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Decisions of the Nineteenth Century Tasmanian Superior Courts

Published by the Division of Law, Macquarie University and the School of History and Classics, University of Tasmania

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[criminal libel - Attorney General, criminal prosecution of]

R. v. Montagu

Supreme Court of Van Diemen's Land
Pedder C.J., 22 June 1829
Source: Colonial Times, 26 June 1829[1]

Mr. GELLIBRAND moved the Supreme Court, on Monday, for liberty to file a criminal information against Mr. MONTAGU, His Majesty's Attorney-General of this Colony, for a passage in a letter written by the Attorney-General to a Solicitor of the Court, about money matters of a private nature, but which Mr. GELLIBRAND conceived reflected on him, and considered libellous.
His Honor the Chief Justice PEDDER refused the motion on the ground that the Attorney-General could not file a criminal information against himself, nor could any other person do so, and condescended to advise the learned Gentleman, if he thought himself aggrieved, to commence a civil action for the alleged injury. We consider this advice, coming from the high quarter it did, as one worthy of notice. It is truly constitutional, and the proper remedy that ought to be resorted to in all similar cases against the subjects of a free state. We cannot find words sufficient; nor, could we find them, would it be prudent to express in adequate terms our reprobation and abhorrence of the system of ex officio and criminal prosecutions for civil offences, if indeed they in nine cases out of ten merit that appellation. It is at best any thing but a magnanimous act, to drag a Printer or Publisher upon such nice hair-drawn questions as supposed libels (proved to be so by such learned and competent witnesses as Captains BUNN and MCKELLAR), to a common prison, and then immure him in a damp cell among persons of every grade. We sincerely trust that the Legislature will take up the subject, and remedy this gross evil, and substitute civil actions in lieu, as recommended in the case before us, so manfully and constitutionally, by His Honor Chief Justice PEDDER.

Notes

[1] The motion was moved by the former Attorney General, Mr Gellibrand, see P.C. James, 'Joseph Tice Gellibrand (1786-1837)'. ADB, vol. 1, pp. 437-8 and for Montagu see P.A. Howell, 'Algernon Sidney Montagu (1802-1880), ADB, vol. 2, pp. 246-8.