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

Hall v Rossi and others [1830] NSWSupC 16

magistrate, action against, supervision of inferior courts, trial by jury, jury, military, Jane New's case, convict service, withdrawal of, press freedom

Supreme Court of New South Wales

Dowling J., 15 March 1830

Source: Sydney Gazette, 16 March 1830[1 ]

 

(Before Mr. Justice Dowling)

MONDAY, MARCH 15th.

Hall v. Rossi Esq. and others, Justices of the Peace.

This cause came on for trial this morning, before a Special Jury.  After the Jury had been sworn, and before the case was opened, Mr. Justice Dowling, addressed them to the following effect:-

Gentlemen of the Jury,

This being the first occasion that a Judge of the Supreme Court of Australia has been called upon, by express enactment of the Legislature, to administer justice after a form and manner, coeval with the most ancient institutions of Britain, the occurrence is too remarkable to be passed over without some note or observation.[2 ]  In the progressive advancement of this remote settlement of the British Crown in the scale of Colonial importance, it is not possible to regard with indifference an event so interesting in the annals of the Southern hemisphere.  Accustomed as I have been from earliest infancy to reverence as holy, all the institutions of my native land, I cannot refrain, as a man, from congratulating you gentlemen upon the inoculation of this great Southern continent with an institution - the proudest, the most useful, the most venerated of all that the freest nation on earth can boast; but even as a Judge - (the frigid expositor of the law), I cannot abstain from hailing with gratulation the introduction of a system which places the Judges of this Court upon a proper constitutional footing with their fellow subjects in the sacred Temple of Justice.  I doubt not that you gentlemen, and every subject of the Crown in this country justly appreciate this important epoch, involving in some degree as it does the interests of the British people in this territory, and influencing as it undoubtedly must, the character of those generations of mankind who shall successively inhabit the shores of Australasia.  `Tis in this latter point of view that this event claims to be signalized with something like enthusiastic celebration.  No less interest, however, is attachable to it in the present age, from its importing, on the one hand, the parental solicitude of His Majesty for the welfare of his people in all climates; and on the other, the ameliorated character of the inhabitants of this distant settlement.  Of the former, no doubt could ever have been entertained by any man born under the sway of the British sceptre; - the latter must, and I sincerely hope and expect, will be confirmed by the manner in which this sacred institution shall be received and preserved.  Upon the conduct of those who are to exercise the office of Jurymen, must depend the character, the usefulness, the inviolability of Courts of Justice.  Whether it be regarded as a privilege or a duty to aid in the administration of justice (and doubtless it must be esteemed as both by every man who sets a proper value upon himself in society) the preservation of this faculty can be concurrent only with the manner of its exercise.  Whatever gratification eligibility for serving this important office may be supposed to afford individuals in this country, there is no doubt that the obligation of performing it is not less onerous than imperative.  The only apprehension to be entertained is, that the privilege conferred may not be considered commensurate with the burthen imposed.  But I trust there may be no occasion to awaken in any man's bosom, in this country, whatever may be his station, a just sense of the duty which he owes to that society of which he is a member.  Above all, I earnestly hope there may be no necessity for deprecating disinclination in any man to take his seat in that box when called upon, from any motive of relative distinction of persons.  The law recognises no distinction in the individuals who shall be actually nominated for this important public service; and it must occur to the good sense and to the patriotism of every man, whatever his grade may be, that he should not suffer his usefulness to be neutralized by any private consideration of taste or liking.  This suggestion is sufficiently intelligible without further explication.  It is not, I am sure, necessary to intimate the probability, that indulgence in such a motive, if it should be found to exist, would deeply affect the administration of justice.  Certainly in this Court no disposition will, I persuade myself, be found to relax the obligation which the law imposes in this respect; and it would be equally foreign from the mind of a British Judge to cherish or give countenance to a feeling so detrimental to the true end and purpose of this admirable institution.  To preserve pure and inviolable the sources of public justice, must be a desire common to all men.  Upon the religious maintenance of this principle, the safety and happiness of man in a civilized state entirely depend.  To this end, (to express the sentiment of the greatest philosopher and philanthropist of this most enlightened age) all human institutions ought to tend.  The surest guard against the infraction of this principle will be found in the honest and upright administration of the Jury functions.  In the maintenance of this principle I doubt not that all men upon whom these functions shall be cost, will join with hearty zeal, irreproachable integrity, and unconquerable fortitude.  Upon these grounds alone can this system endure, or be regarded as a blessing to the community.  Parliament in its wisdom, has vested the Supreme Court with the power of awarding or refusing a trial by Jury in civil causes ``as the justice of each particular case may seem to the Court to require."  Delicate as the Judges feel the exercise of this power to be, it must be understood, and will be expected, to be exercised, like all similar powers, in a soundly discreet manner, - not arbitrarily and without rule, but upon a just consideration of all the circumstances likely to attend, and the consequences which may reasonably be expected to flow, from the concession of this mode of trial.  When granted, it must be a matter of deep interest to the Judges that they should be exempted from the reproaches of their own consciences, and the censure of all wise and honest men, by the integrity of those to whom the province of the Jury shall be assigned.  In the trust and confidence that they shall not be disappointed in these their expectations, the Judges have on this occasion assumed to exercise the powers delegated to them by the Legislature.  Gentlemen, although, I esteem this first formal introduction of the Jury system into the civil administration of Justice in the Supreme Court, as an event claiming even judicial commemoration, and have thus noticed it, with some (I trust, not unbecoming) warmth, let it not be understood that what has fallen from me, is meant in any degree to derogate from the honor, the integrity, the usefulness of that body of gentlemen who have hitherto discharged, and are yet liable to discharge the onerous duties of assessors.  The public of this country owe a debt of gratitute to these gentlemen which it is impossible can even be cancelled.  Praise of them, from this chair, would almost imply censure - for, to honourable minds, commendation upon such a subject could not be complimentary; but it is due to justice that on this occasion, I should thus publicly bear my humble testimony, in common with my learned colleagues, to the meritorious claims upon public thankfulness which are due for the uupurchased services of the magistracy of this territory.  During the time that I have had the honour of assisting my learned and enlightened brethern in the administration of the judicial office, I can truly say, with them, that the anxiety of our duties on this side of the Court has been greatly mitigated and considered by the intelligence, experience, and upright integrity of those gentlemen upon whom the duties of assessors have been devolved; and I am bound conscientiously to say, that if it were contemplated that this settlement is never to political importance, I should desire to see no change in the Constitution of the Supreme Court - convinced, as all candid persons must be, that in general, justice is as purely and satisfactorily administered under the present system, as it is in the nature of human institutions to effect.  The congratulation which I now offer you gentlemen, on this experimental introduction of Trial by Jury, is founded upon a devoted attachment, to a devout veneration for, the principle of an institution which has had the experience of ages to approve its wisdom and utility.  The extention of it to this country, under circumstances of peculiar difficulty, (which have rendered great caution and circumspection necessary, is an unequivocal manifestation of the paternal and considerate wisdom of His Majesty's Government; and may be esteemed as an assurance, that as soon as the people of this country are in a fit state, duly to appreciate, and properly to exercise the rights and privileges of the British Constitution, His most sacred Majesty, and the Parliament of the United Kingdom, by whose Laws we must all be implicitly governed, will feel no hesitation in admitting us within its pale.  The experiment now remaining to be tried, how this first, and best of its institutions may be safely ingrafted upon the present constitution of Australia.  The interests of posterity, and of the British Character on this side the globe, are deeply involved in the experiment.  Keeping your hearts and minds in the knowledge and love of truth and justice, I invoke you to enter upon the discharge of your duties, in a frame and temper of disposition, which shall render this mode of trial beneficial to this community, and its determinations respected by mankind.[3 ]

Owing to the late hour at which the trial terminated, we are unavoidably compelled to carry over the report to our next.

 

 

Source: Sydney Gazette, 18 March 1830[4 ]

 

MONDAY, MARCH 15th,

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

Hall v. Rossi, Esq. and others,

Justices of the Peace.

This was an action of trespass on the case, brought to recover damages, for a malicious conviction of the plaintiff for harbouring an alleged runaway prisoner of the Crown, by the defendants, F. N. Rossi, W. J. Browne, G. Bunn, and E. Wollstonecraft, Esqrs.  Magistrates of the Territory.

Mr. Keith opened the pleadings, and stated, that the plaintiff's Counsel had entered a nolo prosequi in the case of one of the defendants, Mr. Wollstonecraft.

Mr. Wentworth stated the case.  After the elaborate address of the learned Judge, [published in our last] in which the importance of Trial by Jury, and the duties of Jurymen were so fully developed, it would be presumptuous in him (Mr. W) to travel over the same ground.  Still he could not refrain from congratulating himself, the gentlemen of the Jury, and the Colony at large, on the int[r]oduction of trial by jury in the ordinary proceedings of that Court.  Gentlemen, said the learned counsel, you are however not the first jury which I have had the honour of addressing in this Colony.  Under the old Act of Parliament, it was competent to this Court to grant a jury for the trial of civil issues, if both parties agreed in the application; but as the latter provision evidently rendered the enactment a nullity, it was in only one or two instances, through the liberality of the government, in the administration of Sir Thomas Brisbane, that this right was exercised.  Gentlemen, the manner in which the juries in those instances discharged the duties confided to them, fully proved the fitness of the Colony for the enjoyment of the ancient constitutional mode of trial; and I have no doubt, the manner in which you will discharge your duties this day, will be a still further instance to adduce in behalf of our claims for its full enjoyment.  It is not my intention, in these remarks to run counter to the  observations of the learned judge with respect to the  manner in which the assessors have discharged their functions in this Court, or to insinuate that they are undeserving of those eulogiums which he has bestowed upon them.  In all ordinary cases, wherein mere money matters are concerned they, or any other body of men void of party feeling or bias, are fully competent to an honest and impartial discharge of their duties.  But, gentlemen, the great excellence of trial by jury over trial by two assessors is, that though the latter may do justice, their verdict will not satisfy all the parties in litigation, and yours will.  In cases like the present, therefore, where the personal liberty and rights of the subject are affected, I do hope in future to see you assembled; and I feel confident that the manner in which you will continue to discharge the important trust reposed in you, will beget increased confidence in your verdicts, and reflect honor on that noble institution by virtue of which you are assembled. - Gentlemen, the present action, as you will have collected from Mr. Keith, is brought against four justices of the peace, and arises out of an alleged misfeasance in their office; and, in such a case, the very statement shows, however unbiased two of their own body might attempt to come to the consideration of it, a natural and unavoidable leaning might influence their decision without consciousness on their parts; and it is, therefore, in cases of this nature that an appeal to a body like you, gentlemen, is particularly valuable.  Gentlemen, that manifold aggressions have occurred in this Colony, is matter of history, and I cannot but anticipate that a greater degree of caution in the proceedings of persons in the situation of these defendants, will in future be exercised, than has hitherto prevailed.  They will now feel that their acts will be subjected to scrutiny, and that if they overleap the law, either designedly or from corrupt motives, they will be held accountable, is from the controul which a jury will exercise over them that I anticipate the most signal benefits to this Colony. - Gentlemen, I will now proceed to detail to you a slight history of the transactions out of which the present action has arisen.  It will be in the recollection of many of you, that at the promulgation of the present Act of Parliament, a new power was for the first time committed to the  government by a particular clause, which was supposed by some to authorise the Governor to revoke the assignment of prisoner servants at his pleasure, and without reference to the specific condition on which alone the authority may be exercised.  After the promulgation of the Act, this assumed power was, in sundry instances, called into operation, and several individuals deprived of assigned servants against their will, and not for the purposes contemplated by the Act of  Parliament, which provides that a revocation of assignment shall take place only for the purpose of granting a temporary or partial remission of sentence.  It will however, be in your recollection that the power thus exercised began to be questioned.  Its mischievous influence on the interests of the people began to be felt; and I shall prove to you, that a case was raised before the Supreme Court, at the express request of the Crown Officers, who saw the importance of the question at issue between the Government and the colonists, and solicited the Judges to take it into their consideration, and pronounce a deliberate decision upon the true meaning of that clause in the Act of Parliament. - Gentlemen, the question thus pressed upon the Court, was taken into consideration; the opinion thus solicited was given.  An argument was directed by the Court, in which the Crown Officers took part, and after a protracted discussion, and a most mature consideration of the question by the Judges, a formal opinion was pronounced, which, to prevent any misconception as to the conclusion at which the Court had arrived, the Chief Justice read from a written document. - Gentlemen, one would have thought, that an opinion thus solicited by the Government, and subsequently published in its official journal, would be subscribed to by all parties.  The Court as well as the whole Colony must have anticipated this : the result, however, as you will presently find, did not realize this reasonable expectation.  The decision of this Court was reported in the Sydney Gazette of the 24th of March last; and, certainly, it is impossible to believe that any individual could have read that decision, (and we must presume that the defendants did read it) - a decision so plain and explicit upon the point in question; I say it is impossible that any individual could have read it and not have been aware of the matters it included.  Gentlemen, I will now refer you to the opinion of this Court which, as I have already stated, the Chief Justice, to prevent any misconception, committed to writing, and which was subsequently published in the Sydney Gazette. -  [The learned Counsel have read extracts from the decision of the Supreme Court in the case of Jane New,[5 ] published in this Journal on the 24th of March last.] - Gentlemen, I am sure you will be of opinion with me, that it is impossible any man of plain understanding could have read this and not see that the arbitrary power of revoking assignments assumed by the Government was unauthorised; and that the whole of the proceedings on which this action is brought, arose out of an act of the Government which this Court had previously pronounced illegal. - Gentlemen, the opinion of the Court was published in the Gazette of the 24th of March last, and on the 6th of the ensuing month, after the promulgation of a decision solicited by the government, and which this court travelled out of its way to pronounce, that very government took upon itself arbitrarily, and in the teeth of this decision, to revoke the assignment of one Peter Tyler,[6 ] a prisoner of the Crown in the service of the present plaintiff, who was forcibly taken from the premises of his master, not for the purpose of granting a remission of sentence, and sent into Hyde Park Barracks.  One would have supposed that this would have sufficed.  The plaintiff, however, who was cognizant of the decision of this Court, and that the act of the government was illegal, resisted to the utmost of his power this attempt to deprive him of his servant.  Tyler absconded from the Barracks, and returned to the service of his master, who, taking not notice of a letter from Mr. Hely, the Superintendent of Convicts, the man was advertised as a runaway, and subsequently captured by a brace of constables on a Sunday, and the plaintiff summoned before the defendant, as Justices of the Peace, for harbouring Tyler, his own servant.  Gentlemen, it is at this stage of the proceedings, that the transactions begin to spring up out of which the present action has arisen; and I now direct your particular attention to those facts upon which I call for such a verdict at your hands as will have the effect of repressing outrages of this description.  The plaintiff, gentlemen, resisted, as every man of you, no doubt, would resist under similar circumstances, this illegal attempt to deprive him of his property, particularly after the decision of this Court to which I have called your attention.  The Chief Justice justly observed, it was of the utmost importance that the tenure by which the colonists hold their servants, and, by consequence, the value of their estates, and the security of their property should be clearly defined; for without labour, land in this Colony would be useless, and the only labourers which can be held securely, are the assigned prisoners.  Gentlemen, a man, therefore who held a property of this description, and was told by the highest legal authority in the land that it was inviolate, only performed a duty to his fellow citizens resisting any attempt to deprive him of it; and I will now proceed to detail to you the manner in which this patriotic act was attempted to be punished.  After due search, an Act of Council, passed in the administration of Sir Thomas Brisbane, was discovered, in which a clause was found which, it was considered, might be rendered available in punishing the plaintiff; and under this act it was deemed advisable to prefer an information against him for harbouring a runaway prisoner.  Now, gentlemen, let us look to the nature and purport of the law on which those proceeding were founded.  The Act is intituled, ``An Act to prevent the harbouring of runaway convicts, and the encouragement of convicts tippling or gambling," and declares that as the harbouring and employing of runaway convicts greatly encourage them to abscond from their lawful services, and mislead the thoughtless into bad courses of life; and the harbourers and employers of such convicts frequently become the receivers of stolen goods, and conceal dangerous offenders from justice, be it enacted, &c.  Gentlemen, you will perceive the evils which this Act contemplated to remedy; and I put it to you whether it is possible that any four men who can read plain English, and understand the meaning of words, could ever have imagined that the plaintiff was amenable to an Act of this nature, even if the case of Jane New had never come before the Court, and the question incidentally raised in it had not been solemnly disposed of? - Gentlemen, I say it is impossible that the defendants could ever have supposed for one moment that such a man as the plaintiff came within the meaning or the mischiefs of this Act.  It is incredible that they could have put a bona fide interpretation on it, so as to lead them to believe that the plaintiff was one of the description of persons contemplated by it; and if your conclusion in this respect should coincide with mine, the conviction of the plaintiff was the result of gross corruption, and you are bound by your verdict this day to visit such conduct with the most exemplary penalty which the law has empowered you to inflict. -  Gentlemen, that these defendants acted mala fide, I shall be able to prove by positive testimony.  It is painful to me to be obliged to allude to circumstances of this nature, or to shew that the very fountains of justice are polluted in the subordinate tribunals of the Colony.

Mr. Justice Dowling. - I would suggest, Mr Wentworth, that you would confine yourself to the acts of the defendants in this case, as these observations may tend to prejudice persons who are not here to answer for themselves.  Your own good sense, I am sure, will see the propriety of adhering to the matter immediately before the Court.

Mr. Wentworth. - Gentlemen, I shall be able to prove, that the attendance of so large a body of Magistrates as assembled on the occasion in question, is of seldom occurrence, and equally seldom that such a body assemble without solicitation.  I shall find no difficulty in proving to you, that it is only on very special occasions that more than one or two Magistrates are present at the Police Office.  Such a body as presided on this occasion is not necessary under the Act, which vests the power of adjudicating in such cases, in two Justices.  Two Justices might have convicted the plaintiff, but four assembled; and, if I am no misinformed, I shall be able to shew that they attended on a solicitation conveyed to them by a letter, coming from a quarter whence it should not have proceeded, requesting their special attendance.  Of the Magistrates who were present, one (Mr. Rossi) was in the ordinary discharge of his official duties, as Superintendent of Police; but that the other defendants came with a full knowledge of the matter on which they were going to adjudicate, and solicited from that quarter to which I have already alluded, I am instructed I shall be able to establish beyond a doubt.  If so, then here were three packed Justices, expressly for a particular purpose; in fact, to convict the plaintiff.  That this was so; that they came with a full determination to convict him, and that in so doing they acted in the teeth of a decision of this Court, pronounced about a week before, the occurrences which took place, remove all manner of doubt. - Gentlemen, the facts proved on the examination are detailed in the conviction which was afterwards returned on a writ of certiorari and quashed by this Court; and I will call your attention to it before I advert to the decisions of the defendants, pronounced seriatim.  Three witnesses only were examined; Mr. Heley, Mr. Weston the Superintendent of the barracks, and a constable named Lacky.  The evidence went to show that an official letter had been received from the Governor, through the Colonial Secretary, addressed to Mr. Hely; revoking the assignment of the man, Tyler; and that another letter was in consequence, written by Mr. Hely's chief clerk, in his absence, to the plaintiff, requesting that the man might be returned into barracks.  This was not complied with; but, being apprehensive of penal consequences, Tyler surrendered himself, but after the decision of the Court, absconded and returned to the service of the plaintiff, when he was advertised as an absentee, and subsequently, on a Sunday, forcibly taken from the premises of the plaintiff, and detained in the prisoner's barracks.  For this act of harbouring his own servant, which the plaintiff avowed, he was summoned before the defendants, and convicted under the Act of Council to which I have already adverted. - Gentleman I will now call your attention to the observations made by the defendants at the time the conviction took place as conclusive indications of the malice and corruption by which they were influenced.  The judgement of this Court, in the case of Jane New, was expressly brought under their notice by the plaintiff; they were perfectly cognizant of it; but, gentlemen, they came there with a determination to do the act for which they were summoned to attend.  I will first advert to the reasons stated by Mr. Bunn, for dissenting from the interpretation of an Act of Parliament, delivered after solemn argument by the Judges.  Mr. Bunn was decidedly of opinion, that the new Act gave the Governor power to revoke assignments under any and every circumstance.  The decision in the case of Jane New was not at all applicable to the present case.  There the question was, whether a prisoner could be detained by the Crown after having been discharged from a judicial sentence; here it was, whether Mr. Hall could retain a prisoner after his assignment had been revoked by the Governor; and he had no hesitation in saying that Mr. Hall had illegally harboured the man and ought to be fined.  The opinion given by the Court in Jane New's case, was merely incidental; and until a formal decision were pronounced, he should consider his opinion as legal as that of the Judges.  Gentlemen, this defendant may be a very good master of a ship, and an indifferent merchant; but I ask you if such a man should be tolerated in making use of this language?  Is conduct like this to be endured, or can it be suffered that men like these should be permitted to erect themselves into an appellant jurisdiction over this Court; I ask you what is to become of the liberties and property of the people, if men like these are to be suffered to set aside an elaborate decision like this, because it is only an opinion.  Only an opinion ! gentlemen, it is necessary, and I trust you will this day do so, to teach them this lesson, that whatever falls from this Court, whether a formal decision or an opinion - nay, the merest orbiter dictum - must be the rule of their conduct.  Such insolent language as that used by this defendant - language which, in no other civilized country, it would be believed could have been uttered - language which shewed his determination, at all events, to act in contempt of law, and to succumb to the dictum of some secret and contoulling power - I do trust, will this day meet with that description of reprehension at your hands, which will effectually prevent its recurrence in future.  I will not advert to the opinion of Mr. Wollstonecraft, though it is not much more decent.  With respect to him, I have entered a nole presequi, and I will this day put him into the witness box.  The opinion delivered by Mr. Browne shews that he also was fully aware of the judgment pronounced by this Court.  This gentleman assigns a different, and, certainly, if you could believe him to be sincere, a much more honest ground for dissenting from the decision of the Judges than his co-defendant, Mr. Bunn.  He ``was of the same opinion as his brethren as he thought prisoners would be liable to ill-treatment, particularly in the interior, if the Governor through the Magistrates; could not take them away.  The implied contract would not be a sufficient protection to prisoners; and therefore, on the score of humanity, he should vote with his brethren on the Bench." - that is he would upset the decision of the Supreme Court.  But, Gentlemen, I would call your attention to this act of humanity.  It was stated in the decision of the Supreme Court, that many cases may occur and have occurred, in which the assignees of prisoners abuse the power they possess over their servants, and that it was expedient that a controuling authority should be lodged somewhere, of restraining such abuses, and of putting an end, in extreme cases, to the relation between the master and his assigned servant; an authority of this sort had, in fact, been exercised by the Justices in the several districts of the Colony, and the Court was not prepared to say, that some law might not be found sufficiently wide to admit the exercise of this very epuitable jurisdiction.  Every act of assignment raised an implied contract, by which the assignee was bound to use the prisoner with kindness, and to provide him with food, clothing, and protection.  Any breach of this implied contract on the part of the master, should, upon every sound principle be considered as a dissolution of it.  But such dissolution should be preceded by some course of legalized enquiry, in which the parties might be heard, and the penalty of revocation, if awarded, be deliberately adjudged.  The very reason, therefore, given by this gentleman for coinciding with his brethren in upsetting the decision of the Supreme Court.  He stated that prisoners would be liable to ill-treatment if the power claimed by the Governor could not be exercised.  But here was no complaint on the part of the man.  The Governor had not acted through the Magistrates after a legalized enquiry, but arbitrarily, and without the aid of the Magistrates.  Therefore, aping all the solemnity of judicial language, as this gentleman did, his reason failed him on his own showing.  No doubt many instances do occur in which masters treat their assigned servants with brutality for which they ought to have redress; and certainly the general acquitescence of the Colony in leaving such matters to the  arbitration of the Magistrates amounts to such an admission of the necessity for it that if the jurisdiction thus exercised have no stronger ground to rest upon than usage, recourse ought to be head to the Legislature of the Colony.  But, what would be the consequences of such a power arbitrarily vested in the Governor.  He had has no power as a Judge-

Mr. Justice Dowling - We cannot go into that question here, Mr. Wentworth.  We must confine ourselves to the conduct of the Magistrates.

Mr. Wentworth. - Gentlemen, I will not go into this subject, as a legal tribunal may be consittuted, if it does not at present exist.  The language of Mr. Browne fully showed that he was cognizant of the adjudication of this Court.  He was candid enough not to put a fale construction upon it; but, taking broader and more honest ground, to upset it on motives of his own.  Mr. Rossi agreed generally with the other defendants, and the plaintiff was accordingly convicted under the Act for the prevention of convicts tippling and gambling, in a case which it is impossible to believe that any four honest men supposed came under it, and after they had been made acquainted that the revocation by the Governor was not valid. - Such, gentlemen, is the history of the acts out of which this action arose.  But there is another circumstance to which I think it necessary to call your attention.  In the Commission of Justices of the Peace, there is a clause directing them, in cases of doubt, to defer adjudicating on the matter, until the opinion of the Judges shall have been obtained.  This course, which, as I have before observed, is expressly enjoined them by their commission, might have been adopted in this case, and I shall prove, though it has not often been exercised, that an analagous course has been frequently adopted by consulting Crown officers, and that in cases of much less difficulty than this, in which the defendants had a decision of the Supreme Court, not two days old, to guide them.  I contend, it is impossible they could have entertained a doubt on the subject; but if they did, this very obvious course was open to them.  In deviating from it, therefore, and after having been warned that they were acting in the teeth of a decision of this Court, what can you, gentlemen, think of the motives of these defendants in proceeding to a conviction?  Can you, I ask, put an honest construction on such conduct? and does it not show to a demonstration that they were packed - absolutely packed for the occasion. - even if I am not able to bring any specific directions home to them.  Gentlemen, the result of this conviction I need hardly detail to you.  It was impossible it could stand for a moment, and it was quashed by this Court instanter.  Before the plaintiff, however, could obtain this remedy, the sanctuary of his dwelling was violated, under a warrant; his household goods sold for the amount of the fine imposed on him by the defendants, the feelings of his family outraged, and his character blighted in the neighbourhood in which he resided.  The costs to which he was put in quashing the conviction, as I shall prove to you, amounted to about £60 - a very considerable expense, and it was, perhaps, under a belief that he would not incur it, that the defendant acted.  I will not, however, speculate on their motives; and having now detailed to you the facts which I have no doubt I shall be able to prove in evidence, the only question for you is as to the amount of damages you will award.  I have already stated to you the expenses incurred by the plaintiff in quashing the proceedingi [sic], and which it was a scandal on the part of the defendants that he should have been put to.  But, gentlemen, in a case of this kind, heavy damages are required at your hands, in order repress outrages like those I have detailed to you.  A solemn decision of this Court has been knowlingly set at defiance; the plaintiff has been subjected to the jurisdiction of these defendants; he was convicted, although he claimed a property in the man, which of itself must have shown the defendants that he could not come within the meaning of the Act under which they proceeded; his house has been violated, and his propeaty sold to satisfy a penalty illegally imposed.  In every point of view, gentlemen, this is a case calling for damages at your hands; such damages as will have a salutary influence on the magistrates, and prove to them that if they will persist in committing such illegal acts as these, on a suggestion from any quarter, there is a power which will, and ought to keep them in order.  Gentleman, I will not occupy your time by making any further observations, but shall proceed to call witnesses who, I have no doubt, will fully substantiate the facts I have detached to you.

The learned Counsel then called

William Manners Clark - I am clerk to Mr. Keith; I produce a notice served by me this morning on the defendant's Attorney, Mr. Moore; this other notice I served on each of the defendants at their respective houses, on Saturday morning last.

Brent Thomas Rodd - This is a copy of a notice of action served by me on Mr. Brown and Mr. Rossi personally, and on Mr. Bunn, by leaving a copy of it at his dwelling-house with his clerk, on the 29th of June last; I also produce a notice not to sell after conviction served by me on the defendants personally, on the 29th April, 1829.

Notice of action, as proved by the witness, was here read by the Clerk of the Court, Mr. Rogers.

Cross-examined by Mr. Foster - The endorsement on the back of the notice is in my handwriting; I have no hesitation in swearing that the four copies served by me were alike, as I examined them with Mr. Keith, or Mr. Foreman.

Mr. John Gurner - I produce the conviction of the plaintiff referred to in the present declaration, returned on a writ of certiorari sued out of the Supreme Court; the conviction was quashed by the Court, on the 27th June, 1829.

Mr. Foster, here took some legal objections as to the variation between the evidence adduced and the cause of action as set forth in the notice, which was not for maliciously convicting the plaintiff, but for causing him to be convicted.

Mr. Wentworth contended, that the argument of the learned Counsel on the other side was based on a fallacy; inasmuch as he assumed that the same particulars was necessary in a notice of this kind as in an indictment.  The learned gentleman had quoted no authority which would support this position; and he, (Mr. W.) would not wrestle with a mere phantom of that gentleman's creation.

Mr. Foster replied.

The learned Judge stated, that, as at present advised, he would not stop the case.  The object of a notice was to inform the defendants of what they were called upon to answer, and he was of opinion that the notice in the present case was sufficient for that purpose.  He would, however, reserve the point, and give the defendants' Counsel an opportunity of mooting it on a future occasion if it became necessary.

Mr. Rogers here read the conviction of the plaintiff before the defendants, together with the writ of certiorari on which the record was brought before the Supreme Court, and the warrant of distress.

Mr. Gurner recalled, and examined by Mr. Therry - I was present in Court when the conviction was quashed; I do not recollect the ground on which it was quashed.

Mr. Rodd recalled and examined by Mr. Wentworth - This is the original writ which was issued in this action; it was served on Mr. Browne personally, and on Messrs. Rossi and Bunn at their dwelling-houses, by leaving a copy with a crown-up person, on the 30th of July last.

Cross-examined by Mr. Foster - The writ was sued out on the 25th of July, and served afterwards.

Mr. George Jilks - I laid the information against Mr. Hall, in the case of Peter Tyler; a man named Lacky, a barrack constable, applied to me for a summons; I received no directions from any one previous to that; it was at the instance of Lacky I set the proceeding on foot; I was at the Police Officer on the day Mr. Hall appeared, and heard part of the proceedings; I heard the decision; Mr. Hall might have pressed the decision of the Supreme Court in the case of Jane New upon the attention of the defendants, but I can't swear he did; I heard Mr. Hall state that he considered Tyler as his assigned servant; he might have said that according to the previous decision of the Supreme Court he could not be taken away; I heard the Magistrates say, that the very lowest fine that could be should be imposed; I do not remember Mr. Hall reading to the defendants the decision of the Judges published in the Gazette; I did not see any Gazette produced.

Cross-examined by Mr. Therry - I did not hear the case of Jane New referred to on that day; I heard no argument on the jurisdiction of the Court; I did not see Mr. Hall produce a Gazette.

Re-examined - There is a regular file of the Gazettes kept at the Police Office.

Mr. W. H. Meach. - I am second clerk in the police office, and was so when Mr. Hall was convicted for harbouring Peter Tyler; I was not present at the time; the principal clerk, Mr. Windeyer, took the evidence; the Magistrates were Mr. Rossi, Mr. Woolstonecraft, Mr. Browne, and Mr. Bunn, I do not recollect the nature of the defence set up by Mr. Hall, as I was only in and out of the office occasionally; I heard Mr. Hall addressing the Bench, but I cannot remember the tenor of his remarks; I did not hear him say any thing about Jane New; I do not remember any Gazette being produced or referred to; I do not know of any letter having been addressed to Captain Rossi before Mr. Hall was brought up; I have some vague recollection of seeing a note from the late Solicitor General; a long time after the conviction lying in a drawer among some other papers; from the tenor of it, I should suppose it to have been written a day or two before the conviction; I do not know what became of that note; [a note was here put into the witness's hand]; this is it, and I believe it to be in the hand-writing of the late Mr. Sampson; I can't say whether Mr. Hall made any allusion to the case of Jane New; the assembling of four Magistrates is not usual on a charge of harbouring a runaway prisoner; but I have seen four justices preside on such a charge before; I can't say how often; It occurred more than once; the Superintendent of police has frequently great difficulty in procuring the attendance of a second Magistrate in cases when he has no jurisdiction himself.

The note proved by the witness was here read, and was in the following words:-

3d April, 1829.

My Dear Sir, - Mr. Hely has promised to send two of the men from the barrack, one of whom will swear that Peter Tyler is a prisoner of the crown illegally at large, and the other that he saw and conversed with Tyler at Mr. Hill's printing office within these few days; you will therefore feel authorised in summoning Hall to appear and answer the charge of harbouring or employing a prisoner illegally at large, under the Act of Council, 5 Geo. 4, No. 3, passed 19th Jan. 1825; and if these facts are established by the above witnesses then a conviction will follow of course.

J. SAMPSON.

Very truly yours,

F. N. Rossi, Esq.

P. S. - Pray let the whole business be completed this afternoon.

Cross-examined by Mr. Foster. - I have perceived more difficulty in procuring the attendence of Magistrates since these actions have been commenced; I do not know what answer was returned to the  letter from Mr. Sampson; I do not know that the Superintendent of Police refused to act according to it.

F. A. Hely, Esq. examined by Mr. Keith. - I am Principal Superintendent of Convicts; I was present at the Police Office when Mr. Hall was brought up on a charge of harbouring Peter Tyler; I cannot remember the day; I received no instructions from Mr. McLeay further than an official letter to recall the man; I have not that letter; it has been mislaid; it was a very dry communication, and contained nothing else than a direction to recall the man, and was written while I was in the country; I have heard of the case of Jane New, and I think Mr. Hall defended himself on the ground of that decision.  I rather think the Magistrates did give their opinions on that decision in my hearing; I could not repeat the substance of which was said at this distance of time; I think one of the Magistrates did say, that the decision was a mere incidental opinion of the Judges; the impression on my mind is that one of the Magistrates said he considered his opinion as legal, as good, or as deserving of as much weight as an incidental opinion of this court, but I do not know by whom it was said; one of the Magistrates might have said that he agreed with his brethren, as prisoners, especially in the interior, would be liable to ill-treatment, if the Governor, through the Magistrates, had not the power of taking them away; I believe the information was given, in the first instance, by my office-keeper, and constable Lackey; I know of no object in taking Mr. Hall before the Beach than the ostensible one, for harbouring a runaway convict, which I understood the man to be at the time; I do not know it was done with the intention of mooting the question of the power of revoking an assignment, however desirable it might be to do so; I never heard from either of the defendants that such was their express object; but I believe their opinions, like my own, were that it would be very desirable to take a definitive opinion on it.

Cross-examined by Mr. Therry. - I was present during the whole of the proceedings till the Court was cleared, and I then retired with the other witnesses; Counsel attended in support of the conviction, and it was understood he represented the Solicitor General; I remember the defendants' asking that gentleman whether there was a formal decision on the 9th sec. of 9 Geo. IV. c. 83, and he answered it was his opinion that it was an incidental opinion and not a formal decision; I am certain such was the opinion of the Magistrates, as I am convinced they would not designedly act contrary to the decision of this Court.

W. H. Kerr, Esq. Barrister at Law. - I was present at the Police Office when Mr. Hall was brought up on a charge of harbouring a prisoner illegally at large, and heard the evidence on both sides; the charge against Mr. Hall was for harbouring his assigned servant; Mr. Hall called the attention of the parties to a report of a decision of the Supreme Court on the subject, in the case of Jane New; I am not sure he had a paper containing the report, but I know he called their attention to it, and relied on it as shewing that the Governor had not the power to revoke an assignment; I do not think he claimed a property in the man's services, I think the main point on which he rested was the decision of the Supreme Court; he claimed the man as his assigned servant, but he did not urge that as an objection to the jurisdiction of the Magistrates; I remember one of the Magistrates saying that it was not a decision but merely an incidental opinion; I heard one of the Magistrates say that the 9th Geo. IV. gave the Governor power to revoke assigned servants at his  pleasure, and under any and every circumstance; I think Mr. Bunn said so and also observed that he thought the decision of the Judges was merely in the case of Jane New, and not parallel with the case of Tyler, or something to that effect; something was said about the decision of the Judges being only an opinion, and not a formal decision upon the point, and that they should retain their opinion till there was a formal decision, but I do not remember that any one said that his opinion was as good as the Judges'; the decision of the Judges in the case of Jane New was formally brought before the defendants; the defendants came to a decision, and fined Mr. Hall some few dollars.

Cross-examined by Mr. Foster. - I attended at the Police Office for the Solicitor General; after Mr. Hall had urged what he called the decision of the Supreme Court, the Magistrates asked me whether it was a decision of the Court, or merely an opinion; I said that was not the point upon which Jane New's case turned, but the Judges had given that decision or opinion incidentally, and that if they had not taken that into consideration at all, the event of Jane New's case would have been the same; after this they proceeded to adjudicate; I was present part of the time when the decision in the case of Jane New was given, and I remember the Judges saying it was unnecessary to decide the point brought before the Magistrates in that case; I recollect one of the Magistrates saying, as he understood the case was brought forward in order to settle this important point before the Supreme Court, he would impose the lowest possible fine; I think the case was only brought before the Police in order to obtain a more solemn decision on the point; I suppose, if the Magistrates had been told that there had been a decision on the point, they would have proceeded no farther.

Cross-examined. - I told the Magistrates that the Judges had disposed of the question, of the Governor's power to revoke assignments incidentally; I do not know whether I said that the Judges had given a decision or an opinion on this point; my object in attending at the police office was to procure a conviction not to advise; I remember Mr. Hall made a proposition that the case should be referred for decision to a higher tribunal.

Edward Wollstonecroft Esq. - I was one of the Magistrates who presided at the conviction of the plaintiff; I have been served with a notice to produce certain papers and amongst others a letter said to have been received by me from the Colonial Secretary, relative to the conviction of the plaintiff; I have never received any letter from Mr. McLeay, on the subject of the transactions at the police office previous to their occurrence, nor do I know of any such letter having been written to either of the other defendants; I have never known of such a letter being in existence; I have never received any solicitation, written or verbal, to attend at the police office on the day in question; I was stopped when getting out of the Parramatta coach by the chief constable who requested I would go into the police office as Captain Rossi wanted the assistance of another Magistrate in a case to be brought forward against Mr. Hall for harbouring a runaway prisoner; I certainly must have heard that the Governor had revoked the assignment of Peter Tyler; it was a matter of public notoriety, and the plaintiff had himself frequently alluded to it in his paper; I had no communication with the late Solicitor General previous to the conviction of the plaintiff; I do not think I even had two minutes conversation with him in my life; I never had any conversation with, or communication from, Mr. McLeay, respecting Peter Tyler previous to the conviction of the plaintiff; I have no recollection that the plaintiff made any formal proposition to defer the decision of the Magistrates till the opinion of the Supreme Court could be obtained, but, as the plaintiff expressed his intention to bring the question before the Court, and as Mr. Kerr, when refered to for his opinion, stated that the decision in the case of Jane New did not determine the point, the Magistrates were induced to award the lowest fine possible; I have no recollection of any newspaper having been produced; the plaintiff relied on the decision of the Court in his defence, and made a very long speech which we did not consider had any reference to the case; it was a mere political speech; I am aware of the clause in the commission of justices of the peace, directing them to refer, in cases of doubt or difficulty, to a judge of the Supreme Court; we considered that Mr. Kerr represented the Solicitor General, and therefore saw no reason to refer the case to the Crown Officers, as we sometimes do; we considered that we had the Solicitor Geenral before us, in the person of Mr. Kerr.

Bernard Fitzpatrick was next called to prove the levy made on the plaintiff's goods, and the sale of a chair which was purchased by a person named O'Neil, a clerk in the office of the Monitor newspaper, for £1 7s.; a bell was rung for an hour before the sale took place; witness said, if the fine was not paid, he should be obliged to sell the goods, and requested the plaintiff to hand him out some article on which he set no great value; plaintiff said that was all he wanted; plaintiff has several daughters; the keeper remained in the house about a week.

This was the plaintiff's case.

Mr. Therry then addressed the Jury on behalf of the defendants to the following effect : Gentlemen of the Jury. - I make a very unaffected assurance to you when I declare that I do not recollect ever to have approached the performance of any duty with a more sincere and anxious solicitude than I feel upon the present occasion.  The position in which I am placed is one of no ordinary difficulty.  In the first place I approach the discussion of this case in a state of great unpreparedness, for it was not until I had been some time in Court this day that most of the papers connected with this trial had been put into my possession; again, I have to encounter the difficulty arising from the circumstance of being a stranger in this country, and of being very imperfectly acquainted with the transactions which form the subject-matter of this day's trial, whilst the learned Gentleman opposite (Mr. Wentworth) has manifestly been familiar with all the circumstances of the case. - Indeed so thoroughly acquainted does he seem to be with them that they appear to be moulded into his mind, and to form part of his habits of thinking - so much so, that it is not a rash conjecture to suspect that the morning and evening orisons of the learned gentleman have been sometimes disturbed by an intrusive thought on the concerns of Tyler and of Hall.  It is not for me, however, to be influenced by these difficulties or by the additional one of having to reply to a speech to which no candid man can deny the merit of being marked by indications of considerable ability. - My duty, gentlemen, is a simple straight-forward one - to vindicate the interests and the character which the Magistrates who are my clients this day have done me the honour to entrust to my charge. - In the discharge of that duty the part of the case to which I first invite your attention is the judgment of His Honor the Chief Justice in the case of Jane New.  This judgment under the consideration of the Magistrates and the manner in which it was brought, is material, in order to enable you to decide upon the question of malice - for malice is alleged to be the natural ingredient in the conduct of the Magistrates on this occasion. - To this point your attention must be fixed and rivetted - according as you find either malice or no malice your verdict must be pronounced in favour of the plaintiff or the defendant.  The consideration therefore of whether there was want of probable cause or not in their conduct is the main - I might say - the only question which you have this day to try.  A close and conscientous attention to it therefore should be the conscientous attention to it therefore should be the guardian of your consciences and the monitor of your this day's decision. - Now, gentlemen, I invite your attention to the judgment of the Supreme Court in the case of Jane New. - And in any reference which I make to that judgment, I am anxious it should be understood that I speak of it with that deference which it is as well my inclination as my duty to entertain toward the eminent station of the Judge who pronounced it, and of the sincere respect I entertain of his distinguished talents and high reputation.  Well! then gentlemen, applying my mind respectfully and attentively to the judgment of His Honor the Chief Justice - I submit to you that it is such a judgment that even if it had been brought fully under the notice of the Magistrates it would not have bound them to regard it as a conclusive decision upon the point that arose in the case of Tyler.  This, I say, even in the event of that judgment having been read as fully and accurately as it has been read by the learned counsel to-day - but what I contend for is that there is no evidence before you to-day to satisfy you that the judgment had been brought forward at all before the Magistrates in such a way as to afford them a fair opportunity of considering it.  The elaborate judgment appears to me to resolve itself into two distinct parts with reference to the 9th section of the the 9th Geo. 4, c. 83. - One part, and by far the greater portion of the judgment, contains a beautiful argument upon the impolicy of the clause which confers the power of revoking assigned servants upon the Governor.  Against the policy of such a power the learned Judge displays a power of reasoning and of eloquence worthy his high reputation.  Moreover, he speaks upon the policy of such a clause with a confidence and decision to which the other portion and by far the smaller portion, namely, that which refers to the legal construction of the clause presents not a comparison but a contrast.  Upon the subject of construction the learned Judge states ``that the clause admits of two distinct readings" in another passage of the judgment His Honor states the ``clause to be ambiguous."  Again, His Honor declares in conformity with the opinion given by Mr. Kerr to the Magistrates ``that the point was incidentally raised," which is an admission that the decision upon the point was an extra-judicial decision and therefore one which the Magistrates were not bound to notice or adopt.  The point decided in the case of Jane New was that a prisoner of the crown, originally transported to Van Diemen's Land, should be sent back (if illegally found at large here) to the place of her original transportation.  That was the point decided - and the construction of the 9th section of the New South Wales Act was in no way material to such a decision.  What better test can be furnished of this than that if the present New South Wales Act was in no way material to such a decision.  What better test can be furnished of this than that if the present New South Wales Act had not been passed - the decision in the case of Jane New, would have been the same that it has been.  In truth, all the facts and circumstances of the case of Jane New had occurred long prior to the passing of the Act on a clause of which an opinion was incidentally that is extrajudicially pronounced.  On these grounds therefore, - gentlemen, I submit that though the judgment of the Chief Justice had been brought under their notice, the Magistrates were to be excused and were justified in the opinion that there was no decision of the Supreme Court which interdicted the exercise of their jurisdiction in the case of Tyler.  In this opinion, be it remembered too, that they were fortified by the assurance of Mr. Kerr, who represented the Solicitor General.  But what I contend, for moreover, is, that the judgment of the Chief Justice, whether it would have justified the Magistrates in the entertainment of Tyler's case or not, never had been properly and regularly brought under their consideration.  There is no evidence to show that the judgment had been read to the Justices.  There is, it is true, some vague and indefinite testimony that it was referred to by Mr. Hall at the Police Office - But in what way referred to, gentlemen?  I will acquaint you, from the account given of what took place at the Police Office in the defendant's own paper.  The reference is of this kind - To a very pertinent question by one of the the Magistrates (Mr. Wollstonecraft) Mr. Hall replies, that ``as interpreted by the Judges, the 9th clause appeared to him to work naturally, and after an English fashion."  This was the amount of the information given to the Magistrates by Mr. Hall of the charge of the Chief Justice.  It was about as compendious a way of communicating the grounds of an elaborate argument, as the mode of making a speech resorted to by a worthy alderman of Bristol.  In the year 1782, Mr. Burke and Alderman Coombe were candidates for the representation of Bristol.  Mr. Burke - the first orator of the age - addressed the electors in a speech which is the master piece of his eloquence.  He enlarged upon the three leading topics of that day - Conciliation with America - Free Trade - and the Catholic question, which was then in its incipient state.  After Mr. Burke had concluded his speech - Alderman Coombe was called upon to address the electors.  The worthy Alderman made short of it, and simply said, ``I say ditto to Mr. Burke."  This was a modest and compendious mode of appropriating to himself all the eloquence and all the arguments of Mr. Burke.  Mr. Hall, at the Police Office, made Alderman Coombe his model.  In the spirit of that civic dignitary he exclaimed, ``I say ditto to the Chief Justice," and appropriated to himself all the reasoning and eloquence of the Chief Justice - leaving the Magistrates to guess or conjecture of what that reasoning and eloquence consisted.  I contend, then, that the judgment of the Chief Justice had not been fairly and fully at any time brought under the attention of the Magistrates.  I now proceed to the material parts of the testimony given in this case, and here, gentlemen, you cannot fail to have observed the great disproportion between the exaggerated statament of counsel, and the evidence adduced in support of it.  You recollect how the learned gentleman opposite represented to you that ``the Jury had been packed," that they were brought together for the express purpose of convicting Mr. Hall," that they were ``acting in contempt of law, and succumbing to some secret and controuling influence."  Then you were told that the ``fountain of justice was polluted in this Colony."  The learned gentlemen made no distinct and determinate accusation - But he shadowed forth some dark and insidious influence - There appeared to be

``Some monster in his thoughts too hideous to be seen."

Well, gentleman, you have heard the evidence in which there is not one tittle of testimony to support the extravagant accusations which were rather enumerated than stated.  I will not conceal from you, gentlemen, that occasionally I caught glimpses at the quarter to which the learned gentlemen referred.  And it must have been gratifying to the feelings of the gentlemen alluded to, holding a high and distinguished office in this Colony, that an honorable refutation has been afforded of the charges, or rather the insinuation of charges which have been directed against him.  Formerly it was the practice to entertain suspicion and jealousy of persons in subordinate situations of public trust - But owing to one of those oscillations of the human mind, which we cannot control, it has become the fashion of the present day to entertain distrust and unworthy suspicion in proportion to the deviation of the position which the party against whom it is entertained may hold in society.

In this instance, however, the attempt to degrade served only to dignify the object whose reputation it was intended to destroy.  This case, gentlemen, has not been altogether an unamusing one.  It was a reply of Horne Tooke to an eminent anonymous writer of the last century, (Junius) that tragedy, comedy, and farce, were fearful odds against one poor person.  The case to day has furnished specimens of these different entertainments.  The learned gentleman has furnished the tragedy and comedy - now bursting into a strain of tragic ire, and again subduing his tones to the tone of a sort of genteel comedy - and if worthy Fitzpatrick, the bailiff, did not furnish the farce, I am at a loss to know where farce can be found.  You heard with what vehement indignation the learned gentleman denounced the conduct of Captain Bunn, whom he admitted to be a good master of a ship, and who, I am sure, gentlemen, after this day's trial you will be of opinion is a good Magistrate.  You heard the learned gentleman denounce him as ``one of the packed Justices, acting in contempt of law, and succumbing to some absent and controuling influence."  What is the proof of the Justices being packed?  Just this - that Captain Bunn accidentally came to the office on themorning of Tyler's case, on some business of his own, and that he was in the act of leaving the office, when Mr. Wollstonecraft requested him to stay, as business was coming forward of some importance, on which his attendance and advice might be of advantage.  Then, as to Mr. Wollstonecraft himself, it has been sworn to you this day by that gentleman, that he had no direct or indirect intention of what business was to come forward that day at the Office until he had entered it, and until the business of Tyler was called on.  Mr. Rossi was in attendance, as it is his public duty to preside daily - and Mr. Browne attended in the ordinary discharge of his duty as a Magistrate:  This, gentlemen, is the evidence - and on this evidence the learned gentleman opposite calls upon you to do what?  To find that ``the Justices were packed, and that they had attended for the purpose of convicting Mr. Hall," Oh! gentlemen, is not this a monstrous conclusion? it is impossible from the evidence of this day, that you can arrive at such an inference. - There is no evidence I confidently assert, none - on which to found a decision that the Magistrates in this instance acted maliciously and from want of probable cause. - The information of Tyler was laid in the regular way - the evidence of the revocation of his assignment - of his having been Gazetted as a runaway - and of his having been harboured by Mr. Hall - was taken in the ordinary course of the business of  the office.  Great precaution was exercised by the Magistrates, and it was not until an assurance had been given to the Magistrates, that the Supreme Court had given no opinion contradicting their jurisdiction, that they proceeded at all to the entertainment of the case. - Was this evidence of a disposition on the part of the Magistrates to treat ``the law with contempt," and to set up their opinions in opposition to the Judges.  If they were acting under some absent and controuling influence, would they adopt the precautionary measure of taking the opinion of Counsel, whether or not the Judges of the Supreme Court had given a final decision upon the point submitted to their consideration?  Again, I ask, would they have voluntarily exposed themselves to the risk to which they knew they must have been liable by openly acting in violation of the law of the land?  But before you decide against them, surely you will endeavour to find some part of their conduct which justifies the imputation of acting from malicious motive - Gentlemen, ``you may seek," but ``you will not find it."  I would be satisfied to rest this case solely upon the testimony of Mr. Wollstonecraft, and a more straight forward direct and honorable testimony it was impossible for any man to give, than that which he gave; his evidence clearly established to the mind of every reasonable man that there was no malice - no concerted predisposition to convict - no packing of juries, and no absent and controuling influence to which the magistrates had conspired to succumb.  A note of the Solicitor General has been introduced into this case; I have seen that note, and persued it attentively, but I own I see nothing in it (with the exception of one small sentence) that is not perfectly defensible and correct.  That note gives advice to the Magistrates, as it was his duty to advise them, and to acquaint them of the grounds on which a legal conuiction [sic] should be founded - there is a postscript to the note, which may manifest some slight indiscretion; he advises the Magistrates to conclude the business that forenoon; this was merely an advice to act precipitately, which was very properly declined by the Magistrates, for it appears that the note was written on the 4th April, and the conviction did not take place till the 6th. - There is another point of law on which this case deserves to be considered.  If the Magistrates were disposed to act corruptly and maliciously, and to preserve power to themselves, they would oppose the power of revocation in the Governor; one of these gentlemen, Mr. Woollstonecraft has 120 government servants, and it is his obvious interest, as far as power is concerned, that neither the Governor, nor any other person should have authority to revoke the assignment of these persons; it would be his interest to have an absolute property in these men, to possess themselves as the proprietors do slaves in the West Indies; for it would seem as the law is at present declared to be in this Colony, neither the Governor nor any constituted authority, possesses the power of revoking the assignment of servants.  The effect of this doctrine would be, that masters, might beat their servants with the utmost severity, and there is no power of affording them redress, by releasing them from the controul of such masters - (Here Mr. Justice Dowling interposed, and said he could not allow it to be argued, that servants here had no redress from the ill treatment of their masters.  Mr. Therry thereupon pressed the matterno further, but continued). - I will now proceed to the farce of this case, as it has been supplied by worthy Fitzpatrick, the bailiff -  Gentleman, the plaintaiff has declared this day, that the sale of the chair caused him much anxiety of mind, and inflicted grievous injury upon him; well gentlemen, let us see his own account of this transanction in his own paper?  You will naturally expect that a very dolorious announcement is there made; you will naturally expect that the sheet of paper which contains this account, is made, monkey-like, to mimic mankind, to,

``put on a mockery of woe,"

you will no doubt expect to see a carricature of a coffin, with some extravagant incription, some such word as ``Strangulatd [sic]," to edify the admirers of the literature of Augustan age, and the purity of the Latin tongue; no such thing gentlemen!  I will read the account for you, which is told in the tune of Joe Miller's ``Best," or Lord Norbury's last pun - Mr. Therry here read the following extract.

``Sale by levy and distress; by order of the Magistrates" for a fine. - Monday morning, the King's Birth-day, was ushered in at the residence of the Editor of The Sydney Monitor in South Kent-street, next door to Mr. Justice Dowling, by sound of bell; which, no doubt, attracted the attention of the Justice's ears, but which did not attempt him to send his steward to the sale, which the said bell, nevertheless, was rung to induce him and all the neighbours to attend at.  Constable Fitzpatrick and the other constable who had been in charge of the defendant's premises for a week, then assembled in the verandah of the defendant, and called for the furniture.  The servant handed out a single chair, desiring they should be sold one at a time.  Worthy Fitz, after many bows and apologies, all of which were duly returned by the defendant, then read aloud to the admiring throng, (consisting of himself, his brother constable, and the chief clerk of the defendant) the warrant of the above Magistrates for the levy and distress, and having come to the end thereof, the chair was, with all due solemnity put up for sale to the highest bidder.  There was but one bidder however, namely, the said chief clerk; and he, out of love, we suppose, for The Sydney Monitor, bade a most unconscionable price for the said chair,  namely, £1 17s. 3d. sterling, although it was not worth more than three dollars.  Fitz knocked it down at this price, there being no other bidder, and having so done, he said, that that sum was just the amount of the distress; accordingly, being paid the same instanter, the worthy man departed in peace, and the chair was returned to the place whence it came.

The distress was made by order of Captain Monsieur Rossi, Justice Bunn, Justice Wollstonecraft, and Justice Jemmett Browne, being the amount of a certain fine which they sentenced the defendant to pay, for harbouring his own assigned servant, to wit, Peter Tyler.  We offer this to Sir George Murray, as a sample of the present policy which rules New South Wales."

This worthy plaintiff then, gentlemen, lays down three data - 1st.  That the sound of a bell tinkled in the ear of Mr. Justice Dowling. - 2nd.  That worthy Fitzpatrick, the bailiff, officiated at the sale in quadruple capacity of bailiff, bidder, auctioneer, and master of the ceremonies - 3rd.  That a chair was sold for £1. 17s. 3d. and from these premises the worthy Editor comes to the comical conclusion; ``we offer this to Sir George Murray, as a sample of the present policy which which rules New South Wales.  If Sir George Murray be a necromancer, he may learn from this information what is the policy of New South Wales, but if he be only, what I believe him to be, a very sensible man, and an excellent Secretary of State, he will be as much in the dark as to the policy that prevails here from this lucubration as you gentlemen are this day, as to the secret and controuling influence of which so much has been said, and noting has been proved.

Gentlemen, I have now closed my observations upon the evidence; I cannot conclude, however, without congratulating you upon the possession of that noble institution, ``Trial by Jury," which this day, for the first time, is introduced into this Colony in your person.  To the eloquent euloguim of the learned Judge, and to the warm congratulation of the learned gentleman on the other side, I may be permitted to add my most earnest concurrence.  Trial by Jury is an institution, in the language of Sir James McIntosh, ``peculiar to the English people, and is a national characteristic which distinguishes them from every other portion of the human race."  It is an engine, which, operating through the lapse of time, has contributed more than any other institution, to preserve the balance of popular power in England.  Whilst in France, from the want of such an institution, the ambition of the King, and the pride of the nobles, sapped the foundation of good government, and inflicted upon that fair country the torture of a sanguinary revolutoion.  But think not, gentlemen, England owes her present prosperity, and lofty position among the nations of the world, to this institution alone.  She is indebted for this to a combination of other admirable institutions, and to none more than to the instituions of the unpaid Magistracy of the land.

Believe me, gentlemen, that if the public mind of the people of this Colony be once turned against that institution, - if you once destroy a respect for that voluntary and gratuitous dispensation of justice, - if you once thoroughly disgust and dishearten that unbought sacrifice of time and labour, that thankless self devotion, - that homage, which wealth, and rank, and power, pay to the interests of the humble, and the poor, you will inflict a mischief upon the interests of this community, that will not be compensated either by Trial by Jury, or  House of Assembly, whenever you shall get them.  Let it not then be said that the first act of a Jury of this Colony was to inflict unmeasured punishment, and to brand with unmerited dishonour, the unpaid Magistracy of the land.  Let it not be said that your infant community, like the world in its infancy, presented an example of impious fratricide, and that of two institutions which should live in kindred brotherhood - one was engaged in the destruction of the other.  Let it not be said that the first effort of Trial by Jury here, was to sow deep the seeds of discord and of mischief in the bosom of society, but rather that when the noble institution of which you are this day the representatives stretched forth its prerogative, conciliation came, and the ascendancy of the laws was established in the soverieign mercy of their nature, and the wisdom of their dispensation.

No witnesses were called on behalf of the defendant.

The learned Judge summed up the evidence, and told the Jury, that the conviction having been quashed for want of jurisdiction in the Magistrates, as it appeared, that a question of property was involved in the case; the plaintiff, in law, was entitled to a verdict to the amount of the amends (£5) tendered by the defendants.  If, however, they were of opinion that there was no probable cause for their proceedings, and that they were influenced by corrupt or malicious motives in convicting the plaintiff, they would then go on to consider the quantum of injury he had sustained, and award such reasonable damages as the justice of the case appeared to them to demand.

The Jury retired for a short time, and found a verdict for the plaintiff; damages £10, with costs.[7 ]

Counsel for the plaintiff; Mr. Wentworth and Mr. Keith; for the defendants, Mr, Therry and Mr. Foster.

 

Notes

[1 ] See also Australian, 17 March 1830.  For the appeal in this case, see Hall v. Hely, 1830. For historical analysis, see C.H. Currey, Sir Francis Forbes: the First Chief Justice of New South Wales, Angus and Robertson, Sydney, 1968, chs 31, 35; and see R.B. Walker, The Newspaper Press in New South Wales, 1803-1920, Sydney University Press, Sydney, 1976, pp 16-17.

The three judges said that this case was not based on the construction of 9 Geo. 4 c. 83, s. 9.  There had been no case on that point since In re Jane New, 1829: Judges to Darling, 23 July 1830, Historical Records of Australia, Series 1, Vol. 15, p. 651.

[2 ] Section 8 of (1828) 9 Geo. 4 c. 83 stated that civil cases were to be heard before a judge and two magistrates sitting as assessors.  However either side could apply instead for trial by jury, which the court could award or refuse "as the Justice of each particular Case may seem to such Courts to require".  (The provision applied to the Supreme Courts of New South Wales and Van Diemen's Land.)  The section also said that the qualifications and management of such jurors were to be established by colonial legislation. The legislation was passed by the New South Wales Legislative Council in 1829: 10 Geo. IV No. 8; and amended in 1830: 11 Geo. IV No. 2.  The first case under this legislation was not heard until 1830 because of the delay in preparing the rules: Sydney Gazette, 8 December 1829.  (For the rules, see Sydney Gazette, 10 December 1829.)  Trial by jury continued to be of interest to the press, as it had been since the foundation of the Supreme Court in 1824: see for example: Australian, 29 January 1830, 31 March 1830, 6 August 1830, 24 September 1830, 4 February 1831, 10 February 1830; Sydney Gazette, 18 February 1830.  Most issues of the Sydney Gazette in late 1829 had items about the qualifications of jurors.

Hall obtained a trial by jury rather than by assessors after an application to the Supreme Court heard on 1 March 1830: Sydney Gazette, 2 March 1830.  His counsel, Mr Keith, "grounded his motion on an affidavit of the defendant, setting forth that he did not believe he would have the same impartial trial by two Magistrates, as by a common jury of the Country."  On the same day, he obtained similar jury trials for a number of other matters.  In one of the cases called Hall v. Mansfield (1830), Hall's affidavit stated that his politics were so much disliked by the magistracy that he could not safely go before two assessors.  Chief Justice Forbes simply stated that the court was empowered to award or refuse jury trial on the application of either party, as the justice of the case seemed to require.  He did not state why the court granted the juries.  Hall was initially awarded trial by a common jury in these cases, and later trial before a special jury: Sydney Gazette, 9 March 1830.

On the introduction of trial by jury, see D. Neal, The Rule of Law in a Penal Colony: Law and Power in Early New South Wales, Cambridge University Press, Cambridge, 1991, chap. 7; D. Neal, ``The Campaign for Trial by Jury in New South Wales, 1788-1840" (1987) 8 Journal of Legal History 107; and J.M. Bennett, ``The Establishment of Jury Trial in New South Wales" (1959-61) 3 Sydney Law Review 463; and on this period in particular, C.H. Currey, Sir Francis Forbes: the First Chief Justice of New South Wales, Angus and Robertson, Sydney, 1968, ch. 34.

After also reporting a number of other applications for trial by jury, the Sydney Gazette, 2 March 1830, continued as follows:

"In this stage of the business, the Chief Justice stated that he wished to address a few observations to the gentlemen of the bar, on applications for Jury trials.  The Act of Parliament had given what he would call a very invidious discretion to the Court of granting or withholding Trial by Jury, `as the justice of each particular case might seem to require.'  The Parliament had doubtless given this descretion in its wisdom; but still, the Court felt that it was one of a very invidious nature, and calculated to place it sometimes in an unfavourable light with the contending parties.  The Court, however, would at all times exercise the utmost good faith in deciding on applications of this nature, and it hoped to meet a corresponding good faith from the bar, and that no applications for juries would be made, except in cases where gentlemen felt assured that substantial justice would not be done by any other mode of trial."  See also Australian, 3 March 1830.

See also Blackman v. MacVitie, 1830, on trial by jury under this new provision.  See also Coyle v. Futter (1830), Dowling, Select Cases, Vol. 2, Archives Office of New South Wales, 2/3462, p. 316 ((1830) NSW Sel Cas (Dowling) 663), which Dowling J. summarised as follows: "Where a cause was appointed to be tried by a special Jury and the Plaintiff prayed a tales, which was not opposed by the Defendant and the Plaintiff had a [p. 317] verdict the Court refused a new trial on the ground that by the New South Wales Jury act a tales could not be granted without the consent of both parties Counsel omitting to prove part of a case in his instructions is not a ground for a new trial."

On the development of rules for the conduct of jury trials, see also Australian, 9 December 1829; Sydney Gazette, 10 December 1829.

[3 ] Justice Dowling was soon disappointed.   The Sydney Gazette, 15 April 1830, reported the following:

"SATURDAY, APRIL 10, 1830.

"It will be in the recollection of the public, that a few days previous to the close of the last Term, it was found necessary, for the purpose of trying some criminal cases, to hold two Courts, and that the trial of Civil issues took place, on that occasion, in Macquarie-street Chapel, the Court-house, in Castlereagh-street, being occupied by Mr. Justice Stephen and a Military Jury.  On the termination of the Criminal trials, the Civil Court resumed its Sittings in the old Court-house, when, upon entering the jury-box the special jury discovered some remarks written on the desk, which they brought under the notice of the learned Judge (Dowling) who presided, and who expressed himself in the most reprehensive terms of the conduct of the individual or individuals, whoever he or they might be, who penned them.  Nothing more occurred on that day, save that in the evening, the desks were removed from the Court by order of the Attorney General, for the purpose of instituting an investigation to discover, if possible, the author or authors of the matter complained of.  This morning however, the subject was again brought before the Court by Dr. Wardell, who stated that he was instructed to do so by their foreman, on behalf of the jury who sat for the trial of Civil issues on the preceding day, in order that the Court might direct such proceedings in the case, as it should deem necessary.

"Mr. Justice Dowling spoke nearly as follows:-

"I regret extremely that the gentlemen of the jury who sat on the late trials should think it necessary to take serious notice of this matter.  The subject was brought to my attention privately a few days since by two of the gentlemen, and I then took the liberty of suggesting that probably their own good sense would prompt them to regard it with utter indifference, as being the effusion of some indiscreet person, whose infirmity of intellect had betrayed him into this piece of levity.  I had hoped that the gentlemen of the jury would have adopted this suggestion.  Having, however, deemed it proper thus publicly to renew the complaint as a body, I am bound to entertain it as one deserving some consideration; although it appears to me that the gentlemen now complaining would perhaps have best consulted the public interest by passing the affair over in silence.  As a general remark, nothing can be more indecorous than to choose a place dedicated to the solemn administration of justice for the publication of such ribaldry.  Conduct like this betokens great levity, not to say vulgarity of mind.  Certainly the indecorum is infinitely greater when regard is had to the particular time, place, and occasion chosen by the author of this writing for the indulgence of his fancy.  I cannot bring myself to believe that any person moving [i]n the sphere, or possessing the education of a gentleman, could possibly be betrayed into so much indiscretion.  No candid person will, I am sure, suppose that any individual entitled by law to sit in judgment in that box, upon his fellow-subjects, for publishing libels, could so far depart from propriety, as himself to become a libeller in the very sanctuary of justice.  The matter, however, being thus forced upon the unwilling attention of the Court, I am constrained to admit that the Court is bound, for its own honour and dignity, to view it in the serious light in which the gentlemen of the civil jury seem to regard it.  I deeply lament that the peculiar season adopted for this most indiscreet proceeding should have rendered it more incumbent on the Court to animadvert upon it than at any other time.  It would be a reflexion on the administration of justice in this territory, if a matter of this nature, thus publicly and pointedly brought under the attention of the Court, were to be allowed to pass without notice.  Court it be assumed  I cannot believe that it could justly  that the members of an honourable profession, upon whom respect for the law is peculiarly imposed, and who, on account of their station in society, have been selected as the dispensers of justice on the Crown side of this Court, would so far forget what is due to their trust, as this particular offence would import, I apprehend that the Judges would have no alternative but to close the doors of the Court.  The Court has a very painful task to perform in this matter; but as it has been forced on its attention, thus publicly and openly, even handedness requires that something should be done to enforce what is due to the administration of justice, especially when reference is had to the peculiar constitution of the civil and criminal jurisdiction of the Supreme Court.  I forbear making any order upon the subject.  The King's Attorney General will doubtless exercise his discretion, either in taking cognizance of the proceeding so far as it may involve an indictable misdemeanor in the party of parties offending, or cause the matter to be duly represented in a quarter where, if the party or parties be subject to more direct control, such steps may be taken as shall prevent the recurrence of so scandalous an infraction of public decency and propriety.  If the latter course is adopted, which I should conceive to be the most judicious, I doubt not that every thing will be done to appease the public feeling on this very delicate subject.

"The following is a transcript of some of the writings complained of:-

"'The great proverb writer has informed the world that there is nothing new under the sun.  Had he seen the contents of this jury-box yesterday, and knew that the persons therein were sitting in judgment on the properties of others, even he would have acknowledged himself in error.  April 2, 1830.'

"'Of all humbugs in this humbugging world, the most detestable is to sit for hours in a blackguard Botany Bay jury-box, on the same seats that have been polluted by the canaille (Anglice) Mancipists, listening to the prosing blunders of a superannuated old wig.'

"'What is there surprising in seeing such worthies here?  They still labour in their vocation.  Formerly pockets were picked by them, contrary to law.  The Legislature has taken pity on them, and now permits some of the most skilful (and on that account the most wealthy), to follow their favourite pursuits, under cover of the law.'

"'Folks shake hands with you here, the very speaking to whom in the street, at home, would insure one's being disinherited.'"

For commentary on this, see Australian, 14 and 16 April 1830.  See also Governor Darling to judges, 14 July 1830, Forbes Papers, Mitchell Library, A 746 (governor asking for report on this case).

[4 ] Governor Darling reported this to Murray on 12 April 1830: Historical Records of Australia, Series 1, Vol. 15, p. 418; the cost to the government of its decision to withdraw the convict servants from the proprietors of the Australian and the Monitor was almost £600.

Sir George Murray told Governor Darling in a despatch dated 3 May 1830, that it was quite wrong of him to withdraw convict servants from the newspaper proprietors, merely because they criticised the government.  The power of withdrawal was not intended to be for political purposes.  The principal if not exclusive consideration in such cases was the benefit of the convict; the aim of the power was to withdraw convicts from masters who abused them.  Murray required Darling to refer all such cases in future to the Executive Council for advice.  Source: Historical Records of Australia, Series 1, Vol. 15, pp 463-464.  Murray wrote to Darling again on 8 November 1830, in response to Darling's despatch of 12 April 1830 (pp 810-812).  He said that he approved of the government paying the costs and indemnifying the public officials against the damages awarded in these cases.  He queried the legal costs however, before reiterating his criticism of Darling's decision to withdraw the convict servants from the newspaper proprietors.  He told him that convicts were to be removed only if masters were too severe or too indulgent.

[5 ] See In re Jane New, 1829.

[6 ] See In re Tyler, 1829; Hall v. Hely, 1830.

[7 ] On costs in this case, see Forbes C.J. to Governor Darling, 22 October 1830, Chief Justices' Letter Book, 1824-1835, Archives Office of New South Wales, 4/6651, p. 271; and W.H. Moore to Colonial Secretary, 17 February 1831, Forbes Papers, Mitchell Library, A 746. On the taxing of the costs, see Historical Records of Australia, Vol. 16, pp 91-95; Hall v. Hely, 1831; and see Sydney Herald, 7 November 1831.

Published by the Division of Law, Macquarie University