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

R v Mansfield (No 2) [1830] NSWSupC 70

contempt of court, press commentary on pending cases, law reporting, privilege, convict service, withdrawal of

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 18 September 1830

Source: Sydney Gazette, 2 October 1830[1 ]

APPLICATION FOR AN ATTACHMENT.

Mr. Keith said he had to move their Honors for a rule to shew cause why an attachment should not issue against the Rev. Ralph Mansfield, editor, printer, and publisher of the Sydney Gazette, for the publication of a certain article in his journal of the 26th August, with intent to prejudice the trial of a cause then pending, and, also to scandalize the court.  The case to which he alluded was that of McPherson against Hely, in which the question of the Governor's power to revoke the assignment of convict servants, at his pleasure, was again about to be raised.  On this question the court had already given a decision, or perhaps, it might be more properly called - a solemn opinion.  Still, by whatever name it was to be designated, persons like Mr. Mansfield were not authorised to treat the opinions of that court with the contempt which he had exhibited in in his paper of the 26th August.  He (Mr. K.) was satisfied that the article to which he alluded was likely to have the most prejudicial effect on the minds of the parties who might possibly try the cause now pending against Mr. Hely.  The article, he contended, contained two of the three kinds of contempt enumerated in the books; - namely, that which scandalized the court, and had a tendency to prejudice the minds of the jury.  He had no doubt that the same bugbear which seemed to pervade the minds of everybody would be set up on the present occasion, alluded to the assertion that applications of this nature were made, not in furtherance of the ends of justice, but for the sake of pocketing costs.  In the present instance, however, the motion was made without costs, and solely from a sense of duty to his client, and to the public as a professional man.  Mr. Keith here read the article complained of, which is as follows:-

``It will be remembered by most of our readers, that in the Sydney Gazette of March 26, 1829, and the two following numbers, we reviewed, at considerable length, a decision which had been pronounced a few days previously in the Supreme Court, on the case of Jane New.  Out of that case there arose a question of much public importance, whether, under the 9th section of the New South Wales Act of Parliament (9th Geo. IV. cap. 83), the Governor had the power of revoking, at his own discretion, the assignment of convict servants?  The Court decided in the negative, holding, that the Act did not authorise any revokement without the assignee's consent, unless for the purpose of bestowing upon the prisoner some `temporary or partial remission' of his sentence.  The learned Judge who pronounced this decision, entered into an elaborate exposition of the reasons which had led him to put such a construction upon the law; and in the exercise of our duty as a public journalist, we examined those reasons from beginning to end, pointing out what we considered their fallacies, and contending, that, on every known rule of interpretation, the Act clearly vested in the Governor an unrestricted power to revoke assignments.

``In the opinion of most intelligent men, our arguments were unanswerable; certainly they have to this moment remained unanswered.  A contemporary journal did, it is true, attempt an answer; but the attempt was so unfortunate, that it only served to give additional strength to what we had written, and neither deserved nor obtained from us a single word of reply.

``The decision was so contrary to what had been held as the undoubted meaning of the Act, not only by the local Government, but also by the Secretary of State, and affected so seriously the executive functions of the Governor, that the matter was of course referred to Downing-street.  The Right Honourable gentleman at the head of colonial affairs is not himself a lawyer, and might possibly have formed a mistaken view of the law; but to bring the question to the most satisfactory issue, it was submitted to the law-officers of the Crown.  Those learned functionaries, who could have no interest in deciding one way or the other, agreed in giving to the Act the interpretation for which we had contended, viz. that the power to revoke assignments is not restricted to cases of indulgence, but may be exercised by the Governor whenever His Excellency shall think proper.

``This decision having been officially communicated  to the local government, a circular letter was addressed to the Magistrates, on the 19th instant, by the Colonial Secretary of which the following is an extract:-

`It being no longer expedient to suspend the 9th section of the Act of Parliament of 9th Geo. IV. cap. 83, which vests in the Governor the power of revoking assignments of convict servants, as to him shall seem meet; I am directed by His Excellency to inform you, that whenever it shall appear to you, and one or more other Justice or Justices of the Peace, that in consequence of bad treatment, or other misconduct on the part of the master or mistress of any convict servant who may have been assigned to him or her, it is proper to withdraw such convict servant from his or her master or mistress, you and such other Justice of Justices are forthwith to report the circumstance to the Colonial Secretary, together with the grounds of your recommendation, for His Excellency's decision; and until such decision be communicated, such convict servant is either to be sent to the nearest government establishment, or to be left in the service of the party from whom he or she may be proposed to be withdrawn, as, under all the circumstances of the case, you and such other Justice or Justices shall judge most advisable.'

``To these instructions the most rigid sticklers against prerogative cannot reasonably object.  They manifest a paternal care for the comfort of the prisoner, placing within his reach summary redress for ``bad treatment" on the part of his master.  They also provide an additional means of correcting ``other misconduct on the part of the master or mistres" - such as habitual drunkenness, idleness, and similar disreputable propensities, which, in numerous instances, render it dangerous to the neighbourhood to entrust the offenders with assigned servants.  But it should be observed, that this Magisterial interference is so limited, as to guard against the abuse of power.  Had the Justices been left to revoke at their own discretion, there would have arisen, in the country districts at least, frequent temptations to a partial exercise of their authority; but by the above regulation, all they can do is, to hear both parties, - to ``report the circumstances to the Colonial Secretary, together with the grounds of their recommendation, for His Excellency's decision," - and to carry that decision into effect.  This is a rational and wholesome arrangement, calculated to enforce justice between masters and servants, and by showing the latter that the Governor is always at hand to redress their real grievances, cannot fail to promote a spirit of contentment and subordination among their class."

He put it to the court, whether it was possible to conceive a grosser contempt than the article he had just read - a statement made in the very teeth of a decision of the court given in two cases, in one of which certain magistrates were severely censured for having presumed to treat the former decision as a mere incidental opinion.  Yet, after the knowledge of that fact, the party against whom the present application was made, had dared to publish an article like that which he had just read.  With respect to the assertion that the opinion of the law officers at home had been taken, he begged to call the attention of the court particularly to that part of the publication complained of.  Upon the question of the right of the law officers at home to give any opinion which could be considered binding on the court here, he would not now enter.  But, even assuming that such an opinion had been asked, he contended that the assertion of this editor was untrue, even on the face of it; inasmuch as it never could be credited that the law officers at home would given an opinion upon a mere ex parte statement, or that they would give any opinion at all unless properly applied to by the only tribunal competent to reverse the decisions of this court.  Then, with respect to the ``Circular" which seemed to form the ground work of this publication, what more did it do than tell the Magistrates to do that which this court had already decided they had the power to do, and in no way whatever bore out the observations of the writer of the article complained of.

Mr. Keith here read the affidavit of Mr. Arthur Hill, who deposed to his belief that the article in question was calculated and intended to prejudice the trial of the cause McPherson against Hely, and to scandalize and bring the court into contempt; and concluded by submitting that he was entitled to the rule prayed for.

The Chief Justice. - This is an application for a rule to show cause why an attachment should not issue against the printer of the Sydney Gazette, on the ground of a certain publication in that journal, which is alleged to have been put forth with an intent to prejudice the trial of a cause now pending in this court, and also to bring the court itself into contempt.  Upon a careful consideration of the arguments addressed to us, and also of the affidavit by which the first ground of the motion is supported, I do not see any thing in them, or in the article to which they allude, calculated to produce the apprehended effect, or having in any degree a tendency to injure the cause referred to, and that, therefore, we are bound to refuse this application.  With respect to the alleged tendency of the publication to bring this court into contempt, I, for one, have no hesitation in saying, that I believe that article to have been written with the utmost care and caution, and with a direct intention to affront the court, as far as the writer could do so without rendering himself liable to penal consequences.  If I could persuade that the publication in question could have such an effect, I should feel myself peremptorily called upon to grant the present application on this ground; but believing as I do, that it carries with it its own antidote, and that the public opinion of this court and of its decisions, is too high to be shaken by any thing coming from the quarter whence that publication originated, I am of opinion that the dignity of the court would be best maintained by treating that article and its author, whoever it may be, with perfect contempt.

Mr. Justice Stephen and Mr. Justice Dowling briefly expressed their concurrence in the opinion delivered by His Honor the Chief Justice.

Rule refused.

 

Notes

[1 ] See similarly, Rodd v. Mansfield, 1830.  See also Hall v. Hely, 1830; Hall v. Rossi, 1830.

Published by the Division of Law, Macquarie University