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

R. v. Arden

criminal libel - contempt of court - press freedom - legal practitioners, admission

Supreme Court of New South Wales, Port Phillip

Willis J, 1 October 1841

Sources: Port Phillip Gazette, 4 Oct 1841; Port Phillip Gazette, 24 February 1842; Port Phillip Gazette, 3 October 1842[1]

  Source: Port Phillip Gazette, 4 October 1841  

SUPREME COURT - EQUITY SIDE.

Friday, October 1, 1841.

BEFORE HIS HONOR, THE RESIDENT JUDGE.

Mr. Croke, the Crown Prosecutor, said he had an application to make to his Honor, which he regretted exceedingly being under the necessity of making. The application was made under the necessity of making. The application was made on the affidavit of Mr. Montgomery, the Acting Crown Solicitor, which set forth that in a newspaper called the Port Phillip Gazette, of which Mr. Arden is the editor and proprietor, there had on the 29th September last appeared in the shape of a letter to the editor, signed "Scrutator," a false, scandalous and malicious libel, reflecting upon the administration of justice, and upon his Honor personally. Mr. Croke then read the libel complained of, which is as follows:

To the Editor of the Gazette,

SIR, In consequence of some sensible remarks which appeared in your last paper, as to the impropriety of Judge Willis directing the Crown Prosecutor to take steps to prevent raffles, I beg to direct your attention to a habit of his Honor's which is not only unbecoming in a Judge, but which has done much injury, and the baneful consequences of which will extend more widely over the colony, unless at once stopped by the interposition of an independent press. I allude to his Honor's practice of giving his opinion and directing the proceedings, not only in matters collateral, but even in those totally unconnected, with the question he is called upon to decide. To one who has attended the English courts of justice, and observed the scrupulous caution with which the judges there refrain from allusions to all portions of a case except that immediately at issue, and even then declining to make any remarks upon - not to say decide - any point to which their attention has not been directed by full and deliberate discussion. Judge Willis's conduct is in most startling contrast. No opportunity escapes him for scattering his dicta, for stating what he conceives to be the law and merits of every subject, no matter how extraneous to that under consideration, if it happens to strike his fertile fancy. Who has not censured the uncalled for stigmas he carelessly heaps on the conduct and character of Magistrates, Barristers, Attorneys, Witnesses, Suitors, or any one whose name may have been unfortunately mentioned in his court! The praise he never awards, except to those who flatter and cringe to him, is nearly as disgusting as the unmeasured censure he so copiously emits on the other wretched individuals who are dragged beneath the outpourings of his bilious temperament; and should he ever find a dearth of legitimate victims, Simpsons, Carringtons, Editors &c., with what a master hand, supported by what ancient authorities, will he summon from the peaceful repose of a newspaper advertisement a Cunninghame or a M'Nall, et tase coram judice, entire horses, donkeys, raffles, and gambling. But, sir, what is equally to be lamented, though not so generally known, is his practice of advising upon titles to land, the validity of grants from the Crown - stating that deeds are inoperative, conditions not being complied with - that the land fund having been applied to immigration, and not to the consolidated fund, all the Governor's conveyances are illegal and even if they were not lands said before the Governor has dated this grant can never pass the property to the purchaser, a fact whether in or out of court, the sole result of his unfortunate temper and his distorted judgment is raising disputes and fomenting instead of supporting litigation. Is this a fit or proper person to fill the highest judicial chair in the province? Judge he is not nor ever will be, being in every case so much a creature of deluding impulse. To those who are so connected with him as to be obliged to bear the burthen of his acquaintance, the endless disparaging terms in which he speaks of his late brother Judges, the gentlemen of the bar and all with whom he came in contact in Sydney, the egotism and vanity which actuate his very look and expression, have demonstrated that the fountain of his acts is drawn not from the pure sources of liberal learning and enlightened knowledge, but the sterile rock of intolerance and self conceit, coupling these with his penurious miserly habits, for never was he, who from his position and salary should be an example of liberality, known to see a friend when his poverty stricken doors has he, I would ask, a proper person to have been sent to a young colony as a Judge? Yet, Sir, some hope remains that this paralysing member of an otherwise healthy community may ere long be removed, under the constant fearless cautery of an independent press.

I have the honor to be, Sir,

&c., &c., &c.

SOLICITOR.

Before signifying the nature of his application, Mr. Croke said, he would take the liberty of offering to the court a few introductory remarks. The liberty of the press and freedom of discussion are allowed to be blessings whether in an old or a new country, but there must be a limit to the latitude of discussion, and if that limit be once transcended freedom degenerates into licentiousness, and it is absolutely necessary for the good of society that there should be some power of restraint - some means of punishment. I should never, said the learned gentleman, have given your Honor the pain of hearing this letter read if the writer had been satisfied with casting personal aspersions upon your Honor, for I should have considered it unworthy the high station you hold to notice the venom of an anonymous assault, but I feel that it is a wanton and malignant attack upon the pure and legitimate administration of justice, and I cannot consistently with my duty to the court and to the public pass it unnoticed. The editor of the paper has not given up the author of the libel, I shall therefore call upon the court to visit him with the punishment due to the offence, I should not have made this application if I did not conceive that it was the aim of the writer to bring the administration of justice into contempt, and I consider that there is no species of libel more deserving of condign punishment than that which reflects unwarrantably upon the administration of justice. I pity, said the learned gentleman, the anonymous writer of this epistle, for I judge of him by his writing, and I think the man must be utterly worthless who would thus wreak his vengeance on either the high or the low, from whom even the high and sacred character of a judge is not safe. Mr. Croke then applied to the Court to issue a conditional order for an attachment against Mr. Arden.

Judge Willis enquired whether Mr. Arden was in Court.

Mr. Montgomery said he had been sent for but was not at his office.

Judge Willis. Let him be sent for again.

Mr. Montgomery. I understand, your Honor, Mr. Arden will not be in attendance as he is busy with the preparations for his next paper.

Judge Willis. Then he must be sent for in another manner. Before I take into consideration Mr. Croke's application, I think it my duty to inform the public that this is so scandalous and malicious a libel that I thought it my duty before coming into Court today to make an affidavit before the Police Magistrate, in order that this editor may be compelled to give sureties for his good behaviour, and I now call upon the Police Magistrate to issue his warrant that he may be brought up in custody.

Major St. John here withdrew from the bench and issued his warrant that he may be brought up in custody.

His Honor continued. Had this attack been a personal one, emanating as it does, from a ruffian without a name, I should have thought it unworthy of my notice, but I feel that it is an attack through me on the administration of justice and I cannot refuse to take cognizance of it. For personal scurrility I care not, and anonymous libellers I would treat as Lord Chancellor Thurlow advised a Mr. Holt, who complained of being libelled in the Morning Herald for the evidence he had given on the trial of Warren Hastings, to treat the anonymous author of the libel he complained of. "Mr. Holt," said his lordship, "will listen to a short suggestion, as from one gentleman to another; he knows our advice is friendly and from experience he may find it just. The scurrility is below his notice. On the barbarity of illiberal language a man in liberal life should indulge the pride of pity to the creature without a name. Such is the conduct we practice ourselves, and recommend to the practice of others inasmuch as while scorn is preferred to rigour, there is not only ascendancy, but virtue, and virtuous use." This is not the first time I have been attacked through the same source; on the 21st of July an attack of a similar nature was made upon me, and thinking then, that with a generous mind, liberal measures would have more effect than the harsher course it was in my power to take, I sent for this editor, and I said to him as I say now, if I am wrong, or am supposed to be wrong, let my conduct be brought before the proper tribunal where it can be carefully investigated, but let me not be stabbed in the dark. Knowing the risk of misrepresentation to which I exposed myself and the advantage which might be taken of my candour by a person who had so grossly libelled me, I took the precaution to commit my remarks to writing, and I shall now read them to show whether I have deserved at the hands of this editor such treatment as I have received. (His Honor then read the paper, but the pressure of other matter prevents our giving it insertion.)

In the succeeding number of the Gazette there appeared a report of the interview, certainly not a correct one, but as correct, perhaps, as could be expected, considering that the writer trusted to his memory, and had not taken notes.

His Honor then proceeded to notice, seriatim, the matters referred to in the libel. With reference to Mr. Cunninghame's case, he said that he had casually seen an advertisement in the public newspapers, proffering the services of an entire horse, and he had thought it his duty to enquire whether the Mr. Cunninghame referred to was the barrister of that name, for he considered that such an avocation was unbecoming the dignity of the bar. That he did not do so without reason was evident from the fact that the admission of Mr. Daerdan, a solicitor, was refused because it appeared from the report of the examiners, that he had, before the establishment of the Supreme Court in the province, been engaged in business as an ironmonger and stationer, and he could not conceive the advertising the services of an entire horse less an engaging in trade than the taking up the business of a stationer - neither could he consider otherwise than degrading to the bar, that a gentleman belonging to the profession should be receiving with the one hand the wages of his horse's services, and with the other his fee as a barrister. It was the practice at home to refuse admission to the bar to a gentleman who had engaged in business; Mr. Rattenbury, a student at Gray's Inn, was refused admission because he had been engaged in business as a timber merchant, another gentleman of great ability with whom he was personally and intimately acquainted, had been refused admission, because at one period he had been engaged in the corn trade. Murphy, whom every classical mind must remember, as the accomplished translator of Tacitus, was refused admission to the Bar, because he had at one occasion appeared on the stage in one of his own plays. I would not, said his Honor, admit to the bar any gentleman engaged in such a trade, else I should be guilty of injustice to Mr. Daerlin, and if Mr. Cunninghame be the owner of Houndsfoot, I would recommend him to get rid of him as speedily as possible.

His Honor then referred to the case of Mr. Sampson, whom he had occasion to censure for neglecting his public for his private duties, and to the case of Mr. Carrington who had been guilty of the crime of receiving a prisoner's money, whom he left without defence, and in both cases his Honor said he had done nothing but what he considered his duty.

His Honor then entered upon a lengthened explanation with regard to the accusation made against him advising upon titles to land, which he said was altogether false. At Sydney he had repeatedly tried issues involving the valuation of titles to land, and he had found much irregularity existing, but he had never given an opinion which had not been given in the discharge of his duty, and which had not received the sanction of the other judges on the bench. The only source to which he could trace this dastardly attack was the following: just at the time the intelligence of the abolition of the special survey system reached the colony, he was returning to his residence at Heidelberg one day, and happened to fall in with, on the road, two gentlemen, magistrates of the territory, with whom he entered into conversation, and congratulated them that the special survey system was at an end, and expressed his hope that the pound an acre system would soon follow. The conversation turned upon the validity of titles to land, and one of the gentlemen having asked his opinion, he said he would tell them how he had ruled in a case which came before him at Sydney, and would do now were the matter brought under his notice. This private conversation was the sole ground this dastardly assassin - he would not call him a man - had for accusing him of fomenting litigation, and acting as a common barrator. I have, said his Honor, been always desirous to prevent litigation; indeed, I am here for no other purpose today than to save litigation, and to spare the creditors whatever may be left of an estate. I am happy to say that there has been much forbearance shewn by creditors here, and though the number of writs issued this term is so large that I should hesitate to mention it for fear of injuring the credit of the colony, still it is matter of congratulation that it does not bear the proportion of a tithe to the number issued at Sydney.

Having thus explained paragraph by paragraph, in his own justification, the imputations cast upon him in this libellous production, his Honor said he would now proceed to consider the application before him for an attachment. I am, said his Honor, no enemy to the freedom of the press; I consider that a free public discussion of all public measures is a great public good, and frequently does more to relieve prejudices, to correct errors, and to point out the proper mode of proceeding, than any other intervention of human wisdom. Freedom of discussion is justly described as the power of presenting all opinions equally, relative to the subject of discussion, and of recommending them by any medium of persuasion which the author may think fit to employ. If any obstruction be given to the delivery of one sort of opinion, not given to the delivering of another; if any advantage be attached to the delivering of one sort of opinion, not attached to the delivery of another, so far equality of treatment is destroyed, and so far freedom of discussion is infringed; so far truth is not left the support of her own evidence, and so far, if the advantage be attached to the side of error, truth is deprived of her chance of prevailing. Such is the view I take and have always taken of the meaning of freedom of discussion. The liberty of the press is essential to the nature of a free state, but as Blackstone tells us, "to censure licentiousness is to maintain its liberty undoubtedly." The good fame of every man ought to be under the protection of the law, as well as his life, his liberty, and property. Good fame is the outwork that defends them all and renders them all valuable. "The law forbids revenge, and when it ties up the hands of some, it should also restrain the tongues and pens of others." But while I would have discussion free, I would only have it so in so far as truth prevails, and there is neither truth nor honesty in this dastardly attack.

The first point for consideration, his Honor said was, whether this paper was published in accordance with the law, and this it was the duty of the Crown Solicitor to ascertain, in order that compliance with the law might be enforced, and if necessary the penalties recovered. This must be done. The next point was whether he should issue an attachment. In the case of any other person he should immediately have adopted this course, but as he could not do so without subjecting himself to the necessity of becoming the judge in his own case, he must adopt another course. He could not himself leave the province, and the case could not be tried either civilly or criminally in the Supreme Court or in the Court of Quarter Sessions, for in both these he was bound to preside, and he would never, so long as he might avoid it, sit as a judge in his own case. He had therefore sworn before the police magistrate, that this is a false, scandalous, and malicious libel, in order that he might have this editor bound over in sureties for his good behaviour, a conclusion, his Honor said, he would briefly refer to the contemptible remarks which form a distinguishing feature of this libel. "I am charged," said his Honor, "with being penurious: I pay my debts, I owe no man money, and I will not get into debt. I came to this district because I alone had urged the necessity of the appointment of a resident judge here; I came at considerable expense to myself, and I live here at least at one third more expense than I did at Sydney. I will not, whatever may be said of me, live beyond my means, and I think I may be allowed to regulate my household affairs for myself. Such contemptible remarks must record upon the creature who has used them."

His Honor said he would now leave the matter in the hands of the magistrates.

Mayor St. John, the police magistrate, addressing Mr. Arden, who had come into court during his Honor's concluding observations, said, Mr. Arden, the magistrates are of opinion that you shall find sureties for your good behaviour for 12 months, yourself in £400, and two sureties in £200 each.

Mr. Arden wished to address himself to the Judge in reply to the remarks which had fallen from his Honor, but the Judge refused to hear his explanation, unless on affidavit, and on his persisting, threatened to give him into the custody of the tipstaff.

His Honor said he would now leave the bench, and let the magistrates decide the case in his absence. On his departure, Mr. Arden again wished to address the bench, but the magistrates reminded him that it was not their role, and that having been refused a hearing by the judge, they could not permit him to make any defence. Finally it was agreed that the defendant should be allowed until the following day to find the necessary sureties. Mr. Arden then left the court, and at the door was saluted with the cheers of the assembled multitude.

Willis J, 21 February 1842

Source: Port Phillip Gazette, 24 February 1842

Mr CROKE, on rising to address His Honor, observed, that after giving his best consideration to a case which had been laid before him, he had come to the conclusion not to bring it under the notice of the Court; I (continued the learned counsel) allude to the case of Mr. Arden, and although I entertain a very strong opinion regarding the animus male displayed by that gentleman in answering certain interrogatories which were propounded to him, yet considering his present unfortunate situation, and the difficulty which exists in getting a jury to convict, or I might rather say the uncertainty of obtaining a conviction, induces me to adopt the line of proceeding which I have now just stated.

Judge Willis. Well, Mr. Croke, you are the proper person to decide upon the matter, holding as you do the power of a grand jury, it rests entirely with you as to the propriety of taking further proceedings. I must however, say, that I certainly entertain a strong opinion upon the subject, although with you, I think there might be some difficulty in inducing a petty jury to convict.

Source: Port Phillip Gazette, 3 October 1842

The Queen v. Arden. His Honor said, he had received a letter from Mr. Arden inclosing a memorial which he had sent to His Honor the Superintendant, praying for a mitigation of his sentence on several grounds, and asking him to recommend its prayer. His Honor said, he could not recommend any mitigation, for Mr. Arden by his own memorial, acknowledged that he could not be answerable for his own behaviour. He must, therefore, be put in such a situation as would prevent him from doing further mischief. It was his bounden duty to prevent a repetition of his former conduct, as he could not so far trust himself as to be answerable for his own acts.

Mr. Arden said, that many parties here were constantly exciting him to commit a breach of the peace, and it was under these circumstances that he could not depend on what he might do.

His Honor said Mr. Arden must place his temper under control. If any one took advantage of his situation and endeavoured to excite him to commit an assault, let him be brought before him, as he had the power as a magistrate to deal summarily with such persons. Nothing was more cowardly than to provoke a person situated like Mr. Arden. It was as cowardly to provoke him, as it was to libel a woman, or a judge. His Honor said he might, perhaps, have been provoked at the libel which Mr. Arden had transcribed from another paper. Mr. Arden should learn a lesson from his own feelings.

Mr. Arden said the paragraph to which his Honor alluded was put into the paper without his knowledge.

His Honor. I am very glad to hear you say so, Mr. Arden, but that will not excuse the printer, and any one printing such libels although transcribed from other papers will be held responsible. If you cannot find security, the law must take its course, for I do not pass sentences to be made mere playthings of.

Mr. Arden said he was not aware of the paragraph being in the paper when it was published, but he would not flinch from his right of putting in anything of the sort.

His Honor. If you do so you will be punished. It was my extreme wish to prevent your incarceration if possible. I trust your friends will still come forward and assist you out of difficulty. I am willing even now to give you further time for that purpose.

Mr. Arden was then ordered into the custody of the sheriff. After the court rose, however, it was arranged that he should be allowed another fortnight to find the required sureties.

Note

[1] Justice Willis was one of the most controversial members of the Supreme Court of New South Wales. He had already been amoved from judicial office in Upper Canada before he was appointed to the Supreme Court of New South Wales. His fellow judges in Sydney found his company to be difficult, and he was appointed as Resident Judge at the Port Phillip District. There his combination of undoubted legal skills and ability to irritate members of the bar and public once again set the newspapers alight.

This case contains a summary of the view of his critics, in the letter to the editor of the Port Phillip Gazette.

See also the related cases of Re Carrington,1842; and Ebden v Willis, 1843. This was not the first time that Willis J. expressed his displeasure about the Port Phillip Gazette: in an address to the jury reported in the Gazette of 18 April 1841, Willis J. criticised an editorial of 1 January 1841 in which Arden criticised Governor Gipps.

Published by the Division of Law, Macquarie University