[trial by jury - Stephen, Alfred, criticism of - convict service, withdrawal of assignments]

Bryan v. Lyttleton

Bryan v. Hortle

Supreme Court of Van Diemen's Land

Pedder C.J. and Montagu J., 27 June 1834

Source: Colonist, 1 July 1834[1]

The Attorney General rose to shew cause against the rule obtained by Mr. Gellibrand, that this case might be tried by a Jury. The learned gentleman said he begged to move the Court, that the cause might in any event be postponed until the Sittings after the next Term.

The Chief Justice. -- This is the last day of the Term, Mr. Attorney, the notice to the plaintiff is very short.

The Attorney General. -- I cannot help it your Honor. Unless this case is postponed for some considerable time, the defendant is very unlikely to obtain that impartial trial, which under the law he ought to have. The Colonist newspaper has been as busy in this case, as in the case of Bryan v. Hortle.

The Attorney General read several extracts from the Colonist, and proceeded as follows. Here therefore is the gentleman himself, inciting the Public to take up his cause, just at the time when such exciting things as these appear, when the public mind has attained a boiling heat, and with all steam on, they are to be allowed to drag us into Court, and compel us to trial by a Jury. In one of these passages, the Public are urged to apply the strongest mark of popular indignation. In others, the defendant is more obliquely hinted at as spy and informer. These are not the ordinary circumstances which Juries are granted. With mens minds this terribly, unjustly, horribly prejudiced, the plaintiff wishes his cause to go to trial. He asks also, that it may be tried by a Jury, in spite, too, of the passages I have read from the Colonist, wherein he calls upon the People to give the strongest mark of popular indignation. I must say, it would be monstrous to grant a Jury in this case. No candid, no honorable, no well-disposed mind, would say that a Jury should be granted. It is inconsistent with the nature of things, that justice should be done. I consider that the case should not be tried till the effect of those articles are got rid of, even should it remain untried until doomsday.

Mr. Gellibrand rose to reply. -- The case, said the learned gentleman, must be tried either by a Jury or Assessors, and it is much better, for the sake of obtaining impartial justice, and such as will satisfy the public, to send such a case to a Jury. If the Jurymen so far forget their duty, as to return a vindictive verdict, it is always in the power of the Court, to have the case tried again. On the one side there is danger, on the other side there is none.

Mr. Justice Montagu. -- For my part, I will never consent to a Jury in this case, the publication of such articles is monstrous -- the public must be prejudiced, and therefore a Jury ought not to be granted.

The Chief Justice. -- If there is a great danger of the Public mind being prejudiced, that is sufficient ground for refusing a Jury. I should like however, to hear what further observations you have to make.

Mr. Gellibrand. -- No, your Honor, I have nothing further to say.

Mr. Justice Montagu. -- The plaintiff has evidently been privy to the publication of those articles, and nothing can be more improper. As the Attorney General has observed, as soon as sufficient excitement was created, the action was brought, and not till then.

Rule discharged.

Bryan v. Hortle

The rule for a Jury in this case, was also discharged. With respect to the motion of the Attorney General for postponement if the trial, their Honors said, they were ready to make the rule absolute, if the Attorney General pressed it, also with respect to the motion for trial at "bar."

Solicitor General. -- The Attorney General, with submission to the Court, has the power of demanding a trial at "bar."

Mr. Justice Montagu. -- Yes, where the Crown is a direct party, in the present case it is not so, therefore he cannot demand it,

Attorney General. -- If the case, your Honors, were to be tired by a Jury, I should desire to have it tried at "bar", but not otherwise.

Mr. Gellibrand. -- The base of Bryan v. Leith, is precisely similar to those just disposed of, and I am now willing to agree to the withdraw of the demurrer, on the condition of having the case tried by a Jury. To this proposition the Attorney General would not agree.

With reference to Mr. Bryan’s previous cases, their Honors said, that the Court had the power to try either by Jury or Assessors, and they could not grant a Jury in either of those cases.

Mr. Gellibrand. -- I am instructed to say, under such circumstances, that it is not Mr. Bryan’s intention to proceed any further.

20 June, 1 July 1834

Source: Colonist, 1 July 1834

Bryan v. Hortle

This day the Attorney General moved to postpone the trial of this case to the Sittings after the next Term, upon the affidavit of Mr. Solicitor General McDowall, which was couched in the following terms:--

In the Supreme Court}

of Van Diemen’s Land}

{William Bryan, Plaintiff,

Between and

{John Hortle, Defendant.

Edward McDowall, of Hobart Town, in Van Diemen’s Land, Esq., Solicitor General for Van Diemen’s Land aforesaid, maketh oath and saith that this action was commenced on the day of last past; that issue was joined on the 13th day of June instant, and notice of trial given for the Sittings after this present Term; and deponent saith that this action is instituted in respected to withdrawal of His Excellency the Lieutenant Governor of certain transported offenders from the service of the said plaintiff, and is therefore intended chiefly for the purpose of determining the right of the said Lieutenant Governor of Van Diemen’s Land aforesaid as to the revocation of assignment of offenders under sentence of transportation; and deponent saith that such is a question which has long produced considerable popular excitement not only in Van Diemen’s Land but in New South Wales; and deponent further saith that reiterated comments and observations have from time to time during the last three months been published in several newspapers of Van Diemen’s Land relative to this action and to the said question raised for trial, and more especially in the newspapers published in Hobart Town called the Colonist of the 4th and 25th day of March last, of the 1st, 8th, 15th and 22nd days of April last, and on the 3rd and 10th days of June, instant; and deponent further saith that such publications are as deponent believes calculated to prejudice the minds of the Public upon this question in favor of the plaintiff; and deponent further believes that if the case be tried at the Sittings after this present Term, the cause will be by means of the said publications materially prejudiced; and deponent further saith that is appears by the imprint of several newspapers before referred to that Thomas Allen Lascelles is and has been during the period referred to, the publisher and Editor of the said Newspapers, and that he is, as informed and believes, upon terms if intimacy with William Bryan, the plaintiff in this action.

The Attorney General read the affidavit, and when he came to the passage as to the power of the Governor to revoke assignment of servants, the Chief Justice, looking towards Mr. Gellibrand, observed emphatically, "Surely it will not be contended in the face of the Act of Parliament, that the Lieutenant Governor does not possess the power whenever he chooses to exercise it." The Attorney General also read various extracts from the Colonist newspaper, but which were principally themselves extracts from other Journals, and which reflected in strong terms upon this proceeding as being arbitrary and oppressive; and he was about to cite other authorities to prove this motion was inconsistent with the practice at home, when he was stopped by the Court, stating that he might take the Rule. On Tuesday Mr. Gellibrand shewed cause, and proceed as affidavit shewing the delay in deferring the case from April to June had been occasioned by the Defendant himself, who had obtained the indulgence of that time to plead. Mr. Gellibrand therefore contended, that it was hard upon his client to be made answerable for publications during that period, which the defendant might have prevented by going to trial before the excitement complained of had arisen. He admitted that the material issue was the power given to the Governor by the Act of Parliament, and he expressed his regret that a question of such great importance -- in fact, the whole gist of the case -- had been, to a certain degree, determined by one of the judges, by what fell from him on the motion. Mr. Gellibrand observed, that it was a question of vital importance to every man in the Colony; and that it was necessary that the point should be fully decided upon; more especially, as a contrary judgement had been given upon the same Act by the three Judges in Sydney, one of whom is as enlightened a man, and as sound a Judge, as any in the southern hemisphere. The Chief Justice then observed, that he had not expressed a decided opinion upon the point, but threw it out merely as a suggestion; and that he had considered the observations made upon his having done so, as uncalled for. Mr. Gellibrand admitted, that the case had excited considerable interest, and, in fact, from its very nature, it was calculated to do so; but so anxious was Mr. Bryan to have the matter fairly and impartially decided, that he would suspend all further proceedings in the Colony, it the Attorney General would undertake an appearance for the defendant, in New South Wales, and, thereby, have a decision, where there could be no local excitement, prejudice, interest, or bias. Mr. Stephen said "yes, I dare say, you would; we will try it in New Zealand, if you like." Mr. Gellibrand replied, "no doubt, you would prefer such a place, where there is no Law, to Sydney, where it is so accurately administered." Mr. Gellibrand then argued strongly against the postponement of the trial, and urged, amongst other grounds, the hardship of Mr. Bryan suffering from causes, over which he had no control, and in consequences of which, justice might be forever denied him, for no [?????] a subject, in which the public interest, were so vitally concerned. In respect to the passage in Mr. McDowall’s affidavit, referring to Mr. Bryan’s intimacy with Mr. Lascelles, Mr. Gellibrand remarked, that that objection could not exist in New South Wales, where he had, certainly, no interest with Mr. Stephen’s, the Editor of the Australian. The Attorney General then replied at considerable length, and with much warmth. He admitted, that the action was defended by the Crown -- and that the Crown was substantially defendant; and that, although the Government had forbore noticing those reiterated attacks in the newspapers, he now gave public notice, that he would, as soon as the trial was over, prosecute every newspaper, for every libel it had put forth, during this discussion, and that he had only forbore doing so, in order not to prejudice this case. And when the time of trial came, he would shew, that all the Government were fully justified in all the proceedings which had taken place, in respect to Mr. Bryan. The Chief Justice then said, the Court would take time to consider.

The Attorney General then shewed cause against the rule, which has been obtained by Mr. Gellibrand, to have the case tried by a Jury. He stated, that this was a case, in which Mr. Bryan and the whole Colony, where on one side, and the Government on the other!!! It was a sure maxim in Law, that no man should sit in judgement of his own case; and in consequence of the statements put forth in the newspapers, that "what was the cause of one, was the cause of all," every man who sat in the Jury box, would be, in fact deciding his own case, sitting upon his own rights, and could not be an impartial man. The Attorney General exclaimed with vehemence, "Good God, Sir, is this the way the Law ought to be administered!! He submitted, that there would be no safety to the Crown, in trying the case with a Jury; and as the Act of Parliament imposed upon the Court, the painful, and in some cases, invidious task, of saying, what cases should be tried, and what should not, he felt confident, the Court would refuse the application for a Jury, and bring it before one of their Honors and two Assessors. He then intimated to the Court, that as this was a case in which the Crown was personally interested, he should exercise his privilege of Attorney General, of having the case tried at bar, which would of necessity carry the case over to next term, because trials at the bar, must take place in term time. Mr. Gellibrand proceeded to shew cause against the rule; he contended, that upon the Attorney General’s own shewing, the only fair and proper way of trying the case was, by a Jury; for, if it was necessary in any case to have a Jury, it was doubly so where the Crown was concerned on one side, and the whole community on the other. He had always felt the unconstitutional mode of proceeding by Assessors, and felt repugnance at seeing a Judge, act as both Judge and Jury. He adverted to the observations made by the Attorney General, upon the impossibility of having an impartial Jury. He said, "It is my duty, in consequence of these observations, to shew the other side of the question. In doing so I beg I may not be considered to say, anything generally offensive, to either of their Honors.

The Chief Justice -- "I do not understand the Attorney General to say, it is impossible to have a fair Jury."

Mr. Gellibrand -- "I certainly did so understand it, more particularly when Mr. Stephen apostrophised so strangely, as to the manner in which the Jury System operated." Mr. Gellibrand concluded, by repeating the ground he first took, and insisted strongly that the only way, in which the case could be fairly tired, would be by Jury; and, therefore, for that and other obvious reasons, quite unnecessary to advert to, the rule ought to be made absolute.

The Court took time to consider.

MOST IMPORTANT !!!

(From the Tasmanian)

We stop the Press, to announce that the Judges have just refused Juries in Mr. Bryan’s actions against Messers Lyttleton and Hortle, in consequence of Mr. Attorney General Stephen’s resistance to Mr. Gellibrand’s application. Mr. Bryan therefore, very properly discontinues all further proceedings here, and goes to England by the first vessel. We shall give a full report of what occurred this day in our next.

We deplore deeply the effects which this most injudicious course of Mr. Stephen cannot fail to produce. We deplore it for the sake of the Colony. We deplore it that the Head of Government will be involved therein, and most unjustly!

We shall in our next most respectfully submit to His Excellency, the course which would at once rally round him the whole Colony, heart and soul! We shall also offer our advice to the people in this emergency!

27 November 1834

Source: Tasmanian, 28 November 1834

BRYAN v. LYTTLETON.

The Attorney General moved for a rule to shew cause why this case should not be tried at Launceston, instead of Hobart Town, and he produced an affidavit from the defendant, shewing that the cause of action occurred at Launceston, and he should have sixteen witnesses on his part, and that the expense of bringing the witnesses would be at least £100.

The Court granted the rule to shew cause on Tuesday last Mr. Gellibrand shewed cause against it, and produced an affidavit from Mr. S. Bryan, a brother of the plaintiff, to the following effect:--

In the SUPREME COURT,}

Van Diemen’s Land. }

{ William Bryan, Plaintiff,

Between { and

{ William Lyttleton, Defendant.

Samuel Bryan, of Launceston, in Van Diemen’s Land, Esq. Brother of the above-named Plaintiff, maketh oath and saith, that the above-named Defendant is, and has been for several years the Police Magistrate of Van Diemen’s Land, and is connected by marriage with the family of Messieurs Archer, and upon intimate terms with various other gentlemen on that side of the Island, possessing very extensive local interest; and deponent saith, that he verily believes the subject matter of this action, has been much discussed, and many opinions formed upon the question upon the representations which have been made by the Defendant himself respecting the same; and deponent saith, that by the means aforesaid, he verily believes, that the said Plaintiff will not have a fair and impartial trial at Launceston, with a Jury composed of Gentlemen on that side of the Island, as he would obtain if the same were tried in Hobart Town, where neither of the parties possess any local influence or family connexions. And this deponent further saith, that the said Plaintiff is, and hath been out of the Jurisdiction of this Court during the last three months.

(Signed) S. BRYAN.

Sworn at Launceston,

Nov. 20, 1834

Mr. Gellibrand urged that the grounds alleged in that affidavit were sufficient to induce the Court to order that the trial of the case should not take place in Launceston; but at all events to order a jury to be returned from some other district, under the provision of the new Jury Act.

The Attorney General contended that Launceston was the proper place for the trial, and he again adverted to the publications which had formally taken place in the newspaper respecting the dispute between Mr. Bryan and the Government.

The Court ordered the case to be tried at Launceston, and refused to engraft to the rule any provision for the jury to be taken from any other district than Launceston.

Notes

[1] This report followed a long editorial on jury trial, heavily criticising the views of the Attorney General, Alfred Stephen. See also Tasmanian, 27 June 1834; and R. v. Widdicomb, 1834. See also Colonial Times, 1 July 1834.

It was clear law that those to whom convicts were assigned had a property right in the services of the convicts. The withdrawal of convict labour for political purposes led to great controversy and important litigation in New South Wales as well. See Bruce Kercher, "Perish or Prosper: the Law and Convict Transportation in the British Empire, 1700-1850" Law and History Review (in press, as at November 2002). See also the New South Wales cases, In re Jane New, 1829; In re Tyler, 1829; In re Hayes, 1829; Hayes v. Hely, 1830.

This case led to immense press controversy. See for instance, Colonist, 15 July 1834; Tasmanian, 27 June and 4 July 1834. The jury issue also reached the Launceston press. See for example, Launceston Advertiser, 21 August 1834.

William Bryan was an implacable foe of Governor George Arthur's and led the opposition against him in Van Diemen's Land and London, see A.G.L. Shaw, Sir George Arthur Bart, 1784-1854, Melbourne: Melbourne University Press, 1980, passim. Hortle was the Chief Constable who arrested Bryan's servant. Arnold, see J.M. Bennett, Sir John Pedder: First Chief Justice of Tasmania, Sandy Bay: University of Tasmania, 1977, p. 26 and R. v. Lewis, 1834.