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

R v Hay [1835] NSWSupC 67

stealing - criminal libel - Sydney Gazette Sydney Herald, attitude to emancipists - emancipist rights - jury, whether judges of law - printing industry - press freedom - de minimis

Supreme Court of New South Wales

Burton J., 17 August 1835

Source: Sydney Herald, 24 August 1835[ 1]

THE CONVICT SYSTEM.

Monday, August 17, 1835. - Before His Honor Mr. Justice Burton and a Civil Jury, composed of the following individuals:- Messrs. James Smith, James Tegg, Robert Stewart, James Thompson, Edward Turner, William Ternun, Robert Taylor, Samuel Tree, Edward Thomas, Robert Smith, John Tooth, and

James Hay, a Convict stood indicted for stealing two pieces of printed paper, value one penny, the property of Ward Stephens and Frederick Michael Stokes, Printers, Sydney, and William Blore Halden, Lee, and William Watt, a Convict for receiving the same, knowing them to have been stolen.  The prisoners pleaded Not Guilty.

The prosecution was conducted by Mr. Wentworth, and Mr. Therry appeared for the prisoner Watt; Mr. Foster had been retained by the prisoner Halden, but had not returned from the country.  After the Jury were empannelled, which was attended with some delay, as numerous challenges were made, Mr. Wentworth opened the case in a brief address to the Jury.  He observed, that the circumstances of the case were of a most simple nature; some time in the month of May 1834, Messrs Stephens and Stokes, who were the proprietors of a printing establishment in Sydney, had composed a certain article in type, which, after the necessary corrections, was intended for publication; this article reflected on two of the prisoners at the bar, who formed the intention of purloining a copy, with a view to the institution of criminal action against the prosecutors, no doubt conceiving it very probable, that the article on mature consideration might be so far corrected as to divest it of its sting, or rejected altogether.[2 ]  For the purpose of carrying this project into execution, they employed the prisoner Hay, then a compositor in the establishment of the prosecutors, to possess himself of a slip of the matter alluded to, and as a remuneration for this piece of service, he would put in evidence to shew, that this agent in the transaction had been promised by the prisoner Watt the sum of ten shillings; he would put in evidence to shew also, that it had been arranged between the prisoners Halden and Watt, that the slip so obtained should be sent through the Post Office; if the testimony of a respectable witness, Mr. George Jeff, required any corroboration on that point, it would be amply furnished by the depositions of the prisoner Halden, on his application to the Court for a rule against the prosecutors for a libel published in this way by the prisoners at the bar.  The depositions of the prisoner Hay set forth, that the article had been set up in type, the property of the prosecutors, and struck off two pieces of evidence which they conceived to be necessary in support of the rule, which was accordingly made absolute; thus instituting a prosecution against the prosecutors in the present case; founded upon their inducement of the servant of those gentlemen, to commit a felony on their property.  Since the committal of the prisoners on this charge, a variety of articles had appeared in the Sydney Gazette, of which Journal the prisoner Watt was the editor, in which the basest of motives were not only attributed to the prosecutors, in instituting the case, but to himself, in entering into a conspiracy for the purpose of crushing two of the prisoners, on no other ground that that they were prisoners of the Crown, observations which had been intended obviously to divert the minds of a Jury from the consideration impartial justice.  He had never before had such imputations cast upon his professional character as had recently appeared in the columns of that journal.

Mr. Therry objected to the observations of the learned gentlemen as to the matters published in the Sydney Gazette, as being irrelevant; no person had a right to assume that the prisoner Watt had any influence in the matters which had appeared in the Sydney Gazette.

Mr. Wentworth observed, that he did not feel it at all necessary to remark upon the scurrilous attack which had been made upon himself, which he treated with the contempt they merited, but he did feel it to be his duty to warn the Jury against the influence of such attempts to entrap their consciences and their understandings; he felt it his duty to desire them to banish from their recollection any thing that might have been obtruded upon their notice in the columns of that journal, and to confine themselves strictly and conscientiously to the simple facts which would be attested before them by respectable testimony, which would prove to their satisfaction that one of he prisoners had stolen the property with which he was charged, and that it had been received by the other prisoners with the knowledge of its having been feloniously obtained.

Ward Stephens examined. - I am one of the Editors of the Sydney Herald newspaper; Mr. F. M. Stokes is the other.  In the year 1834, a rule for a criminal information against us was applied for by one of the prisoners at the bar, William Blore Halden; the application was founded on two slips of printed matter prepared for correction, prior to it being ushered before the world; to the best of my knowledge they had been subjected to correction; the number of slips usually pulled for this purpose depends on the nature of the publication, or the number of corrections required or suggested; I have seen the slips upon which the application against myself and partner was founded; I saw them produced at the Police Office; no person in our office has any authority to circulate these slips; I can undertake to say they were never given by myself to any individual or by our authority; they must have been stolen from the office; the man Hay was in our employ as a compositor at the time; we had no means of preventing him from taking such property; he quitted our employment in a fortnight after it was publicly known that the slips had been obtained, and was employed at the Gazette Office, I believe at higher wages, the prisoner Watt was at the Gazette Office at the time; I have no hesitation in saying that the slips are worth a farthing; I should say that the printing on them would cost five shillings at the least; it would cost that in compositor's wages, if not more.

Cross-examined. - I say the value is one farthing; I may have expressed a doubt as to the value; I only saw one at first, when I said it was rather questionable whether it was worth a farthing or not, but when I saw that there were two, I said unhesitatingly that they were worth a farthing; as to the price of a ream of paper, I before said that it was fluctuating, but I believed the paper in question was worth a farthing; I have no means of calculating how many slips of that kind are in a ream; I might calculate if I had the slips and a sheet of paper to measure the one with the other; I have already sworn that they are worth a farthing.

Mr. Therry here observed, that it was very capable of proof according to the current price of paper that the slip in question was not worth a farthing; for instance, paper could be purchased at £2 2s. the ream; well, it was found by a calculation that there were 2,880 such slips in a ream; then, how many farthings were there in 42s.?  The learned gentleman here began to discover that he was not quite so ready at arithmetic as at special pleading, and stopt short in his calculations.

His Honor the learned Judge observed, that the calculation was against him, it was to be considered that there were two slips.

Cross-examination continued. - As to the paper I probably could swear that it was our paper; I am aware that such slips are used as waste paper when done with, still there must be a property in them; I am not aware that slips are continually taken out of my office and other offices; they may be used as waste paper when thrown down as done with; there is always an intermediate proof preserved until publication, in case the matter should be broken down; it is of no consequence to me as to the nominal value; if such things were taken out of my office without sanction I should consider it stolen; I consider they were taken for a villainous purpose; for the purpose of a prosecution for a libel; I know the projectors of the prosecution are capable of any thing; I do consider that they were taken with a view to gain, in connection with the establishment to which they were attached; I have no doubt that it was considered that by incarcerating us and crippling our pecuniary resources, so as to injure our business, their establishment would rise in the same proportion; I repeat that they may have considered it would be a fain to them; the printing of the article in question was composed at an expense of five shillings; we did not pint one hundred thousand of them nor was it intended; as to what the wax on a letter, bearing the impress of a seal which cost a guinea would be worth, I cannot answer, there is no parallel between the cases; I cannot say how many slips were stolen; we assume that they are ours from having seen the document on which the prosecution was founded against us; I would institute proceedings in the case for the theft alone independently of any feeling; I would wish to know what sort of feeling I ought to entertain towards such men, who would tamper with my servants to induce them to rob me; I do not hesitate to say that I would prosecute for a pin upon principle; I cannot speak as to the difference in value between a pin and these slips; I have already put a value on the slips; I do not know the prisoner Watt personally; I never was in the Gazette Office with him; I was there when Mr. O'Shaughnessy was there; he was then a reporter to the Gazette, then under the management of Mr. Mansfield; there has been some observations respecting me in the Gazette recently; I have been called a usurer; and observations respecting the prisoners may have appeared in our journal; I believe they have; these sparrings have no shame in bringing this prosecution, nor yet a desire to get him out of the position he now occupies; I know that he is in a very improper position; I never said that I would go to any length to remove him; I have said it was a disgrace to the Government to tolerate such a proceeding as that of permitting such a man to occupy so dangerous a position; I never said I would endeavour to remove him; I am not aware that the letter signed "No Lawyer", refers to him; I do consider him to be a bad man on the principle of bribing my servants.

[At this stage of the case the Court was astounded at the sudden noise occasioned by a drunken wild Irishman running into the body of the Court, among the crowd, and vociferating a series of dreadful imprecations on the assembled multitude, and wishing to be informed what the spulpeens were all about: the commotion was considerable for a few moments.  His Honor ordered him to be brought before him, and enquired if any one knew whether he were drunk or deranged; he gazed on His Honor and on the Court and Jury with mute astonishment for a second, when he again broke out into a strain of imprecation added to his enquiries of who they all were, and what they were about.  His Honor order him to be confined in the watch-house until the following day, and he left the Court, giving all hands a hearty round of curses; and the case proceeded.]

Cross-examined by the prisoner Halden - I have no particular feeling towards you, only as an accomplice; I repeat, only in as far as you are involved in this case; my object in instituting this prosecution is to defend my property from such attacks; I saw, your being connected with a rival establishment might induce you to consider it a gain to cripple our resources by any means; I think your motives in obtaining the slips in the manner now shewn, were highly criminal; I consider that you anticipated some indirect gain from the stealing of these slips; it appeared to be intended for publication in the paper; it was at our option whether we published them or not; there might be a notice in our paper that the letter was under consideration - (``Sydney Herald" produced, containing a notice to Correspondents, that want of space caused the insertion of the letter in question to be deferred until a future number.]  This notification may apply to the matter contained in these slips; I cannot speak positively as to our circulation at that time; I know it was above a thousand; the matter set up was for publication in the newspaper at our discretion; they were set up, that is sufficient for your case; I can give you a reason why this prosecution was not brought before, simply because I had not certain proofs as to the parties by whom they were stolen; I have an affidavit in Court as to that circumstance; I knew they were stolen, but had not sufficient proof to proceed against the suspected parties; I have been constantly on the watch since that time, I can prove I have made frequent observations to that effect; I remember an article, which appeared in the ``Sydney Gazette" lately, which reflected on Mr. Aldis; I cannot say whether that article had any influence on him as to his motives for interesting himself in this prosecution; I read the article; some observations is there made about my being a usurer, but it has had no influence with me in instituting this prosecution; I have no motive, beyond a laudable wish, to put aside such men as would incite my servants to rob me; I have no feeling of animosity against any of you.

Re-examined - The slips were not done with; the article had been revised, and the revise is preserved until the articles appear in the publication; something may suggest themselves after correction as being dangerous, which it may be necessary to extract, or some addition may be suggested.  I have been on the watch; the discovery was made by me, and not Mr. Aldis; from the time of the discovery, until one of the party was in the custody of the police, two hours had not elapsed.  I could not institute the prosecution before I had proofs to support the charge, I cannot say the application for the rule prevented me from publishing the article; I have no order to keep the article up until the rule was made absolute - the article might have been published and the rule risked.

Mr. Gurner proved the affidavits of the prisoners Hay and Halden, in support of the rule founded on the slips in question.

Mr. Therry submitted to the Court, that the prisoners were entitled to have the libel read, which his Honor over-ruled as being irrelevant.

Mr. George Jelf examined. - I recollect a prosecution being instituted by Halden, against Messrs. Stephens and Stokes last year, I was then employed in the general business of the ``Gazette Office," it was founded on a printed slip; I heard so; before I saw it.  I heard a conversation between Watt and Halden about that time, the subject of which, was whether the slip cold be obtained or not; I understood it to be a slip from the ``Herald Office;" I did not hear at that time anything pass as to the means by which it was to be obtained; I heard Halden say, ``are you sure you will get it," Watt said, ``I am certain of it;" I heard something about its being sent by the Post, Halden said ``I am thinking it will be the best way for me to get it through the Post Office;" I was in and out of the room during the conversation; in a day or two subsequently, the prisoner Hay brought a slip into the ``Gazette Office," and gave it to Watt, he gave it outside the room door; Hay was then employed at the ``Herald Office;" Watt returned to the room and seemed much elated at obtaining it, and laid it on the table, he took it up and commenced reading it; I looked over his shoulder and saw it was a letter signed ``Henry Murray," (the slip produced,) the slip I saw resembled that, but I cannot say it is the same; the writing on the corner W. B. H., 21st May, is very like Watt's handwriting; Watt read a part of the Article, the particular part I noticed had reference to a girl kept by Watt; I do not know what he did with it; I did not see anything given for it on that day; on the following day the man Hay called and said to Watt ``you promised to give me Ten shillings for it," Watt replied ``you are a drunken old rascal, and I will not give you any more than Five shillings for it," he then gave Hay two half-crowns and he went down stairs; I did not pay particular attention to the conversation, Hay pressed him for money and Watt told him to call to-morrow, or some other time; he seemed anxious to get rid of him.

Cross-examined.  The conversation took place outside Watt's room door; I did not hear all that was said, the conversation was about money; I heard nothing said as to how it was obtained; I am not conversant with the practice of newspaper establishments; I do not know that it is customary for reporters to furnish matter to one office, and obtain several slips of the article for the purpose of distribution among other establishments; it may be customary for anything I know to the contrary; I have heard that such is the usage in London; reports are saleable property when honestly come by; I did not read the whole of the slip; I cannot undertake to say that is the same slip; it was signed ``Henry Murray;" I felt no indignation at it, I paid no particular attention to it; I never read the whole of the article; I was asked to subscribe to it, but I hesitated until persuaded to it by Watt; I was told it was a shameful case; from the representations that were made I was induced to subscribe to the prosecution; I have since thought it was an unfair thing to proceed in that way; if I had known it was a felonious transaction I would not have put my name down; I was not aware of the custom of printing offices; they made very light of the matter, and said other offices did the same thing; I made several observations to Watt on the impropriety of obtaining the slips in that way; I was not applied to for the amount of my subscription; I would not have paid it because I thought it was unfair, I did not make any communication to Messrs. Stephens and Stokes on the subject; I was in conversation with Mr. Aldis when it came out inadvertently.  I had no impression that it was a felony at the time; I was not dismissed from the ``Gazette Office;" I entertain no bitter hatred against Watt; there has been a good deal of bickering and quarrelling, I do not know that I made use of the word villain &c. in my communication.

Mr. Therry observed, that he would refresh his memory upon that point, and put in a letter which witness had sent to a person named Smith, a particular friend of Watt's.

Witness in continuation. - That is my writing; it was written under great excitement; the words ``rattlesnake, cut-throat, &c.," refer to Watt.  I had found that he had been making use of my name in an improper manner, and I felt justly indignant at it; I felt he was a bad man, and I am apt to write severely when smarting under excited feelings; I felt indignant at the time, but no malice afterwards.  I never said I would transport Watt to a Penal Settlement, (another letter produced, concluding with the words ``it will be finished,") that is also my handwriting.  I did not intend thereby to intimate that I would finish Watt, I meant to inform him that I would put an end to the affairs between us by paying the money on Sunday morning; by the words, ``the villain is in my hands," I meant that he had committed a breach of the law, and merited punishment for it; I have no malice against the man, but I do not like him on account of his being a bad man.  (another letter produced, dated 24th July, 1835, addressed to Mrs. Howe) I heard a rumour of Watt's being abut to marry Mrs. Howe; I knew he had a wife at home who frequently called upon Mrs. Jelf, by whom she was relieved.  I have received communications from my wife informing me of that circumstance, I though it was proper that Mrs. Howe should be put in possession of the fact; I am not aware of the value of the slips in question; such things are frequently tossed about the office as waste paper; I never heard of any person in this or any other country being prosecuted for taking a proof slip; I think the value would be the smallest coin.  I cannot say whether it would realize anything if taken to the market, in the mutilated state in which it appears.

By the prisoner Halden. - I heard you advise Watt to send it through the post; there was something about money when the slips were delivered to Watt; I do not think you were present; I will not undertake to say whether there were one or two slips; Mr. Aldis, in his conversation with me, said Watt had used him ill, and was an unfair fellow.  I understood that the conversation between Halden and Watt, referred to the slip; Watt said he was sure of getting it; I recollect being asked either by Watt or Halden, after the slip was obtained, if I could disguise my hand; I said I could only write one hand, when Watt said, I did not know how to work the Oracle; although I allowed my name to be put to the Subscription List, I had a conversation with Watt, in which I observed, that it was a shamefully unfair thing, and that he ought not to have done it; and that I should not have anything to do with it; this led to some bickering between us; he made a ridicule of it, and called me a silly foolish fellow; an attempt was made to induce me to forbear coming forward in this case, by a note which Watt sent to me on the Saturday, the day after the warrant was obtained.  Watt's letter to Jelf, requesting him to call at the ``Gazette Office," the day before his committal, and all animosities said by Watt, to be of a trifling nature, would be removed.  [Envelope of the slips as sent through the post, put in] this is a disguised hand but it is like Watt's hand-writing, particularly the word ``private"; I have since sincerely regretted allowing my name to appear on the subscription list for the prosecution of Messrs. Stephens and Stokes.

By Mr. Therry. - I did not think it ``shamefully unfair" to put in the last letter sent to me by Watt; if he shews my letters abut, why should I not expose his; I gave it up as soon as I received it; I have no wish to ``finish him;" I do not know that a man who would write such letter would not hesitate to finish his neighbour.

By Halden. - When the slip was brought by Hay, the only person present were O'Shaughnessy, Watt, and myself; I do not think you were present at the time; I received no communication from you since your commitment.

Mr. Edward O'Shaughnessy. - I was attached to the Sydney Gazette in May of last year, I know the prisoners at the bar; I was aware of a prosecution commenced by one of them against Messrs. Stephens and Stokes; before it commenced I was present at a conversation about it; I cannot say particularly the nature of it, but I believe it was, as to the manner in which the slips was to be obtained; I know the prosecution was based upon a slip which had been taken from the Herald Office; I was present when the slip was brought to the Gazette Office; I was in a room where Watt and another person was at the time; I do not remember who the third person was; he returned with a galley slip - a letter signed Henry Murray; I looked at it briefly and left he room; I subsequently had a conversation with Watt in reference to the slip; I expressed my disapprobation of the way in which I supposed it had been obtained; I believed Hay had brought it; after some conversation with Watt on the subject, I left the room; it was a matter of rumour that a letter of an offensive nature had been sent to the Herald for publication; Watt expressed much anxiety to get it; at the earliest opportunity after it had been obtained, an application was made to the Court for a rule nisi against Messrs. Stephens and Stokes.

Cross-examined. - I am acquainted with Watt's handwriting, (envelope produced) this is evidently a disguised hand; I am not acquainted with his disguised hand, this is different from his usual style; I was on speaking terms with Watt five or six days before this prosecution was instituted; I wish it to be understood that I did not give any information in this case; that is, I did not go forward for that especial purpose; Hay was in custody when I first heard of it, and I went to the Solicitor's Office as a matter of curiosity to ascertain if it were the case; the circumstance took place about fifteen months ago; I believe the object was then stated to be that of instituting a prosecution; I am of opinion that the letter should have been prosecuted had it been published as it appeared libellous, but I am no lawyer; I have not seen a letter signed ``No Lawyer" in the Herald of this day; I have not written any articles for the purpose of injuring Watt; I will not answer the question as to whether I am the author of the letter signed ``No Lawyer" or not; I have heard that a letter bearing that signature has appeared.

His Honor. - Let me put it to your discretion Mr. Therry, whether it is not proper to avoid getting into a long rambling discussion n matter not bearing on the question at issue; Mr. O'Shaughnessy has told you he does not think proper to answer the question; you must take his answer.

Mr. Therry. - My motive is, to put the Jury in possession of an important fact; if I can shew them that the witness is actuated by malicious feelings, and has written articles in the papers tending to prejudice the case, it will instruct them how to appreciate his testimony.

Witness in continuation. - I did not give anything towards the subscription; I thought it was an improper act, a trick; I did not think it was a felony, but I thought it was a most improper advantage to take; by a similar trick, I meant that I believed that certain matter had been surreptitiously obtained from our office; but I now believe that it was not so; I cannot swear the slip produced is the same; the subject matter is precisely the same; Watt and I were on intimate terms; I gave him a character (a memorandum produced); I wrote something to this effect; I was solicited by him to do so; he was at that time preparing a Memorial for the Royal clemency; the words ``superior man, and superior character," were used by me on that occasion, he had previously obtained a recommendation from the Archdeacon.

By the prisoner Halden. - I cannot say who the third person was who was present when I received the slip, it may have been Jelf; I expressed my dissatisfaction at the mode in which I suspected it had been obtained; I was Editor of the Gazette at that time; (Sydney Gazette of 10th June, produced); I will not answer you in reference to the paragraph you point out unless I am desire by the Court.

His Honor. - You may answer that question, witness - it is a discussion as to what amounts to a libel it was written by me on the 19th June, after the slip had been obtained, the slip was obtained on the 21st May; there is no dissatisfaction expressed there; the article has reference to the slip on which you founded your application; Mr. Aldis spoke to me on the subject of this prosecution on meeting me one day in Macquarie-street, he did not ask me to give evidence; I do not think he expressed any malicious feeling against Watt; he said he had found out matters about the slip; I do not think he supposed I knew anything about it; I dropped something like a charge which formed the materials of an affidavit.

Re-examined. - They circulated the alleged libel; themselves; I never knew copies of original matter to be obtained at one office for distributing among other offices, the practice if confined to advertisements; I never knew of an instance of such a letter having been taken from one office to another before.

Mr. G. R. Nichols. - The prisoner Halden brought the letter and slips to me at the London Tavern, which he said he had received through the two-penny post, the envelope bore the post mark; he drew his own affidavit; I never saw Watt write; I cannot take upon myself to say it is Watts' handwriting.

Cross-examination. - An offer was made to me, as Halden's Solicitor for him to save himself by becoming King's evidence; I said it did not rest with them, it was discretionary with the Attorney General whether a party were admitted evidence or not; my impression was that their object was to remove Watt.

By the Prisoner Halden, I advised you to abandon the prosecution for libel; I thought there might be some difficulty in proving the publication, and you declined pressing it any farther in consequence; the feeling in which it had originated had died away.

Cross-examined. - I am of opinion that the slips in question are mere waste paper; if a slip containing a libel were brought to me, I might take it for the purpose of punishing the author.

Mr. O'Shaughnessy re-called, by Mr. Therry. - It was Watt's province to pay Hay and other compositors; I am not aware of that article of news are ever hawked about from one office to the other, for sale; Hay was a compositor at the Herald Office at the time; I never heard of the practice of London nor Dublin, as to the usages of the newspaper establishments; I am not aware that it is usual with reference to Police reports, Public Meetings, Inquests, &c.; I never saw the interior of a Printing Office until my arrival in this country; I have been on good terms with Watt; I am not aware that any ill-feeling subsisted between us.

Mr. Thomas Strode. - I am Superintendent of the Printing Establishment of Messrs. Stephens & Stokes.  I remember some slips being taken from the ``Herald Office;" there were six slips struck off when the article was set up, Mr. Stephens had four, and Mr. Stokes had two; the compositors have no authority to take slips away, there is no means of preventing them; there was the same means of taking fifty as two; the value of the slips was five or six shillings; if we had the order we would send the slip of an advertisement to another office; I do not know any thing as to the charges, I cannot say whether it would be charged or not; the article is set up in the type of the ``Herald Office," and on the Herald paper, I could on comparison, select the type of the Herald from that used for any other newspaper in this Colony.  This witness was cross-examined for the purpose of shewing that the identity of the type and paper could not be established, but the witness was positive in his statements on these heads.

Mr. Stephens re-called. - These slips may have been corrected, but might be subjected to still further correction; they are of value to us until they are done with; this is similar to the paper upon which our slips are pulled, but it is not now the length, some of it has been cut off; I have little doubt it is our paper; we never furnish slips to other offices, I do not know what the paper might realize in the market, but I am of opinion that so much paper could not be got for a farthing; it appears that five shillings was got for it; I do not know what we might have done if the rule had not been applied for; the article might have appeared, and the loss would then have been nothing.  This closed the case for the prosecution.

Mr. Therry observed, that before the prisoners were called upon for their defence, he would submit to the Court that the information had not been sustained by the evidence.  He would submit, in the first place, with respect tot he prisoner Watt, charged in the information as being the receiver, that no evidence had been adduced as to his guilty knowledge; the only witness who attempted to make out that fact, admitted that he did not hear any particular conversation between Watt and Hay, which could warrant him in saying there was a guilty knowledge on the part of Watt; the identity of the paper had not even been attempted, and Mr, Jelf, poisoned as his mind evidently was against Watt, admitted that it was not worth one farthing, but was used as waste paper; the intrinsic value of the article was the essence of larceny, it mattered not what imaginary value the possessor chose to attach to an article really valueless to all the world but himself, such, for instance, as articles of Virtu, a person might attach the value of £50 to an article intrinsically not worth a straw, in the market; the learned gentleman cited a case where a hutch of Ferrets had been stolen, and sold for nine shillings, but it was held by the Judges, in that case, that I was that species of property of a base nature which was not protected by the Statutes as chattel property; he would therefore submit, that there had been no such evidence adduced in support of the alleged value, as would sustain the indictment.  He would call the attention of the Court to the property alleged to have been taken; it was a public libel which had been announced for publication in the Newspaper of the prosecutors.  In the taking of this slip of libel, for the purpose of publishing the libellers, there was a total absence of all desire of gain to the taker; and therefore there was no larceny: the ``arbiter dictum" of the Court, in a case in point went to support that view of the case as to the question of larceny; he alluded to the prosecution of two soldiers who had been tried at the Quarter Sessions on an indictment for larceny; it appeared they had gone into a shop and taken a piece of cloth, not for the purpose of appropriating it to their own use, but in order that they might, by putting themselves in the power of the civil law, get discharged from the army; the conviction was held to be erroneous on this ground, and the sentence was rescinded.  In the whole range of the criminal law, such a case as the one now presented to the Jury did not arise, they would be able to appreciate on inspection the value of that description of property which they would find to be charged in the libellous matter, which now became the subject of larceny; it was property of an illegal nature, and he would contend that it was not only lawful but praiseworthy to take possession of it for the purpose of bringing the parties to justice.  They would remember the case of Carlysle, the celebrated bookseller, who exposed in his shop-window caricatures and prints of a blasphemous nature, representing the Deity in a ridiculous way; a person who justly conceived it to be a flagrant outrage on public morals, broke the window and destroyed the pictures; for this an action was instituted against him by Carlysle, but the Judges held that it was unlawful property, and would not sustain an action.

His Honor - I do not think the action was tried - there was a rumour of the case about the time I left England, but I do not think it went farther than the Mansion House, where it was abandoned.

Mr. Therry continued - The present case was suigeneris, he felt satisfied that no similar case was on record, and as such he would leave it to that consideration to which it was entitled; no value had been established; no guilty knowledge had been proved; the statements of all the witnesses failed in this point; they had heard that he, Watt, had expressed himself on that occasion with reference to Hay, that he was a drunken old fellow, and he would give him no more than 5s.; no such statement was made by that witness on the examination at the Police office; but taking even that statement for what it was worth, coming from such a witness, what did it amount to - could they say that it established a guilty knowledge on the part of Watt, of the felonious taking ``lucri causa," for the sake of gain, which alone constituted the essence of larceny?  They would say not.  With respect to the prisoner Hay there had been no evidence in support of the felonious intent, indeed it went to negative the charge of larceny.  There could be no question that the taking of it had even been proved to their satisfaction, had been for the sake of punishing a libel and not ``lucri causa;" the taking for the purpose of a malicious injury might be established and yet the absence of lucrum would negative the charge of larceny.

His Honor - What will you say, Mr. Therry, if one of the party is proved to have obtained 5s.

Mr. Therry - I would submit that that fact has not been established; the witnesses do not assert that the conversation between the parties warranted a supposition that it was in consideration of the slips said to have been supplied.  Watt, in his capacity of manager of the establishment, had to make all payments to competitors and other persons; on these grounds he would submit that the prisoners were entitled to their discharge without being called on for their defence.  His Honor was of opinion that the case should go to the consideration of the Jury.

The prisoner Halden intimated to the Court that he laboured under some disadvantages as to his defence, as his Counsel Mr. Foster was unfortunately in the country; but a legal friend had reduced some objections to writing which with his Honor's permission he would read to the Court.  First, he would submit that the property laid in the information was of no real or intrinsic value; in support of this objection he would submit that the evidence had not proved it to be worth a farthing, while there had been no identity of either the paper or the ink, the only evidence offered being merely as to the impression of the type; by the admission of the prosecutor himself, it appeared that the original cost of the article was five shillings, and that one thousand copies had been circulated; the one thousandth part of five shillings therefore did not equal the smallest coin, the property therefore was really valueless.  Secondly the property was of a base nature, being a libel, and could not therefore be made the subject of larceny; in support of this objection he would submit that their Honors the Judges of the Supreme Court, held it to be if prima facie a libel, on the application for a Criminal Information against the parties who had published it.  Thirdly, he would submit reverting again tot he fact, that the skips had been taken for the purpose of punishing the libellers; that the act was not only legal but praiseworthy, and clearly distinguishable from felony in its character.  Fourthly, that the publication of such libels was against the spirit of the law, and calculated to render the press a curse to the community instead of a blessing; on these grounds, therefore, he would submit that there was no case to go to the Jury.

These objections being overruled by His Honor, Mr. Wentworth rose to address the Jury; he observed; that in support of the principal objection, namely, as to the value of the property on which the indictment was founded, the objection had been confined to the principle taken from the definition of larceny in the institutes, which had been also adopted and commented on by Blackstone; it was also to be found in the old common Law Authorities; but he would say that it had not only been doubted, but had been even held to be no defence in cases of theft; although ``lucri causa" was an ingredient in larceny in the Roman Law, it was certainly none in ours, which had been decided in a variety of cases; the learned gentleman cited a case from 2nd East P. C. 525, also 2nd Leach, Bygrave and Harris's case, where the felonious taking was held to be the essence of the offence.  If the Roman Law were to be the test whether this were to be a theft or not, as taken according to the definition from the institutes, what are the facts? had it not been established in evidence that the taker had been promised ten shillings, and had actually received five; it would be admitted that in none of the modern law authorities, on the definition of larceny, was value cited at all, but had been inserted in indictments as matter of form, arising out of the institution of grand and petit larceny, for the sake of distinguishing the one from the other; the former being for property above twelve pence, and the latter under the sum; for distinctions sake, the term value hereby found its way into our indictments; but it was not essential to the character of the offence, that the value should be set forth at all; it was not necessary to put in proof as to the value, particularly as the distinction between Grand and Petit larceny had been abolished.  But even should it be held that it was not worth one farthing, did it follow that it was of no intrinsic value whatever? there were symbols which were the fractional marks of parts of a farthing, and if it should appear to equal in value the least of these, the question of value was established.  It was contended that it was not saleable property; it was not necessary that it should be saleable; if the possessor held it as property, it mattered not whether any other person considered it of value or not.  He would admit that there was a class of animals which was not protected by the common law, but that was not the subject in question; what had the ferrets, quoted by the learned Counsel for the prisoners to do with paper; would it be held that stealing a ream of paper was not a larceny, if a ream then, why not a quire, a sheet, half-a-sheet, of a slip? where were we to stop in the consideration of value? could it be held consistent with common sense that stealing a slip of paper, which was a component part of a ream, was no offence in law.  He would cite, as his learned friend had done, a case which was tried in the Supreme Court, of the receivers of the notes stolen from the Bank of Australia, in the year 1828, where the convictions took place on a Count which set out the notes as mere pieces of paper - what else could they be? they could not be held as valuable securities, as they were taken from the coffers of the parties by whom they were drawn; but the parties had been subjected to expense in manufacturing other notes to supply their place; those pieces of paper, in question, yet they had been held capable of sustaining an indictment for larceny; the learned Gentleman here cited Clarke's case, reported in second Leach.

The learned Gentleman contended that although an article may not be of such chattel value as to be saleable, or yet of any value to any but the owner; yet it was capable of sustaining an indictment for larceny.  As to the base nature of the article in which the case was founded, that was a matter in which the Court could give no opinion, it was the province of another tribunal; to urge any analogy between the present case and that of Carlysle, was treating it in a way they were not authorized to do; this case was at the suit of the King himself.

His Honor was of opinion that whether the articles were of value or not, the offence had been against the King's peace, and was therefore, matter for the consideration of the Jury; he would however reserve the objections which should be submitted to his brother Judges if necessary.

The prisoner Watt had prepared a lengthy defence reduced to writing, which he read to the Court, the burthen of which was founded on the object of impressing on the minds of the Jury that the case had originated in the malice of the prosecutors and the witnesses, Messrs. O'Shaughnessy and Jelf, and were therefore not entitled to credibility.  Indeed, the defence was one tissue of vituperation throughout, such, for instance, as charging Major Mudie as having long been his persecutor in no other grounds than because he assumed that he had used his pen in deprecation of such inhumanity as had been practised.  Numerous testimonials of character were then read, which he had obtained in support of his petition to the King for a pardon.  He then dwelt at considerable length on the conduct of the witnesses O'Shaughnessy and Jelf, for the purpose of shewing that they were not worthy of belief, on their oaths, and commented on the series of letters signed ``No Lawyer," which had recently appeared in this journal, and which he attributed to Mr. O'Shaughnessy; and which according to his views established the fact that that witness was actuated by the basest malice towards him.  This defence which occupied two hours and three quarters being concluded, the prisoner Halden then commenced a written defence, the object of which was to shew the Jury the origin of the present prosecution.  In the course of his address he made several reflections of an offensive nature on the character of Mr. Francis Stephen, the attorney for the prosecution, when at the remonstrance of that gentleman to the Court, he was stopped.  The circumstance under which the writer of the letter which led to the prosecution, was assumed to have arrived in the Colony, was next made the subject of animadversion, when that person who was in Court, finding himself assaulted by groundless falsehoods, put forth, not because they were considered necessary to the defence, but for the purpose of degrading and destroying his character, rose and claimed the right of offering an explanation to meet the stigma cast upon him by the prisoner in his defence.  His Honor hereupon intimated that a desire to give the widest latitude to their defence had influenced him in listening with much patience to numerous improper observations which had been made, but as two persons had thrown themselves on the protection of the Court, he was bound to put an end to that line of defence.  The prisoner observed that he had conceived it proper to shew the Jury the circumstances in which the prosecution had originated, and had drawn up his defence with a view to that object; he did not how he could expunge one part without destroying the whole; he was, therefore, deprived of his defence and it was of no use for him to pursue it further.

The following witnesses were then called on the part of Watt.

D. Thompson Esq. - I am Clerk of the Council; I knew the prisoner Watt in the year 1832, he was employed in the office of the Colonial Secretary, but was lent to me during the Sessions of the Legislative Council, for about seven weeks; my opportunities of observing his conduct were not great; he was employed under the copying clerk; I considered him attentive and efficient as a clerk; I signed a memorial for him, I believed in order that he might obtain a Ticket-of-leave or pardon, I am not positive which; I had no reason to alter my opinion of him as expressed in that recommendation, I know nothing of his general character for honesty; I have had no reason to doubt his honesty.

Thomas Johnson. - I am overseer of the press-room in the ``Gazette Office," I have been there ten years; I have had some experience in the trade; I served my apprenticeship at Barnett's, Holborn-Hill; I have been in the trade twenty years; Mr. O'Shaughnessy was at the ``Gazette Office" before I joined it; Mr. Jelf was there about eighteen months ago; from what I knew of him I would not believe him upon his oath; Mr. O'Shaughnessy has left the ``Gazette Office" three or four months, I believe he left at the instigation of Messrs. Stephens and Stokes who wished him to join the ``Herald Office;" I have heard that he has joined the ``Herald;" I have, I think heard him express some ill feeling towards Watt; Watt was the superintendent of the establishment, and conducted himself with integrity, he was a very precise man, and had to pay all the persons employed in the Office; I have had no dealings with Jelf; there are plenty of slips like the one produced, lying about any of the printing offices at this moment; I swear it is of no value; they are corrected previous to publication; the proofs are pulled on inferior paper in England, but not here; there is plenty of paper of the same descriptions in the Colony; it is not worth a farthing, Oh dear No! paper is now 2l. 2s. per ream; I do not think there is any difference in the long primer type of the ``Gazette" and ``Herald," if there is, it is trifling; I am acquainted with Watt's handwriting; I do not believe that to be his; I have read his notes to me daily; he has been at the ``Gazette Office" about two years; the slips of the ``Herald Office" are frequently found in the privy of the ``Gazette Office."

Cross-examined. - I think that writing looks like a schoolboy's or woman's hand; I never saw any disguised handwriting; I can write a little but I am not a scientific judge of handwriting; slips are not considered waste paper until after correction, when they are thrown down under foot; if it had not been daubed with ink it might be worth half a farthing; I have given Mr. Jelf his character; I am an assigned servant to the Gazette Office; Mr. Jelf was not assigned, he was employed there as a Clerk through Watt's kindness; he had a commission for advertisements: I believe he now superintends the Wharf of Messrs. Aspinall, Brown, and Co., I considered he bore great animosity to Mr. Watt, he has spoken to me about him; how often have I been punished since I have been at the Gazette Office?  I don't understand you  Oh! I believe I have been twice to an Iron Gang.

Re-examined. - I remember Jelf calling my attention to some words between Mr. Watt and O'Shaughnessy, we were in the stationery room together; he asked me if I heard the expressions of Mr. Watt to O'Shaughnessy, at the same time observing it was worth a bottle of wine, and that they would work him, (Meaning Mr. Watt) out of it; I do conside that they bore malice towards him.

John Laurie. - I am a Compositor in the Gazette Office; I am acquainted with slips of this kind; I do not believe them to be of any value; after correction they are thrown down any where; it is not an easy matter to swear to type; there is a font of long primer at Mr. Jones' Office, similar to that of the Herald; I do not know them by their faces; the nicks correspond to each other; I should not be able to identify paper; I have been but a short time at the Gazette Office; I have not been accustomed to see Mr. Watt's handwriting; I saw slips of matter like that at the Herald Office; I was employed there nearly three years; that article was not tossing about the office; I saw it in the gallies; I composed part of it myself; the proof was dirty and required a good deal of corrections; it was easy of access to any person connected with the establishment in meal hours, particularly after six o'clock.

Cross-examined. - I would not consider it right to take one in that way.  This witness was cross-examined as to the slips, and gave his answers in a manner deemed by the Court to be highly important and was ordered to be confined for the night, but was released at the intercession of Mr. Wentworth.

Francis O'Brien - I am Collector at the Gazette Office; I have been there two or three months; I do not know Jelf personally; I knew nothing of his character, but from his disgraceful conduct which has come under my notice in the way of my duty, I should not believe him upon his oath; I have ascertained that he has committed acts of embezzlement; he took orders at half price.

Cross-examined. - And charged commission on the whole price, I call that embezzlement, it is for this that I would not believe him upon his oath.

Joseph Thompson. - I am a Compositor.  I am employed at the Gazette Office.  I heard Jelf say, Watt was a bad-hearted man and he would stick to him.  I did not hear him say any thing about lagging him.  That was about four months ago.

John Dally. - I am a dealer, residing in George-street.  I know Jelf.  I know nothing of his general character.

John Partington. - I am a Constable in the Sydney Police.  I had Hay in charge about four weeks ago I heard him in conversation with a person from the Herald Office.  I heard him say that if Hay wished he could pull himself through it.  He then gave him 2s.  I understood that he meant by turning King's evidence and telling the truth.

Mr. Surgeon Neilson - I know Jelf, he was in the habit of sending letters to me, respecting Watt, to such a degree that I was annoyed by them, so much so, that I returned them unopened.  I do not know much about the man; I believe he entertained the greatest anymosity towards Watt.  If he said, upon his oath, he bore no malice towards Watt, I would not believe him.

Mrs. Ann Howe - I am the Proprietress of the ``Sydney Gazette;" I know the two persons, O'Shaughnessy and Jelf; Jelf left our establishment three or four months ago O'Shaughnessy was obliged to leave on account of his pecuniary difficulties; I have no hesitation in saying that Mr. Jelf has very great ill-feeling towards Mr. Watt, so much so, that I have warned Mr. Watt to be on his guard and put nothing in his power; I am not aware of the circumstances out of which the ill-feeling arose; Jelf wrote several letters to me concerning Mr. Watt, but I sent the last letter back to him unopened, I was tired of receiving them; I considered him a very bad character, and I cannot say that I would believe him on his oath - I certainly would not, if he said he bore no malice against Mr. Watt.  I believe Mr. O'Shaughnessy's feeling towards Watt, to arise more from self-interest than malice - he considered him an hinderance to his return to the office.  I do not think Mr. O'Shaughnessy comes forward in this case from a pure love of justice, because I have known him to suffer the men to rob him without taking any notice of it.  I have always found Mr. Watt correct in his conduct; he has been three years in my employ; I speak of his character for honesty and general propriety; he has shewn me many persons who were robbing my family, and has got enemies by his fidelity to me; he has done every thing in his power to advance my interests; I would take him back to-morrow if discharged from this prosecution.  He has nothing to do with the management of the Gazette, the editor of which is Mr. Haswell.

Cross-examined. - I will not impute any desire, on the part of Mr. O'Shaughnessy, to perjure himself; I always found him very upright in his conduct, and I would not think him capable of taking a false oath.  I do think Jelf capable of any thing; if Mr. Watt ever said that Jelf owed him no malice, I do not think he was the best judge of the matter - I would call it an error in his judgment.

William Lithgow, Esq. - I know the prisoner Watt about two years; I have no reason but to think favorably of him; as a clerk, his conduct was assiduous and correct.

Cross-examined - My opportunities of observing his conduct were not considerable - I did not see him much; I was one of the Commissioners of the Church and School Corporation, and his conduct was taken into consideration every time they met.

This closed the defence.

His Honor Mr. Justice Burton in proceeding to lay the case before the Jury, observed, that much had been obtruded upon their consideration, in imputing the basest motives to the prosecutors in instituting the case; of those imputations there had been no proof, and they were bound therefore to discharge them from their minds; they had nothing to do with motives; they were now called upon to consider facts as they had been presented to them; evidence of malice, if any had been established, which he would remark on at a future stage of his observations, did not go to dispute the facts.  The had heard, that a variety of articles of a scurrilous nature had been published in the rival journals with which the parties in the case were connected; it said nothing for the purity of that press from which such vituperation had emanated, and still less for the taste of that public who could encourage it.  What must be the state of the press when such things could be said of writers and witnesses by whom it was conducted?  It furnished a useful lesson to the proprietors of the press, and to the community generally, on the propriety, and indeed the necessity, for the preservation of order and the protection of the public morals, to close the avenues of the press against the contributions of such dangerous writers.  The peculiar state of the press, as it presented itself to his mind in the present case, had suggested the foregoing observations.  He would now proceed to call their attention to the simple facts:- The first question for their consideration was, whether or not it had been proved that the prisoner Hay had been guilty of feloniously taking the property of the prosecutors; the evidence on this point commenced with the delivery to the parties charged as receivers; if they were satisfied that the evidence established the fact, it constituted what the law termed larceny, which was the wrongful taking of the property of another with the intent to appropriate it to the use of the taker; that was a question for them as the constitutional judges of the country; which had made them the judges of the law of the fact; he was only their minister, sworn to give them evidence as to the law, which they were bound by their oaths to consider, with the evidence as to the facts.  The question of the value was not material, if they were satisfied of the guilty taking; if the property so taken was of any valuable consideration to the owner, however small, it was sufficient to constitute a theft; it might not be of any value to another person, and yet be of value to the proprietor; it was assumed in this case, that because the property stolen was a letter which was found to be libellous, it could not be viewed as property over which the owner had a legal controul.  He would suppose, for instance, in order to meet the assumption, that he had a letter in his desk on the subject of his private concerns, or, to come nearer to the case under consideration, that a friend sent him confidentially a libellous communication, which might be characterized as a sheet of spoiled paper; if this had been taken away, although for a good purpose, it would be a theft.  The article referred to, purported to be a letter addressed to Messers. Stephens and Stokes, as Editors of the Sydney Herald, and signed Henry Murray, in reference to which a notice had been inserted in that journal of the 15th May; it would be for them to say whether the article contained on the slip was the article in question, and whether it was the property of the prosecutors; the notification stated, that Mr. Murray's letter was handed over for want of space.  In tracing this to the prisoners, he would direct their attention to the fact, that one of the prisoners, Hay, was employed at the Herald Office at the time; did not that satisfy them, taking that circumstance in conjunction with the evidence as so the delivery, that it had been taken by Hay?  A party might have a libellous letter by him which he did not choose to publish to the world, and was it because that letter was put in such a situation that access could be obtained to it, that an individual could go and take possession of it for the purpose of founding a prosecution upon it, on the ground that it was a legal act? he was bound to tell them that the purpose did not take away the fact.  This point had been raised before him at Norfolk Island where a convict had seized a soldier's musket for the purpose of setting himself at liberty.  The Counsel for the prisoners submitted, that as there as an absence of intent as to the felonious taking, the charge of felony could not lie; but it was his duty to overrule the objection, as the felony was completed in the taking, without reference to the motives of the taker; so, if as in the present case, a proof slip were taken from the premises of an individual for the purpose of preventing the publication of a libel, it was still no less a theft.  As to the evidence adduced in support of the charge, had such evidence of malice towards the prisoner at the bar, on the part of O'Shaughnessy and Jelf, been made out, as would discredit their testimony.  As to Jelf, they had had evidence of his expressions of ill will towards Watt in letters to Mrs. Howe and his observations to others, which went to shew a desire on his part to injure Watt, and that he was influenced by malice - but how did this reconcile itself with the expressions of Watt, in a note addressed to Jelf on the day before the examination of the case at the Police Office, where allusion is made to the quarrel between him and Jelf, which he, Watt himself, designated as a trifling squabble which he could forget and forgive; he, Watt, knew the nature of that feeling as well at that time as he does now; he expressed his opinion that Jelf had been imposed upon by some party, and he, Watt, would wish to see Jelf, if it were only to know by whom such imposition were practised.  This letter was of importance in weighing Jelf's credibility as to the imputation of malice.  As to Mr. O'Shaughnessy, imputations had also been cast upon his testimony; he had been called by Watt a base discarded servant; had any such evidence of ill feeling on the part of this witness been offered as would induce them to discredit his testimony; it was for them to consider whether there had or had not been a theft committed - this was the first question; then was the property taken of any value to the owner - with this the question whether there has been malice had nothing to do; was the charge proved, or was it not?  It was submitted as a ground of suspicion as to the credibility of Jelf, that he had stopped short in his evidence, and had not proceeded so far as the proof of the actual receiving with the guilty knowledge; he would observe that this circumstance was a satisfactory test of his credibility; if he had been solely actuated by malicious motives in furnishing his testimony in support of the prosecution, why did he stop short before the case was complete? did it not shew that he was not desirious of stating any thing which his conscience would not approve? did it not shew him to be the witness of truth?  This case was of some importance, as it involved the question whether editors of rival newspapers were to be allowed to invade the establishments of each other for the purpose of obtaining, by undue means, such matter as they might imagine to contain reflections on themselves; this would go at once to the subversion of every principle of order and of right, and would tend to the encouragement of all manner of breaches of confidence, practised towards them by their servants.  A man might choose to keep a libellous communication by him for his own pleasure, it was not therefore to be made a reason for violating the sanctity of his dwelling for the purpose of taking it away; it might be that he intended to publish it in his newspaper, but, until he did so, it was sacred in his room, as his property.  It was not to be denied that it was waste paper, even if considered as waste paper, for they were aware that in that character it was worth something if sold by the pound.  It had been illustrated by a brick and a straw in the street, which, on the principle of the present case, tendered the taker liable to a similar prosecution.  He would tell them that until the owner abandoned them, and thereby divested himself of his right of property in them, if they were taken without his consent, that taking would be theft - so it was with waste paper.  There had, no doubt, been a display of strong feeling in the prosecutor, which had been impeached by Watt, as the sole motive for bringing the prosecution, but that had nothing to do with the question as to the larceny - it was but the natural feeling of a man who smarted under the consideration that a gross breach of trust had been practised upon him by his own servants, at the instigation of the prisoners at the bar, - one of them, Watt, had attempted to justify the act, in his address to the Jury, and had put it to them whether they would not only have got possession of such a libel in the best manner they could as soon as possible, but would have taken the law in their own hands by the infliction of a summary punishment on the libeller; but he had felt bound to stop him, as it set up a most dangerous doctrine, as much at variance with common sense, as it was destructive of the peace of the community, and subversive of the wise principle of law by which such proceedings were restrained for the security of the public.  His Honor, in reference to the first point, recapitulated the evidence fully to the Jury; on this point it was proper to direct the attention of the Jury to the fact, that the prisoner Hay was in the employ of the prosecutors at the time, and had access to the property alleged to have been stolen, and delivered by him to the other prisoners.  The part of the evidence, which connected the prisoner Halden with the transaction, where he is heard to consult with Watt in these words, ``are you sure you will get it," and again, ``I have been thinking it will be the best way for me to send it through the post," it would be for them to consider whether this gave evidence of a guilty participation in the transaction or not.  With regard to the identity of the type and paper, they had heard the evidence on these points, and it was also a matter for their consideration.  They had been called upon by the prisoner Watt, who had had the widest latitude of defence to test the credibility of the witnesses by constructive malice; they had been told that Mr. O'Shaughnessy had been solely actuated by feelings of disappointment and revenge, that there were no other ground for this charge.  They would remember that he had expressed disapprobation of the course pursued by the prisoners at the time of the transaction, and had told them that such conduct was highly improper; the malice of this witness was sought to be established by the production of an article in the Herald of that morning, signed ``No Lawyer" for the purpose of prejudicing and influencing their minds in the consideration of the verdict; they had been called upon to discharge it from their minds; he trusted they would do so, but how was the imputation met by Mr. O'Shaughnessy; he denied having so sought to injure the case of the prisoner; that he had no seen the article to which illusion was made, he certainly refused to answer the question as to whether he were the author or not; but it was not on that account to be assumed that he was.  It seemed that all the parties in the case had been playing at contrary purposes, but was it just on that occasion to say that Mr. O'Shaughnessy was a person not fit to be believed on his oath; were they satisfied that the evidence warranted their arriving at that conclusion.  Did it not appear strange that Watt should have considered such a person as he had described Mr. O'Shaughnessy to be of sufficient importance as to respectability of character, to solicit his recommendation to a petition for the Royal pardon; they had there seen the name of O'Shaughnessy connected with the names of various persons of the highest respectability, yet now he turns round and calls upon you to believe that he is not a person worthy of being believed upon his oath; could they reconcile these facts?  Watt had presented numerous certificates as to character, but he would tell them that character did not alter the facts, if they were of opinion that the charge had been made out; and he would again revert to the principle before presented to them that it was no justification of theft, to say it had been committed for the purpose of founding a prosecution for libel; the character he maintained was no doubt of the highest value to his employers, because it was not to be questioned that he had deserved them, but it was not at all applicable to the case at issue, if the facts had been proved; if they had a doubt as to his guilt they would give his character full weight in the determination of the verdict; if guilty, it was of no avail.  It was for them, therefore, to say whether the charges was so founded in doubt as to overbalance by those testimonies of character, the suspicions of guilt.  They had been told that the witnesses were not to be believed on their oaths; the grounds of this assumption with regard to one of them was, that certain acts of embezzlement had been imputed to him; but before they rejected the testimony of a witness under the sacred obligation of an oath, they must have something more solid to influence their decision than that which had been adduced; would they consider a charge of embezzlement (which they would recollect had not been proved,) a sufficient reason for disbelieving a man upon his oath?  If they were of opinion that Hay did not steal the slip, it was their duty to pronounce a verdict of Not Guilty; but if they were of a contrary opinion, then came the question did the other prisoners received the same, knowing it to have been stolen?  If Hay was Not Guilty, the case against the other prisoner, of course, failed.

The Jury retired half an hour, and returned a verdict of Not Guilty, which was received with acclamations by the rabble with which the Court was thronged on the occasion.

His Honor observed, that he felt disgusted at such an exhibition of feeling, which amounted to nothing short of an outrage in a Court of Justice.  Justice, observed His Honor, when properly administered, requires no applause, and when improperly, it does not deserve it.  The trial concluded at Eleven o'clock.[ 3]

 

Notes

[ 1] See also the vast report published by the Sydney Gazette, 20, 22 and 25 August 1835 (which included testimonies in favour of the defendants); and see Australian, 21August 1835.  For the notes of the trial judge, see Burton, Notes of Criminal Cases, State Records of New South Wales, 2/2421, vol. 20, p. 70.

 The Australian, 28 July 1835 reported the following: ``Police Office. - William Watt (the supposed editor of the Sydney Gazette) a ticket of leave holder, Mr. William Blore Halden, formerly Reporter to the same Journal and James Hay, a Compositor in the Gazette Office, were fully committed at the Police Office yesterday, by the three Police Magistrates, and a numerous Bench of Justices, the latter for feloniously stealing, and the former with receiving, a printed slip of paper from the Sydney Herald Office, the property of Messrs. Stephens and Stokes, and for publishing which a criminal information had been granted by the Supreme Court against the Proprietors of that Jounal.

``On Friday, Mr. Ward Stephens received information which induced him to apply for a warrant against Hay, who was apprehended, and on Saturday, upon further evidence, he obtained warrants against Halden and Watt.  From the testimony laid before the Bench, it appeared that Hay then employed in the ``Herald Office," brought the slip to he ``Gazette Office," and that Watt received it, giving on the following day five shillings for it.  A conversation between Holden [sic] and Watt was deposed to, in which it seems to have been concerted that the slip should be sent to Halden through the post, as if from an anonymous friend, and this subsequently appeared to have taken place.  The envelope was produced; the address was in a disguised hand, but a witness stated his belief it was written by Watt.  The slip thus obtained became the foundation of the proceedings in the Supreme Court.

``Watt was defended by Mr Therry, Holden by G.R. Nichols, and Hay (at least so the Col. said) by Col Wilson.  Mr Wentworth attended for the prosecution.  It is not our purpose to give a detail of the case, but the interest which it excited induces us in the present stage to furnish this outline.

``Halden was admitted to bail; - bail was for the other prisoner refused.  The court was crowded.  Amongst the auditors we observed most of the Political characters of Sydney."

The Australian continued on 31 July 1835: ``Their Honors the Judges, have refused bail to Watt, of the Gazette Office, now in gaol on a charge of felony.  It has been hitherto laid down, as a principle, that persons in his situation should not be admitted to bail on such a charge."

See also Mudie v. Howe, 1836.

[2 ] See R. v. Stephens and Stokes (No. 2), 1834.

[3 ] For the comments of the Sydney Herald, see its second editorial of 24 August 1835, noting that the Sydney Gazette had commented that the  ``verdict of not guilty was received with three deafening cheers, and the streets rang with the shouts of some thousand voices.  When the prisoners went into the streets, they were carried away and cheered."  In the Herald's view, this was evidence that ``in this Convict Colony, Convict feelings were excited to a pitch of brutal madness on the acquittal of transported felons yet under sentence, and against whom a charge of felony had been a second time preferred.  It is true that the Supreme Court of Justice was crammed - we say intentionally crammed with `a dense mass' of cut-throats and cut-purses `on every side.' ... We accord our testimony to these transactions, and blush at the same time to think, that the Emigrant Colonists of the Territory have no protection against the outrageous displays of such absolute villainy." 

The Sydney Gazette's description of the verdict was published at the end of the third of its reports of the trial, on 25 August 1835.  The Gazette noted that Burton J. disapproved of the applause in the court, but responded to the judge's ``petulant philippic" by claiming that ``The people are seldom wrong in their opinions - in their sentiments, NEVER!!"

Watt was eventually sent to Port Macquarie on the recommendation of Burton J., though his ticket of leave was not cancelled: Australian, 15 September 1835.  For further comments, seeAustralian, 4 September 1835.

Published by the Division of Law, Macquarie University