the grounds of principal challenge to the polls (for which see Blackstone) that is to say, propter affectum, on the principle of interest and affection due from such a Jury to their commanding officer, who was the prosecutor of his (the learned Counsel's) client.  The word interest Mr. Wentworth conceived mere surplusage -- as affection expressed all that could be meant by the word interest.  And where affection could be proved, it was as strong a ground of objection by the Statute as by the Common Law: therefore if this were a Jury, then the like grounds of challenge subsisted against them here as in England.  The case Rex v. Dolby was one as nearly in point as the extraordinary difference in the constitution of Juries in both cases would admit.  In Rex v. Dolby, though the King was set out as the nominal prosecutor, whilst the whole Constitutional Association were the actual prosecutors, yet because Mr. Sheriff Garratt, who with Mr. Sheriff Venables impanelled the Jury, had been found to have subscribed five guineas or five pounds to the same Association -- this was considered sufficient challenge to the array of the Jury by Mr. Sheriff Garratt, or his colleague.  Now, still assuming them to be a Jury, and of course invested with all the attributes of Jurors at the Common Law, this challenge propter affectum certainly ought to hold good for even were the statute construed as bearing out a different signification, still an established right was not to be overturned by any supposed negative clause, but by a direct and express affirmation.  It was an immutable law of justice of Great Britain, in fact of every civilised country on the face of the globe, and well laid down had that doctrine been from time immemorial, so far had the doctrine been carried too, that Blackstone, book i p. 91. Christian's edition, conceives it impossible so monstrous and absurd an injustice should ever exist any where, as that any man should be constituted a judge in his own cause.

Here Mr. Chief Justice Forbes expressed himself of a like opinion, but in what way, he would ask the learned Counsel, had the prosecutor in the case under agitation, been a Judge in his own cause.

Mr. Wentworth continued, that for officiating in the capacity of a Juror, each officer, by order of the Government, was paid an extra 15s. a day, and he contended that though this 15s. did not go out of Lieutenant General, his Excellency Ralph Darling's private coffers, a specimen of liberality he had not the least expectation ever to behold, yet it was a gift which the said Lieutenant Gen. had it in his power to withhold, or to bestow, for there was no statute or other legal enactment, authorising the appropriation of 15s. a day to military Jurors, from the funds of the Colony -- the Governor appropriating that sum, which was certainly a pretty addition to an officer's pay, equivalent as he (Mr. W.) believed, to the full pay of a Major -- altogether on his own responsibility.  Far was he (the learned Counsel) from desiring to impute that any improper motives regulated this appropriation of the public money, but though the having a power to withhold or to bestow, such a sum might not put the prosecutor in a capacity immediately to interfere with the Jury, it might mediately, and it was perfectly possible, that it might; ergo the law and the Judges were bound to provide, as far as human foresight and wisdom could against possibilities.  Here the learned Counsel handed in an affidavit of the defendant, as to the fact of money being paid the Jurors on his trial.

Mr. Chief Justice Forbes observed, he recollected that an application had been made in the time of Sir Thomas Brisbane, for some allowance to military officers acting in the capacity of Jurors, which was transmitted for the consideration of the Home Authorities; but we understood his Honor to add, that he was not acquainted with the fate of this representation.

Mr. Justice Dowling said it was statutable in England to allow special Jurors a guinea a day each, and customary to allow common pettit Jurors 1s. or 8d. a day.

Mr. Wentworth contended that the argument as to special Jurors did not assimilate.  It was paid on the authority of an express statute, and custom reconciled the other, which was paid by the county; producing various law authorities in support of his position.

The reason why cases in point to his objection, propter affectum were not to be found in the law books, were -- that none such could ever occur in England, and consequently some were enumerated.  Mr. Wentworth then, with much natural force, conciseness and perspicuity, begged to call their Honors' attention to the arguments he had formerly addressed to two of the Judges then sitting, in the case of Rex v. Wardell.  At that time the Jurors were chosen by a roaster, [sic] that is -- the names of all the officers in garrison were contained on a list, and seven of them were nominated by the Governor, without distinction in turn.  This practice, he, (the learned Counsel) believed, had of late not been adhered to; and if so, his objection, propter affectum, became strengthened still more; and though two of the Judges then sitting had given the negative to his former objections, the case now appeared before the Court, in a materially altered form, owing to this omission of, or innovation upon the old system of roaster; -- and therefore it would behove the Judges to consider maturely, if justice would not require them to determine differeutly. [sic]  Again, he (the learned Counsel) would not arraign motives -- it was the relation in which seven military officers, nominated and remunerated with 15s a day, as these were, by their Commander in Chief, the prosecutor, would be likely to stand with respect to that prosecutor.  Human nature is ever subject to frailty, and therefore has the law wisely, not set down contented with trusting to individual honor and integrity, but has enjoined the most effectual restraints wherever practicable.  Above all things, for on their proper constitution does right so greatly depend, has the law been careful to interpose such provisions as shall render Juries not alone purged from, but incapable of all or any attaint -- to use an apt simile of the learned Counsel on a previous occasion, not only should Juries be spotless as Cornelia's fame, but like the wife of Caesar, above suspicion.  Did the clause already alluded to even bear out the case for the prosecutor, the latitude which the legislature allowed at times, was evident at first sight, in a simple commission of the peace, which gives power to try all murders, felonies, misdemeanors, &c., and did the Colonial Act in question order the like, -- still in England, notwithstanding this word all, a Magistrate would lay himself open to severe penalties, did he dare to sit as a Judge in his own cause. -- By parity of reasoning, the same consequences ought to follow here -- in fact, the principle is so inconsonant to every dictum of British justice, that if cases were wanting in the law books, it would be found owing to their non-occurrence.  After similarly powerful and conclusive arguments, which we regret our limits and the lateness of the hour will not enable us to do sufficient justice to in a more ample report, Mr. Wentworth sat down, stating in answer to a question from the Bench, that the purport of this part of his train of objection was to move for a new trial before a Common Jury.

Mr. Attorney General attempted a reply, and the Chief Justice having consulted with his learned Colleagues on the Bench, said that the Court would reserve its opinion upon the several important points raised by the defendant's Counsel.  Meanwhile, it was the wish of the Judges that Mr. Wentworth should add what further objections he found called upon to make.  Mr. Wentworth contended that the information, laying to the account of the defendant in this case, seditious libel, was not properly borne out; and this view Mr. Wentworth supported, by reference to various cases, among others, to that of the King v. Mr. Horne Tooke, for treason, and several law authorities -- that the paragraph selected for publication consisted solely of a series of deductions from antecedent facts, comprising the leading articles of three several numbers of The Australian, all headed alike, and pursuing the same subject, the revival of which was provoked, and caused entirely by the publication of certain despatches in the Sydney Gazette of 10th January last, supplied by Mr. Alexander McLeay, Colonial Secretary, and of course it was to be presumed, with the entire consent of the prosecutor in this cause; and but one of these, the last article in The Australian of the 27th January, had gone to the Jury, and to crown all, there existed a radical informality in the wording, as well as purposes of the information, which should quash the proceedings altogether.

Mr. Wentworth gave a very lucid explanation of what in law sedition meant, and how it could most properly be applied, considering it a Scotticism.  Mr. Chief Justice Forbes rather thought the word had its origin from the Latin tongue, and his Honor, with much classic taste, proceeding to elucidate his idea used an apt quotation from the Mantuan Bard -- from the Æneid of Virgil 1 Book, lines 152, 3, 4, as follows:--

"Ac veluti magno in populo, cum s¿pe coorta est Seditio, s¿vitque animis ignobile vulgus,

Iamque faces, et saxa volant -- furor arma ministrat."

After a most elaborate, eloquent, and argumentative appeal as to the justice and the facts applicable to his client's case Mr. Wentworth again sat down.

The Crown Officers, of course, spoke in reply, but

Mr. Chief Justice Forbes having again consulted with both his learned Colleagues, concluded the matter for the present, by saying, "the Court will take time to consider this case."

So far the matter has concluded, not less satisfactorily than we expected, and ninety-nine out of one hundred persons in this community have wished.  We have not the slightest apprehension as to the final fate of this ex-officio prosecution, but we shall not call into exercise any further arguments to prove the justice of our cause.  We leave it to stand or to fall by its own merits, confident that it is now entrusted into honest hands.


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

Source: Sydney Gazette, 23 June 1829[7 ]

The Court sat in Banco this morning.  Shortly after their Honours had taken their seats upon the Bench, the Chief Justice signified that the Court was prepared to pass judgment upon the points reserved in three cases of libel. 

Mr. Justice Stephen: -- After having deliberately weighed the various arguments adduced by Counsel in support of their objections to the verdict, on the several points reserved, the Judges attended at the chambers of the Chief Justice on this day fortnight, and consulted together till a late hour at night, when I having the misfortune not to accord in opinion with them, we agreed to adjourn the consideration of the subject, and to give our opinions on it this day.  We again met together yesterday evening, and after a consultation which lasted till late at night, I still retained the former opinion expressed by me at our previous meeting.  The indisposition of our learned brother the Chief Justice, early in the week, made the duties of the Criminal Court devolve upon me, as the Civil Court did upon Mr. Justice Dowling.  The fatigue incident to a long continued sitting until Friday evening, added to a very infirm state of health, have prevented me from looking over at my chambers, and considering so fully as I could wish, the several cases adduced as applicable to this subject, so interesting and important to the community in which we live.

I shall therefore, with more brevity than I otherwise should do, express the result of my opinion. 

It were superfluous in me to protest my sincere veneration and respect for the superior legal knowledge and ability of the learned Judges, with whom I have the honour to be associated.  It is an indirect compliment paid to myself, to say that not only the utmost union in sentiment, upon all points connected with our duty as Judges, but of personal friendship, has ever subsisted between us, but that in all matters of law, except of minor importance, we have accorded in opinion.  It is a matter of regret to me that the present for as [sic] singular exception.  On the first objection taken to the verdict now under consideration, I am of the opinion that it is a valid one.  The Act of the 4th of the King, in providing as a substitute for a Jury according to the constitution of the mother country, seven officers, to be nominated by the Governor of Colony, I conceive never had it in contemplation to violate the first principles of common sense as well as of justice.  In the case put by the Counsel of the defendant [1 Black c.9] , where power is given to Lord of a Manor to try all causes in his manor of Dale, should a cause, however, in which he is interested, arise in that manor, he shall not try it, although the words of the Act be general as to all causes, as it were a mockery of fair and equal justice to suppose a person should be both Judge and party in his own cause.  But it is said, the Parliament, in this society, has though fit expressly to authorise the Governor to summon as Jurors officers acting under his immediate orders and control, and has allowed of no challenge to them, except for favour to the Polls to be expressed at the trial, which may be allowed by the Judges.  Could the Parliament have had it in contemplation that a case might exist in which the Governor had a direct interest and that he might, notwithstanding, select men to try the question, who were all of them of affected towards him, as to render them by the first principles of British law incompetent, propter affectum to sit upon the trial?

It may be answered, the necessity of the case might require it.  If such necessity did actually exist, and were so made to appear, I might in such case disallow the exception of the challenge to the Polls as well as to the Array, but if the challenge would lay to the Poll, why does it not apply to the whole array, if it lies to all its parts?  But, in reality, the Parliament seems to have been aware that such difficulty might exist, and therefore, to guard against the evil, provides, that half-pay officers, and officers of the Navy, might sit on the Jury.  To such, if returned by the Governor, he being Military Commander of the troops on duty in this Colony, but having no control over half-pay or naval officers, he could not be suspected of having any bias over a Jury consisting of such persons, an objections made to such men therefore, propter affectum, could not be sustained. 

It is a fact within the knowledge of this Court, that a Jury of such men in legal language omni exceptions majores, could without difficulty have been procured residing in the Colony at the time this challenge was made by the defendant to the Jury which sate [sic] on his trial - what reason, therefore, could be adduced for disallowing the exception, if even in point of strictness of law it were not tenable?  In a case arising in this Court, Rex v. Robert Cooper, in which I was Counsel for the Crown, and which was to try a mere Civil right, between the King and his subject, it was proposed, in order to do away the suspicion of undue bias, that a Jury should try the question not Magistrates appointed by the Governor; but a Jury selected by the Sheriff. 

The proposal was readily assented to by the then Attorney General, Mr. Bannister, and myself, then Solicitor General, and a Jury of Citizens tried the question.  Our conduct in so conceding to the wishes of the subject, was approved by the representative of His Majesty, Sir Thomas Brisbane.  As therefore in the present instance an unexceptionable Jury could have been had, I lament that a similar application had not been made as by the defendant in the case of the King against Cooper, to try his Majesty's law officers, that a Jury not under His Excellency's immediate controul [sic], should be summoned by the Governor, consisting of half-pay officers or officers of the Navy, and I should suppose they would not have thought they had omitted their duty to the crown, nor to his Majesty's subjects, in complying with it.

Upon the present occasion I think, the interests if both cannot be defeated by granting a new trial, which would afford an opportunity to the people at large for feeling that his majesty has no object but the happiness of his people in view, and that even in bringing offenders to answer in his Courts of Justice for alleged offences, their good and the welfare of the society at large is his sole concern.  On the second round to objection to the verdict, I feel equally confident as to propriety of granting a new trial, as it cannot do harm, but may affect much good.  The objection is, that the learned Judge who tried the cause rejected two newspapers published commencing the subject-matter of which the libel is said to have been a mere continuation.

I think that such newspapers relating to the same subject, and alleged as containing matter explaining the defendant's motive in publishing the libel, should have been received, and having been rejected is a ground of itself why we should grant a venire de novo.[8 ]  Perhaps the counsel for the defendant might have been more explicit in assigning the purpose for which he wished to adduce these papers.  If, however, they were so connected with what followed in the alleged libel, as to have given a different complexion to the words charged, by shewing that they meant merely to discuss the propriety or otherwise of the Governor's conduct, in relation to the man named Sudds, and to shew that the writer was induced to that discussion, not through malice, by in consequence of an invitation to it, as he conceived, in the Sydney Gazette, a paper supposed to be published under the sanction of the Governor; the preceding papers, though published at a different period, ought to have been read. 

In reference to the other objections taken to the verdict, as I perfectly agree with my Brethren on the Bench, in over-ruling them I shall not state my reasons for so doing, as they will be more ably expressed by them.

The Chief Justice. -- Several objections have been raised to the propriety of the conviction of the defendant in this case -- they are as follow; first, that the seven officers who were impannelled to try the issue, were nominated by the Governor, who, as it appeared by the record, was the party aggrieved in this cause, and was the virtual prosecutor; secondly, that the said officers received severally the sum of fifteen shillings, for their attendance during the said trial, by order of the Governor; thirdly, that the learned Judge who tried the case, refused to allow certain papers produced at the trial by the defendant, and alleged to be preceding numbers of the same newspaper, upon the same subject, and having reference thereto, to be read in evidence; and lastly, that the information charges the libel as being seditious, but does not aver that such sedition tended to bring into hatred and contempt the Government of His Majesty, but to bring Lieutenant General Ralph Darling, being the Governor of the Colony, into hatred and contempt.  The three first of these objections have been urged as a sufficient ground for the Court to grant a venire de novo; and the last in arrest of the judgement of the Court.  I shall examine these several objections, in the order in which they have been argued at the bar: --

1.  That the Governor unites in his own person the incompatible functions of both prosecutor and returning officer.  This objection would, in technical language, be called a challenge to the array for favour on the part of the Sheriff.  But a much higher ground has been taken in argument, and it has been contended that to allow this conviction to stand, would be to allow a man to act as Judge in his own cause, in violation of those elementary and universal principles of social justice, in subordination to which all positive laws must be framed, and against which, even the power of an Act of Parliament cannot prevail; and cases have been cited at the bar, and the authority of very great names adduced in support of this position, and to impress it more strongly upon the consideration of the Court.  What would be our duty if required to enforce an Act of Parliament which contradicted those principles, is a question which, I presume, I am not bound to entertain a priori; because I will not entertain, a priori, the supposition that any such case will arise; and it becomes the less necessary for me to entertain such a question, because my own knowledge and experience attest the general conformity of the laws of England with the universal laws of nature; and because there is nothing in the case before the Court which does, in my opinion, in any degree trench upon such principles.  When this line of argument was stated at the bar, I asked, how it appeared that the Governor, who was assumed to be the prosecutor in the case, was the Judge? and I was answered, that His Excellency nominated the Jury, and that it followed as an inevitable consequence that the Governor acted as the Judge, by means of his nominees.  Now, I deny this consequence altogether, as founded either on fair legal deduction or in fact.  By the Constitution of England, the King is the fountain of justice, and appoints Judges to administer the laws throughout the Realm - the King is also the conservator of the public peace, and institutes all prosecutions which affect the public welfare; but it would be rather a new argument to hear that the Judges of the land were not competent to try any case in which His Majesty's name appeared in the prosecution; and, in principle, the objection would be as strong against Judges nominated by the King, in prosecutions instituted on behalf of the King, as against officers nominated by the Governor to try an issue, in which the injury to the public might be sustained in the person of the Governor.  But it is not true in fact, that the Governor has acted, in the case before the Court, as a Judge in his own cause -- to make out this position it should have been shewn, that his Excellency presided at the trial, and heard the case, and gave his verdict in person.  All the he cases which have been, or can be cited, will be found to be, where the party and the Judge were actually united in one and the same individual.  The case of Day v. Savage (Hobart 85), in which the celebrated dictum is reported to have fallen from the Court, that an Act of Parliament which should make a man a Judge in his own case would be void as against natural equity, was a case in which the question arose, whether the certificate of the Corporation of the City of London, should be considered as sufficient to establish a custom, and, by consequence of such custom, a right to exact a certain duty, payable to the Corporation itself, the legality of which duty was the immediate subject in dispute before the Court.  To have allowed this certificate of the Corporation, would be to allow the corporate Court to decide that such a debt was due to itself; and to make the Corporation Judges in their own cause.  In the case of the City of London v. Wood (12 Mod 669.) a plaint was levied in the Mayor's Court, for the purpose of recovering a forfeiture due to the Corporation, and it was objected, that it appeared upon the face of the proceedings, that the Mayor and Commonality of London, came before the Mayor and Alderman, so that the Mayor was both Judge and party; and the objection was allowed by the whole Court.  So in the anonymous case reported in Salkeld 396, the Mayor of Hereford, who sat in judgement in the Court in which, by the Charter, he was the sole Judge, and in a cause where he was himself the lessor of the plaintiff in ejectment, was visited penal with consequences.  In the more recent case of the King v. Hoseason (14 East 605), the defendant, who was a Magistrate of Norfolk, heard a complaint preferred to him in his judicial character, by his own bailiff, against a labourer employed upon his own farm.  ``It was impossible," the Court observed, ``to consider the defendant's bailiff as the employer; and it was a most abusive interpretation of the law for a man to erect himself as a criminal Judge over the servants on his own farm, for an offence against himself."  In all these instances, the Judge was immediately a party in the cause; and I have referred to the cases with the greater particularity, because they afford the best illustration of the general principle which has been contended for, and shew how widely dissimilar are the cases in which the Courts have held this principle to apply, to the present case; and consequently how entirely inapplicable is the principle itself, to the case before the Court. 

Again it is contended, that by the law of England the Sheriff, who is to return the Jury to the King's Courts in England, must be utterly indifferent between the parties, and by analogy, it is urged that there must be the same indifferency on the part of the Governor, who returns the jurors to serve in this Court.  To the law so laid down, as applied to the Sheriff in England, I fully accede.  There is no principle more settled than this; that any, even the smallest degree of interest in the question depending, is a decisive objection to a witness, and much more to a juror, or to the officer by whom the jury is returned.  The law has so watchful an eye to the pure and unbiased administration of justice, that it will never trust the passions of mankind in the decision of any matter of right.  If therefore, a Sheriff, or juror, or a witness, be in any sort interested in the matter to be tried, the law considers him as under an influence which may warp his integrity or pervert his judgement, and therefore will not trust him.  The minuteness of the interest; will not relax the objection; no line can be drawn but that of total exclusion of all degrees whatsoever (Hesk vs Brad. 3 Burr 1856.)  I have laid down the law in its amplest form; I have state it in the words of one of the most illustrious lawyers that ever sat upon the English Bench, that I may not be supposed to norrow [sic] principles in order to suit the exigency of a particular case.  But while I concede the principle in its fullest extent, as applied to the Sheriff in the discharge of his office, I cannot admit its universal application to all forms of trial, or that it is so immutably laid in the foundations of the laws of England, as not to admit of any relaxation or qualification whatever.  The military Courts of the Kingdom form a manifest xception [sic] to the rule; they apply to a very large portion of His Majesty's subjects; and I have never heard it objected to a trial in any of these Courts, that the member were nominated by the Commander, who ordered the prosecution, or that the charge was for a breach of his orders, or for personal misconduct towards himself.  Trial by Jury is certainly the best form of administration of justice which has ever been devised, and well deserves the praises which have been passed upon it.  I know of nothing as an equivalent for it, either in the influence it commands over the opinions of the public, or in the protection it affords to the Judge upon the Bench.  But I cannot carry my habitual respect for this venerable institution, so far as to lose sight of the fact, that it has been deemed expedient by the Legislature of the parent state, to suspend this invaluable privilege in this Colony, and to substitute a mode of trial that has but little affinity with the constitutional form of Trial by Jury in England.  The essence of trial by Jury consists in this -- the individuals who compose the jury, are the peers of the party accused; they are taken from the same rank in society as himself, and having the same common interests, feelings, and relations, are presumed to form the fittest arbitrators between the public, of which they are a component part on one side, and their fellow subjects on the other.  It necessarily follows, as a consequence of the institution of juries returnable out of the great body of the community, that the qualifications of the persons who might be called upon to discharge this important trust, should be fixed with the utmost precision, and the duties of the Sheriff should be accurately defined; and in order to prevent any unfair practices, the parties to the cause are invested with the right of objecting to the array, and to the persons of the jurors.  Hence has arisen the law respecting challenges, and the numerous grounds of objection which a return made from the body of the people might naturally be supposed to give rise to.  Now the Act of Parliament, under which this Court holds its criminal jurisdiction, sets out with draw[ing] the line of distinction between Trial by Jury in its proper sense, and the particular mode of trial pointed out by the Act for the guidance of this Court; it enacts that until further provision be made for proceeding by juries, all crimes and offences shall be tried in the manner thereinafter directed, and then it goes on to direct, that such trial be by seven commissioned officers of His Majesty's forces, and that such officers shall be nominated, from time to time, by the Governor, and shall severally be liable to be objected to, upon the special ground of direct interest or affection.  It is difficult to trace any analogy between this mode of trial and the great constitutional privilege of Trial by Jury; and learned Counsel who has contended for the right of challenge to the array, upon the principle of analogy derived from the common law, should have been prepared to follow this principle throughout all its bearings, and to prove that it might no lead, to a dilemma, which would be attended with a total failure of justice.  To bring this argument to the test, suppose that we should allow the objection to prevail, how shall be provide for a new trial? - can we direct the Sheriff, or the Coroner, to summon a jury after the manner of the English Courts?  We have no means of doing so; and the learned Counsel, fully aware of the consequences to which his argument must lead, has endeavoured to evade them by assuming that the case is entirely a casus omissus, one not foreseen by the Legislature, and quite unprovided for in the Act.  But can we assume that Parliament, in erecting a Supreme Court in this Colony, in order to provide for the exigencies of  a remote people, and investing it with the several jurisdictions of all the King's Courts at Westminster, forgot to furnish us with the means of trying any offices committed immediately against the Governor of the Colony, -- that his character might be assailed and his Government traduced, without any tribunal to resort to for redress?  It would indeed present a singular anomaly, that the Head of the Government should be the only person within the Government whose person and character were left unprotected by the law; and before we can be led to such an extraordinary conclusion, we may be allowed to question the premises upon which it is founded, and to satisfy our minds that such is actually the state of the law; and let it not be overlooked, that is there have been any inconsistency in the situation of the Governor, His Excellency has been placed in such situation by the fault of the defendant; the duty of the Governor is not spontaneous -- the Act of Parliament has cast upon the Governor the obligation of providing Juries for this Court; the act of the defendant has compelled him to discharge this duty in a case in which it is objected that His Excellency is a party -- it is the defendant himself who first causes the objection, and afterwards raises it as a defence.  But the law will not allow this -- there is no principle clearer than that the law will not allow any man to take advantage of his own wrong.  If the inconsistency which has been alleged in this case be well founded, the defendant must place it to his own acts.  But I did not feel the force of this difficulty.  I am of opinion that the argument of analogy fails, that we cannot graft upon the peculiar mode of trial created for this Court, the principles and practice of juries by the common law.  Our form of proceeding is entirely the creature of the Act of Parliament -- what the Act clearly directs, or authorises, may be done in virtue of the Act, without being restrained in its operation  by the common law.  It is laid down in Plowden (Com 206) as a rule for interpreting Acts of Parliament, that if a Statute which is introductive of a new law, limit a thing to be done in a particular manner, that thing shall not, although there be no negative words, be done in any other manner.  Now the clause of the Act under consideration, directs that the officers  nominated by the Governor, may be severally objected to upon the special ground of direct interest in the cause; this clause in introductive of a new law, and it includes within itself a negative, namely, that the officers so nominated by the Governor, shall not be objected to for any other cause whatsoever; they may be challenged ``severally," but not in a body; the cause of challenge must be ``specially" for ``direct interest" in the matter at issue, and not for any other cause.  It is not suggested that the seven gentlemen who sat on the trial of the defendant, had any interest or affection in the issue of the case, and therefore it is no legal ground of objection that they were nominate by the Governor.

Upon the second objection, I shall offer but a few observations -- it is founded on the obvious rule of justice, which prohibits a juror from receiving money from either of the parties, as a consideration for the verdict he may give.  This is indeed a principal ground for challenge for affection, and would, if well founded, bring the objection within the provisions of the Act.  But how is it proved that the jurors received money from the Governor?  It is admitted that by a public and general order all the officers who attend the Courts as jurors, are allowed a compensation of 15 shillings per day, which is paid out of the public treasury.  Surely the statement of the fact itself, is sufficient to shew that it does not bring the case within the painciple [sic] of the objection allowed by law.  It is not a private gift of money, by a party to a Juror, but a public remuneration, paid by Government, for the discharge of a public duty.  I must not be considered to express any opinion upon the expediency of holding out any inducements of a pecuniary nature, to gentlemen, which may lead them to wish to sit as jurors.  But while the officers of His Majesty's forces are called upon to perform a duty, such as is imposed upon them in this Court, I am not insensible to the just claims they have to receive some compensation from the public.

Thirdly -- It is alleged as a further ground for granting a new trial in this case, that the matter charged as libellous was the summing up of the arguments which had had [sic] been used by the author in several successive numbers of the Australian newspaper, and that it was relevant to the defendant's case to adduce the whole of these papers, to shew the intention of the author in the particular passages set out upon the record; and that the defendant's Counsel accordingly produced such papers, and offered to prove them, but that the Judge, who presided at the trial, refused to allow them to be received as evidence.  The learned Judge, in reporting the case for the information of the Court, admitted that he rejected the evidence so offered, upon the authority of the case of the King against Lambert and Perry, tried before Lord Ellenborough, and reported in 2 Camp, N.P. 399.  For the opinion of my learned colleague, no man can entertain a higher respect than I do; and it would be with the greatest reluctance that I should feel myself compelled to dissent from any opinion he may have formed upon a question of law, on which his own sound judgement has been deliberately exercised -- and I do not differ with him on this occasion -- but I must confess that I do not attach the same importance which he has attached to the doubt attributed to Lord Ellenborough in the case referred to -- I cannot refrain from thinking that the words which are reported to have fallen from that great master of the law of evidence, must have been received under some misapprehension.  His Lordship is made to express a doubt of the propriety of the evidence admitted by the Judges, in the case of the King against Horne Tooke for high treason, and in permitting a detached part of the same paper in which the libel was contained, to be read, to have reserved to himself the consideration, how far he should, in a similar case, allow the same latitude of evidence as had been allowed in the state trial alluded to.  It is indeed true that the case of Horne Tooke was a case of high treason, and that the case of Lambert and Perry was for a seditious libel; and perhaps there may be found some difference in the application of the rules of evidence, arising out of the characteristic difference of the two offices.  But in the case of the King against Horne (Cowp. 677) for a seditious libel Lord Mansfield admitted similar evidence; and after the closest consideration which I have been able to give the point, I cannot feel the difference, or the force of doubt which has been suggested against the authority of the King against Horne Tooke: that case was one which naturally called forth the most exact attention; and of the authority of great names is to decide the question, the preponderance is largely on the side of the five learned persons who presided on that occasion.  In the case of the King against Horne, for a seditious libel upon his Majesty's Government, published in the Morning Chronicle on the 8th of June 1755, Lord Mansfield permitted another paper, published on the 31st of May preceding, to be read in evidence (20 St. Tru. 672-744).  The admission of that paper had been objected to at the trial, but his Lordship admitted it upon the ground, as he afterwards stated in his report, that as it might be of use to restrain or qualify he meaning of the libellous paper, the defendant might so use it (Cowper, 677.)

``It is a universal maxim, applied to all criminal proceedings, that actus non facit reum, nisi mens sit rea, and it is especially applicable to cases of libel, where the Jury are appointed to judge of the motives of the publisher, and to determine the whole question of his guilt or innocence.  As a general proposition, it appears to me that wherever the sense of a particular paper is equivocal in itself, or where it directly refers to another paper, it is open to a defendant , in a criminal proceeding, to adduce the paper referred to, or any other paper, to explain what is doubtful, or to restrain or qualify his meaning.  But in the particular paper now before us, I cannot find that there is anything equivocal in the language, nor can I discover any reference which so connects it with some other paper which had gone before, as to make such paper a part of itself, and necessary to be taken into consideration, in order to arrive at the true interpretation of its meaning.  This was a preliminary point which should have been settled to the satisfaction of the Judge, before he could be called upon to admit a paper that was not necessarily connected with the prosecution.  I do not find that it was so put to the Judge at the trial -- indeed it is urged that the libellous paragraph is a conclusion drawn from a series of facts stated, and of arguments used, in previous parts of the same and other foregoing papers -- but surely this, assuming it to be as stated, could not alter the character of the publication itself, or make it less libellous, because it was founded on stated facts and logical deductions.  I am of opinion that there is no sufficient ground in this objection, to induce the Court to grant a new trial.

``The last objection is founded upon a supposed inconsistency on the face of the record, which charges the publication as seditious, but does not lay it as tending to bring into hatred and contempt the King's Government within the Colony.  The prosecution is at common law -- the local Act, like the Act of Parliament from which it is copied, merely goes to enhance the punishment in aggravated cases of libel; it is not necessary to lay the offence as against the form of the Act, but it becomes the duty of the Court, in passing its judgement, to look at the whole corpus delicti, and to measure the degree of punishment, according to the degree of offence legally charged, and set out in due form upon the record.  I am of opinion that neither upon the face of the record, nor upon the matter charged as libellous, can this publication be considered as seditious, in the legal acceptation of that term.  A seditious libel is defined by the act to be a publication tending to bring the Government into hatred and contempt -- that is, the King's Government, not the person of the Governor.  In all the precedents of prosecutions for seditious libel, which I have consulted, it is so laid --  His Majesty, can have no representative within his own dominions -- he is, in the eye of the law, every-where present -- the legal ubiquity of the King is one of the fundamental principles of the constitution.  It may be difficulty, in the abstract, to separate the Government of the Colony from the person of the Governor, but there is a difference both, in the substance of the thing, and in the formal mode of laying it, which cannot be supplied by the Court.  These observations, however, are only applicable to that part of the information which charges the libel as seditious.  I do not think there is any ground to arrest the judgement of the Court; the word seditious does not vitiate the information; it may be rejected as surplusage, and would still leave the offence of libel upon the person of His Excellency the Governor complete, and subject to such penal visitation as the nature and degree of such offence might deserve.

In reviewing the several points which have been raised in this case, I have had occasion to touch upon some of the great principles of constitutional law, which have been drawn into discussion; I hope I have brought to the consideration of them a mind fully impressed with the importance of those principles, and the habitual and almost holy reverence with which they are regarded in Courts of Justice.  As a lawyer, I know their excellence; as a member of society, I am indebted to them for all the blessings I enjoy -- but, as a humble minister in the dispensation of the laws of the empire, I am bound to look at the position in which I am placed, and the law as I find it embodied in the Act for my peculiar guidance.  If there be any defect in the law itself; if it be no longer adapted to the present state of the Colony, the remedy must be sought in Parliament.  I am of opinion, upon all the points which have been raised in this case, that there is not sufficient ground before the Court either to set aside the verdict, or to arrest the judgement.


Source: Sydney Gazette, 25 June 1829

(Continued from our number of Tuesday) 

Mr. Justice Dowling then delivered his opinion to the following effect:-- this was an Ex officio information filed by H. M. Attorney General, against the defendant, for an alleged seditious libel published in The Australian newspaper, on the 27th January, 1829, of and concerning Lieutenant General Darling, the Governor of this territory, and especially of and concerning His Excellency's conduct with respect to the punishment inflicted on one Joseph Sudds.  At the trial before me and seven military Officers, on the 13th April last, the defendant was found guilty.  Before the Officers were sworn to try the case, the defendant's Counsel requested that I would reserve for the consideration of all the Judges of this Court certain objections to the competency of the Gentlemen appearing in the jury-box, namely, 1st, that if they were to be considered as a Jury impanelled to try the case, the whole array was challengeable for unindifferency in the Governor, who being in fact the prosecutor, was the returning Officer or nominator of the Jury to try the issue, by virtue of the 9th G. 4. c. 83, s.5; 2dly, that they were challengeable to the poll, propter affectum, because of their relation to the Governor, he being their Commander in Chief; and thirdly, that the 5th section of the New South Wales Act was, quoad this case, absolutely void, upon the principle, that Acts of Parliament that are impossible to be performed are of no validity, and if there arise out of them collaterally any absurd consequences, manifestly contradictory to common reason, they are, with regard to those collateral consequences, void, 1 Blac. Com. 91.  These objections I reserved for consideration, without giving any opinion upon them, and the trial proceeded as in other cases.  In the course of the trial the defendant's Counsel proposed to give in evidence two numbers of The Australian newspaper, published at the interval of about a week from each other, antecedently to that number in which the alleged libel was contained.  It was stated that the matter from which the libellous paragraph had been selected was merely the recapitulation and conclusion of a discussion on the same subject that had appeared in parts in the two preceding numbers, and consequently that the Jury might be permitted to see and read the preceding numbers in order to guide their judgement in considering the effect and meaning of the part selected for prosecution.  I said I was not aware of any case in which, on the prosecution for a libel in a newspaper, the defendant had been permitted to read antecedent numbers of the same paper, although they contained matter relating to the same subject.  This, I observed, was a distinct independent publication and must stand or fall upon its own merits.  I said I knew of no case of a newspaper libel that had gone farther than Rex v. Lambert, 2 Campb. 398, where the defendant was allowed to read other parts of the same paper containing matter relevant to the same subject as that selected for prosecution, although locally disjoined from it.  The jury, I added, might of course, read the whole discussion in the same paper, in order to form their fair opinion as to the effect of the part charged a libellous.  In the absence, therefore, of any express authority for admitting the papers proposed to be read, they were not allowed to be received in evidence.  The defendant having been found guilty, the Attorney General, on a former day in this term, moved for the judgement of the Court, whereupon the defendant's Counsel submitted three several motions for our consideration, first, to quash the whole proceeding in this case for mistrial on the grounds already alluded to, and to direct a writ of venire facias to the Sheriff to summon a jury at common law to try the issue between the parties; secondly, to grant a new trial generally on the ground that the presiding Judge had improperly rejected the two numbers of The Australian previously published by the defendant; and thirdly, to arrest the judgement on the ground that the information had improperly charged the publication in question as a seditious libel.

In support of the first mentioned motion, the learned Counsel stated an additional ground on which he urged that the Commissioned Officers were challengeable to the poll; namely, they were to receive fifteen shillings each for serving as Jurors on the occasion in question, and as it depended upon the pleasure of the Governor whether they would, or would not be paid, they were challengeable propter affectum.  The Court, in consideration of the grave importance of these several questions, especially that which relates to the Constitution of the present Jury system in the Criminal Court, took time to deliberate upon its Judgement until this day.

Since the day this case was argued, I have applied my most earnest and anxious attention to the various topics which were so forcibly pressed upon our consideration by the learned Counsel for the defendant.  I full admit the importance of the question involved in his first motion, and have addressed my mind to it accordingly.  The general force of his reasoning it is impossible to deny, and if directed to the understandings of those who have authority to legislate would, perhaps, be thought irresistible; but sitting in a Court of Justice, a Judge has no course to pursue but to administer the law as he finds it enacted by the wisdom of Parliament.  I consider the sense of the Legislature to have been too clearly and imperatively expressed on this point, to admit of doubt, and therefore I must confine myself to declaring what I understand to be the law.  It may be a difficult thing for human reason to assent to the principle as a general one, that the party aggrieved shall have the power of nominating those who are to determine between him and the accused; but what avails the repugnance of the mind to such a position if the law, which we are called upon to administer and pay obedience to, has not foreseen such a contingency?  Ita lex scripta est! By the 5th section of the 9th Geo. IV. c. 83, it is enacted, that ``until further provision be made as hereinafter directed by Juries, all crimes, misdemeanours, and offences, cognizable in the (Supreme) Court, shall be prosecuted by information in the name of His Majesty's Attorney General, &c; and all issues of fact joined on every such information shall be tried by one or more of the respective Judges of the said Courts, and seven commissioned Officers of His Majesty's sea or land forces, whether on full of half-pay; and such Officers shall from time to time be nominated for the purpose aforesaid by the Governor; and the said Officers shall severally be liable to be challenged or objected to upon the special ground of direct interest or affection, to be specified in open Court at the time of challenge; and in case of such challenge or objection being allowed by the Judge or Judges, the Officers so challenged or objected to shall be succeeded by another such Officer or Officers as aforesaid, who shall in like manner be nominated by the Governor, and be liable in the same manner to challenge or objection, until seven Officers shall appear duly qualified for the trial of any offender in the said Courts, &c"  The learned Counsel noted in argument, the difference between this clause and the corresponding clause ([s]. 4) in the expired Act 4 Geo. IV. c.96, in the omission in the new clause ([s]. 5) of the word Jury[.]  In the expired Act the Officers to try the issue, are designated as a Jury of seven commissioned Officers; whereas in the late Act, the addition of Jury is omitted.  He argued, however, that these two sections are to be construed in puri muteris, and therefore, the term Jury was still applicable to the Officers appointed to try this case, and being a Jury, all the incidents with respect to the right of challenge by law to the array, and to the poll follow this mode of trying criminal cases.  If, indeed, (he contended), the Officers so nominated are to be considered as a Jury, why, then, every trial in the Criminal Court since the last Act has come into operation is erroneous; because in such cases the Judge ought to have taken part with the Officers in determining upon the facts of each case in like manner as on the trial of civil issues by a Judge and two assessors.  I by no means assent to that proposition; for whether the seven Officers are to be called or treated as a jury or not, I take it that the duties of the Judge and of the Officers on the trial are sufficiently pointed out by the 5th section of 9 Geo. IV. c. S3, to prevent such an anomaly.  In the first place, the verdict is to be delivered by the mouth of the senior Officer; and in the second, the proceedings of the Court are to be under the control and direction of the Judge, whose judgement is to be pronounced in the manner by law established on the trial of persons indicted in any Court of Record in England.  Admitting, however, that the seven officers may in common parlance be called, and in common intendment, to be considered as a Jury, still I apprehend that they would be subject to no other incidents in the way of challenge that those expressly pointed out by the 5th section ``the special ground of direct interest or affection".  I cannot consider these as mere words of surplusage, and to have been introduced without design.  There is one incident to which such a Jury is clearly not liable, that is ``exemption from serving."

By the late Jury Act, 6 Geo. IV. c. 50, which consolidates the law upon the subject, Military and Naval Officers are expressly exempted from serving on Juries.  So that here one of the analogies between such a Jury and a Jury Civilians fails.  It appears to me that, upon a comparison between the 4th section of the 4th Geo. IV. c. 96, and the 5th section of the 9th Geo. IV. c. 83, the omission of the addition ``Jury" as descriptive of the seven commissioned Officers who were to try criminal issues of fact, was intentional and of purpose, in order distinctly to mark the design of the Legislature not to extend Trial by Jury in any shape in criminal cases to this Colony.  Is not this manifest by the 5th section, which enacts, ``until further provision be made, as in thereinafter directed, for proceeding by Juries, all crimes, &c, shall be prosecuted by information, &c, and all issues of fact joined on every such information, shall be tried by one Judge, and seven commissioned Officers," &c.  What is the further provision here alluded to?  It is contained the 10th section, which enacts ``That it shall be lawful for His Majesty by Order in Council to authorise the Governor, with the advice of the Legislative Council, further to extend and apply the form and manner of proceeding by Grand and Petit Juries, or either of them, in the presentment and trial of all crimes, misdemeanours, &c.  Properly cognizable by Juries, in such parts of the Colony, at such times and subject to such limitations as to the Governor and Council shall deem meet, &c."  It then goes on, ``And whereas and so far as such manner of proceeding by Juries shall be applied as aforesaid, then the form and manner of proceeding hereinbefore directed, as well in the prosecution of offences, as in the trial of issues shall cease and determine.  But it is almost unnecessary to refer to these clauses, to shew that it was the intention of Parliament to withhold for the present, from this Colony, Trial by Jury in the true English popular meaning of that institution.  The proceedings of last Session of Parliament, and the unsuccessful result of the Colonial petition upon this subject, which are matters of history, must remove all doubts upon this point.  What then are we called upon to do by the learned Counsel's first motion?  First to declare the trial which has already taken place conformably to the terms of the Act of Parliament, to be a mere nullity, and then to direct a new trial by a Jury at common law, contrary to the declared intention of the Legislature, which has enacted by the 10th sec. that no such mode of proceeding shall take place but by virtue of His Majesty's Order in Council, authorising the Governor and the Legislative Council to pass a local ordinance for regulating the manner in which Trial by Jury shall be introduced into the Colony.  It is argued, that this course becomes necessary by reason of the absurd consequences manifestly contradictory to common reason which arise, by giving effect to this clause in a prosecution at the instance of a Governor of this Colony, because, if the Governor is allowed to nominate a Jury composed of Officers under his command, he is virtually the Judge in his own case, -- a position so unreasonable as to call the Judges to declare the statute quoad hoc absolutely void.  In support of this argument, 1 Black. Comn. 91, was cited, where it is said `Acts of Parliament that are impossible to be performed, are of no validity, and if there arise out of them collaterally any absurd consequences, manifestly contradictory to common reason, they are with regard to those collateral consequences void, &c." In Bac. Ab. statute A, it is said, ``if a statute be against common right or reason, or repugnant or impossible to be performed, the common law shall control it, and adjudge it to be void; but the Judges will not hold a statute to be void unless it be clearly contrary to natural equity, for that they will strain, rather than hold a statute to be void."  Upon this question, an eminent Editor of Mr Justice Blackstone's Commentaries (Professor Christian)has observed, ``if an Act of Parliament is clearly and unequivocally expressed, with all deference to the learned Commentator, I conceive it is neither void in its direct nor collateral consequences, however absurd and unreasonable they may appear.  If the expression will admit of doubt, it will not then be presumed that the construction can be agreeable to the intention of the Legislature, the consequences of which are unreasonable; but when the signification of a statute is manifest, no authority less than that of Parliament can restrain its operation."  Can we intend that the Legislature did not contemplate the case which has now arisen, of a tribunal composed of officers nominated by their Commander-in Chief, being called upon to try a defendant charged with libelling that Commander-in-Chief?  If such a state of things had not been contemplated, I apprehend that the Legislature would have made a distinct provision applicable to a case where the Governor himself might seek redress in the Courts of the Colony for an injury to his person or to his character.  We must presume, that the Legislature passed this clause upon the most mature consideration of all its probable consequences.  Admitting that there may be something anomalous, and at variance with the law of the Mother Country, in giving effect to this clause in the way objected to, are we to suppose that the Legislature intended to leave the Governor of this Territory in the singular position of being the only individual in the Colony whose person might be assaulted, or character blackened with impunity?  Surely we cannot imagine so much injustice on the part of the Legislature.  Possibly this may be a contingency either forgotten or not anticipated, and therefore not provided for; but can we construe this clause as to shut the door of justice against any of H. M. subjects, high or low?  The alternative proposed for us is to direct a venire to the Sheriff to summon a Jury at common law.  I apprehend we have no authority to adopt such a proceeding; even if we had the machinery for such a purpose; for I conceive the 5th and 10th sections to be conclusive, in shewing, first, that the Legislature intended all crimes and misdemeanours committed in the Colony should be tried by seven commissioned Officers, nominated by the Governor; and secondly, that the introduction of trial by jury in all cases was to originate with His Majesty, and be carried into operation by the local Legislature. -- There may be an apparent absurdity in the case at the bar; but can this Court controul the will of the Legislature where it is so unequivocally expressed?  It is said that there are no negative words in the fifth clause to oust the common law.  Be it so; but if the Legislature enacts positively and in express terms that all informations in the Supreme Court shall be tried by seven commissioned Officers, and that such Officers shall be nominated by the Governor; and when it is manifest from this clause, and from the 10th, that the Legislature intended temporarily to withhold trial by jury from the Colony, can we let in the operation of the common law, even if there were machinery to set it in motion?  I am decidedly of opinion that we cannot.  The unequivocal opinion of the judges upon this point has been sought, in order that the subject may be brought under the consideration of Parliament; and I, for one, have no hesitation in declaring that I think we cannot accede to the first motion presented for our consideration.  With respect to the right of challenge to the poll, another objection was made by the defendant's learned Counsel in addition to that stated at the trial, namely, that in this case the Officers were to receive 15s. per diem, or were to receive 15s each from the Governor, for their attendance on this trial.  If it had appeared that these Gentlemen were to receive this money as a bribe for their verdict in this particular case, it would have been a case of such glaring impropriety that no court of justice on earth could tolerate it; but when it is known that the fact is not so, and when it is acknowledged that the practice of allowing 15s. per diem to the Officers for their attendance in the jury-box has been of long continuance with the approbation of His Majesty's Government, I do not conceive that there could have been any just cause of challenge to these Gentlemen on that ground.  The statute gives a right of challenge upon the special ground of direct interest or affection.  Now the allowance of 15s. per diem to the Officers attending on trials in the Supreme Court is a matter of general regulation in all cases, I am of opinion that this would not have been a ground of challenge to the poll.  The wisdom of the Legislature having provided this mode of trial as a substitution for the trial by Jury, properly so called, we are bound to presume that it was adopted upon the fullest consideration of the state and condition of the Colony.  We are also bound to presume, until the contrary is shewn, that the function of nominating is fairly, honourably, and justly exercised.  Corruption in a public functionary is not to be intended or implied to exist: it must be expressly proved.  On the other hand we are not to presume that those who are nominated to discharge the important office of jurors, will, for any consideration, shrink from their conscientious duty, or violate their oaths to serve a particular purpose.  Indeed, no one has insinuated that such would be the case; -- the whole argument being addressed to the theory of law, founded as it is in wisdom, in order to guard against the infirmities and corruptions of human nature.  It appears to me, however, that the very powerful argument, pressed upon us by the learned Counsel, would more properly, have been addressed to the legislature, where, alone, effect could be given to it; and, that as judges, we must act upon the law as we find it written.  I have not adverted to a decision stated to have been pronounced in a like case by my learned Brethren, before my arrival in the Colony, because I prefer giving my own unbiased judgment upon the case now presented for consideration.  On the whole, therefore, it appears to me, first, that the array, in this case, was not challengeable for the cause assigned; secondly, that they were not challengeable to the poll for the causes assigned; and thirdly, that the 5th section of the Act, being imperative, and without qualification in its terms, we are bound to give effect to it, notwithstanding the supposed absurd consequences arising from its operation.  To remedy this evil, if evil it be, recourse must be had to Parliament; but sitting here, we have no other course left but to act up to the letter of the law, and the apparent intention of the legislature.  After the fullest consideration , I am of opinion, that there is no reason for quashing these proceedings on the ground of mis-trial.

With respect to the motion generally for a new trial, on the ground that I had properly [sic] rejected evidence necessary for the consideration of the Jury I am still of opinion that the evidence alluded to was properly rejected.  The alleged libel was published in the Australian of the 27th January, and it was proposed to give in evidence, on the part of the defendant two other papers published by him, of the 16th and 20th January respectively, on the ground that in each of those papers there was an article upon the same subject, headed ``Sudds and Thompson;" the matter in the paper of the 27th January being the conclusion of the same discussion, and a summary of the arguments which had gone before.  It was argued that, this being a continuous discussion upon the same topic, published piece-meal in three several newspapers, each portion of the discussion was to be considered as a chapter in the same book, to which, clearly, the Jury could have had a light [sic] to refer, in order to determine the character and quality of the matter selected for prosecution, and to judge of the mind and temper of the writer.  It must not be forgotten, that the sting of the libel in this case, which was the concluding paragraph of a very long article, was a supposed logical deduction from facts previously stated.  Now whether those facts were true or false, they could not have afforded any excuse for the assertion of that which constituted the libel, and ought not, in point of law, to have had any effect on the minds of the Jury in determining the character and quality of the deduction charged to be libellous.  I agree that a defendant may be allowed to give extrinsic evidence to shew the occasion of the publication which is charged to be libellous, so as to restrain or qualify the interpretation put upon the paper, in the information.  It was upon this principle, and on this only, that extrinsic evidence was admitted in the case of Rex v. Horne, Cowp. 677.  It was upon the principle of that case that I allowed the defendant to put in evidence a copy of the Sydney Gazette, in which were published certain official papers relating to the subject of the libel, in order to shew the occasion on which the defendant published the supposed libel, and thereby to enable the Jury to judge of the defendant's motives.  No direct authority has been cited to shew that the papers alluded to were receivable in evidence.  Certainly, as far as authority and principle go, they are, in my judgement, adverse to the reception of such evidence in the case of a newspaper libel.  It is true that in Rex v Lambert, 2 Campb. 400, Lord Ellenborough said, ``If there be any parts of the same paper upon the same topic with the libel, or fairly connected with it, the defendants have a right to their being read, although locally disjoined from it.  I cannot admit anything totally foreign to the subject of the record to be read or made applicable to the defence.  But passages of the same paper tending to shew the intention and mind of the defendants, with respect to this specific paragraph, must be very material for the consideration of the Jury.  On the trial of Mr. Horne Tooke for high treason, the matter was carried much farther.  The prisoner was allowed to read in his defence various extracts from works which he had publised [sic] at a former period of his life, and these the Jury were permitted to carry along with them when they retired to consider of their verdict.  I am not prepared to say that I should go so far.  I entertain the highest deference for the judges who presided on that occasion, and their authority is entitled to the greatest weight; but if the point should ever arise before me, it would become my duty seriously to consider whether such evidence should be admitted.  Here, however, I feel no hesitation."  This decision goes no farther than that the defendant would be at liberty to have read, in evidence, any matter in the same paper relative to the supposed libel.  The decision in Rex v. Horne Tooke, Howl. St. Tr. 1, certainly does not, in my judgement, help the defendant, for there may be very good reason why, on a trial for high treason, the prisoner should be permitted to shew that the tenor of his life and conversation, has been loyal and faithful, and thence repel the inference that in the particular instance he had treasonable motives.  I agree that, in the case of a book or pamphlet , published at the same time, as a complete work, from which parts are selected for prosecution, it would be fit and proper that the Jury should have an opportunity of seeing the whole, and comparing one part with another, in order to determine whether the bane and antidote did not go together.  This is all that as decided in Rex v. the Dean of St. Asaph 21 How. St. Tr. 1,002.  But a single newspaper is, in its nature and capacity, a distinct and separate work, which must be judged of by what appears on the face of it; and, therefore, I think the attention of the jury ought to be confined to what appeared within the four corners of the particular paper charged to contain libellous matter.  If, indeed, newspapers were published in files bound up in the form of books, then the reason for allowing the Jury to read the whole of that from which passages are selected for prosecution, would have its due effect; and if such had been the case, in this instance, I should have allowed any passages to be read from the file, as a book, which had a tendency to take away the sting from the alleged libel.  But as this was a separate publication, and as the readers of these might never have seen the antecedent papers, it appears to me that I would not have been justified in allowing the jury to do more than read the article from which the libellous passage was selected, or any other matter in the same paper relevant to the same subject.  It is not now suggested, nor was it alleged at the trial, that the numbers of the Australian which I rejected, contained any matter which would have given a different complexion to what appeared in the publication of the 27th January, or that the Jury would probably have come to a different conclusion upon reading the antecedent numbers.  Previously to the passing of the libel act, 32. G 3. c. 60, the construction of the publication charged to be libellous was always considered matter of law, to be determined solely by the Judge.  By that statute, ``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."  Adverting to the terms of this statute, which so beneficially enlarges the province of a Jury in cases of libel, I conceive that the ``whole matter put in issue" upon the trial can only be the matter contained in the publication charged to be libellous, and cannot be construed to comprehend any other distinct and separate publication on the same subject by the defendant, however proximate to, or remote from, the one alluded to in the information.  The question in such cases always relates to the quality and character of the whole paper or publication particularly and specifically brought under consideration by the indictment.  If a wide latitude were given in cases of newspaper libel, I see no reason why papers of the most distant date, as well as those published subsequently to that under consideration, might not be brought forward as well for the prosecution as the defence, for the purpose of determining the peculiar character and quality of the paper charged as libellous.  Should such a latitude be allowed to the prosecutor, it would be most unjust and unfair towards the defendant, because that would be permitting the defendant to be convicted of the offence charged, by proving that he had been guilty of another and a different offence, which would be contrary to the first principles of justice.  If this could not be allowed on the one side, I do not understand on what ground it could be allowed on the other. 

I agree that such collateral publications may be received after conviction, with a view of guiding the discretion of the Court, in awarding the quantum of punishment.  Since the year 1807, when I first attended the Courts of the mother country, which I venture to say, with unaffected modesty, I have done with some little diligence, down to the time of my departure from England, in November 1827, I never heard it suggested in the numerous newspaper libel cases, which I have heard tried and personally noted; that the defendant was at liberty to advert on the trial, and before conviction to antecedent newspapers, (containing matter on the same subject) in order to enable the Jury to determine upon the quality and character of the given publication.  In the absence therefore of all express decision, I conceive I was not at liberty to receive in evidence the papers in question.

Then, as to the motion in arrest of judgement, it was contended that the information having charged this to be a seditious libel, no judgement can be pronounced upon the defendant, inasmuch as a libel upon His Excellency the Governor cannot be said to be seditious.  The information charges the defendant with publishing ``of an concerning the Governor, and especially of an concerning His Excellency's conduct with respect to the punishment inflicted on one Joseph Sudds, a certain false, scandalous, seditious, malicious and defamatory libel, as follows." -- Now, without considering very nicely, whether a libel published of and concerning the Governor of this Colony, in respect of some particular act of his Government, can truly and properly be denominated a seditious libel, I apprehend that the objection taken, cannot in law prevent the Court from passing judgement on the defendant.  The general rule in criminal pleading is, that all unnecessary words may, on motion in arrest of judgement, be rejected as surplususage, if the indictment would be good upon striking them out.  Leech 536, 1 T. R. 322 4 CO. 41 Mod. 327.  Now, would this be a good indictment for a libel ``of and concerning the Governor, and of and concerning his conduct in the punishment of Joseph Sudds," if the word ``seditious" were rejected?  I apprehend it would.  It is no less a libel, whether it be seditious as affecting His Majesty's Government, or false and malicious as affecting General Darling's public conduct as Governor of this Territory.  An information or indictment for a libel must aver, that the defendant published the illegal matter falsely and maliciously; but it has long been decided, that on the trial, it is unnecessary to prove the falsehood and malice of the illegal matter.  Rex v. Burks 1. T. R. 4.  The allegation of intent, in this particular case I consider to be merely matter of form, and no more than the result and inference which the law is supposed to draw from the act itself, and which therefore requires no proof but what the act itself supplies.  If the act of libelling the Governor was in itself an indifferent act, the intention with which it was done, would then become material, and would require, as would any other substantive matter of fact, specific allegation and proof.  To libel the Governor is equally an offence, whether the intention be sedition or not.  The intention here is merely laid as a matter of aggravation, the offence itself of libelling, which is the foundation of the prosecution, being entirely independent of the particular intention charged.  If the nature of the offence were altered by the averment of the particular intent, I agree that the objection would have had some force, but that is not so, for it is still a libel, whether seditious or not.

The case of the King v. Scofield, East P. C. 1029, Cald. 397 is, I think, analogous to this case, and abundantly answers the objection.  It was there held, that if an act be charged to have been done with a felonious intent to commit a crime, and it appear upon the face if the indictment, that the crime though perpetrated would not have amounted to felony, the word felonious being repugnant to the legal import of the offence charged, may be rejected as surplusage.  Certainly I am not prepared to hold that a libel of and concerning the Governor's conduct in a particular act of his administration, is to be considered as a seditious libel, according to my understanding of what is meant my sedition.  This is not charged as a seditious libel ``of and concerning the King's Government", as ministered by General Darling, but of and concerning General Darling personally, and therefore I cannot say that it is a seditious libel.  I apprehend that the offence of sedition, has relation to the King and his Government, and not to the person and Government of one of his Ministers.  Sedition may be regarded as an attempt to commit high treason -- a sort of treasonable misdemeanour.  All the writers upon this subject regard it as an offence against the King and his Government, and not as an offence against his servants and their Government, unless there be a special allegation that the offence has a tendency to affect the safety of his Majesty and his Government, East P. C. 48.  All the indictments and informations I have seen for seditious libel aver the offence to have been committed of and concerning the King or his Government.  Conceding, however, that this is not to be treated as a seditious libel, still we are bound to reject the aggravating appellation given to it, and pronounce judgement as in ordinary cases of libel.  For the reasons already given, I think this was an averment unnecessary to be proved, and may be rejected as surplusage, and consequently that we may now proceed to pass judgement as for an ordinary libel.

Mr. Wentworth here put in an affidavit made by Mr. Hayes, in mitigation of punishment, which set forth that the libel of which the had been convicted was a detached paragraph selected from a series of articles written in answer to certain official documents published in the Sydney Gazette and in which the former opinions of the Australian on the subject of Sudds' punishment had been misrepresented.  The learned Counsel also addressed the Court at some length in mitigation.  The judges having considered of their sentence, the judgment was delivered to the following effect, by Mr. Justice Dowling:--

Atwell Edwyn Hayes, you are to receive the judgement of this Court, having been found guilty of publishing a libel in the Australian newspaper of the 27th January last, imputing to His Excellency, the Governor of this Colony, that he had substituted his own arbitrary will for the law, in the punishment of a person named Joseph Sudds.  It is unnecessary now to advert to the particular terms of the libel.  They have been brought under the attentive consideration of the whole Court.  Whatever difference of opinion may exist on the Bench, as to the form and manner of the trial which has been had in your case, I am authorised in saying, that the Judges unanimously concur in opinion as to the character attributable to the libel, and the measure of punishment which it is my very unpleasant duty, in the name of the whole Court, to award.  You have been found guilty, by the verdict of a tribunal constituted under the provisions of an Act of Parliament, passed for the government of this Territory.  There may be those, who attach little value to the verdict of such a tribunal, but this Court is bound to presume, that it is a just and righteous determination, influenced by an honest conviction, that the alleged libel had the tendency imputed to it by the information.  Viewing the case in this light, it is impossible to doubt, that it is a grave accusation against a public functionary, placed in the high station of Governor of this most important part of His Majesty's dominions, that he has substituted his own arbitrary will for the law, in the punishment of the individual alluded to.  It amounts to an accusation, which, if true, would expose him to the most penal consequences with which so high a misdemeanour could be visited.  In proportion, therefore, to the malignant character of the libel, ought this Court to signify its animadversion.  The Judges of this Court have an anxious and most responsible duty to discharge.  With every disposition to uphold the just liberties of the public press, it is their bounden duty to interpose the authority of the law for the purpose of checking its excesses, and keeping it in a healthful state of subjection to reason and good government.  Powerful and useful as this engine is, in promoting the general welfare of the community, when its impetus is properly regulated, no reasonable man can doubt that its operations may be so accelerated as even to annihilate the fabric of society itself.  It has been avowed in Parliament, that if other political rights have been withheld from the inhabitants of New South Wales, the liberty of the press exists in full force and vigour in this community.  Certainly those who have attended to the progress of the public press in this colony, during the last eighteen months, cannot charge its conductors with supineness and insensibility to the privilege of indulgence.  Possibly in the Northern hemisphere, there are those who would be disposed to take a different view of the matter and impute to the Australian press, a tone and temper incompatible with a just administration of the law.  Abstaining from invidious distinctions, the Judges of this court feel themselves bound to express the deepest pain and regret, that the whole press of this Colony, has in their time exceeded all reasonable bounds of moderation.  Every man in this community is deeply interested in the enjoyment of the just liberties of the public press; but he is more deeply interested in averting those consequences likely to result from its licentiousness.  Parliament has assumed [doubtless from he most anxious consideration of the subject,] that the peculiar state of Society here, renders it as yet unwise to impart to it, trial by Jury and representative legislation.  It is conceded however, that the most valuable of all liberties, that of the public press, does exist -- that the press is as free as air!  Those who have made this concession, have however the power of withdrawing it, and upon just grounds, may declare that even this mighty advantage is unsuited to the atmosphere of Australia.  This can only proceed upon a supposition that the laws now in force, have not the power of restraining the excesses of this popular right, or that its possessors, know not how duly to appreciate its importance.  It is the duty of the Judges, on the one hand, to shew as far as they can, that the present laws are sufficiently strong for the purpose, and on the other of those to who possess the privilege to learn to exercise it with wisdom and moderation.  It is fervently hoped, that the proceedings of this day will effect this two-fold object, and that the unbridled licence of the last 18 months will not be remembered by parliament in its present or future deliberations.  Being now, however, called upon to put forth the vigour of the law in a case of libel, for the first time since the institution of the Supreme Court, the Judges assume the exercise of their powerful authority with no disposition to visit the offence under consideration with the severity which it would seem to demand.  In the administration of criminal justice, the Court will gladly avail itself, on all occasions, of any just topics of mitigation.  Looking to the occasion of the publication in question, the Court cannot shut its eyes to the fact that the subject of the libel had almost sunk into oblivion, when public attention was revived towards it by the publication of certain documents in another journal, supposed to be official, which documents were said to have been accompanied by observations calculated to provoke discussion on the part of the Editor of the Australian.  In awarding punishment in cases of this nature, the Court is bound to look at all the circumstances, and more particularly to the occasion of the libel.  Had it appeared that the defendant had voluntarily and impertinently obtruded the subject upon public attention, he would have much to answer for; but having regard to the circumstance under which the defendant has been betrayed into that unwarrantable abuse of his privilege as a public writer for which he has now to receive judgement, the Judges trust they shall stand excused to the public for the lenient sentence they feel authorised in pronouncing; which is, that you Atwell Edwyn Hayes, be imprisoned in His Majesty's Gaol, at Sydney, for six Calendar months, that you do pay to the King a fine of £100, and that you do enter into security for your good behaviour for three years, yourself in £500, and two sufficient sureties in £250 each, and that you be imprisoned until that fine be paid and that security entered into.[9 ]

The Chief Justice  then called upon Mr. Hall to know if he had anything to offer in mitigation of punishment?[10 ]

Mr. Hall replied that he had nothing further to add to what he had already submitted to the Court. 

The Chief Justice then addressed the prisoner at some length on the dangerous character of the offence of which he had been found guilty, and observed, that although he was authorised to state that Mr. Justice Stephen had the same objections to the form of the trial on this as on the first case, yet there was no difference of opinion on the Bench as to the nature and tendency of the libel.  The sentence of the Court was, that he should be imprisoned for the space of twelve calender months.

Mr. Hall was then called up for judgement for a libel on Captain Francis Cashel Crotty. Mr. Justice Dowling passed sentence, which was, that the defendant be imprisoned for this offence for the space of three months, to be computed from the expiration of his former sentence. 


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

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

[pp 201-202] [It is not a ground of challenge to the array of officers nominated by the Governor to try an information for a libel in the Supreme Court, that the Governor is himself the party libelled, the 9 G 4. c. 83. s. 5 being imperative   Neither is it a ground of challenge to the Poll propter affectum, because of the ulatovi of the officers to the Governor as their commander in Chief nor are they challengeable to the poll, that they receive 15/s each for serving on trials in the Supreme Court this being a general regulation.  Quere  Whether a defendant on the trial of a libel in a Newspaper may allude to and give in Evidence previous numbers of the same Newspaper in which are contained parts of the same discussion which is charged to be libellous, for the purpose of explaining the effect and meaning of the alleged libel.]

[p. 201]Saturday June 20


Forbes CJ

Stephen J

Dowling J

Rex v Hayes

[p. 202] This defendant was convicted before me of a libel in the Australian Newspaper on the Governor imputing to him the arbitrary punishment of one Joseph Sudds.  A motion having been made on a former day for a new trial by Wentworth for several objections stated at length in my Judgment:- Stephen J who differed in opinion from Forbes CJ. and myself delivered his opinion first.

Vide Vol 22 page 114.


Source: Dowling, Proceedings of the Supreme Court, Vol. 22, Archives Office of New South Wales, 2/3205[11 ]


[p. 122]After sentences, application was made on behalf of Mr Hayes to postpone his imprisonment for a week in consequence of the illness of his wife who was there recently confined in childbed.

The Court said they had no authority to grant the application.  The matter now rested with the executive authority.



[1 ] See also, Australian, 15 April 1829, and commentary and letters to editor on 17 and 21 April, 5 May, 6 June, 4 September 1829.  See also Sydney Gazette, 16 April 1829 (report of case) and 18, 21 and 28 April 1829 (commentary).  This case even led to comments in newspapers in India: see Australian, 6 November 1829; Sydney Gazette, 7 November 1829.

On the many prosecutions of Hall (the editor of the Monitor) in 1829 (as to which, see the cases named R. v. Hall, 1829), plus those of Hayes, the editor of the Australian, see C.H. Currey, Sir Francis Forbes: the First Chief Justice of New South Wales, Angus and Robertson, Sydney, 1968, ch. 35; B. Edgeworth, "Defamation Law and the Emergence of a Critical Press in Colonial New South Wales (1824-1831)"  (1990) 6 Australian Journal of Law and Society 50.

[2 ] According to the report in the Sydney Gazette, 16 April 1829, Wentworth raised three objections: to the poll, because of the relative situation between the jury and the governor, their commander in chief; to the array, as the prosecutor stood in a relative situation to a sheriff in England; and because of the maxim under which statutes impossible of execution and against common right and reason were void.  On these grounds, he said, the Court was bound to reject the Act as it applied to this case.  He must have been referring to the jury provisions in the new 9 Geo. 4 c. 83, which came into force on 1 March 1829.

The judges wrote to the governor about the new jury provisions on 5 February 1829 (Chief Justice's Letter Book, Archives Office of New South Wales, 4/6651, p. 218.  They told him that in Supreme Court civil cases, either party could apply for trial by civilian jury, the discretion then resting in the court.  In criminal cases, the military jury remained dominant.  In place of a civilian jury in the Courts of Quarter Sessions (on which, see R. v. Magistrates of Sydney, 1824), the new Act provided for military juries there, as in the criminal cases in the Supreme Court.

[3 ] In Roman law, this meant intention or will necessary before a judicial act was valid.  Infants and lunatics lacked voluntas.  (Source: Nygh and Butt (eds), Butterworths Australian Legal Dictionary, Butterworths, Sydney, 1997.  The Oxford Latin Minidictionary, Oxford University Press, Oxford, 1995, defines arbitrium as the judgment of an arbitrator, or (more tellingly here) will, mastery, or authority.

[4 ] In its commentary on 17 April 1829, the Australian, quoted Dowling J. as saying:

"Gentlemen, I think it right in this place to point out to you what is considered the now settled doctrine with respect to the LIBERTY OF THE PUBLIC PRESS in respect to discussing public affairs; and by that doctrine I invite you to determine this case.  Certainly the doctrine goes as far as any good citizen, and the greatest lover of freedom could desire.  If, taking all the parts of a composition together it shall not be found to exceed the bounds of a free and fair discussion - so far as a regard to good order, the peace of society, and the peace of the government requires, but so free as the nature of our happy constitution, and the unalienable right of Englishmen to canvass affairs allows; if, in short, the discussion be, upon the whole, sufficiently decent in its language and peaceable in its import, although marked with great freedom of opinion, and couched in terms as animated as a free man can use on a subject that interests him deeply; although a great share of heat should be found in the expression; and such invective as, surpassing the bounds of candour and of charity, can only be excused by the violence of honest feelings; nay, although detached passages may be selected in their nature and separate capacity amounting to libels; yet these also shall be overlooked, and the defendant acquitted, on the ground that he has only used the grand right of political discussion with uncommon vehemence.

"Gentlemen, I am bound to tell you that the subject of this alleged libel was a public one, and that the defendant had a right to discuss it, more especially as public attention was revived towards it by another newspaper, supposed to represent the interests of the Government.  The question is, whether the defendant had exceeded the bounds of decorum and decency in the part he has taken in the discussion."

The Sydney Gazette, 16 April 1829, purported to report the whole of the charge of Dowling J. verbatim.

[5 ] The Butterworths Australian Legal Dictionary defines this as in Roman law, tort or wrongdoing which gave rise to a private action resulting in a pecuniary penalty being paid to the victim.

[6 ] From "and on" to "the pro" were typeset upside down, obviously omitting something.

[7 ] See also Australian, 23 June 1829; Sydney Gazette, 16 June 1829.  For comments, see Australian, 26 and 30 June 1829; Sydney Gazette, 25 June 1829.

[8 ] To come afresh.  A new trial granted because matters appearing on the face of the record show some irregularity or impropriety.

[9 ] Hayes continued to edit the Australian while he was in prison: see Australian, 23 October 1829 (on Sudds and Thompson).  He was still in prison in December, complaining that he was as far from liberation as ever: Australian, 23 December 1829.  He was released in January 1830, when two barristers, one of them the son of Stephen J., paid his fine: R.B. Walker, The Newspaper Press in New South Wales, 1803-1920, Sydney University Press, Sydney, 1976, p. 17.  Governor Darling thought that this was appropriate, because Stephen had written the letter which led to Hayes' prosecution: Darling to Hay, 13 January 1830, Historical Records of Australia, Series 1, Vol. 15, pp 333-334, and see pp 339-340.

For Hayes' comments on his release after six months in prison, see Australian, 9 January 1829.

See also B. Edgeworth, "Defamation Law and the Emergence of a Critical Press in Colonial New South Wales (1824-1831)"  (1990) 6 Australian Journal of Law and Society 50; C.H. Currey, Sir Francis Forbes: the First Chief Justice of New South Wales, Angus and Robertson, Sydney, 1968, ch. 35; Sydney Gazette, 24 December 1829.

[10 ] See R. v. Hall (No. 2), 1829; and R. v. Hall (No. 4), 1829.  Hall and Hayes were also persecuted by Governor Darling, as they saw it, when he removed their convict servants, forcing them into litigation.  See In re Hayes, 1829; and In re Tyler, 1829.  Both were in prison on convictions for criminal libel during the second half of 1829: R.B. Walker, The Newspaper Press in New South Wales, 1803-1920, Sydney University Press, Sydney, 1976, pp 15- 16.

[11 ] At pp 114-122, there is a newspaper account of this case, followed by a handwritten note which is reproduced here.

Published by the Division of Law, Macquarie University