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

R v Mansfield (No 1) (1830) NSW Sel Cas (Dowling) 794; [1830] NSWSupC 41

Sudds and Thompson case, criminal libel, libel, defence of privilege, Darling, Governor, move to impeach, law reporting, Stephen J. and Governor Darling, conflict between

Supreme Court of New South Wales

Forbes C.J., 3 June 1830

Source: Sydney Gazette, 8 June 1830[1 ]

THURSDAY, JUNE 3d.

(Before the Chief Justice.)

LIBEL.

The King at pros. Wentworth v. Mansfield.

This was an information filed by leave of the Court against the Reverend R. Mansfield, Editor of the Sydney Gazette, for a libel published in that journal, on the 7th of July last, reflecting on the character of Mr. William Charles Wentworth, one of the Barristers of the Supreme Court.

The information contained four counts.

The first count stated that the prosecutor had written a certain letter to the Secretary of State on the subject of an act of His Excellency the Governor, relative to a certain punishment inflicted on two soldiers of the 57th Regiment, named Joseph Sudds and Patrick Thompson; and that the defendant, in the Sydney Gazette of the 7th of July, 1829, in an article purporting to be a reply from the Governor to an address presented by certain merchants and landed proprietors of the Colony, did publish of the said letter was ``a compound base and incredible calumnies, and carried with it internal evidence of the character and motives of the author;" with inuendoes pointing the said expressions to the prosecutor, and alleging the meaning as imputing to him base and unworthy motives.

The second count alleged that a supposed letter, so addressed to the Secretary of State, had been attributed to the said William Charles Wentworth, and went on to charge the libellous matter as before.

The third and fourth counts merely varied the language of the inuendoes, to meet the proofs, and the interpretation of the words charged as libellous.

To this information the defendant pleaded Not Guilty.

Dr. Wardell stated the case to the Jury to the following effect:-  This is an information for libel, filed at the instance of Mr. Wentworth, a gentleman known to you all, at least by repute, as a practitioner of this court, against the defendant, the Editor of the Sydney Gazette.  The information contains four counts.  The first count states that a certain letter was written by Mr. Wentworth to the Secretary of State for the Colonies, on the subject of certain punishment inflicted on two soldiers of the 57th Regiment, and the libellous matter is then set out, with inuendoes applying it to the letter so addressed by Mr. Wentworth.  The second count avers that a certain letter was supposed to be written by Mr. Wentworth to the Secretary of State on the same subject, and then goes on to attach the meaning of the publication complained of to that supposed letter; because, as it is possible that the prosecutor might fail in proving the fact that a letter had been so addressed, he would fail altogether in his information in the absence of this count stating that a certain letter was rumoured to have been written, and that the prosecutor was the subject of the remarks in reference to such supposed letter.  The third and fourth counts differ but in a slight degree from the first and second, merely varying the language of the inuendoes so as to meet the proof which may be adduced.  Gentlemen, having thus stated to you the mere formal parts of the case, it will be for you to say, when you have heard the evidence which I shall produce in support of the prosecution, whether the inuendoes justly charge the defendant with having imputed to Mr. Wentworth that he, in writing the letter referred to, had been actuated by motives unworthy of his character and station in society.  The first three counts of the information affect to put an interpretation upon the words charged as libellous: in the last count the words charged as libellous are merely pointed to the prosecutor, leaving it to you to put your own interpretation upon them, and to say whether they are libellous or not.  Gentlemen, you will perceive that the alleged libellous matter is contained in very few words - the whole passage being comprised in the short space of five lines.  It is scarcely necessary on this occasion that I should explain to you at any very great length the nature of a libellous publication, or what in law amounts to one.  You, gentlemen, have had very considerable experience in cases of libel; - experience greater perhaps, on an average, than that of any other Jury in the world; because, while the number of jurymen who are called to adjudicate cases of libel in this Colony, is considerably smaller than in England, cases of this description are here, in proportion, much more numerous.  It is, however, with very considerable regret, that at any time I find it necessary to come before the Court in cases of libel, whether I may happen to appear on the one side or on the other.  I regret it, because I feel that cases of this description are, of all others, calculated to abridge the liberty of the press; and that while they are professedly intended to restrain that liberty within what be considered its just limits, their inevitable tendency is to narrow it within bound much more circumscribed than any good citizen would desire to behold.  Gentlemen, there are cases, however, calculated to do so much injury, that the individual who may be the subject of slanderous imputation, and the consequent unfavourable impressions with respect to him which are engendered in the minds of his fellow citizens, must either submit to the injury inflicted or adopt the only course open to him for redress - namely, an appeal to the law.  Whether the present case is one deserving of being visited with penal consequences, it is for you, gentlemen, to determine; it is my duty to press it upon you as a case of that description; but, at the same time, as far as my judgment goes, I must say it accords with my duty in this respect, and I am sure you will agree with me, that only one opinion can be entertained with reference to the nature and character of this publication.  Gentlemen, it may be as well to state to you, that the paper in which the matter complained of appears, has been more than once the subject of investigation in this Court; not certainly at the Criminal, but at the Civil side; and though I cannot but think now, as I have ever felt, that those matters which formed the subject of the actions to which I allude, had not equal merit with the present case, still it is but justice to state, that the verdict of a Jury, though, certainly, contrary to my opinion and that of many other persons who usually mix in the higher classes of the Colony have pronounced them libellous.  There is, Gentlemen, however, a very obvious distinction between the cases to which I have alluded, and that which is this day submitted to your consideration.  The individual who brought those cases into Court, himself occupied a public station, similar to that in which the defendant on this occasion is placed; and, gentlemen, I do say, there is a wide difference between promulgating opinions on the actions of private individuals, and on those of one who occupies a station in life which courts publicity, and therefore renders it necessary that public opinion as to his conduct should be freely expressed.  Gentlemen, this is the distinction which I draw between the cases formerly before this Court, and the one presented this day for your consideration; a distinction which I should not have introduced to you now, but that I am aware it will make part of this case.  You will be entitled if you please to read the whole of the article from which the libellous matter is selected, but although you or any other persons might think that what the verdict of a Jury has already decided to be libellous, were nothing but fair comments, yet the different situation of the parties will not warrant you in drawing your inferences from similar grounds; inasmuch as I have already stated to you, that in the one case the comments have reference to a public character, whose acts were open to criticism, while in the other they are put forth on the supposed act of a private individual, and one, too, which ought not to have been dragged into public discussion.  Gentlemen, it was assailing an individual without affording him the means of defence, rendering him odious in the community of which he is a member, without giving him an opportunity of proving whether the imputations cast upon him were just or unjust.  He could not have replied to that article of which he comes before you this day to complain, supposing him to have the opinion under which he was supposed to have written the letter to which it purports to allude; and, therefore, I say, gentlemen, it was dragging an individual before the public, not only without reasonable cause for so doing, but in an unfair and unjust manner.  Gentlemen, you, I regret to say, have often had occasion to be told from the Bench in this Court, what the nature of unjustifiable publications are, and it will not, therefore, be necessary for me to enter at any very great length into the question of what, in law constitutes a libel.  Of libels there are three classes (I quote from a work of acknowledged authority on the subject, on the principles of which I have no doubt His Honor will lay down the law to you this day) first, ``libels, which by accusing a man of a crime, bring him within the danger of the laws; second, libels which have a tendency to injure him in his profession, calling, or trade; third, 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."  Now, gentlemen, I lay out of consideration the first class of libels to which I have called your attention, but I ask you within which denomination of the other two does this publication fall? - or, rather, if it does not come within both classes?  The terms of the publication are too plain, if you should be of opinion that they are applicable to the prosecutor, to admit of a doubt on this subject.  Gentlemen, the station in life which is occupied by the prosecutor in this case, renders it imperative on him to comport himself in such a way as not to deserve the odious epithets which have been applied to him in this publication.  He occupies a station in society, and is a member of a profession which leads to the first offices under the Crown; and, gentlemen, though all set out in life with expectations very different from such a result, yet the profession itself must be supported by men whose character ought, and will support it.  If any disgrace attaches itself more or less to all; and it is, therefore, one which more, or at least as much as any other profession, requires him who belongs to it to be ``far as the poles asunder" from any imputation upon his credit, his honesty, or his honour.  From the highest to the lowest there is but one step, and he who tarnishes his fair fame falls at once from that station which he had previously held in the estimation of society.  Then, gentlemen, when you see a publication like this put forth in reference to a member of that profession to which I have alluded, can you doubt whether it is deserving of penal consequences or whether it does not clearly fall within the two last mentioned classes of libels which I have pointed out to you.  Gentlemen, he who is guilty of falsehood, wilful malignant falsehood too, as is here attributed to the prosecutor, is not worthy of being a member of that profession to which he belongs; and, gentlemen, what is the language of this publication?  ``As to the impeachment, an absurd compound of base and incredible calumnies, it carries with it its own antidote, and furnishes ample means of judging of the character and motives of its author;" in other words, gentlemen, ``As to Mr. Wentworth and the letter said to be written by him, it is not only composed of incredible lies, but on the very face of it, it bears its own antidote, and of itself demonstrates that the motives of the author were of the basest, and most unworthy description."  Gentlemen, if this had really been the case - if the letter, or supposed letter, really deserved the character here given of it, would it not have been much more decent, much more becoming to have left such a production to be visited as it ought, and doubtless would be, in the proper channel, and then it might have been legal - I say it might then have been legal, to have put forth this publication in reference to it when the author and his letter stood before the public on their own merits.  Failing to have withstood the ordeal to which that letter had been submitted, it might have been justifiable to have published such an opinion upon it; but, gentlemen, to publish it at a time when, whatever might be its character, the author had no possible means of showing what his motives really were, or of justifying himself to the public, will any candid mind for one moment be persuaded that it was a fair, or an honest act, or that it was doing to another what one would be done by?  Gentlemen, I ask you, was it a charitable act? was it, in the commonest language of the commonest, ``fair play," to publish what had a tendency to scout the individual to whom it had reference from society, without affording him the slightest means of justification?  Would you, gentlemen, have associated with any individual, against whom it had been clearly established that he had deliberately written that which he knew to be false - that he had framed what was so bad, that the antidote was on the very face of it, in showing the motives by which the writer was actuated, and affording internal evidence that he was a calumniator?  If this production merited the character which is here given of it - if its author be indeed a foul calumniator, so much the better for any party alluded in the impeachment, as it has been denominated.  If, however, it were really unjust; if it contain statements which may be improper or unfair, there was even then a decency of language which might have been used in reference to it, as in another part of the same article, in which this letter is adverted to, in unseasonable certainly, but at the same time I admit, in temperate language, and with a modesty and propriety of demeanor [sic] creditable to the individuals who came forward on the occasion, in introducing such a topic, and giving their opinion upon it.  But, gentlemen, these parties might give that opinion, and yet that letter and the motives which induced it might still be just and proper.  Gentlemen, these parties, however, very justly and properly rest there - they are satisfied with expressing their opinion, as they undoubtedly had a right to do, that the measures to which they alluded in their address were necessary at the particular juncture which gave rise to them - they do not go on and attribute improper motives and wilful calumny to the author of that letter.  The motives which led to the adoption of those measures to which the address refers, might have been of the purest, and yet that letter be imperatively called for.  Gentlemen, without taking up your time with further comment, I put it to you, whether such a publication is to be tolerated under any circumstances, or with reference to any individual, be he who he may.  Gentlemen, he who would lie - wilfully lie, and from the basest motives, too - will do any thing; and show me the man who, from any motive, would be guilty of what is here attributed to the prosecutor, and I say he would commit murder.  That, however, is my feeling; and I am satisfied that you, gentlemen, belong to a profession the members of which will ever go along with me in the expression of the same sentiment.  I ask, would you, or any of you, associate with one who would be guilty of what is here attributed to the prosecutor?  If you would not, then I call upon you by your verdict this day to decide upon tha [sic] character of the publication which will this day be laid before you.  Gentlemen, the libellous matter is conveyed in general language, and by those who know nothing of the prosecutor or of the subject to which it refers, it would not be understood; with those, however, to whom the prosecutor is known, no misapprehension will arise as to its real import, and I shall therefore now proceed to call witnesses who will speak as to the libellous character of the publication itself, and prove its applicability to the prosecutor in this case.

The learned Counsel then proceeded to call the following witnesses:-

George William Newton - I am a clerk in the Office of the Colonial Secretary; I have in my possession a Sydney Gazette of the 7th July last; it is signed ``Gazette Office, Sydney, R. Mansfield;" it was delivered to me by a messenger of the Gazette Office, in pursuance of the provisions of a local ordinance which provides that publisher of newspapers shall file a copy of each number in the Office of Colonial Secretary; I cannot prove the handwriting of Mr. Mansfield; it was receive don the day it bears date; the affidavit produced is signed "``. Mansfield," the signature of the Colonial Secretary before whom it was taken, and was filed in the office as required by law.

A witness, employed in the office of the Sydney Gazette, was then called to prove the handwriting of the defendant.  The signature to this paper [the affidavit before the Court] is in the handwriting of the defendant, as is also the signature affixed to the paper, the Sydney Gazette, bearing date the 7th of July, 1829; the imprint at foot is the usual imprint of the Sydney Gazette, and I believe this paper to have been published by the defendant.

The affidavit alluded to was then put in and read by the Clerk of the Court, and set forth that the defendant was sole Editor of the Sydney Gazette, and that it was published by him for, and on behalf of the executors of the late Robert Howe.

Mr. C. H. Chambers examined - I know that a letter to the effect stated was written to the Secretary of State by Mr. Wentworth - I mean William Charles Wentworth; I have no doubt that the words in this paper, beginning - ``As to the impeachment," refer to the said letter written to Mr. Wentworth, and to the subject referred to in the said letter; by the words, ``the author," I have no doubt is meant William Charles Wentworth, and as the author of that letter; by the words ``carry internal evidence, &c" I consider is imputed that the motive was bad, and that the letter itself was false and slanderous.

Cross-examined by Mr. Norton. - How do you happen to know, Sir, that Mr. Wentworth addressed such a letter to the Secretary of State? - I accidentally saw some pages of it in Mr. Wentworth's office, and I afterwards carried the copy, signed by the prosecutor, at his request, to Government House.

How do you know that it was addressed to the Secretary of State? - I saw it folded up and addressed to the then Secretary of State, and it was the same that I afterwards carried to Government House.

You did not read the whole of the letter? - No, not the whole of it.

Pray, how was it addressed? - I do not recollect precisely; I know it was addressed to the then Secretary of State, but I do not remember who held the office at that time.

I think you say you had seen some pages of the letter previously? - Yes I had.

How do you know that it was the same letter you delivered at Government House? - It was folded in my presence, and afterwards put in an envelope, and addressed to the Governor.

What was the subject of the letter, part of which you had seen? - It was relative to Sudds and Thompson.

It was a letter, then, addressed to the Secretary of State, relative to Sudds and Thompson? - Yes.

That was the subject of the letter? - Yes.

That is all you know about it? - Yes, it was respecting a certain punishment inflicted on them.

Perhaps you would recollect the parts you read, if you were to see them again? - Very likely I should.

Was the letter that you saw shewn about? --- No. I asked to see it and was refused.

The prosecutor would not allow you to see it? --- No, he would not.

Then it was addressed under more than ordinary precautions of secrecy? --- It was.

You have referred, Sir, to some passages in the publication charged as libellous, and particularly to that part respecting the motives of the author; and I think you stated, that the motives ascribed to the author were false and slanderous, Is that so? --- Yes, I infer that the writer meant to say that he author was a liar and a slanderer; that, in my opinion, is the plain inference to be drawn from the words made use of.

Was that letter ever made public to your knowledge? --- Not to my knowledge; and I know that every effort was made to keep it secret.

You do know that the prosecutor used efforts to conceal it? --- I do.

Have you ever seen it in print? - I think I have seen it in print, but I don't know that I ever examined it.  It was when in print that I asked to see it.

Who did you hear from that it was in print? was it from the prosecutor? - No.

But you asked the prosecutor to suffer you to read the printed one, and he refused? - Yes.

Is that [exhibiting a certain book to the witness] a copy of the letter you saw?

Dr. Wardell objected to the question, or to the production of the book to the witness, as it could only be produced in order to show the truth of the imputations with regard to it.

The Court saw no objection to the witness being asked the mere naked fact, whether that book was a copy of the letter he saw.

Dr. Wardell - But, your Honor, I object because, even supposing the letter to be in print, it has no relation whatever to this case.  It can be produced only with one intent, namely, that of justification.  It is, in fact, an indirect mode of putting in issue, certain supposed acts of the prosecutor.  Even if it could be shewn that a printed article, at the instance of the prosecutor, ever had been in his possession, and that it bore the character applied to it in the newspaper, the very object of putting it in as evidence could be no other than to justify.  I am not at all disposed to admit that what is attempted to be proved can be proved; but I object on the broad principle, that no evidence of justification can be received.

Mr. Norton, on the other side, contended, in order to show that the publication complained of was libellous, it must be proved that the thing with respect to which the libellous matter was said to be published, was in existence - was a certain thing --- and, therefore, that it was competent, on cross-examination, to put the pamphlet into the hands of the witness, and ask if that was a copy of the letter he saw.  In order to charge the defendant with libel, said the learned gentleman, it is necessary to prove that the matter published was of and concerning a certain letter addressed to the Secretary of State.  Your Honor will not fail to see that the only evidence of that fact, is the opinion of the witnesses; and certainly it is open to the defendant to counteract that opinion, and to show that the observations here published were of a certain other thing.  The witness has expressed his opinion, that the observations of the defendant were made in reference to a letter which he states was written with the greatest regard to secrecy, and therefore not very probable that it could have come to the knowledge of the defendant or into his hands.  If, therefore, on looking at the pamphlet, the witness sees that the observations of the defendant apply to it, he may consider that he has arrived at a hasty and erroneous conclusion, and be of opinion that those observations apply to it rather than to a letter which so much precaution was used to conceal.

Dr. Wardell. - The witness has already sworn that he saw and was the bearer of the letter to which the observations of the defendant refer; so that the object of asking these questions of the witness is to make him perjure himself by swearing that the observations apply to one thing which he has already sworn apply to another.  But the question here is not true or false, but whether this publication be libellous.  If I were to allow the defendant to set up an ex parte case, to shew that what he published was true, it would only be the worse for him.

The Chief Justice - I cannot allow this pamphlet to go to the Jury, unless I know for what purpose it is produced, and what may be its contents.  The naked fact that this book is a counterpart of the letter witness saw, may be proved - but that proves nothing.  If it be afterwards attempted to read the contents, and show that the letter was, in truth, what was said of it - namely, a copy of the letter of which the witness has spoken, then it is inadmissable [sic].  I do not see in what way the identification of this book with the letter written, by the prosecutor, can bear upon the case.  In the case of the King against Wardell, a witness at the trial was asked about a naked fact, connected with another publication, viz. - whether all publications in the Sydney Gazette, bearing an official signature, were considered as having the sanction of government, and it was answered that they were; but the publication itself was not admitted in evidence.  I therefore cannot allow this book to be put in evidence unless the Court is informed for what purpose it is intended to be used.  I will allow the question as to the naked fact of whether that is a copy of the letter which the witness has seen to be put, but no farther.

Cross-examination of Mr. Chambers, by Mr. Norton, continued - You have tsated [sic] that you believe the observations in the alleged libellous matter to be upon a letter addressed by the prosecutor to the Secretary of State? - I have.

Will you swear that they may not have reference to some other publication or thing? - Reading this mere passage, and I have read no other, and if there was any other impeachment, I could not say to which it related.

Yes, that's what I mean; if there had been any other document called an impeachment in existence, you could not say to which it related; - I think not, if there had been two at the same time.

Then, in point of fact, if any other person printed a publication containing the same remarks and words as those in the letter you saw, you could not undertake to say whether these observations applied to the one or to the other? - Why, if such a possibility existed, as that two persons could have written precisely the same words, I certainly could not.

Pray what is an impeachment, Mr. Chambers?

As I understand it, it means a detail of certain charges intended to be laid before Parliament against some individual holding a high office, appointed by the Crown.

Well, Mr. Chambers, supposing such charges were published and transmitted through the ordinary channel, you would call that an impeachment? - It would be intended as such.

You state, supposing some other person, by a singular coincidence, were to write the same charge as those contained in the letter you saw, that you could not tell whether the comment contained in this publication were on the one or the other? - No.

Supposing the same person, in addition to the impeachment, were to publish the same matter in a pamphlet, could you then say whether the observations referred to such publication or to the impeachment? - I could not say to which they referred.

You do not now know, in fact, to which these observations apply; to the letter or to the pamphlet? - I don't know of any pamphlet.

Then, as a matter of fact, if your information be correct, that the letter which you saw was printed, you will not undertake to swear to which the observations allude, whether to the printed or to the written copy? - I should say to both.

But which do you think most probable, that a person observing on it would observe on the thing in print, and which may have been circulated about the town, or upon the letter which was sent sealed and signed, with every precaution to ensure secrecy? - I should think most likely that he would observe on the thing in print.

Then supposing your information as to the letter having been printed to be correct, you think it most probable that the observations refer to the printed copy? - Yes, as more easy of access.

What passages do you recollect having read in the written letter?  Do you recollect -

Dr. Wardell - I he did I would not allow him to state them.

Mr. Norton - That depends upon circumstances.

You recollect certain passages so well, that upon seeing the libel it at once struck you that it was a criticism on the part you read? - Yes.

What part of the letter was it you read? - the beginning or the latter end? - I think it was about the middle.

Should you recollect those passages which you read, if you were to hear them again? - I might, the substance.

Will you endeavour to mention any part which you can recollect, or do you think if I were to refresh your memory you could remember the passages, again?

The learned Counsel was here about to read some passa ges from a pamphlet which he held in his hand, when he was interrupted by Dr. Wardell who objected to their being read, as utterly irrelevant and inadmissable [sic].

Mr. Norton contended, that at least there was only the opinion of the witness that the observations alluded to a particular thing, which opinion might be shaken on the production of another thing.  It was, he submitted, a question for the jury, whether the observations charged as libellous applied to the letter which had been spoken of or to something else; and it surely was quite open for the defendant to show, if he could, that he did publish of something else, that which the prosecutor applied to himself.

The Chief Justice --- I perceive the drift of the learned Counsel's argument, but I am not satisfied of its soundness.  Lest I should be in error, however, in preventing the line of defence which is attempted, I will briefly state the grounds upon which I do so, in order that any opinion I now entertain may hereafter receive a more matured consideration, if it should become necessary.  It is averred in the information, that the prosecutor wrote, or was supposed to have written, a certain letter to the Secretary of State in England, upon the subject of a certain act of the Governor of this Colony; and that the defendant published, or and concerning such letter, or supposed letter, that it was ``a base compound of falsehoods, and bore internal evidence of the character and motives of the author."  Now the fact of such a letter being written, or supposed to be written by the prosecutor, is all that is averred, and all that is necessary to be proved; and that only as a link, in the chain of evidence, to shew that by ``the author" is meant the prosecutor.  The contents of the letter are in no way, as I conceive, material or relevant to the issue, which is not whether the letter is, or is not what it is represented to be, viz. ``a base compound, &c." but whether the defendant is or is not guilty of applying such epithets, and their inferential meaning to the prosecutor.  For, suppose these epithets to be true - suppose the letter itself to contain all that is said of it, that it is a tissue of lies, and the writer a slanderer, it will not be less libellous to apply such expressions to the writer; or suppose it to be an inoffensive composition, how does it alter the case?  The contents of the letter are not in issue, the character of the letter itself is no part of the case; any questions touching these points are, I apprehend, immaterial and irrelevant to this issue.  But independently of these considerations, the subject of the letter itself may be unfit for disclosure and discussion in this Court.  Suppose the letter to contain matter of a highly indecent or immoral nature.  It has sufficiently appeared in evidence already, that the letter, the subject of this prosecution, contains charges against the government --- charges of a highly inculpating character --- can this Court allow itself to become the medium of publishing criminal charges against the Governor, who is not before the Court?  Surely, unless a case of materiality is prima facie made out, for the admission of such evidence, I must pause before I can consent to let the Supreme Court of the Colony become the arena for promulgating articles of impeachment against the Representative of the King, the Governor of the Colony, and that Governor in now way party to the cause.  Upon these grounds I should have refused to allow the contents of the letter itself to be read; and as I should have rejected the original, I do not see how I can allow a copy to be read, whether printed or manuscript.  Again - it is afterwards attempted to be shewn, that the words alleged as libellous, do not refer to the prosecutor or his letter, but to another and an entirely distinct publication.  But after having seen this self-same letter or pamphlet put into the witness's hands, and taken out again, and the whole tenor of the defendant's questions and the witness's answers, going to establish the fact of its being a copy of the original letter, can I upon so specious a pretext as the bare hypothesis that it may be a distinct letter from the written, or supposed to have been written by the prosecutor, allow this letter or pamphlet to be read in evidence before the Court?  Some proof, some probable case must be laid before I can do so.  But I think I can perceive in this course of proceeding, an attempt, by a side-wind, to get before the Court the same articles of impeachment, described by the learned Counsel himself as of the most calumnious character against the head of the Government as a set-off against the libel charged against his client.  Under every view of the case, therefore, as at present advised, I cannot permit the contents of the letter to go to the Jury - if, unfortunately, I am in error upon the point, it is my consolation to know, that there is a way of correcting it hereafter.

Cross-examination continued. --- In the matter charged as libellous, there is no mention of the prosecutor's name? --- No.

Then I wish to ask you upon what is your opinion based, that the remarks are in reference to that particular letter? --- Upon this, that I know such a letter was written, and I never heard of any other.  I know that the having written a letter in the nature of an impeachment, was by common rumour attributed to Mr. Wentworth, and I don't know of a second letter or charge, that was rumoured to bean impeachment.  All I know is, that a letter was written, and sent by Mr. Wentworth, to the Secretary of State, through the Govenor, and that only from common rumour.

Then your opinion is rather an inference from circumstances, than an allegation of a fact? --- It is.

Supposing no such word as impeachment had been used in these observations, would you then conceive they had reference to the prosecutor's letter? - Unless I had known of the letter, no.

What part of these observations induces you to think, of all other things, that they have reference tot hat letter? - The word impeachment.

Then, in point of fact, it is from that word being used, that you think these observations were intended for that letter?  - Yes.

Coupled with the facts, that you know of no other thing called an impeachment? - Yes.

Then your conclusions are based on two things, first, a letter in the nature of an impeachment, addressed by Mr. Wentworth to the Secretary of State, and this publication having used that word; and also upon yonr [sic] not being aware of any other impeachment? - Yes.

Then your opinion rests on all these positions? --- It does.

Re-examined by Dr. Wardell --- You were requested by Mr. Wentworth to convey the letter of which you have spoken to Government House? --- Yes.

You knowing at the time what it was? --- Yes, I saw it folded up and was especially requested to take it to Government House, in order that I might be able to prove that such a letter was delivered.

And this was independently of any matter of rumour? --- Yes.

And you have no doubt that the rumour alluded to this letter, which was commonly termed an impeachment? --- I have no doubt.

Now, Sir, there have been hypothetical questions put to you, which I am sorry for, as they compel me to carry the matter farther than I could have wished, but look at that newspaper [paper handed to witness.]  At the head of the sentence preceding the one charged as libellous, what do you see? --- The words, His Excellency's reply.

And you see it is signed, how? - Ra Darling.

What is that newspaper called? - The Sydney Gazette.

No, no, I mean what else is it called; you know it has got some other name? - It is called the Government paper.

Have you any doubt, then, in your mind, that that is what it purports to be, namely, the reply of His Excellency to the address which is inserted above? - No, I have not.

You took that letter now denominated an impeachment to Government House? - I did.

Now, Sir, you have been asked, if you saw posted up in the streets, that which is denominated an impeachment, whether you could say to which this article referred?  Look to these few lines.  They are part of what purports to be the Governor's reply? - They are.

Have you any doubt that they apply to any thing else than that letter which you took to Government House? --- None whatever.

Do you think that an impeachment stuck up on the posts in the streets would have been replied to in that way? - No.

Then you have this further ground to support your opinion, namely, carrying the letter, and this being a reply to it? - Yes.

And, to your knowledge, Mr. Wentworth took every pains to conceal the letter from every eye but that for which it were intended? - Every possible caution.

Edward Joseph Keith examined by Dr. Wardell. --- You are an Attorney of the Supreme Court?  I am.

Were you in the Colony in the alter end of the year 1826?---I was.

Are you aware of a certain punishment inflicted about that time on two soldiers of the 37th Regiment? --- Yes, by report; I also saw a general order in the Sydney Gazette, purporting to be by the Brigade Major, and I believe that such punishment had been consequently inflicted.

Is that the order? [paper produced] - It is.

Who are the soldiers named in that order?- Joseph Sudds and Patrick Thompson.

Look at that paper, Sir, [paper handed to witness] and say to what, in your opinion do the words, commencing ``As to the impeachment, &c." relate? - I understand them to allude to certain charges which, according to report, were forwarded by Mr. Wentworth against His Excellency the Governor to the Home Government.

Reported and believed? - I believed it.

What were those charges called in common rumour? - Many people called them an impeachment.

And in your opinion, those words allude to that act? - They do.

Look at the words commencing ``A gross compound, &c.," and ending with ``Author," and say what is your opinion of them with reference to the word author? - I believe them to impute to Mr. Wentworth, as the author of that letter or impeachment, that he had intentionally accused the individual against whom he had forwarded those charges, of acts of which he was not guilty, and of which he knew he was not guilty; and that he was induced to send the impeachment home from the worst of motives.

Cross-examined by Mr. Norton - Why do you conceive that all these insinuations are made against the prosecutor?  Is he named? --- The author is named.

But why do you consider these to be observations on the prosecutor? --- Because I believe him to be the author.

What is your belief founded on? --- On general report.

What general report? --- It was generally reported that Mr. Wentworth forwarded charges home, through the Governor, against him.

What ! against himself? - No, against the Governor.

And did you conceive those charges to be such as that the observations in that publication would apply to them? - I understood the charges were in reference to Sudds and Thompson.

What is your meaning of an impeachment? - When a Governor, or other high officer is brought before Parliament on charges preferred against him, it is an impeachment, but not before.

Then you never apprehended that Mr. Wentworth sent home an impeachment? --- I apprehended he sent home charges, which the people called an impeachment.

You have seen a printed pamphlet, which you have heard called an impeachment? --- I saw one in your hands the day you shewed cause against granting this information and heard you read some extracts from it, which I have heard called so.  It was a letter to Sir George Murray, containing charges against the Governor about Sudds and Thompson, but I never heard an opinion expressed by any person relative to that pamphlet.

That pamphlet was alluded to by the defendant in showing cause against granting this information? --- I believe it was attached to his affidavit.

Do you believe that the observations charged as libellous were made on that pamphlet? --- If that pamphlet be a copy of the letter sent home by Mr. Wentworth against the Governor, they may also allude to it.

Suppose it were published by some obscure individual, whether it be a copy of Mr. Wentworth's letter or not, might not these observations be on it? --- No.

Why do you think that these observations apply to Mr. Wentworth's letter, and not to that which appeared in print? --- Because I see the reply to an address, in which they are contained, published in the official Journal, and I do not think that the Governor would reply as he has done to any other charges than those sent home by Mr. Wentworth.

I ask you, Sir, whether in your belief, the matter charged as libellous is not in reference to this pamphlet? --- If that pamphlet be a copy of the charges sent to the Governor, then of course these observations do refer to it, in common with the other; but my belief is, that the observations contained in this paper have reference to the charges sent by Mr. Wentworth to the Governor.

The alleged libellous matter was here put in, and read by the Mr. Gurner from the Sydney Gazette, proved in the early part of the case, dated the 7th July 1829, and is contained in the following words:-

``As for the impeachment, a gross compound of base and incredible calumnies, it carries with it its own antidote, and furnishes ample means of judging of the character and motives of the author."

This was the case for the prosecution.

Mr. Therry addressed the Jury on behalf of the defendant to the following effect:--- Gentlemen, I should almost tremble at the responsibility with which I am this day charged in conducting a defence which involves topics of great excitement and considerable importance.--- which necessarily introduces the mention of eminent names and prominent public characters, and which induces a discussion upon points on which it is easy to display more zeal than discretion.  Sustained, however, by a consciousness of the merits of the defence, and emboldened by the confidence which that consciousness inspires, I shall proceed to the discharge of the duty which this day devolves upon me, anticipating for my client a triumphant and honourable acquittal.  And first, gentlemen in the very outset of these proceedings it is material you should bear in mind that it is not asserted, or even insinuated, that my client is the author of the paragraph laid in the information, which charges the thing called an impeachment as a document containing ``an incredible tissue of calumnies and falsehoodes [sic]."  And you cannot forbear to observe, that if the answer to the address be the product of the imminent person to whom it is attributed, what must you not think of the manliness --- the boldness --- and chivalrous magnanimity of the person who shrinks from a contest with the party by whom he is aggrieved (if aggrieved he be at all) because that party is invested with authority and power, and aims a blow at my client, not because he has injured him, but because he is powerless, and therefore may more easily be made a victim?  But, gentlemen, although he has thus preferred to fight with the shadow rather than confront the substance --- although he has raised the altar and prepared the sacrifice, yet I feel assured unless guilt be established and criminality made manifest, you will scorn to complete the immolation.  You have been already apprised that the prosecutor in this case is William Charles Wentworth --- William Charles Wentworth!!  The name, I am sure, must have come upon you with some surprise; for surely when a prosecution against the press was the matter to be discussed, the quarter from which it has proceeded is the very last from which one would have supposed it to emanate.  I really had thought that the learned gentleman had earned unto himself such a notorious reputation as a lover of the liberty of the press --- I had been so impressed with the conviction that there was not one man in the Colony more bitten with the doctrine of the liberty of the press than this prosecutor, that it was with astonishment I had learned he had become the prosecutor of that great organ of public intelligence of which he hitherto had been known only as the vaunted champion.

``Who would not grieve of such a man there be

Who would not grieve if [?]t[?]cus were he.

Who would not grieve if this prosecution will serve for no other good object, it will be useful for this purpose at least --- it will serve as a moral example to the world to show the qualified devotion which the worshippers of the liberty of the press pay to the goddess of their idolatry.  The liberty of the press is with these gentlemen a good thing just so long as it leaves them uncriticised and uncensured [sic].  Liberty of the press with them consisted in unbounded licence to attack the Governor --- and the Colonial Secretary --- aye, the press may abuse then to its heart content, and every civil and every military officer should, from time to time, be visited with the infliction of its censorious commentary.  It matters not either, if through the misrepresentation of some inflammatory paragraphs, half-a-dozen of civil officers be dismissed, and half-a-dozen military officers be put upon their trial for murder, or be tried by courts martial and cashiered.  As long as the press confines itself to these innocent and useful exercises, the press is an excellent thing with these gentlemen --- liberty-lovers --- but then this is the limit of their devotion; their motto is ``Noti me tangere" - Touch, me not - I like to look on and laugh.  You may deal right and left the shafts of scandal and of slander, provided you aim them not at me.  Spread calumny abroad when and where you please, all I ask is, that you do not involve me in the vortex of your overwhelming defamation.  This, gentlemen, if not quite a definition, is not a very inaccurate description of the sort of affection which is borne by some persons in this Colony to the press, towards which we see them alternate in the relation of a friend or foe, as occasion may require.  Gentlemen, much as I may be astonished at this prosecution, I will not conceal from you that it is a case in which it is distasteful to me on some accounts to be engaged.  It is no agreeable office to me, I assure you, to be obliged to animadvert, as it will be my duty this day to animadvert upon the learned prosecutor in this case, who is a leading member - perhaps it would be no exaggerated compliment to say the leading member of the profession in this Colony to which I myself have the honour to belong - towards whom it is impossible that I can entertain any feelings of personal unkindness, or indeed unkindness of any sort, and of whom it would be more gratifying to me to have the power of speaking in eulogy than in censure.  Painful, however, as this office may be to me --- unpleasant as this investigation may be to us all---and disgusting as, yet I feel I have but one paramount principle to observe, to exert myself to the utmost of my humble ability in behalf of my client, who has done me the honour to confide his interests to my charge.

In bringing the case of Mr. Mansfield under your consideration this day, I am anxious to invite your attention to a leading case on the subject of libel which possesses many features of resemblance to the present.  The case to which I refer is that of Mr. Stockdale, an eminent publisher, of Piccadilly, in London.  The circumstances of his prosecution were these:- Articles of impeachment had been referred against Warren Hastings, for various acts of alleged misgovernment in India.  These articles were prepared by Mr. Burke, and were printed and sold in every shop in the kingdom.  They met with such a favourable reception from the public that no novel or work of the day was devoured with greater interest than these articles of impeachment from the beautiful style with which they were composed - not intended certainly by the excellent author of them for the purpose of creating prejudice against the party accused, but because the most common-place topics swelled into importance under the touch of his sublime genius.  On the appearance of these articles, the Rev. Mr. Logan, a Scotch clergyman, composed a pamphlet, entitled, ``A Review of the Articles," and carried them to Mr. Stockdale, who published them in the course of his bussiness [sic].  It was an able pamphlet - had an extensive sale, and gave offence to the House of Commons, which unanimously voted and Address to the King, praying His Majesty to direct his Attorney-General to file an information against Mr. Stockdale, as the publisher of a libel upon the Commons' House of Parliament, which was filed accordingly.  Gentlemen, the point in this case of Stockdale, which it is important you should bear in mind as applicable to the present, is this:-  That the articles of impeachment preferred against Mr. Hastings, instead of being confined to the House of Commons until they were carried up to the Lords for trial, were printed and sold in every shop of the kingdom, without obstruction, and undoubtedly made a very considerable impression against the accused.  This was the main topic of defence relied upon by Mr. Erskine, in his speech for the defendant; a speech, which is perhaps the noblest memorial of eloquence exerted in the cause of liberty ever presented to the admiration of the world.  Gentlemen, Mr. Stockdale was tried and acquitted; and it is remarkable, that there is contained in the publication for which Mr. Stockdale was prosecuted a passage synonimous [sic] almost in terms with the paragraph laid in the present information; one passage of Doctor Logan's publication runs thus:- ``What credit can we give to multiplied and accumulated charges when we find that they originate from misreprentation [sic] and falsehood."  Gentlemen this day I propose to  produce to you a document I know not whether it be or not be a copy of a manuscript impeachment written by the learned prosecutor, but whether it be or be not so, it is at least a printed, published document; it proposes to prefer grounds of impeachment against the Governor of this Colony; it contains manifestly the matter referred to in the paragraph of His Excellency's Referred to in the paragraph of His Excellency's Reply.  If the learned prosecutor had prepared an impeachment and confined it to the ordinary and regular channel of legal procedure, it might perhaps be intended that was a privileged act and should not be subjected to the strictures of the public press.  But if a copy of that impeachment has been printed and published, the protection of privilege ceases, as it ceases with the publication of the articles of impeachment preferred against Mr. Hastings.  It becomes, to all intents and purposes a public work, subject to public criticism, as much as if it were an original publication, and not a copy of an impeachment or any other accusatory matter, forwarded to the constitutional tribunals competent to entertain such subjects of complaint.  The question, then, gentlemen, which you have this day to try, is neither more nor less than this.  It is whether, having laid before you a printed published work, and having your attention called to the matter contained in that work, you believe that the paragraph complained of in this information refers to that matter or not.  If it be your opinion that it does not refer to that matter, then my defence fails - but if it be your opinion that the paragraph refers to that matter and to that alone, then it becomes a question for you to consider whether or not this be a libellous and malicious commentary on such a work as I have described, or whether it be a fair, just, and candid criticism, as may be published of the work of which it treats.  And first, gentlemen, supposing this work to be a copy of an impeachment preferred against the Governor of this Colony, I pray your attention to the opinion of Mr. Erskine on the publication of a similar copy under similar circumstances.  In the case of Stockdale, he says- ``If they, the House of Commons, were resolved to consider answers to their charges as a contempt of their privileges, and to punish the publication of them by such severe prosecutions, it would have well become them to have begun first with those printers who, by publishing the charges themselves throughout the whole kingdom, or rather throughout the whole civilized world, were anticipating the passions and judgments of the public against a subject of England upon his trial, so as to make the publication of answers to them not merely a privilege, but a debt and duty to humanity and justice."  You observe, gentlemen the energetic language of Mr. Erskine is, that the publication of answers in vindication of an accused party under such circumstances, is a debt and duty to humanity and justice.  The question again arises is that answer libellous or not, and our defence this day is that applying the paragraph to the publication, to the matter to which it refers, it is not libellous.  There is another remark of Mr. Erskine's on the same occasion, so strikingly applicable to the present case, that I am sure you will bear with me while I read it.  ``Thus by the remisness of the commons, who are now the prosecutors of this information, a subject of England, who was not even charged with contumacious resistance to authority, much less a proclaimed outlaw, and therefore fully entitled to every protection which the customs and statutes of the kingdom hold out for the protection of British liberty, saw himself pierced with the arrows of thousands and ten-thousands of libels."  Aye, Gentlemen ``there's the rub" and now I will proceed to read to you this precious document every page of which, it is not exaggeration to say is fraught with ``arrows of thousands and ten-thousands of libels" barbed with the poison of malice as intense as the most perverted ingenuity could devise.

Doctor Wardell here interrupted Mr. Therry.  He said he now saw the line of defence intended to be adopted by the learned gentleman and contended that it was inadmissible.  Mr. Therry had said that there were ten thousand libels in a work which he proposed to introduce.  This was an attempt to defend one libel by stating that ten thousand libels had appeared in some publication.

The Chief Justice said that hitherto Mr. Therry was certainly not out of order.  He (the Chief Justice) was attentive to the course of argument the earned gentleman was pursuing and if he found he departed from the line which in his opinion should be pursued, he would himself interpose.

Mr. Therry, really the interruption of the learned Doctor was quite uncalled for.  He does not accurately state my defence when he says that I propose to defend one libel by quoting ten thousand others.  But my defence is this, and I avow it freely: --- I propose to produce in evidence this day a printed published work; I propose to prove that the paragraph laid in the information as libellous refers to the matter contained in that work; and I propose further to prove, that so far from being a libel on the author of that work, be he who he may, it is a fair, just, reasonable, and I will add a very tame criticism upon that work.  This I do to show (what I am entitled to show) the occasion on which the paragraph charged as libellous was published, and to rebut malice, which is essential to constitute the offence complained of in the information.  I now then proceed to prove my position by quotations from the book.

The Chief Justice here interposed and said, that he could not allow counsel to read the quotations which he was about to cite.  There was no proof yet given to warrant the reading of quotations from such a book; and, moreover, if it were the same book which had been cited when a criminal information was applied for, it contained passages reflecting in the severest terms upon various alleged acts of the Governor of the Colony, and for the sake of public morals and propriety he should be unwilling to allow any passages from such a book to be read in open Court.

Mr. Therry said, with submission to His Honor, there had been evidence of the existence of such a book.  The evidence of Mr. Chambers was to this effect.  He had understood that there was a written impeachment, and he had also heard that there was one in print - and he added that if there was one in print he would be the more inclined to believe that the paragraph complained of in the information referred to it rather than the written one.  This was some evidence surely of the existence of such a publication, and of the applicability of this paragraph to it.  As to the reflections which the work might contain upon the Governor, he was sure the reading of them could give no displeasure to the Governor, or create no disrespect towards him or his high office; for as was most truly remarked in the paragraph.  ``Those reflections carried their own antidote with them."  He therefore hoped His Honor would allow him to proceed in the legitimate line of defence he had marked out for his client.

The Chief Justice admitted the ingenuity of the argument of Counsel, but, exercising his judgment to the best of his ability, he did not think it right to admit passages from this book to be read for the reasons he had mentioned.  No satisfactory proof had been adduced that day in Court to warrant the introduction of that book, and in the absence of such proof, or of the showing of some strong necessity for introducing it, he should be reluctant to allow passages from such a book to be read in open Court.

Mr. Therry and Mr. Norton then consulted for a few minutes, after which

Mr. Therry said, as your Honor, by the point you have been pleased to rule had excluded by learned friend (Mr. Norton) and myself from the available line of defence to which we humbly conceive ourselves entitled, we respectfully bow to your Honor's decision, and at the same time beg leave to decline proceeding further in the defence.

The Chief Justice said, he should be sorry that the case should stop in this manner.  There was another mode of defence that might be resorted to.[2 ]  (His Honor paused here for a few minutes, but receiving no reply from Counsel he proceeded to charge the Jury.

Gentlemen of the Jury.  This is an information filed at the instance of Mr. William Charles Wentworth, a barrister of the Court, against the defendant, the Rev. Ralph Mansfield, editor of the Sydney Gazette, charging him with a libellous publication of and concerning the prosecutor, Mr. Wentworth.  It has been stated to you, that the information contains four counts:- The first count alleges, that Mr. Wentworth had written a certain letter to the Secretary of State, on the subject of certain acts of the Governor of this Colony, and that the defendant did publish, in the Sydney Gazette of the 7th July 1829, of and concerning the said William Wentworth, and of and concerning the said letter, that it was, ``an absurd compound of base and incredible calumnies, carrying with it its own antidote, and affording ample means of judging of the character and motives of the author;" with innuendoes pointing the alleged libel to Mr. Wentworth, and charging the defendant with having attributed to him base and unworthy motives in writing the said letter.  The second count differs from the first only that, instead of setting forth that a certain letter had been written, it charges the publication to have reference to a certain supposed letter, and then goes on as before.  The third count follows the order of the second, in supposing the letter to have been written, and merely varies the language of the innuendo, slightly.  The last count states generally, that the matter refers to Mr. Wentworth and his letter and charges the defendant with having attributed improper motives to the prosecutor.  Gentlemen, before I proceed to read the evidence which has been laid before you this day, I will make a few observations on the peculiar situation of Courts of Justice in this Colony. -  Gentlemen, it is with feelings of the most painful, I may say personal kind, that I ever enter upon, trials of this sort; - and, in the present instance, those feelings are increased by the undefended way in which this cause has been left for your consideration.  It is reported to have been said by Lord Mansfield, that he never tried one popular case of libel, which did not produce at least a dozen libels against himself.  I will not assume, that such will, of necessary consequence, become by fate; but, I will say, that how great soever may be the difficulties and imputations to which judges in England may be exposed, they fall short of the embarrassments and distressing circumstances with which the judges of this Colony have to contend.  The illustrious person who sit in the Courts at Westminister, supported by a long pre-established character for learning and probity; surrounded by a bar who have associated with them through life, and who can appreciate their character and motives; and leaning upon public opinion, present a sevenfold shield against any shafts that may levelled against their acts or their motives.  Not so the judges of this Colony: --- We are strangers to the community among whom out lot has been cast; we are estimated only according to the standard that accident or the feeling of the moment may create; --- our proceedings and our motives may be impugned without any other protection than that which our own sense of duty, and the opinion of disinterested persons may afford us; --- we are exposed, I may almost, say without protection, to the worst suspicions.  --- Gentlemen, neither is your situation more enviable than that of the judges.  You are, I may say, an invention of the parliament of England, supposed to be adapted to the peculiar circumstances of the society wherein you exercise the duties which devolve upon you.  You are called upon by the act of parliament, to try charges preferred against your fellow subjects of a different profession from your own: --- you are not the peers of the accused, who, according to the common law constitution of juries, are assembled from the common ranks of society, having, or presumed to have, a common feeling with the accused, and bound by every tie to the due administration of justice.  They sit down under the sacred shade of the constitution, to award right and justice to their fellow men; and when they have done so, they merge into the common ranks from which they were called.  Their motives are never questioned --- their verdicts however wrong, are at least attributed to honest error of judgment.  Your situation, gentlemen, on the contrary, exposes you to insinuations: your members are few --- your are selected from a small professional body; --- and although individual justice may be done to your private character or worth, your verdicts as jurors, are exposed to misrepresentation, and your motives to imputation.  Such, gentlemen, are a few of the difficulties and embarrassments which surround us in the administration of justice and the important functions committed to us.  In each a situation, therefore, it becomes our special duty to fortify ourselves by coming to the discharge of our duties, with no other feeling but that of a desire to administer strict and impartial justice.  Gentlemen, having made these observations, I will now advert to the evidence laid before you this day in support of this prosecution.  It is in proof, that a rumour existed, and was credited by the witnesses, that a letter had been written by the prosecutor, William Wentworth, addressed to the Secretary of State, complaining of an act of the Governor, in reference to a certain punishment inflicted on two soldiers; that in consequence of such rumour, an address was presented to the Governor, and that the words charged as libellous were contained in a publication purporting to be His Excellency's reply.  It is not in evidence, that the address referred to was from certain inhabitants of the Colony, but I will assume that it was so, in order to make a few remarks upon this part of the case.  It appears that a certain number of the most respectable inhabitants of the Colony, hearing that the character of the Governor had been impeached, voluntarily came forward to testify their affectionate respect for his person and government.  It was, gentlemen, unquestionably the right of the inhabitants to perform this act of Justice towards their Ruler, whose measures they approved; it is only an exercise of the constitutional right of petitioning the Sovereign, or addressing him upon the measures of his government: and it was equally the right of His Excellency the Governor to reply to such an address, and to vindicate his character and his administration from any aspersions that might be cast upon them, come from whatever quarter or motive they might, and in terms proportioned to the asperity with which he might be assailed.  He might reply to his accusers, that their charges were false, and their motives malignant, and he might stand upon this right in any court in the world.  But it is one thing what His Excellency might do in his defence, and quite another what the defendant is charged with doing.  The defendant cannot identify himself with the Governor, and stand upon the right of self-defence.  It does not follow that any other individual may take up the case where the Governor has left it, and publish to the world that which imputes improper motives to another.  Liberty of speech is allowed, the right of petition is allowed, and the privilege of complaining of grievances admitted, however strong the language, not to be libellous, because it is made in that freedom of speech which is necessary for the administration of Justice.  But it is confined there.  It is not, on every occasion, lawful to publish the proceedings in parliament, nor even the whole of what sometimes transpires in a Court of Justice, where by the constitution we are prohibited from sitting with closed doors, and, consequently, where the whole public may be present.  Gentlemen, applying this general reasoning to the point before us, I hold that in point of law, however it may be the right of the inhabitants to address the Governor, and whatever may be the right of His Excellency to reply, that does not authorise another person to publish that reply if it should contain matter of a libellous nature.  But, gentlemen, I state to you, that whether such a letter as the one alluded to in the evidence was or was not written, or whether the two soldiers to which it is stated to have referred were or were not punished, is not material to this case, any further than as they are laid in the information.  The only object of proving these averments before the Court was to show the identity of the party complaining with the party alluded to in the alleged libel: they are, in fact, but what the law terms mere matters of inducement to point the evidence, and form no part of the real question for your decision this day.  Gentlemen, there are two points for your consideration; first, is the matter charged in this information libellous? and, secondly, does it apply to the prosecutor, William Wentworth, and to him only?  Upon the first point I will proceed to state to you the law as to what is libel, and, in order that you should not form your opinions from what I might lay down to you on the subject, I will read from a work of acknowledged authority, and then allude to the evidence as it goes to affix the applicability of the publication complained of to the prosecutor in this case.  [The learned Judge read copious extracts from Holt, pp. 210-11-12, showing that whatever, ``by holding a man up to scorn and ridicule, and still more to any stronger feeling of contempt or execration, impairs him in the enjoyment of general society, and injures those imperfect rights of friendly intercourse and mutual benevolence, which man has to man," is a libel, and proceeded.]  Gentlemen, this is the law, and has been so ever since the law of libel was laid down.  I repeat to you, therefore, that the first point for your consideration is, whether the matter laid in the information does in fact come up to the definition I have read to you.  I will now proceed to call your attention to the evidence as I minuted it down to-day.  [His Honor here read over his notes of the evidence.]  Gentlemen, it is for you to say, upon this evidence, whether the words set out as libellous carry with them the meaning attributed to them in the inuendoes; whether they do in fact attribute to the prosecutor that he is a liar and a slanderer.  Gentlemen, certainly those words are very strong, and wherever they can be brought home to a defendant, why I take it, there can be but one opinion as to their character.  It is for you, however, to say, whether you are satisfied that the publication will bear such an interpretation, and that it imputes to the prosecutor that he told lies, knowing them to be lies, and from improper motives.  It is for you to say, whether the meaning so put upon it by the innuendoes be correct, and whether it has been substantiated by the evidence of the witnesses.  The innuendo in the first count charges the defendant with having imputed to the prosecutor, that his motives were ``corrupt and malicious;" it is for you to say if the publication does really contain such an imputation.  In the second count, the meaning is put somewhat differently, but the question is do you go along with the innuendoes? and are you of opinion that they have been supported by the evidence given by the witnesses produced before you this day; if so, then I am bound to state to you, that the publication is libellous in itself.  But, gentlemen, it is not sufficient that it be so libellous, if it does not also point to the person coming before the court to complain.  In order to identify this publication with the prosecutor, it is averred that a rumour of a certain letter having been addressed to the Secretary of State by the prosecutor was generally believed.  Witnesses are called in support of this averment, one of whom states that he carried the letter so rumoured to have been written, to Government House, and that the publication complained of was therefore intended to allude to the prosecutor, as he, and he only, did write such a letter.  It is for you to say, gentlemen, supposing you to be of opinion that the matter is libellous in itself, whether the evidence, is so clear that you can say, that the prosecutor, and no other person, was meant by the paragraph charged as libellous.  If so, I am of opinion that you can arrive at but one conclusion on the case; if, on the other hand, the evidence is not clear enough to satisfy your minds that it may not apply to some one else and not to the prosecutor in this case, then the defendant will be entitled to your verdict. --- Gentlemen, I regret very much that you have been deprived of the benefit of legal ingenuity in dissecting the evidence in this case, or in adducing evidence to show that this paragraph may not allude to the prosecutor, but to some other.  But unwilling as I am to stop a party in the line of defence which he may consider most advisable to adopt, I am bound, notwithstanding, whenever a defence is set up which is not admissable [sic] in law, and is moreover calculated to produce public mischief, to stop it.  I have a paramount duty to society, as well as to the administration of justice to perform, in seeing that this Court is not surprised into the admission of illegal or improper evidence.  The party before the Court is not the party said to be injured or assailed by the book sought to be laid in evidence.  It is a distinct party, in no way concerned in it, and therefore I felt less hesitation in confining the counsel for the defendant to the strict rule of evidence.  Gentlemen, as I have already stated, the points for your consideration are these two, and when you retire from Court to consider of your verdict, I press it upon you to close your eyes to all others; --- first, whether the matter laid in the information is in itself libellous, and, secondly, whether, the evidence is so clear and satisfactory as to lead you to believe that it alludes to ihe prosecutor and to no other person.

The jury retired, and after a few minutes, found the defendant guilty.

 

 

Banco court, 26 June 1830

Source: Sydney Gazette, 29 July 1830

 

The King at the pros. of W. C. Wentworth, v. Rev, 

Ralph Mansfield.

Mr. Therry, on behalf of the defendant in this case, applied to the Court for a rule Nisi, to show cause why a new trial should not be granted. --- This was a prosecution instituted by Mr. William Charles Wentworth, a Barrister of the Supreme Court, against Mr. Mansfield, Editor of the Sydney Gazette, for an alleged libel published in that Journal on the 7th of July last. --- The information filed by Mr. Wentworth with the leave of the Court contained four counts.  These several counts, with no material variance in any one of them from the others, stated that the prosecutor had written a certain letter to the Secretary of State for the Colonies relative to a certain punishment alleged to have been inflicted by order of His Excellency the Governor on two soldiers of the 57th Regiment, named Joseph Sudds and Patrick Thompson.  It was further averred that the defendant, in the Sydney Gazette of the 7th of July, 1829, in an article purporting to be a reply from the Governor to an address, presented by certain merchants and landed proprietors of the Colony, did publish that that the said letter was ``a compound of base and incredible calumnies, --- it carries with it its own antidote, and furnishes ample means of judging of the character and motives of the author," with inuendoes pointing the above expressions to the prosecutor, William Charles Wentworth, and alleging the meaning to be an imputation to him of base and unworthy motives.  This case, Mr. T. continued to state, was tried before His Honor the Chief Justice on the 3d of June.  On that occasion Counsel for the defendant was about to read a passage from a certain printed document, to which document and to the matter therein contained he contended the observations charged as libellous in the information referred.  The Chief Justice interrupted Counsel in his statement, by forbidding him to read the passages, and moreover ruled that the contents of this document should not be received in evidence.  Thereupon Counsel discontinued his statement - no evidence was adduced on behalf of the defendant, and thus the case abruptly terminated.  Being shut out from the fair and legitimate line of defence to which they felt that they were entitled, Counsel declined to adopt any other, and preferred the course now adopted by them, of applying to the full Court for a new trial under such circumstances.  The grounds upon which the application rested were threefold.  First, the admission of evidence upon the trial which should have been rejected; secondly, the rejection of evidence which should have been admitted; and thirdly, the misdirection of the Judge to the Jury.  In support of the first of these positions, the admission of evidence that should have been rejected, be (Mr. T.) would submit this proposition to the consideration of the Court - that the reply of His Excellency the Governor to an address from any portion of the inhabitants of the Colony was a privileged communication which could not be considered to contain libellous matter, and therefore could not be made the subject of a criminal prosecution.  Nay; moreover he would contend that when such a document was offered on the trial as evidence of an alleged libellous publication it should have been rejected.  Before he would enter into the authorities in support of this position he would remark that most of the arguments which he intended to adduce that day in support of a new trial were drawn from trials for libel in cases of civil action; the present was a proceeding by information, and therefore was different from a civil action --- but different only as to the mode of redress sought to be attained.  In civil actions compensation in damages was sought for --- in the proceeding by criminal information or indictment the object was to correct and punish an act which had a tendency to create a public mischief or to provoke a breach of the peace.  It is laid down, however, by Mr. Russell, in his excellent work on Crimes, that with the ``exception or those cases in which the public only can be said to be affected by the libel, it appears to have been considered that the remedies by actions and indictments for libel are co-extensive, and may be regarded as on the same footing." --- Mr. Russell, in support of this position, cites the authority of Starkie on Libel (p. 150), and Holt on Libel (p. 215), where Mr. Holt, quoting from Lord Hardwicke, says, that ``actions and indictments for libel are upon precisely the same footing." --- Assuming then that civil actions and proceedings by criminal information, ``except those cases in which in which the public only can be said to be affected by the libel," are on the same footing," he would proceed to cite an authority --- in his opinion a conclusive one --- for the purpose of shewing that the evidence by which it was attempted to prove the libellous publication against Mr. Mansield was evidence that should not be received.  The first case he should adduce was that of Homer v. Lord F. Bentinck.  The circumstances of that case were these:--- The Commander-in-Chief (the Duke of York) directed a Court of Military Inquiry to investigate the conduct of Colonel Home, who was charged with some disreputable behaviour in his transactions with a Joint-stock Company, of which he was a Director. --- Lord F. Bentinck was the President of the Court, who signed the Report of the Court to the effect that the conduct of Colonel Home does not appear to have been actuated by those high and delicate feelings of honour which, in all transactions of life, ought to influence an officer of his high rank and reputation.'  Colonel Home brought an action against Lord Bentinck for having subscribed this Report, and on the trial the Counsel for Colonel Home insisted that the minutes ought to be allowed and admitted to be read in evidence for the plaintiff.  Abbott C. J. thereupon delivered his opinion that the said minutes ought not to be read in evidence. ---- The Counsel for the plaintiff then tendered a copy of the said mistress in evidence for the plaintiff, but Chief Justice Abbott delivered his opinion, that such copy ought not be read in evidence, and under his direction the Jury found a verdict for the defendant.  In the Exchequer chamber, on a motion for a new trial - the conduct of Chief Justice Abbot was approved of, and a new trial was refused.  --- Now what did he (Mr. Therry) infer from this case, Why - all that he desired to infer --- all that he asked for was, that the same privilege and protection which were extended to the copy of a report, by the President of a court of military enquiry, should not be denied to the Governor of this colony, whose rank was much higher - whose responsibilities were far greater, and who if not entitled to larger was at least entitled to equal exemptions and indulgencies with the President of a military Court of Inquiry.-

Mr. Justice Dowling. --- Was the copy of the report you speak of a copy inserted in a newspaper?

Mr. Therry. --- In the Report of the case by Broderip and Bingham, it is not stated to be so --- but I submit that it matters not whether the copy was in a newspaper, for in point of law the communication from one person to another constitutes publication.---

Mr. Justice Dowling. --- Not necessarily.

Mr. Justice Stephen.  A person might have a private press for instance and print documents for his own use, which did not go out of his own possession ---  This would not surely be a publication.

Mr.  Therry. --- In law I submit that event he extreme case put by His Honor Mr. Justice Stephen, would be a publication, unless the person in whose possession the printed documents were, had printed them himself.  --- The communication from one person to another, is in law a publication, and as to printing, it is obvious, that there is necessarily a communication of the matter printed to many persons --- Indeed I have been personally cognizant of the fact, that in printing of a work, a hundred persons at least become necessarily cognizant of its contents.

The Chief Justice. --- I am not aware that upon the trial there was any evidence to show that the letter which contained the matter charged as libellous, was the copy of a letter of His Excellency the Governor. --- The only evidence upon that point came out upon the examination of one of the witnesses, (Mr. Chambers) and did not amount to a proof that it was a copy of an answer written by His Excellency. ---

Mr. Therry. --- It has been sworn I understand by the defendant, that it was a copy of His Excellency's answer - Moreover it appears in the Sydney Gazette, in the front page of which it is stated that ``His Excellency the Governor in Chief, has thought proper to direct that all public communications which may appear in the Sydney Gazette, signed with any official signature, are to be considered as official communications made to those persons to whom they may relate."---

Mr. Justice Stephen.--- Does this appear among the official notices, and is it signed by Mr. McLeay?

Mr. Therry.  --- No!  But it is signed by His Excellency the Governor, whose signature is surely sufficient to impart an official sanction to it.  It is immaterial in what part of the paper such a document appears.  His Excellency's signature to an answer in reply to an address, is as much an official signature, as if it were affixed to an Act of Council, or any other public document.  Address is the constitutional mode of communication between the King's subjects in England, and the King, and is equally so between the inhabitants of a Colony, and the King's representatives in it.  I therefore submit that if the report of the President of a Court of Enquiry deserves to be regarded as a privileged communication which should not be adduced as evidence of a libellous publication --- the answer to an address by the Governor, deserves to be protected, at least by an equal privilege.  It would be easy to multiply instances in which the same or at all events a similar doctrine has been held.  The leading case on this subject is Lake v. King, reported in 1st Saunders (131) where it was held that an action would not lie, for printing a petition to Parliament and delivering it to the Members, that being agreeable to the course and proceedings in Parliament.

In the case of the King v. Wright, it was ruled that a criminal information should not be granted for publishing the report of a select committee of the House of Commons, which contained a paragraph charging an individual with having views hostile to the Government, and the Court refused it on this ground, that the publication was a true copy of a report which was a proceeding in Parliament, and Lord Kenyon, Chief Justice, said it was impossible to assume what was the foundation oft hat prosecution, that the proceedings of either House of Parliament was libellous." - 1 Maule and Selwyn, [276.]

By analogy of reasoning, and upon the same principle, it would not be unreasonable to expect that the Supreme Court of New South Wales should hold that it is impossible to assume what was the foundation of this prosecution, that an answer of His Excellency the Governor, to an address presented to him by the inhabitants was libellous.  The defendant in this instance cannot be held to be guilty unless it be held also that this answer of His Excellency be libellous.  With this observation, he would leave this part of the case and proceed to the next ground on which the motion for a new trial rested - namely the rejection of evidence which should have been admitted.  The evidence which we submit, should have been received was a printed document, relating to the punishment of Sudds and Thompson, we were ready to prove that it was to the matter therein contained, that the publication charged as libellous referred, to Mr. Charles Wentworth, by proving that it referred to some other thing or matter, namely, to the matter contained in this printed document.  We had evidence of such a document having been printed - we had evidence to show that it referred to the same subject as the supposed letter of Mr. Wentworth, and we had further evidence (it was indeed proved by the witnesses on behalf of the prosecution) that it was to this printed document rather than to a written letter that the publication charged as libellous referred.  These facts were brought out by a most skilful examination by Mr. Norton, and yet the contents of this document were not allowed to go to the Jury.  This was the more a matter of surprise and regret, as we (the Counsel) at the trial had fortified ourselves as to the propriety of the course we had taken by what had been decided on a former occasion by His Honor the Chief Justics, in the case of The King v. Hayes: ``It is a universal maxim applied to all criminal proceedings, that actus non facit rem nisi mens sit rea, and it is especially applicable to cases of libel, where the Jury are appointed to judge of the motives of the publisher, and to determine the whole question of his guilt of innocence.  As a general proposition it appears to me that wherever the sense of a particular paper is equivocal in itself, or where it directly refers to another paper, it is open to a defendant in a criminal proceeding to adduce the paper referred to, or any other paper to explain what is doubtful, or to restrain or qualify his meaning."

The Chief Justice --- That is however to be understood sub modo.

Mr. therry --- I can only say that in plain meaning this decision warrants the admission of the evidence which we offered on the trial.  It was a printed document to which we contended the publication charged as libellous referred and if admitted we were satisfied and convinced that it would have materially qualified the meaning of that publication.  The tender of this evidence on the trial was not, as stated by the learned Dr. (Wardell) an attempt to answer one libel by another.  That might be said in cases where the matter offered in evidence is libellous and relates to a subject different from that which is the subject matter of the action or prosecution.  As for instance in the case of Finnerty v. Tipper.  The circumstances of that case were these.  Tipper was the Editor of Periodical called the SatiristFinnerty was a literary person also.  Tipper published of Finnerty ``that he ran away from London to avoid being put in the pillory," Finnerty brought his action and on the trial.  Tipper offered to prove that Finnerty was the leading member of a Debating Society at which he proposed for discussion this question  ``Whether Tipper or a pick-pocket was a greater nuisance to society," which question was carried against Tipper by an overwhelming majority.  The Chief Justice very properly held, this was an attempt to answer one libel by another as the subjects were distinct and different; but where the publication offered in evidence relates to the same subject as that which is in issue on the trial a different doctrine has been held.  The distinction is very clearly marked by the Chief Jsutice (Lord Tenterden), in the case of May v. Brown, where on an application for a new trial, Lord Tenterden said, ``The evidence offered at the trial was of particular libels alleged to have been published and distributed by the plaintiff.  It was not contended that any of those libels could be said to be the provocation to the particular libel of which the plaintiff complains.  I thought that unless it could be made to appear that the libels afford in evidence related to the same subject as the libel on which the action was brought, I ought not to receive them as evidence.  It is not contended that they do apply to the same subject."  This manifestly implied that when the evidence did relate to the same subject - it was admissable [sic] - we submitted on the trial that it did so relate to the same subject; and not merely to the same subject, but that it contained the very matter itself to which the publication charged as libellous did relate.  There is a whole host of authorities in support of this doctrine.  Suffice it to mention one, a very recent case, that of Blackburn v. Blackburn, (4 Bingham, 395.)  There is an action for libel, it was ruled that a letter written to the defendant, containing a statement of the facts on which he founded his charges is receivable in evidence on his behalf to show the bona fides with which he acted.  In a proceeding by information, malice is of the essence of the alleged offence, and on the principle that was permitted to prevail in the case of Blackburn v. Blackburn.  The defendant should have been permitted to rebut malice by showing the grounds on which he acted, whereby the bona fides of his conduct would have been made manifest.  Again, in the case of Tabart v. Tipper evidence was admitted to show that the supposed libel was a fair stricture upon the general run of the plaintiff's publications, and in the argument upon that case by Garrow, the case of Anthony Pasquin is cited, where in an action for a libel upon an author Lord Kenyon admitted evidence of the plaintiff's works, and it appearing that they were themselves of a libellous and scandalous description his Lordship threw his parchment at his head, and dismissed him from the Court with infamy.

Mr. Justice Dowling --- did you attempt to prove at the trial that the prosecutor was the author of the printed document which you offered in evidence?

Mr. Therry --- It is not possible that we should now disclose all that we might have proved had we been allowed to go into evidence upon the trial.  We should at least have attempted to prove it, whether with success or failure could only determined by being afforded an opportunity of proving it.  Our complaint now is, that we were shut out from the opportunity of such proof; for His Honor the Chief Justice would not permit even the statement of Counsel of what it was intended to prove.  Having now placed before the Court the grounds on which he subject that evidence was received on the trial which should have been rejected, and that evidence had been rejected which should have been admitted.  He (Mr. T.) would be very brief on the remaining point, namely, the misdirection of the learned Judge to the Jury.  The passage to which he begged to invite the attention of the Court was to this effect:-  ``It is one thing what His Excellency might do in his defence, and quite another what the defendant is charged with doing.  The defendant cannot identify himself with the Governor, and stand upon the right of self-defence.  It does not follow that any other individual may take up the case where the Governor has left it, and publish to the world that which imputes improper motives to another."  Now, upon this passage he would submit that if His Excellency, acting with a bona fide motive, was warranted in the vindication of himself from unworthy and unmerited aspersions, any author actuated by a corresponding bona fide motive, would be warranted in asserting a vindication for him; and if His Excellency and the author were held to be innocent, how could the publisher be regarded as criminal, unless it could be shown that the publisher acted from a motive different from the bona fide motive of His Excellency, or the author of his vindication?  This was the doctrine laid down by Lord Erskine in Stockdale's case, and admitted to be good legal doctrine by the Attorney General and the Judge who tried the case.  If the law laid down by His Honor the Chief Justice be the law which is to prevail in this Colony, then indeed will the Governor be deprived of the usual organ of communicating public ordinances and regulations to the inhabitants of the Colony; for it is not too much to assert, to say that the several constables of whose dismissal we daily read for drunkenness and other misconduct, will have an equal right, and indeed a much better right, to institute a criminal proceeding against the publisher of the Sydney Gazette; for these publications manifestly tend to degrade the persons respecting whom such proclamations are made in the public estimation, and they would be unquestionably entitled to their criminal information on the principle laid down by His Honor --- That although the Governor may degrade them, no publisher shall notify that degradation to the world.  This will have the effect of depriving His Excellency of his accustomed organ of notifying his public orders.  It will in effect place His Excellency in what Mr. Burke calls ``an ugly predicament."

The Chief Justice. --- I hope not.  It will not interfere with the proper communication of public orders and public notices; but I confess I do not see the necessity of the publication of such notices as those to which you have just adverted.  I own I think it might be as well that the publication of them were omitted.

Mr. Justice Dowling said, as a broad principle of law he would state that no person had a right to publish of another anything which tended to affix infamy on him.

Mr. Justice Stephen said, that even if the King himself were to state anything derogatory to the the [sic] character of an individual, would it be allowable for any other person to publish that statement with impunity.

Mr. Therry - If such a statement were contained in a document published by the King's authority, he would not think it unreasonable that the Court should say as the Court of King's Bench in England said respecting a libel alleged to have been contained in a Report published by the authority of the House of commons, ``that they could not assume, what was the foundation of the prosecution, in that case that a libel could be contained in such a document."  And this was a doctrine which it was not unreasonable to expect might be extended to a document to which the name of His Excellency the Governor was subscribed in this Colony.  However, if the present prosecution be good for nothing else, it will be good for this at least, that it will declare to the Governor and to the inhabitants what is the law in this colony upon a point upon which up to the present time, he believed much misapprehension did prevail.  In the London Gazette, the dismissal of officers of the army and navy and of other public functionaries was daily recorded, and yet we never heard of an information against the editor of that journal, although the announcement of their dismissals were usually attended with every mark of degradation and infamy.  However, what he now contended for was, that there was no proof of malice in the publication charged in this instance as libellous; and if the evidence tendered on the behalf of the defendant at the trial had been received, it would have completely rebutted the presumption of malice.  He (Mr. T.) would not undertake to describe the character of the publication which he had offered on the trial; neither would he now attempt to fasten the authorship of that publication upon the prosecutor or any other person; but he would suppose a case, an extreme one.  Suppose that this document contained charges against the Governor of this Colony, of the most henious [sic] and aggravated description; suppose in malice it was so intense as to impute murder to him; sugpose [sic] it charged him with every vice and with every crime of which the most detested tyrants of antiquity have been guilty; suppose it stated him to have exceeded in the enormity of guilty actions all those hated characters of modern and of former times whose names have been transmitted down for the execration of posterity.  Suppose it contained all this, and even more than this, would it not be allowable for His Excellency the Governor of this Colony to lay his hand upon his heart, and to exclaim, --- ``it is false - it is a calumny --- it carries with it its own antidote --- I appeal to the rank I hold and which I never disgraced --- I appeal to my career in a profession in which I have served for thirty years, and in which I have served without stain or blemish.  The history of my life refutes the calumny, it is incredible, it is false."  If His Excellency would be justified in the expression of this language which would not exceed what Mr. Justice Dowling, in the case of the King v. Hayes, emphatically denominated ``the excusable vehemence and natural indulgence of honest feelings," how can a publisher actuated by the same motive, be deemed guilty for doing that which, in His Excellency himself, it is conceded it would be innocent to have done?  Another point in the charge of the learned Judge to which we would call the attention of the Court, was the omission of malice.  If the communication in which the alleged libel appeared was a privileged one, then not only the question of malice in law, but malice in fact should have been left to the Jury --- that is, the Jury should not be left merely to infer malice from the act of publication and the effect of it, but also should be left to determine the question of malice in fact, that is, whether the defendant published it with evil intention.  This question would only become material in the event of the Court considering the communication to be a privileged one.

Mr. Justice Stephen said the Court did not consider the publication as a privileged one.

Mr. Therry --- Then of course this consideration will not arise.  The only other point in the charge of the learned Judge to which he would advert was the statement made by him, ``that the admission of the evidence which we offered to adduce was calculated to produce mischief."  To that charge (said Mr. Therry) my learned friend (Mr. Norton and myself plead ``Not Guilty."  We unsidered [sic] that point to the best of our ability and our discretion, and we arrived at the conclusion, that no public mischief would ensue from the production of that publication on the trial.  The subject, I am aware is one of great excitement, and of considerable interest to many persons.  In that excitement and that interest I am no participator.  To me the principal transactions of which that publication treats is a matter of bye-gone history.  I am a stranger to the scenes and events it assumes to describe, and I open the page which details them as unimpassionedly, as I would open a page of an old almanack.  But of this I felt well assured, that the production of the work could do no public mischief.  The vindictive spirit that pervades it, in my judgment, rendered it perfectly innocuous.  It is an attribute of vice that it often operates as its own corrective; and that its most powerful restraint is to be found in the exhibition of the ill-consequences, and a display of the depravity that follows from its indulgence.  It was upon this principle --- to use the language of a great orator, whose language will long outlive the occasion on which it was uttered --- that the Lacedemonians of old were wont to exhibit their slaves in a state of intoxication in the market-place in order to deter their free-born citizens from similar excesses.  It is with hate as with other vices.  Its very excess serves to defeat the effect of it; and upon the same principle on which the Spartans of old acted, I would take this publication to the market-place and there read it, satisfied that the effect of doing so would only be to encrease [sic] the attachment to Government of all those who were well affected towards it --- to disgust all those who might not be so, and to create in every reasonable, just, and generous mind, a feeling the reuerse [sic] of what was sought to be inculcated by awakening a sympathy in favour of the object whose fame and character it aimed to destroy.  For my own part, it shall be no source of regret, if I shall not again be called upon to agitate a subject surrounded by so many circumstances of unpleasantness as the present - but in discharge of my duty to my client, I now move for a rule nisi, to show cause why a new trial should not be granted in the case of the King at the prosecution of William Charles Wentworth v. Ralph Mansfield.

Mr. Justice Stephen (after the Judges had conferred together for a few minutes) said, that as this was a question of great public importance and public excitement, the Judges would postpone judgment upon it until Tuesday next.  Their minds were already impressed as to the course which in all likelihood they should pursue, and it was not probable that in the meanwhile their determination should be divested from that course.  The rule was where doubt prevailed., the rule nisi was granted, but where no doubt did exist then event hat rule was refused.  He would not now say that the Court did entertain any doubt but for the reason he had already stated the Court would postponed its judgement until Tuesday next.

 

Notes

[1 ] This case was recorded in the notebooks of Dowling J.: Dowling, Select Cases, Vol. 2, Archives Office of New South Wales, 2/3462, p. 343, with the following summary at the beginning: "The Editor of the Sydney Gazette printed and published matter purporting to be the Governors reply to an address presented to him by some inhabitants of the Colony, in which were contained libellous observations on a private individual:  Held that he was liable for such publication, and that he could not set up as defence that he was privileged in making such publication.  An Anonymous printed pamphlet (by whom printed, or whether published was not proved) containing libels on the Governor who was no party to the record, cannot be received in evidence to show that the prosecutor was not the person intended to be libelled.  An reply delivered by a Governor to a voluntary address of the Inhabitants is not privileged beyond the time and place of its delivery and if another person prints and published it he is liable if it contains libellous matter on an individual.  A letter bonĂ¢ fide sent to the Secretary of State complaining of the conduct of a public functionary, though printed, if not published beyond the quater [sic] where redress is sought is not the subject of an action or prosecution."

This Sydney Gazette report was pasted into Dowling, Proceedings of the Supreme Court of New South Wales, Vol. 41, Archives Office of New South Wales, 2/3224, p. 1.  This shows that Dowling J. trusted the Sydney Gazette report in this case.

See also Australian, 4 June 1830.

For the preliminary proceedings in this case, see Ex parte Wentworth, in re Mansfield, 1829.  Details of the conflict between the governor and his opponents are given in the footnotes to that case.  See also Australian, 6 August, 16 October, 12 November, 31 December 1830 raising the Sudds and Thompson case again.  See also C.H. Currey, Sir Francis Forbes: the First Chief Justice of New South Wales, Angus and Robertson, Sydney, 1968, ch. 33.

For another attempted prosecution of Mansfield for libel in 1830, see Martin v. Mansfield, 1830.

[2 ] According to an enclosure with a despatch from Darling to Murray, 6 August 1830 (Historical Records of Australia, Series 1, Vol. 15, p. 653), the Chief Justice's own record of the case here stated: "There was undoubtedly another course of defence open to the learned counsel, namely by shewing such circumstances as would relieve the Defendant from the presumption of malice, arising from the naked fact of publishing the matter charged to be libellous."  The Chief Justice then waited for the defence counsel to act on this suggestion, but he did not do so.

For more on R v Mansfield (No 1), 1830, R v Mansfield No1 con.

Published by the Division of Law, Macquarie University