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

Hall v Mansfield (No 1) (1830) NSW Sel Cas (Dowling) 792, 884; [1830] NSWSupC 26

law reporting, press freedom, libel, arrest of judgment, new trial

Supreme Court of New South Wales

Dowling J., 1 April 1830

Source: Sydney Gazette, 6 April 1830[1 ]

THURSDAY, APRIL 1.

(Before Mr. Justice Dowling and a Special Jury.)

Hall v. Mansfield

This is an action of trespass on the case, brought by the plaintiff, Mr. E. S. Hall, Editor of the Sydney Monitor newspaper, against the defendant, the Editor of the Sydney Gazette, for a libellous publication, of and concerning the plaintiff, published in the defendant's journal on the 7th of July last.  The damages were laid at ¬£500.  Plea, the general issue.

Mr. Keith opened the pleadings, and stated that the declaration set forth, that the plaintiff, both before, and at the time of the publication in question, was Editor of the Sydney Monitor, and had lived unsuspected and untainted of any corruption or injustice; was otherwise of good fame, and in the enjoyment of great gains by the sale of his said newspaper.  That the defendant, well knowing the premises, but maliciously contriving to bring the said plaintiff into scandal and infamy, and deprive him of great gains and profits, did, on the 7th of July last past, without any just or probable cause, print and publish, a certain false, scandalous, and malicious libel, contained in what purported to be an address of certain landed proprietors in New South Wales, to the Governor, and also in His Excellency's reply thereto.  Mr. Keith here read from his brief the passages charged as libellous, which were as follows:-

``Yet it has been with deep regret that we have long observed every measure of your Excellency grossly vituperated by licentious public writers, in a manner calculated to inflame the minds of the lower orders of the community against your Excellency's administration, and to produce discontent and insubordination among the prisoners of the Crown, for no other purpose than to promote the interested views of such writers.

``The press has undoubtedly indulged itself to a most licentious and criminal extent, in its endeavours to degrade the Government, and excite the public discontent.  None but the ignorant, however, the slaves of popular clamour, have been deceived by the specious garb - ``the freedom of discussion" - which these writers have assumed.  They are now making atonement to the injured laws of their country, and justice is satisfied."

``These journals have laboured incessantly to propagate a belief that they are the voice of the public, well knowing that they are not countenanced by any man of character or common respectability."

Mr. Wentworth then rose and addressed the Jury to the following effect:-  Gentlemen of the Jury, you have heard from Mr. Keith the nature of this action, and the libellous publication for which the plaintiff this day seeks redress at your hands.  Gentlemen, the publication complained of is dated so far back as the 7th of July last; but the reason why this case had not been brought to issue sooner, was on account of the delay which was occasioned in bringing the present Jury-system into action; - the plaintiff conceiving that he would have more justice done him by the trial of his cause before you, gentlemen, than before two assessors.  Gentlemen, it would seem that the passages charged as libellous in this declaration, are contained in certain documents of an official character; the one purporting to be an address from the landed proprietors and merchants in New South Wales, and the other His Excellency's reply.  You are aware that the defendant in this case is the Editor of the Official Gazette, in which all public documents emanating from the Government are published; and I have no doubt in the course of the arguments on the other side, that much stress will be laid on this circumstance.  No doubt it will be contended, that the publication of these official documents, being a mere ministerial act of the defendant, nothing of malice can be infered [sic]; but, gentlemen, His Honour will inform you, even if it were so, that it would not exonerate the defendant from the consequences.  It is the policy of the British law, that there must be a responsibility somewhere; for, although it is a maxim of the British constitution that the King can do no wrong, because there is no power by which he can be tried, his Ministers are responsible for the consequences of illegal acts, even if committed under his express command.  In the Colonies a similar principle of impunity, though not to the same extent, exists, with regard to the head of the government; for, though the Governor of a Colony is not amenable to any jurisdiction in the Colony during the period of his administration, when once that ceases, he becomes liable for the consequence of any public or private wrong which he may have committed - his liability commences with the termination of his government.  Gentlemen, this principle, however, goes no farther.  Those persons who carry illegal orders into effect are rendered liable for the consequences; and, therefore, even if you should be satisfied that this publication was enjoined him by the highest authority, it would not avail this defendant in the way of justification, however it might ultimately shield him from the infliction of that penalty which you verdict would entail upon him.  It was his duty, as a good citizen, not to act contrary to the laws, at the bidding of any one; if he has chosen however, so to act, he must abide by the consequences.  Gentlemen, this, as the learned Judge will inform you, is the principle of the law in cases of this nature; and this brings me to a consideration of the particular publication, with reference to its libellous character.  Libel, in its general signification, is defined to be a malicious defamation, expressed either in painting or writing, or by signs, or pictures, tending either to blacken the memory of one who is dead, or the reputation of one who is alive, and thereby exposing him to public hatred, contempt, and ridicule.  It is written slander, and thereby receives an aggravation, in that it is presumed to have been entered upon with coolness and deliberation; and to continue longer, and propagate wider and further than any other scandal.  With respect to libels on individuals, however, they are of various descriptions; namely, libels, which by accusing a man of a crime, bring him within the danger of the laws; libels, which have a tendency to injury him in his office, profession, calling, or trade; libels, which by holding him up to scorn and ridicule, and still more to any stronger feeling of contempt or execration, impair him in the enjoyment of general society, and injure those imperfect rights of friendly intercourse, and mutual benevolence, which man has with respect to man.  It appears to me that the libel which is the subject of this action properly comes under the first division I have pointed out: for you will perceive that the parties who presented the address alluded to, say, - ``Although we have hitherto remained silent, yet it has been with deep regret that we have long observed every measure of your Excellency grossly vituperated by licentious public writers, in a manner calculated to inflame the minds of the lower orders of the community against your Excellency's administration, and to produce discontent and insubordination among the prisoners of the crown for no other purpose than to promote the interested views of such writers."  Gentlemen, I put it to you whether this does not contain a direct charge of labouring to produce disaffection among the prison population.  If, gentlemen, this had been true, no doubt the publication of such writings would amount to a high misdemeanor, and the plaintiff would be rendered liable to punishment.  Now, then, you will perceive, it is directly imputed to the plaintiff that he has committed an offence for which he is liable to be punished; and the case, therefore, clearly comes within the first of the three classes of libels on individuals to which I have already directed your attention.  But, gentlemen, if any of those scandalous imputations which have been so lavishly heaped upon the plaintiff were true, it was competent to the defendant in this case to have pleaded a justification and have put the truth or falsehood in issue before you this day; and his not having done so, amounts to an admission that none of those gross vituperations which he has published in reference to the plaintiff, were capable of being supported by proof.  Had the tendency of the plaintiff's writings been such as has been described, some particular instances might have been selected and relied upon; when, if you were satisfied that they had been rightly designated, you would be bound to find a verdict for the defendant.  No such evidence however has been attempted to be tendered, and the conclusion at which you, gentlemen, are bound to arrive is, that no such evidence existed.  Gentlemen, so also is it with respect to the assertion contained in the reply to the address, and which forms the second portion of the libellous matter charged in this declaration.  If it had been true - as it is undoubtedly and impudently false - that the plaintiff's journal is not read by any respectable person, and ``man of character or common respectability," as it states, why has no attempt been made at justification?  Gentlemen, both of the allegations charged in the declaration were well known to be impudently false, and, therefore, no justification could have been offered.  The only issue, then, which you have to try, is, did the defendant publish the matter complained of, and is that matter libellous?  As I have already stated to you, you might have had another issue to try, namely, the truth or falsehood of these imputations; for, if the truth had been in issue, and proved before you, the defendant would be entitled to your verdict.  No plea of justification, however, has been put in; and here, gentlemen, I would call you attention to the different line of conduct pursued by the plaintiff, in affording the defendant an opportunity in affording the defendant an opportunity of giving the truth in evidence, than has been adopted towards him on similar occasions; - an opportunity which, if it had been afforded him, might, in all probability, have prevented his being now immured in a dungeon.  No doubt can exist in the mid of any individual who reads it, that the aim of this publication is to lower and degrade the plaintiff, and to convey a hint to those who expect favours in a certain quarter, to discontinue receiving the plaintiff's paper.  It is, therefore, a cowardly attempt to injure a fallen man.  Had the defendant merely treated the publication complained of as an official document, and inserted it in that part of his paper usually appropriated to such communications, there might have been some ground of paliation.  It might have been urged, that sooner than loose his own means of subsistence, the question is the ordinary course of acting in such cases; that, in fact, he had no other course to pursue, considering the situation in which he stood.  I will assume even that he did publish it under these circumstances; but, gentlemen, what he has himself done has made it all his own. - Gentlemen, this address and reply, as I have already stated to you, are not published in that part of the Gazette which is usually appropriated to official documents, but are introduced into the most fulsome piece of adulation ever penned.  To shew, therefore, that this defendant was not a mere ministerial agent, it is only necessary to draw your attention to this heap of garbage - this most disgusting piece of flattery that I, and I am satisfied any other member of the community, ever beheld.  [Mr. Wentworth here proceeded to read the whole of the leading article of the Gazette of the 7th of July last, commenting on it as he went along.]  ``At length we gratify the public curiosity by publishing an authentic copy of the loyal and dutiful address of the landed proprietors and merchants to His Excellency Leiutenant General Darling, together with His Excellency's gracious reply.  The address was presented on Saturday last, at Government House, Sydney, by a deputation consisting of the Honourable Alexander Berry, Richard Jones, Warham Jemmett Browne, George Bunn, Thomas Icely, and Alexander Brodie Spark, Esquires.  Of this address we scruple not to affirm, that never was there an occasion more loudly demanding such a tribute of spontaneous loyalty to the representative of our most Gracious Sovereign, and never was such a tribute more properly expressed, or more cordially and feelingly tendered.  The people had long witnessed the attacks of a licentious press upon the person and government of the King's Vicegerent, and had at length seen those attacks followed up by the manufacture of a thing called, forsooth, an impeachment!  They had witnessed these vile proseedings [sic] of a Jacobin press with pain, but when they found that a grave attempt was made by a solitary individual to inculpate before the high Court of Parliament their esteemed, respected, and beloved Governor, and that it has been solemnly asserted that the sentiments of the opposition journals were a faithful echo of the great bulk of the intelligent part of the community, no wonder their bosoms heaved with anger, no wonder they hastened to rescue their names from such an association, no wonder they thought it high time to march to the very presence chamber of their Governor, there and then to rebut the deadly aspersion on their characters, and to avow, in terms not to be misunderstood, their perfect innocence of any sympathy with the radical journals, and their loyal and steadfast adherence to a government under which they enjoyed all the blessings of a wise, a laborious, an upright, an impartial, a paternal (Ohe! Jam satis!) administration of their public affairs."  Gentlemen we'll drop the ``Impeachment" for the present, but just see what is said of the press by the defendant himself.  Why gentlemen, he just takes up the address and reply, and adds his ditto to the allegations of both parties.  Certainly, gentlemen, I can hardly suppose that such of you as may have participated in this noble deed, could ever have imagined that your act would have become the subject of such eulogium - of such fulsome disgusting adulation.

One would imagine that the act which called forth such praises had no parallel in history.  Even the bulletins of a great warrior, now more, and who did perform some great and heroic deeds, were never written in terms so disgustingly fulsome. - Gentlemen, I may as well read the whole of the article, as it will show you how completely this defendant identifies himself with the publication complained of.  It proceeds thus:- ``All this was perfectly natural and perfectly just.  The reputation of the whole Colony was at stake, and had these asservations been permitted to go uncontradicted as before ministers and Parliament - that New South Wales, including its respectable and educated inhabitants, was a Colony of radicals - farewell to our public character! Farewell to Ministerial, Parliamentary, and royal confidence! farewell to Trial by Jury and a House of Assembly! Farewell to the Liberty of the Press, and all the other immunities for which we have made so loud a clamour!  Botany Bay would be revived in all its pristine insignificance and infamy; we should have been branded with the odious epithet from all quarters; it would have been flying in our teeth on all public occasions; and we should have been deemed worthy of nothing but a mighty accession of fire-locks once so earnestly pleaded for by Mr. Wentworth" - See, gentlemen, Mr. Wentworth must be dragged in, even here - ``They have a House of Assembly - Trial by Jury - and a Free Press?  They - a foul nest of radical hornets, who are for ever stinging their Governor with libels and insults!  Send the villains half-a-dozen extra regiments and ships of war, and let them clip their radical wings!  But no - New South Wales is not doomed to such infamy and ruin; a noble bond of patriot have stepped forward to ward off the deadly blow thrust at the vitals of our prosperity and honour, and part of that noble band is this morning marshalled in proud array in this loyal journal.  Brave and honourable men! You have well performed your part - your king will reward you with his most gracious smile - your country will perpetuate your names to the remotest posterity, and point to you as the bravest champions, whose timely inter-position preserved her honour from the blackest stain, and her rights and privileges from the most worthless spoliation.  Your names are recorded on pillars of brass, and the record shall never be effaced or forgotten.  His Excellency's reply is worthy of one who represents the first monarch in the world.  It breaths the loftiest, purest feeling, and demonstrates, that while General Darling is conscious of his own unbending adherence tot he will of his royal master, and to the real interests of the people entrusted to his case, he can look down with utter scorn, from the lofty eminence on which he stands, upon the wildest raving of his enemies.  He who never quailed before hostile armies, and has braved the perils of cannon's mouth, is not to be intimidated by a brace of newspapers, and a parchment scroll!  His heart is made of sterner stuff than to admit of his thus playing the coward; and we unfeignedly rejoice, that the good sense and loyal feeling of our countrymen have been expressed in such a form as to give His Excellency an opportunity of asserting, not only the purity of his intentions, but the heroism of his character.  We hinted, that the names subscribed to the Address, now published, are only part of the noble band of patriots who have come forward at the critical juncture. - Another Address, not a jot behind the present one in explicit and loyal expression, and exhibiting a goodly list of respectable names, has been presented and answered, Certain points of form which we do not chose to explain, prevent our publishing it just now; but in a few days we hope to lay it before the public.  We now refer our readers to the interesting documents on which we have been commenting." - Gentlemen, such is the preface with which this publication was ushered to the world; and certainly, I do say, that articles proves, far as the address and reply have gone in impuging [sic] the character of the plaintiff, that the defendant has gone mush farther, and given his opinions con amore.  As to the character of the publication itself, I have already drawn your attention to that point; and that it is a libel, of the grossest character, is so obvious that I feel I need not labour that point.  That the tendency of those passages from the address and reply, charged in the declaration, is to impute an indicatable misdemeanor to the plaintiff, cannot be disputed.  There is a direct imputation that he was endeavouring to degrade the government, and excite disaffection among the people.  If this charge was true, it is one of the most serious character which could be prefered [sic] against any individual, and would render him liable to prosecution by information or indictment.  Gentlemen, you will also perceive that the very worst of motives are attributed to the plaintiff by the addressors.  The acts charged against him are not even alleged to proceed from an error in judgment, but are stated to emanate from the basest of motives; the sordid purpose of enriching himself at the expence [sic] of the peace and good order of society.  Gentlemen, I say, it is almost impossible that a more virulent libel could have been framed.  I certainly admit, that the defendant, in his zeal, has absolutely out-Heroded Herod, and produced something still worse; but with this exception, it is one of the aggravated libels that have ever appeared in print.  Gentlemen, the second paragraph charged in the declaration - that from the reply - I consider is still worse than the other; because it is a direct intimation to those who have any thing to ask, not to take in the Monitor newspaper.  A blow is thus aimed at the plaintiff's means of acquiring a livelihood, and one, I will say, which displayed the most base and pitiful malignity that could have been resorted to, and which will for ever be attended with that opinion which its basenessd [sic] deserve.  It was a cowardly attempt to deprive a fallen man of his daily bread, disgraceful to all the parties concerned in it, but particularly to the defendant, who ought to have had a fellow feeling for a brother editor, which would have prevented his giving insertion to so venemous a libel, instead of so abundantly aggravating it by that base production of his own which I have already read.  - Gentlemen, I am sure you must see the aim and object of this libeller without the necessity of further comment from me; and the only question, therefore, for your consideration is, as to the extent of damages you will award for so dastardly an attempt to entail additional injury on an unfortunate man who is already immured in a gaol.  I may not, perhaps, be able to prove any special damage which the plaintiff has sustained owing to this publication; but that it must have had some injurious effect, I am sure you will be of opinion with me, there can be no question.  It is impossible that a colony so constituted as this is, where the inhabitants depend so much on the favour of the government, that the hints of the government could be wholly disregarded.  The natural operation of such a hint, is palpable even from the document before us.  We have in it a proof of a certain degree of subserviency to the Powers that Be.  The alleged motive of the addressors was a certain thing, and the subject of the licentiousness of the press has actually been dragged into the address.  The tone and character of the press have not varied much within the last twelve months.  The same condemnation of certain measures, on the one side, and the same adulation and approbation on the other, have continued to be exercised; so that it is plain the subject of the licentiousness of the press was introduced into that document, because it was supposed to be a palatable topic.  But, gentlemen, what is this licentousness?  You must be all aware of the latitude in which public writers in England indulge, with respect to public men.  The Parliament, the Ministers, nay, even Royalty itself are in turn the subjects of condemnation or ridicule, and I would ask you, whether, - comparing the very severest animadversions which have been published in in [sic] this colony with the strictures of public writers on the most exalted personages of the state in the Mother Country, - they are not as milk to gall?  I contend, therefore, that, in such a state of things, the very circumstance of a body of men coming forward to write libels which they consider will be acceptable to any party, or tend to forward particular objects, demonstrates that there must be a degree of sycophancy in the colony which -

Mr. Justice Dowling here interposed; and stated that he could not permit the motives of a number of gentlemen who were not in any way before the Court to be thus impugned.

Mr. Wentworth: - I intend no personal allusion to any one.  I am merely arguing from a matter of fact to prove that the publication of this libel could not have been without its injurious consequences to the plantiff [sic].  Gentlemen, as I have already stated to you, I do not know that I shall be able to offer direct proof of any positve [sic] loss sustained by the plaintiff, but His Honour will inform you, that if people will publish libels imputing crime to an individual, and having also a tendency to less his property, it is but equitable that they should be be [sic] liable in damages to the probable amount of the injury inflicted.  As I before observed, it is quite obvious the defendant knew that such a publication was not justifiable, from the course he has adopted.  He has not attempted to offer any evidence of justification, and so far his conduct amounts to an admission that he has without cause libelled the plaintiff.  And, gentleman, when you consider that this defendant was treading on a fallen man, ad endeavouring to diminish his means of subsisting a young and numerous family of females exposed to all the inconveniences and dangers attendant on a motherless state, in addition to the circumstance of their father being confined in a prison, perhaps for years, I am sure you will consider that he is entitled to some compensation at your hands, and that the full amount of the damages laid in the declaration will be a very inadequate sum, considering the quantum of injury which such a publication is calculated to entail on any individual against whom it might be levelled.  Gentlemen, with these observations, I shall leave the case and proceed to call witnesses to support the averments in the declaration, confident that my client must obtain a verdict at your hands.

The following witnesses were then examined on behalf of the plaintiff:-

Mr. George William Newcombe. - I am a clerk in the office of the Colonial Secretary; I produce a copy of the Sydney Gazette, dated the 7th of July last, filed in the office under the provisions of an Act of Council; it bears the signature of ``R. Mansfield, Gazette-office, George-street;" from the imprint it appears that the paper is edited, printed, and published, by him for and on behalf of the Executors of the late Robert Howe, deceased; I also produce on affidavit of the defendant, sworn before the Colonial Secretary, in which he declares himself to be the sole editor of the Sydney Gazette; it is my duty to receive the copies of newspapers filed in the Colonial Secretary's Office pursuant to the Act of Council; this paper was delivered to me by the usual messenger from Gazette-office; I do not know the defendant's hand-writing.

A witness was here called who proved the signature to the affidavit above referred to; and also the signature and address on the Gazette to be in the handwriting of the defendant.

Mr. James Bradley. - I know the plaintiff in this action well; he is the editor of the Sydney Monitor newspaper.

Dr. Wardell objected that this was not the proper mode of proving the very essence of the averment, namely, that the plaintiff was editor of the Sydney Monitor.  In this, as in all other cases, unless it were admitted or, shewn by the declaration of the opposite party, an averment of this nature must be proved in one way or another; as in the case of a person described as a physician, the diploma must be produced.  Now the best proof would have been the document executed by the plaintiff, and registered in the Colonial Secretary's Office, as editor of the Monitor.  The witness might be right in supposing the plaintiff to be editor, but that proves no more than that he is de facto editor.  But the plaintiff must do more than this to become a legal editor.

Mr. Wentworth replied, and contended that proof of the defendant having acted as editor was sufficient to satisfy the averment in the present declaration.  In the case cited by the learned Doctor, namely, that of a person described as a surgeon or physician, he submitted that it was not necessary to produce the diploma.  Proof of having acted in either capacity was sufficient to support the averment.

The learned Judge was of opinion, that proof of Mr. Hall having acted as editor was sufficient in the present case, wherein he was plaintiff, though it would not be sufficient if it went to criminate him.  In the case of the King, at the relation of James Laidly Esq. Against Mr. E. S. Hall, it had been already held that proof of that gentleman having acted as Deputy Commissary General was sufficient.

The examination of the witness was then proceeded with: - I have seen the plaintiff act as editor, and have heard him acknowledge that he was so; I know that he is now I gaol on account of being the editor; I have known him to act as editor, I am sure, for upwards of twelve months; I consider that he is the proprietor and publisher also; I have read the matter charged as libellous in the present action; I consider the word ``writers," in the paragraph commencing - ``Yet it has been with deep regret," &c. to apply to the editors of the Monitor and Australian; I do not think that in the word ``press" the writer intended to include the Government journal; I think he excepted that in his own mind; the word ``press" I consider is used as a figurative expression, meaning the writers, because the mere inert matter of the press could do no harm, unless put in motion by the hand of man; I consider the words ``these journals," in the paragraph commencing - ``These journals have laboured incessantly to propagate a belief, &c." apply to the opposition journals, the Monitor and the Australian.

Cross-examined.  - I am a schoolmaster in Sydney and also a householder; some people give me credit for being a bit of a politician; I don't know whether I have been dubbed a patriot, but I consider that I am one; the last popular act I did was to become a surety for one of the incarcerated editors, but I think it a pity that somebody else did not do it.  I have frequently performed similar acts of liberality, and have often suffered through them, but I think a true patriot ought to change situations with the oppressed; I admire some of the sentiments of the Monitor; I have seen his comments on this publication; [papers put into witness's hand] these are editorial comments on he address and reply, which are interspersed with them; I consider the matter charged as libellous to apply to the editors of the Monitor and Australian, share and share alike; do not think the editor of the Monitor deserved the most of it; I cannot opportion the amount of censure that each of the editors should appropriate to himself; both were censured by the law, inasmuch as both were incarcerated for libels, or supposed libels.

Mr. Wentworth objected to evidence of this nature being gone into under the plea of the general issue.

Dr. Wardell contended, that the questions put by him arose out of the examination in chief, in which it was stated that the plaintiff was in gaol for being an editor.

The learned Judge was of opinion that the evidence ought to be received, not by way of justification, because editors of newspapers were not to be suffered to abuse each other any more than other people, but in mitigation of damages.

Witness - I call to see the plaintiff sometimes; he is in gaol, and I have heard from himself that he is imprisoned for libel; I came to this Colony in the year 1817; I do not see that any distinction is made in this publication between the editors of the Monitor and Australian; I can draw no line of distinction between them; I think they have equally suffered for the public cause.

Re-examined - I think, being in gaol, they were dealt rather hardly with in this publication; I am of opinion it was too much for them to endure the punishment of the law and the lash of the press at the same time.

To a Juror - I does not come within my knowledge whether the plaintiff lost any subscribers owing to that publication particularly.

Mr. William Bart - I am a merchant, and reside in Barrack-lane, Sydney; I know the plaintiff in this action; I have read the paragraph in a certain publication, purporting to be an address from the landed proprietors and merchants of New South Wales, to the Governor, commencing with - ``Yet it is with deep regret, &c." and I consider the word ``writers" to mean, not only the editors, but the writers in the opposition papers; from what I have heard, I understand the plaintiff is the editor of the Sydney Monitor, and I consider the sentence including word ``writers" alludes to him among others, as editor of that paper; I consider that the whole of the three papers come within the word ``press," in the paragraph commencing with the words - ``The press has undoubtedly indulged itself to a most licentious and criminal extent, &c." it takes in the three papers, but I should suppose it was it was intended to comprehend only two, namely, the Monitor and the Australian; the word ``journals," in the paragraph commencing; ``these journals have laboured incessantly to propagate a belief, &c," I should suppose, mean only the Monitor and Australian.

Cross-examined. - I should suppose that the first paragraph includes all the writers for the papers, but I consider that the second paragraph alludes to the editors only, as they are the responsible persons; I think the first paragraph has a more general sense, as the words public writers are used; I cannot tell how much of this publication each of the editors ought to take to himself; I read the publication jointly; I like a little asperity, now and then, in a newspaper, provided the remarks are founded in truth.

To a Juror. - I do not consider that the paragraph in the document purporting to be a reply to an address, applies to one editor more than the other.

William O'Neil. - I am clerk in the Monitor newspaper office, and have been so for nearly three years; the plaintiff is editor, publisher, and Proprietor of that journal, and was so on the 7th of July last; I am acquainted with the list of subscribers to the Monitor; I know those whose subscribed in July last.

Q. - Did you happen to have among them any man of character or common respectability?

Mr. Justice Dowling. - Oh! Mr. Wentworth, you are not bound to prove the falsehood of your alleged libel.

Witness. - I remember the address and reply published in the Gazetta; I think the word ``journals" in the paragraph commencing; ``These journals, &c" means the Monitor and the Australian, and that the paragraph casts a reflection on the subscribers to those papers; some subscribers resigned after this publication, but I cannot say that it was in consequence of it; I perceive, on referring to the list, that there were several resignations within a month after; I have read the address and reply, but I cannot say whether the subscribers to reaign [sic], as they did not mention their reasons; I did not pass a thought on it at the time.

Cross-examined. - There were resignations both before and after this publication; I recollect the scarcity of cash being assigned as a reason for dropping one number of the Monitor weekly, but I think that was prior to this publication; I am no politician, and I cannot, therefore, say whether people do or do not like a little tartness in a newspaper, or a little spice; I cannot say that I have, myself, any partiality for a spicy article, or whether, now and then, it makes a newspaper sell.

Re-examined. - The Monitor newspaper is a source of very considerable profit to the plaintiff; he had a great number of subscribers.

This was the plaintiff's case.

Dr. Wardell here took a legal objection to the declaration, which he stated was clearly defective, for want of special counts; inasmuch as it charged the publication as of and concerning the plaintiff, as editor of the Sydney Monitor, whereas in the publication itself there was no application to any one whatever.

Mr. Wentworth replied

The Court held, that, if there was anything in the objection, as it appeared upon the record, it might be raised, if necessary, at another stage of the proceedings, in arrest of judgment.

Dr. Wardell then addressed the Jury on behalf of the defendant. - This is something new, gentlemen.  We all know this is the land of novelties; but of all the novelties which the Colony has yet exhibited, the greatest novelty are the proceedings of this day, gentleman.  Really, for my own part, looking at this case in any point of view, I could scarcely believe my learned friend on the other side serious in bringing such a case forward; and I find considerable difficulty even now in supposing him to mean seriously to place such a publication as this before you, and designate it a libel of and concerning the plaintiff; or that he has been doing anything else to-day, but amusing you and me, gentlemen.  Why, gentlemen, if the publication really referred to the plaintiff, instead of to him and another, as the witnesses have told you, I ask you whether it is not calculated to do him a great deal of good? - whether it is not, in fact, an advertisement for his journal, gentlemen?  Gentlemen, instead of imputing very serious offences to the plaintiff, this publication was calculated to increase the circulation of his paper.  You are told, gentlemen, on the other side, that the plaintiff's great demerit in the eyes of certain parties, is his practice of shewing up the oppressors of the Colony; and if this be really so, will it be contended that it was dong him an injury - nay, will it be contended that it was not doing him good to proclaim to the public the fact of the existence of so patriotic a journal, and shew them where they might find a vent for their wrongs.  Surely, gentlemen, this is no libel.  The case, however, has not yet been brought before you on its real merits.  You have been told that the parties plaintiff and defendant, are rival editors, and I ask you whether it does not stand to common sense or common reason that such parties, with respect to each other, are, in a great measure, very differently situated from others.  Gentlemen, I admit, and the law holds, if one editor will follow another into private life, and inputs to him the commission of improper acts, wholly disconnected with his public character, he is equally entitled to the protection of the law with any other individual.  But, Gentlemen, I ask you whether any thing of such a nature is to be found in this publication?  And, even supposing the plaintiff could derive any benefit in this action, from proof of its applicability to him particularly, I ask you where we have any such proof, or whether the evidence does not go to shew that it refers to all the writers in the opposition journals, or, at least, equally as much to the editor of the Australian as to the plaintiff?  Gentlemen, how are you to assess your damages?  How will you apportion the precise quantum of censure to which each of these editors, in your opinion, is entitled?  But Gentlemen, the law holds that the publications of one public writer are open to the severest criticism, particularly of another public writer; that even an attack of the very grossest kind, so long as it reflects only on the character of the particular publication, and does not follow the author into private life, shall not subject the writer to the consequences of an action.  Gentlemen, I ask you what more has the defendant done than this?  Is the publication, the subject of this action, any thing more than a criticism of the plaintiff'' writings (supposing it to apply to him) and an opinion of their general tendency?  In the case of Harewood versus Steward, in Espinasse's reports, the declaration charged the defendant with writing of the plaintiff's newspaper, that it was the ``most vulgar, ignorant, and scurilous journal ever published in great Britain;" and yet these words were held not to be libellous, though they were obviously calculated to strike at the very root of newspaper profit - the advertisements - by checking the circulation.  Why, if any thing had a tendency to injure a newspaper it would be this, not merely stating that it took a licentious range; - a character which, we all know, was giving this plaintiff's journal a pasport to the hands of every body.  It is different when such terms as those which I have read to you are applied to a publication; because there was a tendency, by restricting the circulation, to deprive the plaintiff of his chief support arising from the advertisements.  But, gentlemen, what proof has been offered of the general tendency of the plaintiff's writings?  Why, that the law has pronounced them crimes; - that he is at this moment in gaol on account of them!  I ask you, whether the very publication complained of, signed as it is by a numerous body of persons of known respectability of character, is not, of itself, most convincing evidence to shew that it contains a fair stricture on the general tenor of the plaintiff's writings?  Why, gentlemen, if I wanted a case for the defendant, I could not have made a better one than that document to shew that this plaintiff is a licentious writer.  Before I proceed further to refer you to authorities, I would draw your attention to another part of the law of cases like the present.  Gentlemen, malice is the main ingredient necessary to sustain an action of this nature; and even where there is a presumption of malice, the defendant may negative that presumption by evidence such as I will produce before you this day, to show the general conduct of the plaintiff, the effect of that conduct, and the made with which the defendant published.  But what is the case before you?  Out of the mouths of the plaintiff's own witnesses you have been told that he is at this moment, actually in gaol, on account of the criminal tendency of his writings.  Admitting, however, the applicability of this publication to the plaintiff and the editor of the Australian; though you are told by one witness that it does not apply to them alone, but to a number of others, the reader must be supposed to know who the editors are, for it has never once been told here; and I think nothing shows the upright and candid conduct of the defendant, more than the very fact of his not having followed the plaintiff into his prison, but speaking of him altogether in the most general manner.  Gentlemen, action of this nature are more calculated to impose tramels on the press, than the severity of the law; and I am astonished that a man who pretends to advocate freedom of discussion, who is himself the conductor of a public journal, and equally liable to lapses with the defendant, should ever have brought such a case into Court.  What more is this publication than a mere article of news, published, too, (remember that, gentlemen,) in the plaintiff's own paper, and commented upon by him, which he now unblushingly brings before you as a libel of and concerning himself.  Can a man seriously seek for damages in such a case as this; at the very time, too when, so far from being able to show that he has sustained any injury from it, he is boasting of his increased circulation? - Gentlemen, it is a point of inconsistency which it is impossible for the human mind to find a reason for - I call your particular attention to this fact, and I ask you once more whether you can find any thing more in the publication than what appears upon the face of it, or any attack upon the character or conduct of the plaintiff, unconnected with his writings?  Does the defendant follow him into private life?  This, gentlemen, is what you will have to bear in mind; because so long as he keeps clear of that - the plaintiff being an editor himself - he is open to the widest range of criticism.  Here we have the recorded opinions of a number of respectable persons, who express, in fairness, the character of the plaintiff's publication; and keeping in view the distinction I have already pointed out to you, you will have to ask yourselves whether you can conscientiously say, that any imputation is thrown upon the character of the plaintiff, unconnected with is writings.  I call upon you not to tie up the press altogether, by countenancing actions of this nature.  If they were suffered to prevail, no editor could put forth any article of news, however necessary it might be to publish it, without subjecting himself to the chance of a prosecution.  I call upon you also, to look at the fact, that the plaintiff himself published the very document on which he has brought the present action, in his own journal, and mixed up with his own comments; and having availed himself of his remedy in that way, can he now have the face to come before you and ask for damages.  Gentlemen, I will not take up more of your time by any further comment.  I shall leave the case in your hands, without calling a single witness, and I am satisfied, under the direction of the Court, that your verdict will be for the defendant.

The learned Judge then charged the Jury.  His Honor, after directing their attention to the inuendoes [sic] contained in the declaration, stated that he went along with the Counsel for the plaintiff in holding, assuming the publication of the matter charged as libellous to be merely ministerial, that circumstance did not shield the defendant from legal responsibility, as he must stand or fall by his own act.  The first point, therefore, for the consideration of the Jury was, whether the publication complained of was a libel? did it impute to somebody that which is criminal, and which, if true, would subject him to punishment?  The next question was did it apply to the plaintiff?  Because, though it might be libellous as a general remark, it did not follow that it was a libel, or and concerning him particularly.  If the Jury however were satisfied on these two points, namely, first, that the publication was libellous, and, secondly, that it applied to the plaintiff, then came the next and most important question for their consideration, which was the particular situation of the parties before the Court, plaintiff and defendant.  It was in evidence that the plaintiff and defendant were public writers; and, in principle, there was some difference between parties so situated and private individuals.  They tendered themselves for criticism before the public; and so long as they were not followed into private life, or attacks made on their moral character, independent of their writings, they were not entitled to recover damages for any comments, however severe.  In the case of Sir John Carr, knt. against Hood, this doctrine was expressly laid down by Lord Ellenborough; and as it was on the principle of that decision the present case must be determined, His Honor would refer the Jury to what fell from that Noble and learned Lord on that occasion.

An action was brought by Sir John Carr, the author of several works, and among others of a work entitled the Stranger in Ireland, to recover damages for a publication, by the defendant, Hood, of a false, scandalous, malicious, and defamatory libel, in the form of a book, of and concerning the said Sir John, and of and concerning the said books of which he was the author, whereby he had been deprived of divers gains which, but for the publishing of the said libel, he would have acquired.  Lord Ellenborough, as the trial was proceeding, intimated an opinion that if the book published by the defendant only ridiculed the plaintiff as an author, the action could not be maintained.  The counsel for the plaintiff allowed, that when his client came forward as an author, he subjected himself to the criticism of all who might be disposed to discuss the merits of his works; but that criticism must be fair and liberal; its object ought to be to enlighten the public, and to guard them against the supposed bad tendency of a particular publication presented to them, not to wound the feelings and to ruin the prospects of an individual.  The object of the book published by the defendant clearly was, by means of immoderate ridicule, to prevent the sale of the plaintiff's works, and entirely to destroy him as an author.  In the late case of Tipper v. Tabart, 1 Gamp. 352, his Lordship had held that a publication by no means so offensive or prejudicial to the object of it, was libellous and actionable.  Lord Ellenborough said, in that case the defendant had falsely accused the plaintiff of publishing what he had never published.  Here the supposed libel has only attacked those works of which Sir John Carr is the avowed author; and one writer in exposing the follies and errors of another, may make use of ridicule however poignant.  Ridicule is often the fittest weapon that can be employed for such a purpose.  If the reputation or pecuniary interest of the person ridiculed suffer, it is damnum absque injuri√°.  Where is the liberty of the press if an action can be maintained on such principles?  Perhaps the plaintiff's Tour through Scotland Is. now unsaleable; but is he to be indemnified by receiving a compensation in damages from the person who may have opened the eyes of the public to the bad taste and inanity of his compositions?  Who would have bought the works of Sir Robert Filmer after he had been refuted by Mr. Looke?  but shall it be said that he might have sustained an action for defamation against that great philosopher, who was labouring to enlighten and ameliorate mankind?  We really must not cramp observations upon authors and their works.  They should be liable to criticism, to exposure, and even to ridicule, if their composition be ridiculous; otherwise the first who writes a book on any subject will maintain a monopoly of sentiment and opinion respecting it: this would tend to the perpetuity of error.  Reflection on personal character is another thing.  Shew me an attack on the moral character of this plaintiff, or any attack upon his character unconnected with his authorship, and I should be as ready as any judge who ever sat here to protect him; but I cannot here of malice on account of turning his works into ridicule.  Every man who publishes a book commits himself to the judgment of the public, and any one may comment upon his performance.  If the commentator does not step aside from the work, or introduce fiction for the purpose of condemnation, he exercises a fair and legitimate right.  In the present case, had the party writing the criticism followed the plaintiff into domestic life for the purposes of slander, that would have been libellous; but no passage of this sort has been produced, and event he caricature does nos [sic] affect the plaintiff, except as the author of the book which is ridiculed.  The works of this gentleman may be, for aught I know, very valuable; but whatever their merits, others have a right to pass their judgment upon them, - to censure them if they be censurable, and to turn them into ridicule if they be ridiculous.  The critic does a great service to the public, who writes down any vapid or useless publication, such as ought never to have appeared.  He checks the dissemination of bad taste, and prevents people from wasting both their time and money upon trash.  I speak of fair and candid criticism; and this every one has a right to publish, although the author may suffer a loss from it.  Such a loss the law does not consider as an injury; because it is a loss which the party ought to sustain.  It is, in about, the loss of fame and profit to which he was never entitled.  Nothing can be conceived more threatening to the liberty of the press than the species of action before the court.  We ought to resist an attempt against free and liberal criticism at the threshold.  His Lordship concluded by directing the jury, that if the writer of the publication complained of had not travelled out of the work he criticised for the purpose of slander, the action would not lie; but if they could discover in it any thing personally slanderous against the plaintiff, unconnected with the works he had given to the public, in that case he had a good cause of action, and they would award him damages accordingly. -  A verdict was returned for the defendant.  Upon the principle of this case, the jury were to come to a decision in the present instance.  The first question for their consideration was, whether the publication was libellous, without regard to any particular person; secondly, if so, did it apply to the plaintiff - all the witnesses having stated that it applied to two persons - and, thirdly, assuming that the publication was a libel, and that it had reference to the plaintiff, whether it was of and concerning him in his private capacity, or only in reference to his works as a public writer?  If the jury should be of opinion that the publication applied to him only in the latter capacity, they could not, on the authority of the case to which he had referred them, reasonably find for the plaintiff.

The jury retired, and after remaining out for upwards of two hours, the Foreman came into Court and stated, his brother jurors could not agree, and that there was the slightest chance of their agreeing upon their verdict.

The learned judge then directed a special bailiff to be sworn to keep the jury locked up, to allow them nothing but candles, and to keep all communication from them, until they had agreed upon their verdict, which was then to be delivered to him at his own house.

This was about 6 o'clock in the evening.  About 10 o'clock at night the jury agreed in finding a verdict for the plaintiff, damages 40 shillings.

 

 

Forbes C.J. and Dowling J., 12 June 1830

Source: Australian, 18 June 1830[2 ]

 

MOTIONS. SATURDAY. -- Today Mr. Chief Justice Forbes, and Mr. Justice Dowling took their seat, in banco; when motions were heard upon various grounds. - Hall v. Mansfield.

Dr. Wardell moved for a new trial, of the action for libel, tried last term, before Mr. Justice Dowling, and a Special Jury, who found a verdict for the plaintiff damages 40s. and costs, the libel being contained in the answer of Lieut. General His Excellency Ralph Darling, to and addressed purporting to be from certain landed proprietors and merchants, of New South Wales, and published in the Sydney Gazette, of which the defendant is the reputed editor, on the following grounds -- 1st, that the finding was contrary to law.  2nd, contrary to evidence.  And 3rd. contrary to the direction of the Judge.

In the course of a long and argumentative speech, the learned counsel strove to prove that the publication in question was justified, from the premises, and to bring it within the principle of law, as laid down by Lord Ellenborough, in the case Carr v. Hood, that if a commentator step not aside from his work, and introduce fiction for the purpose of confirmation, he exercises a fair and legitimate right; he also contended, that though the defendant had not put in a plea of justification on the record, yet, that he was now in a situation to justify de facto, and that, the plaintiff had improperly admitted evidence to sustain special damages, no special damage being laid in the declaration.

Chief Justice. - It appears to us, Dr. Wardell, that your present line of argument goes rather in arrest of judgment, than forming any part of your motion for a new trial.

Dr. Wardell. - Yes, your Honor, I will take it either way; & the learned counsel then contended, that the words in the libel, ``public writers," and ``the press," which were taken to apply to the plaintiff solely, applied equally to the Editor of the Australian.

Mr. Wentworth on the other hand, contended for his right of notice, with regard to the second motion for arrest of judgment, into which, in the absence of such notice, he declined entering: he was prepared to argue against the motion for a new trial, of which he had notice; but on which his learned fried appeared to place so little reliance, that he had almost quitted it to take up with another.  He was at a loss to reconcile the various cases quoted by the learned counsel on the other side with the case then before the Court, there being no sufficient analogy between them.  The dogma of his learned friend, that ``public writers" are the only class of His Majesty's subjects, whose characters may be assailed without its being necessary to give them any notice that the truth of the allegations would be gone into, was nothing but a fallacious argument, on which to support a tissue of fallacies.  Libel was an offence it as impossible to anticipate, and therefore impossible to make fixed laws for; the law had therefore made juries judges of law, and of fact, and it was ludicrous in the extreme to say, that in such case, the verdict of a jury could be contrary to law.  If in the words ``public writers," or the ``press" the libel also included the editor of the Australian, it still applied to the plaintiff, and equally so if it included 500 others: and even had the innuendo in the plaintiff's declaration, not been supported by evidence on the trial, yet it was competent to the Jury to frame their own conclusion.  The ground of objection, that the verdict of the Jury had been contrary to the implied charge of the Judge who tried the case, was not borne out by fact, for the case was put on the principle raised in that of Carr and Hood; and the jury found that publication had reference to the private character of the plaintiff; for to impute the the [sic] authorship of a number of libels to the plaintiff, was to impute the commission of a misdemeanor, and therefore cast a stain on his moral character.  Finally, had evidence been improperly adduced to prove special damage by the plaintiff, it behoved defendant's counsel to have objected tot he admission of such evidence on the trial, and not to bring forward, at the twelfth hour, and make that one ground of objection, whereon the Court ought to grant a new trial, to award which, he (Mr. Wentworth) felt confident the Court could discover no just cause whatever.

The Court deferred pronouncing judgment and directed the defendant to amend his notice, in order that the motion in arrest of judgment might be argued, previous to a full consideration of the whole case by the Judges, and before the Court should pronounce its decision.[3 ]

 

 

Forbes C.J. and Dowling J., 19 June 1830

Source: Sydney Gazette, 22 June 1830[4 ]

 

In this case, which was an action for libel tried last term, an application was made by the defendant for a new trial, on ground set forth in the notice.  The Court after hearing the arguments of Counsel on Saturday last, reserved its judgement till this morning, when it was pronounced immediately after the opening of the Court:-

The Chief Justice. - This was an action on the case for libel; tried last term, in which a verdict was returned for the plaintiff, and damages assessed at forty shillings.  On the 12th of June an application was made, under the rule of Court, for a new trial on several grounds set forth in the notice, and which were in substance, first, that the verdict of the jury was contrary to law, inasmuch as the paper in which the publication complained of appeared was a newspaper, and had merely contained strictures upon the writings of the plaintiff in another newspaper; second that the verdict was contrary to the evidence, all of which went to point the matter charged as libellous to the writings of the plaintiff, altogether disconnected with his private character, and thirdly, that it was contrary to the summing up of the learned Judge who tried the cause, his opinion being that the matter charged was not libellous upon the evidence.  In bringing my mind to a consideration of this subject, in order to decide whether a new trial ought to be granted, I am materially impressed by the opinion of the Judge at the trial, because he must have a better view of the whole of the case than can be obtained by the Court, from the effect produced by the mere reading of the evidence at a subsequent stage of the proceeding; and, therefore, when a Judge who tries a cause is dissatisfied with the finding of the jury, it always weighs strongly with the Court in inducing it to grant a new trial.  His Honor (Mr. Justice Dowling) read his notes of the evidence as minuted by him at the trial, and I have also collected from him that his opinion did incline against the finding of the jury.  Now, it is certainly a delicate matter to interfere with the verdicts of jurors, especially when they are founded upon evidence affecting private character; but it has been well observed, that there would soon be an end of trial by jury if there was no power of reversing their verdicts whenever they may be contrary to law and to the general bearing of the evidence.  In the present case, from the notes of the evidence which have been read to the Court, I must say, that my opinion coincides with that entertained by the learned Judge at the trial, that there is a wide distinction between the character of the plaintiff as an editor of a newspaper, and his private and personal character; and that the libel charged in the declaration in this case referred to the plaintiff's character as Editor, and not to his character as a private individual.  Indeed, I observe that all the witnesses who have been examined as to the meaning and application of the passages charged in the declaration, speak of it as alluding to the plaintiff as the Editor of a newspaper.  The witness Bradley, especially, as I have minuted his evidence stated that he considered the matter referred to the press of the Colony - to the opposition journals, - and that it alluded particularly to the plaintiff, as Editor of the Sydney Monitor.  The two other witnesses also spoke to the same effect; so that, in fact, there was no evidence whatever to connect the expressions charged as libellous with the plaintiff, in his private, but altogether with his editorial character.  Indeed the very declaration upon which the verdict, in this case has been founded, distinctly points the words as alluding to the plaintiff as Editor of the Sydney Monitor.  This being the case, then, the question is fairly raised, whether the defendant, he being also the editor of a newspaper, had transgressed the bounds of public stricture, and travelled into the private character of the plaintiff.  This distinction is clearly laid in the case of Carr and Hood, and, I apprehend, is also founded in good reason, as well as universal practice in every part of the King's dominions where the British laws are administered, that when a writer puts himself upon the opinion of the public, the public or any individual of it has a right to criticise his writings, and if he considers them to have a dangerous or immoral tendency, to say so.  A newspaper is like a work, only obtaining a greater circulation; therefore, if the editor of another publication thinks that the writings contained in it have a tendency to degrade the government, or to injure the moral government of society, he unquestionably has a right to criticise those writings, and to express his opinion upon them, in order to guard the public against their effects.  Every member of the community not only possesses the right do this, but it is his duty to do so, if he really believes that a particular publication is of an immoral or dangerous nature; and the question, therefore, is this case, as in the case of Carr and Hood, is, whether in the matter charged as libellous the defendant has followed the plaintiff into private life for the purpose of slander, or had published any thing personally slanderous against the plaintiff unconnected with the works he had given to the public.  This is the line of demarcation, and the principle on which all criticisms on public writings mnst be dealt with.  Now, it is clear, in the case before the Court, that the plaintiff and defendant are editors of newspapers, and that the one, alluding to the writings of the other, and conceiving them to have a bad tendency endeavours to conteract it by an expression of his opinion to that effect in his own paper.  I apprehend that the defendant had a right so to do, and the true distinction, therefore, is, whether he has merely done so, or whether he has followed the plaintiff into private life for the purpose of slander; because, if he had not done so - or if he has not stepped aside from the work and introduced fiction for the purpose of condemnation, he has only exercised a fair and legitimate right.  The learned Judge who tried the case put it to the jury on this distinction; there was no evidence whatever that the matter charged as libellous had reference to the plaintiff in his private capacity; on the contrary, all the testimony went to show that it alluded to him as the editor of a newspaper, and, therefore, I am of opinion that the finding of the jury was not only contrary to law and to the opinion of the learned Judge, but against the whole force of the evidence which was adduced in support of the case.  Upon these grounds therefore, I am of opinion that a new trial ought to be granted.

Mr. Justice Dowling.[5 ] - This was an action for a libel published in the Sydney Gazette newspaper, of which the defendant is editor, ``of and concerning he plaintiff as editor of  the Sydney Monitor newspaper."  The declaration contained two counts.  In the first the matter set forth as libellous was this; ``Yet it has been with deep regret that we have long observed every measure of your Excellency's grossly vituperated by licentious public writers, in a manner calculated to inflame the minds of the lower orders of the community against your Excellency's administration, and to produce discontent and insubordination amongst the prisoners of the Crown, for no other purpose than to promote the interested views of such writers."  Another passage set forth in the same count was in these terms: ``These journals have laboured incessantly to propagate a belief that they are the voice of the public, well knowing that they are not countenanced by any man of character or common respectability."  In the second count the matter set out was:- ``The Press has most undoubtedly indulged itself to a most licentious and criminal extent in its endeavours to degrade the government, and excite public discontent.  None but the ignorant, however, the slaves of popular clamour, have been deceived by the specious garb - `the freedom of discussion', - which these writers have assumed."  To the several matters thus set out, there were innuendoes pointing their application to the plaintiff, and to the editor of the Australian newspaper.  At the trial before Dowling Justice and a Jury of twelve gentlemen empannelled under the late Act of the Governor and Council, it appeared that the defendant was the editor, printer, and publisher of the newspaper, in which the alleged libellous matter was contained, and that the matter alleged to be libellous applied to, and was pointed at, the plaintiff as the editor, printer, and publisher of the Sydney Monitor.  The Judge told the Jury that maliciously to impute to a man the publication of a libel, was itself a libel, because, according to one definition of a libel, it imputed a misdemeanour, which might be prosecuted criminally.  He further stated that the private character of a public writer was as sacred and as much under the protection of the law, as the character of any other subject of His Majesty.  If therefore, the Jury could collect from the matter charged to be libellous, that the private, personal character of the plaintiff was maliciously assailed, they might regard it as a libel, and give damages proportioned to the injury sustained.  On the other hand, if they were of opinion that it did not apply to his private personal character, but was merely a free, and even severe criticism and opinion, upon the character of his writings as the Editor of a newspaper, then the action was not maintainable.  The Jury found for the plaintiff, damages forty shillings.  On a former day in this term a motion was made on the part of the defendant for a new trial, substantially on the ground that the matter charged as libellous did not on the face of it import damage to the plaintiff, it having no reference to his private personal character, but being merely a commentary of and concerning his writings as the editor of a newspaper, that the verdict of the Jury was contrary to the implied direction of the Judge who tried the cause, that the publication which was the subject of the action was not a libel.

Since this matter was discussed I have fully and maturely considered the case, and am of opinion that there ought to be a new trial granted.

I should be unfeignedly reluctant, in any case, to interfere with the proper province of the Jury, especially where they had honestly and uprightly pronounced their judgment on a matter submitted to their consideration; and in expressing my opinion that in this case there ought to be a new trial, I do so distinctly upon the principle that, however honest the conclusion of the Jury, it was erroneously drawn from the matter submitted to them in evidence.  In this case the Jury were told that if they could collect from the evidence that the matter charged to be libellous was calumnious of the plaintiff's private personal character, then if the matter was published maliciously of him, he would be entitled to damages proportioned to the injury sustained.  This was a question of fact to be determined by the evidence.  How looking at the matter charged to be libellous, there is not the slightest  allusion to the plaintiff personally or to his private character; and all the witnesses called on the part of the plaintiff, stated that they understood the matter as plaintiff, stated that they understood the matter as pointing to the plaintiff in his capacity of  Editor of the Sydney Monitor.  In the absence, therefore, of all proof either from the matter itself, or from intrinsic evidence, that the alleged libel applied, or could possibly be understood to apply to the plaintiff personally and privately, can we say that the Jury have drawn a correct conclusion from the evidence?  That conclusion ought to have been rightly drawn before they could apply their minds to the question whether the matter was really libellous.  The Jury were further told by the Judge, that if the alleged libel was published merely of and concerning the plaintiff as a public writer, without reference to his private and domestic character, a free, fair, and even harsh commentary upon his works, was properly within the legitimate province of a contemporary writer on subjects of public discussion, and that the just liberty of the press sanctioned and protected such a publication.  This direction would, I apprehend, require no other sanction than the common sense and understanding of all mankind, without any decided authority upon the subject.  But the principle of this direction will be found to be supported by the opinions and dicta of very learned, enlightened, and constitutional Judges; I speak of Lord Kenyon, Sir James Mansfield, Lord Ellensbrough, and Sir Vicary Gibbs.

If it be regarded as a sound maxim, applicable to the state of a free and enlightened nation, that public opinion is the legitimate foundation of political government, and if this maxim is claimed as applicable to the condition of the inhabitants of New South Wales, who are by the wisdom of Parliament placed under a peculiar system of local government, considered to be wisely adapted to the elements of the society in which we live, I apprehend that no man as a public writer, however zealous he may be for the right of free discussion, can gracefully come into a Court of Justice to seek a compensation in damages for the castigation of another public writer, who fairly meets him on the arena of discussion, guiding in the highway (according to his notions,) the public opinon [sic] upon subjects of common interest to the community in which both live, and of whose labours, society alone are the competent judges.  A Court of Justice is not the proper tribunal to determine the professional grievances of public writers.  They have a tribunal of their own.  They must stand or fall by the judgment of public.  If a public writer lives by discussion of public transactions, he tenders his opinions for public criticism, and animadversion, and if his conceptions are written down or harshly handled by an adversary in the same vocation, the law of libel ought not and cannot afford him protection.  It appears to me that it would be a misapplication of the province of a Court of justice to entertain a complaint of such a nature between such parties.  Such an action as this, for such a cause and between like parties I will venture to say, was never heard of in the Courts of Westminster Hall.  From a personal knowledge of those Courts for 25 years, during perhaps the most eventful period of the history of mankind, and in which the most unbounded latitude of vituperation between public writers was indulged, I have no hesitation, in vouching, that no such action between such parties for the like cause was ever thought of or considered tenable in a Court of Justice.  Shall we then, in this country, and bearing in mind its living history (and we cannot shut our eyes to it,) and give countenance to an action of this description?  If the liberty of the Press is to be indulged to its utmost latitude in this country, it must be subjected to the like rules of Government which obtain on this subject in the mother country.  Without delivering any opinion as to the character or quality of the particular publication in question, but regarding the professional vocation of the several parties to this record, and the nature of the cause of action, I think this court ought not to entertain an action brought by an editor of a newspaper against another for any criticisms upon his writings, or on the spirit and manner in which his newspaper is conducted.  A precedent of this kind would lead to the most inconvenient and troublesome results.  It would at once strke [sic] at the root of what is called 'the liberty of the press," and the court would teem with actions by one editor against another, for the opinions published each of the other's writings in his professional capacity.  On these broad grounds I am of opinion that a new trial ought to be granted. -  New trial granted.

 

Notes

[1 ] On this case, see also Australian, 2 April 1830.  This was the first of three libel actions taken by the editor of the Monitor against the editor of the Gazette and heard on 1, 2 and 3 April 1830.  The others are Hall v. Mansfield (No 2), 1830 and Hall v. Mansfield (No 3), 1830.  Reports of the latter two were taken from the Australian, to show the contrasting styles of law reporting at this time.

See also Dowling, Select Cases, Vol. 2, Archives Office of New South Wales, 2/3462, p. 300, which commences with the following note: "Where a Counsel in addressing the Jury for Defendant in a case of libel where both parties were public writers and the Counsel adverted as part of his speech to passages in publication of the Plaintiff Dowling J. refused a General reply to Plaintiffs Counsel."

[2 ] For a fuller account of the argument, see Sydney Gazette, 15 June 1830.  See also Dowling, Select Cases, Vol. 2, Archives Office of New South Wales, 2/3462, p. 321, which commences: "Under a motion for a New Trial a motion in arrest of Judgment cannot be heard without consent."

[3 ] The Australian, 18 June 1830, then stated that appeals in the other prosecutions of Mansfield (R. v. Mansfield (No 2), 1830 and R. v. Mansfield (No 3), 1830) were stood over until the result in this was reached.

[4 ] The judgment of Forbes C.J. was also recorded in similar terms by Dowling, Proceedings of the Supreme Court, Vol. 39, Archives Office of New South Wales, 2/3222, p. 171.  See also Dowling, Select Cases, Vol. 2, Archives Office of New South Wales, 2/3462, p. 325, where the principle was recorded as follows: "The Editor of one Newspaper cannot maintain an action against the Editor of another for a libel where the alleged libel has reference soley [sic] to his writings and the spirit in which his journal is conducted sed aliter where the cause of action is an attack upon his private personal and domestic character."

[5 ] This version of his judgment apparently had the approval of Dowling J.  He pasted it into his, Proceedings of the Supreme Court, Vol. 39, Archives Office of New South Wales, 2/3222, p. 174.

Published by the Division of Law, Macquarie University